Khalid Ahmad (ap) Against The Secretaryof State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lady Smith,Lord Malcolm |
| Judgment Date | 20 February 2015 |
| Neutral Citation | [2015] CSIH 16 |
| Court | Court of Session |
| Published date | 20 February 2015 |
| Date | 20 February 2015 |
| Docket Number | P240/13 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 16
P240/13
Lord Eassie
Lady Smith
Lord Malcolm
OPINION OF LORD EASSIE
in the petition
by
KHALID AHMAD (AP)
Petitioner and Reclaimer;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Devlin; Drummond Miller LLP (for Latta & Co, Glasgow)
Alt: Webster; Office of the Advocate General for Scotland
20 February 2015
Introductory
[1] The petitioner and reclaimer in this petition for judicial review is a citizen of Afghanistan. He was granted a visa to undertake studies at a college of tertiary education in Glasgow and came to the United Kingdom for that purpose in August 2012. He paid tuition fees and began to pursue his studies.
[2] The petitioner’s visa permitted him to undertake paid employment not exceeding 10 hours per week. On 24 January 2013 immigration officers attended at a fast food shop in Glasgow in which the petitioner was working. From talking with another employee in the shop, an immigration officer concluded that the petitioner had worked for more than 10 hours in that week and on that account the officer concluded that the petitioner had breached the condition in his visa restricting the number of hours for which he might undertake paid employment. The petitioner disputed that he had worked for longer than permitted under the terms of his visa. He was nonetheless detained and taken to a removal centre. The employee upon whose information the immigration officer acted has since retracted any statement which he may have made to the officer indicating that the petitioner had worked for more than 10 hours in that week. The manager subsequently provided a statement to the effect that the petitioner was not employed to work for more than 10 hours. There is thus a factual dispute whether the petitioner breached to any extent the temporal condition restricting his ability to undertake paid employment.
[3] On 13 February 2013 the petitioner was served with removal directions; he was to be removed to Afghanistan on a charter flight on 19 February 2013. The notice of removal directions advised him – “This is NOT an appealable decision”. Two days after the issue of the removal directions, namely on 15 February 2013, solicitors acting for the petitioner wrote by fax to the United Kingdom Border Agency stating inter alia:
“Our client wishes to make a human rights claim under article 8 of the European Convention on Human Rights on the basis that it would be a disproportionate interference to his rights to a private and family life to remove him from the United Kingdom due to him having worked in breach of his conditions. It is our client’s position that he has not breached these conditions at all.
Should you be minded to maintain your position in relation to the alleged illegal working and given the impact and severity that this would have upon our client’s human rights, it is submitted that he be afforded the opportunity to have his case before an independent and impartial Tribunal….”.
The letter concluded with a request for an urgent response, failing which the client’s instructions were to raise judicial review proceedings.
[4] On 18 February 2013 the UK Border Agency responded. When responding the Agency had before it material submitted with the letter of 15 February 2013 and in connection with a bail application which had been made earlier on behalf of the petitioner. The Secretary of State took the view that the petitioner’s human rights claim was “clearly unfounded” and certified such in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002 – “the 2002 Act”.
[5] The bail application which had been made by the petitioner was refused by an immigration judge on 25 February 2013. On the following day, 26 February 2013, the Secretary of State issued fresh directions for the removal of the petitioner from the United Kingdom by a chartered flight proceeding to Kabul on 18 March 2013. Those removal directions were similarly not appealable (otherwise than by a petition for judicial review). The petitioner accordingly brought the present proceedings. By interlocutor dated 12 March 2013 the Lord Ordinary, among other things, suspended ad interim the removal directions.
The judicial review petition and the Lord Ordinary’s decision
[6] As the Lord Ordinary notes in paragraph [8] of her Opinion[1], when it was raised the petition canvassed issues as to the appropriateness of the procedure followed by the Secretary of State in issuing removal directions (which are not appealable to an immigration tribunal) without first issuing a decision to remove the petitioner, which might be capable of appeal to such a tribunal. In addition, but importantly, the petitioner also challenged the certification by the Secretary of State of the petitioner’s human rights claim as “clearly unfounded”. In the event, the Secretary of State later addressed the first of those challenges by issuing on 24 September 2013 a notice of a decision to issue removal directions – which would constitute an “immigration decision” appealable in terms of section 82(1) of the 2002 Act. However, she adhered to her certification that the petitioner’s claim that removing him from the United Kingdom would result in a breach of his human rights was “clearly unfounded”. Accordingly the challenge to the certification of the human rights claim remained and was the issue before the Lord Ordinary at the first hearing.
[7] The Lord Ordinary refused the petition. In doing so she took the view that the human rights claim was in some manner discrete from and independent of any issue whether the petitioner had breached the condition of his visa. At paragraphs [27] and [28] of her Opinion the Lord Ordinary says:
“[27] The real issue here is whether the challenge to the certification decision is just that, or in truth, a challenge to the immigration decision and whether there is any substance to that challenge.
[28] The fundamental flaw in the petitioner’s substantive submission is that he has sought to introduce the factual position in respect of the immigration decision – the disputed facts over the breach of conditions - into the assessment of the determination of the human rights claim. Whereas the factual basis of the human rights claim is wholly different and separate and concerns the facts underlying the claim of disproportionate interference with his article 8 rights. The latter include the facts of his residence, his college course, his family ties here etc”.
The petitioner maintains that the approach adopted by the Lord Ordinary is erroneous.
Judicial review of a “clearly unfounded” certificate
[8] Although, as I understood matters, it is not a matter of dispute between parties, it is helpful to bear in mind from the outset the nature of the exercise involved in a judicial examination of whether a claim was validly certified in terms of section 94 of the 2002 Act as “clearly unfounded”. The leading exposition of the test is to be found in the judgment of Lord Phillips of Worth Matravers in ZT (Kosovo) v Home Secretary [2009] UKHL 6; [2009] 1 WLR 348:
““22 The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof - in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230, paras 56—58 I put the matter as follows:
‘56. Section 115(1) empowers - but does not require - the Home Secretary to certify any claim ‘which is clearly unfounded’. The test is an objective one: it depends not on the Home Secretary’s view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
57. How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states ‘unless satisfied that the claim is not clearly unfounded’. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.
58. Assuming that decision-makers who are ordinarily at the level of executive officers - are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded. Miss Carss-Frisk for the Home Secretary has properly accepted that this is the correct approach.’
23 Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State’s conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her...
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