Aziz Hussini (ap) Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2017] CSOH 80 |
| Published date | 16 May 2017 |
| Year | 2017 |
| Date | 16 May 2017 |
| Court | Court of Session |
| Docket Number | P1042/16 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 80
P1042/16
OPINION OF LORD ARMSTRONG
In the cause
AZIZ HUSSINI (AP)
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Winter; Drummond Miller LLP
Respondent: Massaro; Office of the Advocate General
16 May 2017
Introduction
[1] The petitioner is a national of Afghanistan. He was born on 7 May 1993. The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland. The petitioner left Afghanistan in late 2008, and entered the UK on 30 June 2009. He claimed asylum on 13 August 2009. His application was refused. He was subsequently granted discretionary leave to remain as a minor, valid until 7 November 2010. He applied for further leave to remain in the UK on 13 October 2010. That application was refused on 24 June 2011. Following further submissions, he was subsequently granted leave to remain as the partner of Gemma Vosper, for a limited period of 30 months, valid until 10 January 2016. By application received by the respondent on 7 January 2016, he applied for further leave to remain as the partner of Angela Jane Fenton, on the basis of his family and private life in the UK. That application was considered under the 10‑year partner and private life routes of Appendix FM and paragraphs 276 ADE(1) – CE of the Immigration Rules. Since the petitioner did not meet the definition of a partner under the rules, no question of consideration of “insurmountable obstacles” to family life arose. As the claim failed under these rules, it was also considered outside the Immigration Rules on the basis of exceptional circumstances, but was refused in that regard also. By decision, dated 31 July 2016, the respondent also certified the petitioner’s human rights claim as being clearly unfounded, in terms of section 94(1) of the Nationality, Immigration and Asylum Act 2002.
[2] The petitioner sought reduction of the decision to certify his claim under section 94(1), the effect of which would be to allow him the opportunity to make an in‑country appeal to the First‑tier Tribunal.
[3] Both parties adopted the content of written notes of argument, which I have taken into account together with the oral submissions made at the bar.
The Submissions for the Petitioner
[4] The central issue was whether the respondent had erred in law by deciding that the petitioner’s claim was clearly unfounded and was therefore bound to fail. In that context, the relevant test was a lower one, and was more generous to the petitioner, than the “realistic prospects of success” test, which applied in relation to decisions made under Rule 353 of the Immigration Rules. A claim which was clearly unfounded was one which had no prospects of success, (R(AK)(Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855, at paragraph 34; SN v Secretary of State for the Home Department [2014] CSIH 7, at paragraph [17]).
[5] It was maintained for the petitioner that the effect of the decision, which would require his return to Afghanistan, was disproportionate. In that regard, the recent decision in case the of R(Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, which concerned cases involving similar factual backgrounds to that of the petitioner, was significant.
[6] In that regard, the Home Office instructions on the granting of leave outside the Immigration Rules where exceptional circumstances applied, included the following:
“’Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique features do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1. of Appendix FM have been missed by a small margin. Instead, ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.” (paragraph 3.2.7d) (Agyarko, at paragraph 19)
[7] In Agyarko, at paragraph 41, Lord Reed stated:
“As the European court has noted, the boundary between cases best analysed in terms of positive obligations, and those best analysed in terms of negative obligations, can be difficult to draw. As this court explained in its judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32, the mode of analysis is unlikely to be of substantial importance in the present context. Ultimately, whether the case is considered to concern a positive or a negative obligation, the question for the European court is whether a fair balance has been struck. As was explained in Hesham Ali at paras 47-49, that question is determined under our domestic law by applying the structured approach to proportionality which has been followed since Huang.”
[8] In the petitioner’s case, in assessing the issue of proportionality, the question of whether there were “insurmountable obstacles” to family life which could have been taken into account did not arise because, since he did not meet the definition of “partner”, the petitioner’s claim could not be considered within Appendix FM. Notwithstanding that, the submission for the petitioner was that the respondent had failed to take into account material factors, indicative of what would be unjustifiably harsh consequences for the petitioner, which, had they been taken into account, would not have justified the certification of the claim as being clearly unfounded.
[9] In circumstances where the petitioner could meet the financial requirements for entry clearance, and where his position was that his immigration status, for the purposes of section 117B of the 2002 Act was not precarious, the approach, that it was likely only to be in exceptional circumstances that the removal of the non‑national family member will constitute a violation of Article 8 (Agyarko, at paragraph 54), did not apply.
[10] In Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203, doubt had been expressed as to whether it could be asserted with authority that any grant of limited leave to enter or remain, short of indefinite leave to remain, qualified as precarious (paragraph 44). Even if little weight was to be attached to precarious family life, that was not the same as attaching no weight to it. Other compelling factors could still outweigh the need to require removal from the UK (paragraphs 53, 54). Even if, at the time of his application, the petitioner’s immigration status was to be considered precarious, the situation which he and his partner would face in Afghanistan was such a compelling factor.
[11] Against that background, in the context of the petitioner’s claim, viewed as an application for entry clearance, the question for the respondent had been whether there was a “sensible reason” to require him to return to Afghanistan in order to apply for entry clearance from there (MA (Pakistan) v Secretary of State for the Home Department [2010] Imm AR 196, at paragraph 9). The respondent had erred in law by finding, in effect, that it would be proportionate to do so, but without identifying such a sensible reason.
[12] The petitioner had submitted, with his application, information relating to the nature of his relationship and the unstable security situation in Afghanistan, included in his application forms, his statement, supportive letters from others, articles on Hazaras, (that being the ethnic group to which the petitioner belonged), and an Amnesty International report and country reports on human rights practices in Afghanistan, contained in a US Department of State report. Notwithstanding that, although the operative part of the decision of 31 July 2016 made repeated references to the concept of “exceptional circumstances”, there was, in contrast, no reference to any exercise involving an assessment of proportionality or the identification of a sensible reason. The decision was comparable in that respect to that considered in MA (Pakistan), supra, (see paragraphs 10, 11).
[13] Further, the respondent had been under a duty to consider the Home Office Country Information and Guidance on Afghanistan: Security and Humanitarian Situation (July 2016), which was available at the time of the petitioner’s application (AN v Secretary of State for the Home Department [2013] CSIH 111, at paragraph [25]). That country guidance indicated that the situation in Afghanistan was unstable, that as a result of the armed conflict there, there were large numbers of internally displaced persons, that women and girls were at a disproportionate risk of harm, that, since 2012, the numbers of civilian deaths and injuries had increased, that the security situation had drastically deteriorated, that intensified fighting, the destruction of property, violence, and intimidation remained, that the security situation was becoming increasingly volatile, that the insurgency continued to take a heavy toll on the population, and that abductions, hostage‑taking, and summary executions of civilians continued.
[14] Further the Home Office website indicated that visa processing times in relation to applications made from Kabul took 120 days in a third of all cases. That was information to which the respondent was required to have regard (AN, supra, at paragraph 25), and which was relevant to an assessment of the delay, separation, and family disruption which comprised a factor in the proportionality of the decision (Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 at paragraph 42).
[15] By failing properly to take such information into account, the respondent had failed properly to exercise anxious scrutiny.
[16] Further, the reference in the decision letter to the possibility of the petitioner continuing his relationship from overseas, by using modern methods...
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Upper Tribunal (Immigration and asylum chamber), 2017-08-14, PA/00631/2017
...are sound and in accordance with the law. Contact from overseas by modern communications is not a relevant consideration: Hussini [2017] CSOH 80. Since the hearing the appellant’s partner and children have had their [discretionary] leave extended until 13 December 2019. Permission is sought......