In Petition Of Tn For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2015] CSOH 116 |
| Docket Number | P41/15 |
| Date | 26 August 2015 |
| Court | Court of Session |
| Published date | 26 August 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 116
P41/15
OPINION OF LADY CLARK OF CALTON
In the Petition of
TN
Petitioner;
for
Judicial Review of a decision by the Secretary of State for the Home Department
Dated 30 September 2014
Respondent:
Pursuer: McGuire; Drummond Miller LLP
Defender: Webster; Office of the Advocate General
25 August 2015
Summary
[1] The petitioner, born 12 January 1989, came to the UK on 11 February 2003 when he was 14 years old to join his father who was working in the UK in accordance with a work permit. The petitioner has subsequently acquired a lengthy immigration and criminal history. Following the completion of a custodial sentence in February 2012, the petitioner was moved to immigration detention pending resolution of various legal issues in his appeal against deportation. The petitioner was granted bail by an immigration judge on 10 April 2012. The appeal against deportation was dismissed on 9 May 2012 and he was granted permission to appeal to the First-tier Tribunal on 1 June 2012. The petitioner’s bail was revoked at a bail review hearing following information from his parents that they were not willing to act as cautioner for him as he had been disruptive and not adhering to his bail conditions. He was detained under immigration powers and it was noted that there was an outstanding arrest warrant as a result of which the petitioner appeared at Glasgow Sheriff Court on 10 July 2012. He was given bail by the court and was subsequently released from immigration detention. On 2 August 2012, the petitioner was arrested and thereafter was convicted of attempted fraud and sentenced to six months imprisonment with a release date of 1 November 2012. Since 1 November 2012 the petitioner has been moved to immigration detention and is presently in detention in England. Various legal challenges have been made to the respondent’s attempts to deport him.
[2] It is unnecessary to set out in more detail the extensive immigration history of the petitioner. This is summarised by the Lord Ordinary in a previous application for judicial review reported at (2014) CSOH 85 in paragraph 4. The petitioner was successful in that application. The immigration factual summary (6/14 of process) summarises the criminal convictions of the petitioner. The petitioner’s criminal record dates from 2007 to 2011 and includes some 18 different offences including assault, theft by shoplifting, acting in a racially aggravated manner with intent to cause distress and alarm, possession of a controlled drug with intent to supply, attempting to pervert the course of justice and attempted fraud. There are some eight custodial disposals. The longest sentence is a sentence of 8 months 29 days in 2010 for a conviction of theft by shoplifting. In the early stages of the petitioner’s offending behaviour, he was convicted of theft by housebreaking in January 2008 and given a probation order for one year with a condition to attend psychiatric treatment. It appears the petitioner does suffer some mental health difficulties although there does not appear to be a clear diagnosis and there have been some problems about him taking prescribed medication.
Information about the petitioner’s daughter
[3] It is not disputed that the petitioner is the father of a child CW born in March 2011. The mother of CW and CW are both UK citizens. The child CW has had a difficult early childhood. She was rejected by her mother, who was in a relationship with someone other than the petitioner, and did not realise until the birth that CW was the petitioner’s child. CW was left in the care of her maternal grandparents when she was a few days old. The mother did not inform the petitioner of the birth and he had no knowledge of this. Sometime in 2012 the petitioner and his family became aware of CW for the first time. At that date the petitioner was detained in an immigration centre but contact was established between CW, the maternal grandparents and the petitioner’s parents. In March 2014, the Home Office refused to allow the petitioner to be escorted to a DNA testing facility to establish paternity. The basis for that refusal is recorded in 6/14 of process which states:
“A response was sent reiterating that the Home Office would not be prepared to do this as it was accepted you have a relationship with your daughter, ... .”
[4] Despite difficulties, including the fact that the petitioner is detained in an immigration centre in England and the child CW is resident in Scotland, the petitioner has met CW on a number of occasions when she has been brought by his parents to the detention centre.
[5] Because of problems with the care of CW by the maternal grandparents, social workers became involved. Eventually a decision was taken by social workers that it was not in the best interests of CW to stay in the care of her maternal grandparents and the petitioner’s parents were asked by social workers to provide a permanent home for CW. Since May 2014, CW has lived with the parents of the petitioner in an arrangement which appears to be approved by her maternal grandparents and her mother. Following a kinship care panel held on 28 October 2014 (6/12 of process) the community social work manager wrote to the parents of the petitioner and advised them that the placement of CW with them had been approved. This placement is much welcomed by the petitioner and his parents but is not without difficulties for the petitioner’s parents. Both parents are working in responsible jobs and the petitioner’s mother has had health problems but she has now returned to work. In the affidavit from the petitioner’s mother (6/11 of process), she explains that they are reliant on the maternal grandparents for some child care albeit there has been difficulty with two different lifestyles. There has been increasing contact between CW and the petitioner and CW is very aware of the petitioner as her father and constantly asks after him. The petitioner and both his parents wish the petitioner to return to his family home to live with his parents so that he can be actively involved with them in the care of CW. It is the assessment of the petitioner’s mother that CW would react very badly and be very upset if she was told that she would not see the petitioner again because he had been deported.
The grounds of the judicial review before this court
[6] By letter dated 17 July 2014, (6/5 and 6/6 of process) detailed representations were made to the respondent in terms of paragraph 353 of the Immigration Rules to treat the representations as (1) an application for leave to the petitioner to remain in the UK on the grounds of article 8 ECHR and (2) an application to revoke a deportation order made on 7 March 2012. By letter dated 30 September 2014 (6/7 of process) the respondent stated that the further submissions have not been considered under paragraph 35(3) of the Immigration Rules. Having considered the submissions, the respondent decided to certify the claim under section 94 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act). The challenge by the petitioner in this judicial review was focused on the decision making of the respondent under and in terms of section 94.
The statutory provisions
[7] Section 94 of the 2002 Act makes provision in relation to certain appeals from within United Kingdom in relation to unfounded human rights or asylum claim and limited the appeal rights of an applicant if the Secretary of State certifies the claim or claims as clearly unfounded.
Submissions by counsel for the petitioner
[8] Counsel for the petitioner invited me to sustain the first plea in law for the petitioner. In his first chapter, counsel set out the background under reference to paragraphs 4 to 9 of the decision of the Lord Ordinary in the previous judicial review. He made reference to the application letter dated 17 July 2014 (6/5 of process) which explained the change of care in residence of CW and the view of the social work services to the effect that it is not in CW's best interests to reside in the care of the maternal grandparents due to this being an unmanageable risk. This is the reason CW was moved to reside with her paternal grandparents and these arrangements are being supported by social work services. Reference was also made to the ill-health of the petitioner’s mother. Counsel accepted that the information from the petitioner’s mother in her affidavit dated 24 December 2014 post-dates the respondent’s letter of refusal. It is plain however that there is a very material change and that the existing bond between the petitioner and CW will be fostered and strengthened by this change.
[9] Turning to the legal basis of the test for certification, counsel submitted that there was no dispute between the parties about the test to be applied. He made reference to R (Yogathas) v Secretary of State for the Home Department (2003) 1 AC 920 in particular in paragraph 51, Lord Hope of Craighead states:
“The question for the Secretary of State was whether, bearing in mind these principles, the allegation by Thangarasa that there was a breach of his human rights was so clearly without substance that it was bound to fail.”
[10] Counsel submitted the respondent was obliged to consider whether there was an exception to deportation on the basis of family life with a child. The relevant immigration rules as set out in the...
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