Petition Of M S For Judicial Review Against A Decision Of The Secretary Of State For Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2013] CSOH 1 |
| Court | Court of Session |
| Published date | 09 January 2013 |
| Year | 2013 |
| Date | 09 January 2013 |
| Docket Number | P1053/12 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 1 | |
| P1053/12 | OPINION OF LORD BRODIE in the Petition of MS Petitioner; against Judicial Review of a decision by the Secretary of State for the Home Department dated 9 October 2012 and 21 November 2012 Respondent: ________________ |
Petitioner: Forrest; Drummond Miller LLP
Respondent: Pirie; The Office of the Advocate General
9 January 2013
Introduction
[1] In this application for judicial review the petitioner is MS. He was born in 1976. He is single. He is a national of India. The respondent is the Secretary of State for the Home Department. She is responsible for matters relating to immigration and nationality. She is represented in this petition by the Advocate General for Scotland as the appropriate law officer for the purposes of section 1 of the Crown Suits Act 1857.
[2] It is the petitioner's position that he has been resident in the United Kingdom since 2001, having entered illegally using someone else's British passport. He has never been granted leave to enter or leave to remain in the United Kingdom. The petitioner first came to the attention of the respondent's officers on 3 September 2009 when he was found working illegally in a restaurant. He was detained and interviewed. On 4 September 2009 he was given notice on behalf of the respondent that he was considered to be an illegal entrant and that he was liable to detention and removal. On 7 September 2009 the petitioner's representatives made a submission on his behalf that his removal would contravene his rights as guaranteed by article 8 of the European Convention on Human Rights. That submission was rejected in terms of a decision by the respondent on 12 December 2011. The petitioner appealed that decision. His appeal was dismissed by an immigration judge of the First Tier Tribunal on 21 February 2012. Permission to appeal to the Upper Tribunal was refused by the First Tier Tribunal on 9 March 2012. The petitioner made no further application for permission to appeal and his appeal rights became exhausted on 21 March 2012. Having failed to comply with the reporting requirement, the petitioner was arrested on 1 October 2012 and detained at Dungavel Immigration Removal Centre, Strathaven where he is currently resident.
[3] On 2 October 2012 the respondent issued a decision directing that the petitioner be removed from the United Kingdom on 12 October 2012. These removal directions have not been implemented.
[4] In this application the petitioner seeks reduction of decisions made by the respondent subsequent to the removal directions, as contained in letters dated 9 October 2012 and 21 November 2012. These decisions were made in response to a claim made on behalf of the petitioner by letter dated 3 October 2012 which, insofar as relating to the particular circumstances of the petitioner was in the following terms:
"Our client has been and still is in a relationship with a British citizen, SK. She has two children, one of which is fond of our client. We enclose her Statutory Declaration which we refer to for its terms.
Our client has formed a private life and a family life within the United Kingdom and we would submit that to remove him to India, to enable him to apply for entry clearance from abroad, after the expiry of the mandatory period, would be disproportionate to the legitimate needs of Immigration control. Such removal would impact upon his partner who would be deprived of her rights under Article 8 ECHR. The child would become a victim in terms of Article 8. It would be unreasonable in the circumstances to ask her to go to India as her life is now in the UK with her family and friends present in the UK.
We would argue that it is disproportionate to ask our client to return to India to pursue an entry clearance application."
As appears from her decision letters, having regard to the fact that the petitioner had made a previous claim for leave to remain on the basis that his removal would contravene his human rights, the respondent treated the letter of 3 October 2012 as further submissions potentially constituting a fresh claim, as provided for by paragraph 353 of the Immigration Rules. The respondent accepted that the submission had not previously been considered but, taken with the material that had been considered by the First Tier Tribunal prior to it refusing the petitioner's appeal on 21 February 2012 the respondent determined that the submissions had not created a realistic prospect of success and therefore did not amount to a fresh claim. It is the petitioner's contention, advanced in this petition, that that decision was unlawful.
[5] The petition called before me for a first hearing on 29 November 2012. Mr Forrest appeared for the petitioner and Mr Pirie appeared for the respondent. Mr Forrest moved for reduction of the two decision letters. Mr Pirie moved for dismissal of the petition. I shall provide more detail about the parties' respective submissions but, in broad terms, the issue between them as to the lawfulness of the respondent's rejection of the petitioner's claim that refusing him leave to remain would contravene his right to private life as guaranteed by article 8 of the European Convention, related to the effect that should be given to recent changes to the Immigration Rules taking effect from 9 July 2012. It is convenient, before going any further, to say something about the Immigration Rules in general and the changes to them which were brought into force on 9 July 2012, in particular.
The Immigration Rules
[6] As Lord Brown of Eaton-under-Heywood observed at the beginning of his opinion in Odelela v Secretary of State for the Home Department [2009] 1 WLR 1230, para 12, the United Kingdom, like every other sovereign state, is entitled to control access to its borders and, accordingly, to determine who it allows to enter and thereafter to remain and who it does not allow to enter and remain. That right, subject only to treaty obligations, including those which arise from the European Convention on Human Rights, has been expressly and repeatedly recognised by the European Court of Human Rights (see eg Saadi v Italy (2008) 24 BHRC 123 at para 124, Uner v The Netherlands [2007] 273 at paras 54 and 55, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at para 68; also R (Ullah) v Special Adjudicator [2004] 2 AC 323 at para 6 and R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at para 19). The principle finds expression, as a matter of domestic law, in section 3 (1) of the Immigration Act 1971 which provides that a person who is not a British citizen (or a citizen of a member state of the European Union) may not enter the United Kingdom unless given leave to do so, in accordance with the provisions of the Act. The grant of leave to enter (or, in respect of a person who is already in the United Kingdom, the grant of leave to remain) is a matter for the decision of the Secretary of State for the Home Department. It is for the Secretary of State, as Lord Brown went on to say in Odelela, to decide and to lay down rules as to the practice to be followed in the exercise of immigration control. The making of such rules is referred to in sections section 1 (4) and 3 (2) of the 1971 Act and recently, in R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192, the Supreme Court has held that the power to make such rules is derived from the 1971 Act. Section 1 (4) states what such rules shall contain. Section 3 (2) is concerned with the procedure for laying statements of those rules and of any changes to rules before Parliament. That sub-section provides as follows:
"(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; ...
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."
The rules made by the Secretary of State in terms of the section 3 (2) procedure are referred to as the Immigration Rules. They have been frequently changed (90 statements of change since 1994, according to Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208 at para 11) and in the course of these changes they have become less discursive and more specific; they are now very extensive, "detailed, tightly drawn and circumstantial" (see MO (Nigeria) v Home Secretary [2009] 1 WLR 126 at para 13), a process whereby the "not merely unusual but unique" Rules have by "stealthy elevation" achieved "the status of quasi-law" (see Pankina v Secretary of State for the Home Department [2011] QB 376 Sedley LJ at paras 13 and 16) .
[7] That the precise legal status of the Immigration Rules has sometimes been seen by the courts as puzzling appears from the leading judgment, given by Buxton LJ, when Odelola was in the Court of Appeal (where it was reported as MO (Nigeria) v Home Secretary supra). Among the many dicta quoted by Buxton LJ was that from the judgment...
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