J.l. For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2015] CSOH 63 |
| Date | 02 June 2015 |
| Published date | 02 June 2015 |
| Court | Court of Session |
| Docket Number | P1089/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 63
P1089/14
OPINION OF LORD BOYD OF DUNCANSBY
In the petition
J L
Petitioner;
for
Judicial Review
Petitioner: Caskie; Drummond Miller LLP
Respondent: McIlvride QC; Office of the Advocate General
2 June 2015
[1] This is the petition of JL. The petitioner’s immigration history is set out in the petition and I do not need to rehearse all of it. However on 28 August 2013 he was convicted of an offence under the Misuse of Drugs Act and sentenced to 9 months imprisonment. Following that the Secretary of State decided to deport the petitioner. That decision was appealed to the First-tier Tribunal and the appeal was refused on 19 December 2013. An application for leave to appeal to the Upper Tribunal was refused on 14 April 2014. On 29 May 2014 an application was made on the petitioner’s behalf to revoke the deportation order. That application was refused by the Secretary of State on 22 September 2014 and the decision was certified in terms of section 96 of the Nationality, Immigration and Asylum Act 2002 as amended. The judicial review is taken against the decision to certify.
[2] The law is not in dispute. In RJ v The Secretary of State for the Home Department 2009 EWHC 705 Admin, Stadlen J set out a four stage process which the Secretary of State must follow in certifying under section 96(1) and (2) of the 2002 Act. This has been followed in this court including by me in TN, Petitioner [2014] CSOH 85. It is also I think accepted that in assessing the Secretary of State’s decision it has to be subjected to anxious scrutiny.
[3] The crux of the issue is what is contained in the letter from the petitioner’s partner’s general practitioner, a Dr Bhandery dated 25 June 2014 and submitted to the Secretary of State in support of the application for revocation. The letter is in the following terms. It is headed:
“A report prepared for medical records only
L has history of depression diagnosed in 2010. She is currently not taking any medication. I have seen her a few times in last 6 weeks with symptoms related to stress and scars from self-harm behaviour. She is trying to care for her three children well and when children were admitted to hospital there were concerns if she would be able to continue to care for them without additional support. Without doubt I can say there will be adverse effect on L’s and her children’s health if she loses the support of her partner. Present only with the hope that her partner will remain with the family is she managing to cope with the stress and care of the children”.
[4] The Secretary of State dealt with that matter in her letter of 22 September 2014 at paragraphs 98, 99 and 100 and is in the following terms:
“98. The representations that you have made in support of your client’s claim on article 8 family and private grounds are substantially a reiteration of the claims that your client had previously made and which had been substantively considered and rejected when the decision was made in October 2013 to make a deportation order against him and which had also been dismissed at appeal.
99. The medical report from a Dr L V Bhandery that was submitted as fresh evidence in June 2014 states that your client’s partner has a history of depression diagnosed in 2010. However it is noted that this was not mentioned within your client’s appeal against a deportation decision in October 2013 and no satisfactory reason has been provided for not raising this matter regarding his partner’s health previously.
100. The medical report from Dr Bhandery in June 2014 states that your client’s partner was seen by Dr Bhandery a few times within the preceding six weeks with symptoms related to stress and self-harming behaviour and the doctor expressed concerns as to whether the partner would be able to continue to care for the children without additional support. Whilst it is noted that your client’s appeal had been determined, it is not accepted that the new information is by itself or when considered together with previously considered representations are sufficient weight to establish a fresh human rights claim”.
[5] Mr Caskie’s short point was that properly construed what had been placed before the Secretary of State was a new matter which arose after the...
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