Petition Of F Z For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lady Paton,Lord McGhie |
| Neutral Citation | [2012] CSIH 87 |
| Date | 27 November 2012 |
| Docket Number | P1267/11 |
| Published date | 27 November 2012 |
| Court | Court of Session |
| Year | 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lady Dorrian Lord McGhie | [2012] CSIH 87 P1267/11 OPINION OF THE COURT delivered by LADY DORRIAN Reclaiming Motion in Petition of FZ Petitioner and Reclaimer; For Judicial Review against a Decision of the Secretary of State for the Home Department Respondent: _______________ |
Alt: Webster; Office of the Advocate General
27th November 2012
[1] This is a reclaiming motion from a decision of the Lord Ordinary dismissing the appellant's petition for Judicial Review of a decision of the Secretary of State refusing to treat the petitioner's submissions of 4 October 2011 as a fresh claim.
Background
[2] Although the substantive point in this case related to the importance of treating the welfare of the children as a separate and primary issue untainted by reference to the applicant's own immigration history, it is convenient to start by setting out the background in chronological order. This inevitably means starting with that history. For convenience the reclaimer and his wife will be referred to as "the parties". The reclaimer entered the UK illegally in May 2001 using a French passport which was not his own. He claimed asylum and was granted temporary admission. Meantime, the woman who later became his wife also entered the UK illegally, in July 2002, using a forged passport. She too claimed asylum. After various appeals, her claim was eventually dismissed in October 2003. The reclaimer's application was also dismissed in October 2003. The parties married in November 2003. Later that month, the reclaimer's wife submitted further representations based on an article 8 claim. In the meantime, the reclaimer lodged an appeal. The parties' son was born in April 2004. By November 2004 the reclaimer had exhausted his appeal rights. In January 2005 his wife's further submissions were rejected with no further right of appeal. In October 2005, she was detained along with her son and both were removed to the Congo. In the same month, the reclaimer was treated as an absconder. In March 2006 his wife and son re-entered the UK illegally, using passports and a resident permit that did not belong to them. His wife claimed asylum , citing the reclaimer and the son as dependents. That claim was refused, then made the subject of a reconsideration hearing before eventually being dismissed in July 2007. The reclaimer's rights of appeal were exhausted that same month. Further representations on his behalf (the subject matter of this reclaiming motion) were made in June 2010. The parties' third child was born in April 2011. Documents submitted with the further submissions showed that the elder two children were at school in the UK, that the reclaimer's wife was attending college and that they were members of a church in Glasgow. It was maintained that they should not be deported having regard to Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009.
The decision letter
[3] The Secretary of State, by letter dated 4 October 2011, declined to treat the further submissions as a fresh claim. She first dealt with the merits of the reclaimer's own article 8 claim. She then dealt separately with the article 8 rights of other family members. It was noted that there was both family life and private life established in the UK, but the only family ties were with each other, and the respondent did not consider that the family's return to the Congo would be "so detrimental on the friends you have made through school, church and the community as to impinge on their rights under article 8."
[4] The respondent recognised that she had to exercise her functions in a way that took account of the need to safeguard and promote the welfare of children in the UK, meaning that the best interests of such children were a primary consideration in the evaluation of the proportionality of a decision to remove the family from the UK.
[5] Addressing that issue she said:
"It is noted that you have not provided any information which pertains specifically to the best interests of your three children. A new Immigration Judge would conclude that although health care and education in the Congo may not be of the same standard as in the United Kingdom, the children's best interests will be to remain with their parents and raised in their own culture. Furthermore, if you return together there is no reason to believe that relocation to Congo would have a particularly detrimental effect on your children.
In conclusion, even taking into account the length of your residence in the United Kingdom, the ties that your family have built up whilst you have been here, through friendship and education, it is clear that the balance is struck in favour of your family's removal"
[6] She then went on to consider other factors such as the need to maintain effective immigration control, the reclaimer's immigration history and the fact that any family or private life was established when residence in the UK was precarious. In all, she considered that there was no realistic prospect of a new Immigration Judge finding that removal of the family would breach article 8 rights.
[7] The reclaimer brought a petition for judicial review, claiming that in assessing the best interests of the children, the respondent had given inadequate consideration to the country information regarding the educational system in the Congo, had given insufficient weight to the length of time the children had lived in the UK or the ties made during that period or to the fact that their participation in the UK educational system strongly pointed to their continued residence here as necessary for their best interests.
The Lord Ordinary's opinion
[8] In her opinion the Lord Ordinary made reference to the documents which had been submitted with the further submissions, noting that:
"None of these documents raise any issues about problems which the children might face if they are removed with the petitioner and his wife to the Congo to live there instead of the United Kingdom. The documents do have some limited information about the children...
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