Petition Of E Y And P S T For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2009] CSOH 100 |
| Date | 20 May 2009 |
| Docket Number | P620/09 |
| Published date | 08 July 2009 |
| Court | Court of Session |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 100 | |
| P620/09 | OPINION OF LADY SMITH in the Petition of EY and PST Petitioners; for Judicial Review of a Decision of the Secretary of State for the Home Department to refuse to accept representations as a fresh claim for asylum in letters dated 18th March 2009 and 6th May 2009 and remove the first petitioner to Turkey on 20th May 2009 at 0700 hours. ________________ |
Petitioner: Caskie, Advocate (14 May 2009), JJ Mitchell Q.C (20 May 2009), Drummond Miller LLP
Respondent: No appearance
20 May 2009
Introduction
[1] This is a petition for judicial review at the instance of a person in respect of whom removal directions have been issued under paragraphs 9-10A of Schedule 2 to the Immigration Act 1971 and Section 10(1) of the Immigration and Asylum Act 1999 and also at the instance of her partner who is a resident of the United Kingdom. The petitioners seek (1) declarator that the decisions of the Secretary of State dated 18 March 2009 and 6 May 2009 to refuse to accept that representations made on behalf of both of them constituted a fresh claim for asylum by the first petitioner was unreasonable et separatim irrational, (2) declarator that the decision of the Secretary of State dated 7 May 2009 to remove the first petitioner to Turkey on 20 May 2009 was unreasonable et separatim irrational, (3) reduction of the said decisions, (4) the expenses of the petition and (5) such other orders as may seem to the Court to be just and reasonable in all the circumstances of the case. No interim orders are sought.
[2] The petition came before me on a motion on behalf of the petitioners for first orders. The respondents were not represented at the hearing.
[3] The first petitioner is a citizen of Turkey. On or about 25 August 2000 she entered the United Kingdom as a visitor. Her immigration history is set out in the UK Border Agency's letter dated 18 March 2009 (6/3 of Process):
"25/08/00 Arrived in the United Kingdom and began working as a prostitute soon after.
01/08/01 Claimed asylum.
17/09/01 Decision made to refuse asylum claim.
05/11/01 RFRL served together with IS151A.
07/11/02 Appeal Hearing.
20/11/02 Determination promulgated, dismissed.
07/01/03 Permission to appeal rejected.
07/01/03 Appeal rights exhausted.
18/02/09 Furthers (SIC) representations submitted, legacy programme and Article 8 of ECHR."
Application for Indefinite Leave to Remain Under the Legacy Programme
[4] The further representations dated 18 February 2009 were made in a letter from solicitors acting on behalf of the petitioners (6/4 of Process). Those representations were, essentially, that the first petitioner met the second petitioner at New Year 2004, that the petitioners had been going out together since then, that they now lived together at an address in West Calder and that the second petitioner was anxious that the first petitioner be able to remain and live with him in the United Kingdom. Reference is also made to the first petitioner having undergone medical treatment for breast cancer in December 2006 but the letter continues "we are pleased to advise that she is now recovering from her condition." The final paragraph of the letter is in the following terms:
"We would respectfully suggest that given the length of time that she has been in this country and given the close relationships which she has obviously formed since arriving here that her now removal from this country would breach her rights under Article 8 of the European Convention on Human Rights, particularly under the more recent House of Lords decisions issued during the course of 2008."
The Secretary of State's Decision of 18 March 2009
[5] The Secretary of State's decision in respect of the application contained in the letter of 18 February 2009 is set out in a seven page letter (6/3 of Process). The letter of 18 February 2009 is referred to as are a bundle of documents that were sent together with that letter, in support of the application. The Secretary of State considered whether the submissions made amounted to a fresh claim (under reference to paragraph 353 of the Immigration Rules). The Secretary of State makes reference to the two aspects of the "fresh evidence" test (whether the submissions have already been considered and whether, taken together with the previously considered material, they create a realistic prospect of success). Whilst the Secretary of State accepted that the points raised in the petitioners' solicitors letter had not previously been considered, she determined that, taken together with the material which was considered previously, they would not have created a realistic prospect of success.
[6] By letter dated 9 April 2009 the petitioners' solicitor appealed against the refusal decision dated 18 March 2009. That letter was responded to by letter dated 6 May 2009 confirming the original decision to refuse the application. The first petitioner was due, accordingly, to be returned to Turkey. That return was due to take place on 20 May 2009.
Motion for First Orders: 14 May 2009
[7] On Thursday 14 May Mr Caskie appeared on behalf of both petitioners and moved me to grant first orders.
[8] I enquired of Mr Caskie as to the basis on which it was considered appropriate to bring the petition, not only in the name of the first petitioner but in the name of the second petitioner. He indicated that he could not point to any authority which specifically supported a submission that the second petitioner had the requisite title and interest but he referred to what was said by Lord Justice Sedley in AB (Jamaica) v Secretary of State for Home Department 2007 EWCA Civ I 1302 at paragraph 20, where it was commented that the applicant's spouse was "in substance, albeit not in form" a party to the proceedings.
[9] Turning to the substance of the petition, Mr Caskie submitted that it was appropriate to grant first orders because there was a prima facie case that the Secretary of State had failed to recognise that had she referred the matter for determination to an Immigration Judge, the...
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