H.h.g. For Judicial Review Of A Decision By The Secretary Of State For The Home Department

JudgeLord Boyd of Duncansby
Neutral Citation[2014] CSOH 48
Published date12 March 2014
Date12 March 2014
CourtCourt of Session
Docket NumberP109/13


[2014] CSOH 48



in the Petition of




Judicial Review of a decision by the Secretary of State for the Home Department


Petitioner: Irvine; McGill & Co

Respondent: Duthie; Solicitor to the Advocate General for Scotland

12 March 2014

[1] This is a petition for judicial review of a decision by the Secretary of State for the Home Department (the respondent) to refuse the petitioner Indefinite Leave to Remain (ILR) under the case resolution programme (CRP).

[2] The petitioner is an Iraqi national. He came to this country in 2002 and later that year claimed asylum. This was refused but he was granted Exceptional Leave to Remain (ELR) until 27 May 2006. On 8 March 2006 he was convicted in the sheriff court on a summary complaint of indecently assaulting three 14 year old girls. Sentence was deferred for him to be of good behaviour and he was made subject to the notification requirements under the Sexual Offences Act 2003, colloquially known as being placed on the Sex Offender Register. On 9 May 2006 the petitioner made an application for ILR. It is a requirement of such applications that the applicant disclose any criminal convictions. The petitioner disclosed a road traffic conviction but failed to disclose the conviction for indecent assault. When he appeared before the sheriff on 27 June 2007 in respect of the deferred sentence he was admonished and he was removed from the Sex Offender Register.

[3] On 5 September 2008 the application for ILR was refused and he was served with a deportation order. The two decisions were contained in a single letter. Accompanying that letter was a statement of reasons which applied to both decisions. In essence they were both made on the basis of his conviction for indecent assault against three 14 year old girls. It is understandable that both the decision to refuse ILR and to deport the petitioner were made at the same time and on essentially the same grounds. However the decision to communicate both decisions and the reasons therefor in the same letters led to an unfortunate confusion in the mind of the respondent of the statutory basis for each decision. They are different. A decision to refuse ILR is made under the Immigration Rules (IR) and in particular paragraph 322. Extradition is dealt with under section 3 of the Immigration Act 1971 (the 1971 Act). Notwithstanding that the statement of reasons declares

"in view of your conviction for Sexual Assault on three 14 year old girls this application (the application for ILR) has been refused and a decision taken to initiate deportation action against you under paragraph 322(5) of the Immigration Rules."

It was of course perfectly permissible to refuse ILR under paragraph 322(5) of the IR but not the decision to deport. The letter later states that

"It has been decided to refuse your application for indefinite leave to remain in the United Kingdom as your presence would not be conducive to the public good."

Paragraph 322(5) of the IR states that leave to remain in the United Kingdom may be refused on the ground of

"(5) the undesirability of permitting the person to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security."

[4] Section 3(5) of the 1971 Act provides that the Secretary of State may deport a person who is not a British citizen if she "deems his deportation to be conducive to the public good". So the reference to the petitioner's presence not being conducive to the public good should be in relation to the decision to deport, not the decision to refuse ILR.

[5] It is clear that the same reasons may found a decision under paragraph 322(5) to refuse ILR and a decision to deport on the ground that his deportation would be conducive to the public good. The respondent's position is however that there are two separate decisions and that it is possible for different results to emerge from the same circumstances. That being the case it is unfortunate that at the start of this process the respondent chose to intermingle both the reasons and the statutory basis of the decisions.

[6] The petitioner appealed to the Asylum and Immigration Tribunal (AIT). I was shown the grounds of appeal. They do not state whether the appeal is against either the refusal of ILR or the deportation order. The grounds however quote the Home Office reference number and case outcome ID which appears to apply to both decisions. Whatever the intention the appeal was heard on 9 January 2009 and the determination was published on 21 January 2009. The AIT allowed the appeal against the deportation order. Nothing is said about the application for ILR. Miss Irvine, for the petitioner accepted that the appeal was confined to the deportation order. Neither party appealed against the determination.

[7] There matters rested for some time. The petitioner apparently instructed new agents who began correspondence with the UK Border Agency regarding his status. In particular they wrote to the Agency on 18 August 2011 requesting a final decision on the petitioner's case under the CRP. The Agency replied to the petitioner on 26 April 2012. That letter stated,

"I am writing to inform you that your case has now been fully reviewed by CRD (Case Resolution Directorate) and the outcome is that you have no basis for stay in the United Kingdom. Please note that the appeal allowed was in relation to the Deportation Order only and that the decision of 5th September 2009 (sic) to refuse Indefinite Leave to Remain was maintained."

No reasons were given in that letter for that decision.

[8] The petition as originally framed was against that decision. It appears however that there was in the interim further correspondence and the petitioner was invited to make fresh representations. I understand that the petitioner declined to do anything further than rest on the points made in the petition. In any event the respondent issued a fresh letter dated 17 May 2013 which contains detailed reasons for maintaining the decision to refuse ILR. The respondent however reiterated that no information had been received about the petitioner's current circumstances including the extent and quality of his private life and his integration. It remained open to the petitioner to make further representations on these matters and on receipt a further decision would be made. To date no further representations have been made.

[9] The petition and answers have been amended in light of these developments and it is accepted that it is the decision letter of 17 May 2013 which is now the operative decision of the respondent. The letter informs the petitioner that further consideration has been given to his application for ILR. The letter notes paragraph 322(2) of the IR which gives as a ground for refusal the failure to make false representations or declare any material facts in an application for inter alia ILR. The application for ILR makes it clear that all criminal convictions must be disclosed. The statement of reasons for the decision to refuse ILR and to deport the petitioner made reference to the failure to disclose the conviction as background. However on a proper reading of the statement of reasons it does not appear to have been a material consideration in 2008. The letter of 17 May 2013 noted that at the time of the application for ILR the conviction was not spent. Paragraph 14 of the letter is in the following terms,

"The Secretary of State regards sexual offences committed against children as being particularly abhorrent to society and she has a responsibility to consider the effect of your client's offending on the wider community. Whilst it is noted that the Immigration Judge at the deportation appeal hearing stated that the sentence was at the lower end of the scale it remains a fact that he was convicted of a sexual offence against children. It is considered that this is not conduct which is desirable in a person applying for Indefinite Leave to Remain in the United Kingdom and his application fell for refusal under Immigration Rule 322(5). When this is taken with his attempt to hide his conviction from the Secretary of State and the fact that no reason was put forward about why he could not return to Iraq, discretion should not be exercised in his favour,"

[10] Immigration Rule 322 deals inter alia with grounds on which leave to remain in the United Kingdom should normally be refused. IR 322(5) referred to above deals with the understanding of permitting the person to remain in the UK in light of his conduct including previous convictions. IR 322(2) states,

"the making of false representations or the failure to disclose any material for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave."

[11] In the course of the first hearing an issue arose as to whether the provisions of the Rehabilitation of Offenders Act 1974 applied to the conviction and whether the respondent was entitled to take it into account when reaching her decision. I invited Miss Irvine, if she wished to do so, to submit any further written submissions on the matter following the first hearing. In fact I obtained extensive written submissions from her and Mr Duthie for the respondent which raised new matters including the effect of the sections 140 and 141 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("the 2012 Act"). Accordingly I put the matter out by order for further submissions.

Submissions for petitioner
[12] Miss Irvine submitted that in reaching her decision the respondent had failed to take into account a relevant

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