Om For Judicial Review
| Jurisdiction | Scotland |
| Judge | Morag Wise, Q.C. |
| Neutral Citation | [2012] CSOH 74 |
| Year | 2012 |
| Published date | 27 April 2012 |
| Date | 27 April 2012 |
| Court | Court of Session |
| Docket Number | P1186/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 74 | |
| P1186/11 | OPINION OF MORAG WISE, Q.C., (Sitting as a Temporary Judge) in the Petition of O. M. (A.P.) Petitioner; for Judicial Review of a decision made on 24 October 2011 to refuse to accept that further submissions submitted to her on behalf of the petitioner amounted to a fresh claim for breach of human rights Respondent: ________________ |
Pursuer: Forrest; Drummond Miller LLP
Defender: J McGregor, Advocate; Office of the Advocate General
27 April 2012
[1] The petitioner is a national of Zimbabwe who arrived in the United Kingdom in February 2007. In terms of a student visa he was entitled to remain in the United Kingdom until November 2007. He did not leave when the visa expired. On 3 June 2010 he claimed asylum. That claim was rejected and the petitioner's appeal to an Immigration Judge was also rejected, that on 9 August 2010. The petitioner's rights of appeal became exhausted as at 24 September 2010. On 10 October 2011 he was detained by the respondent and sent first to Dungavel House, Immigration Detention Centre, Strathaven and thereafter to Colnbrook Immigration Removal Detention Centre in Middlesex.
[2] On 18 October 2011 fresh representations were made on the petitioner's behalf in relation to an alleged well-founded fear of persecution on the part of the petitioner if returned to Zimbabwe and also claiming that his rights under Article 8 of the European Convention of Human Rights (ECHR) would be unjustifiably interfered with should he be so returned. The petitioner's application to remain in the United Kingdom on the basis of those fresh representations was refused by a decision letter dated 24 October 2011 (No 6/2 of Process). It is that decision letter that is under challenge in these proceedings.
[3] At the hearing before me, the petitioner's claim was restricted to the treatment of his Article 8 claim. Having considered the submissions made and the material presented, I have decided that there is no merit in the petitioner's argument that the respondent erred in her approach to his claim.
The Petitioner's Claim
[4] This petition was raised initially as a matter of urgency to prevent a removal in October 2011 and the parts of the petition directed towards the decision to remove the petitioner from the United Kingdom at that time had been superseded by the time of the hearing before me. As indicated, the well-founded fear of persecution aspect of the case was no longer insisted in. The petitioner's claim was in respect of Article 8 of the ECHR and the relevant documents produced in support of that. 14 items had been produced in support of the Article 8 arguments, all of which post-dated the Immigration Judge's decision of August 2012. Accordingly the material was said to give rise to a fresh claim for asylum. The new information fell into three categories. First there were letters from Aberdeen University confirming that the petitioner was "an associate student" at that educational establishment between September 2008 and September 2009. However, as the letter was dated 10 September 2010 this was new material that had not been before the Immigration Judge who had not believed the petitioner's account that he had been a student. The second category were documents (no 6/6 and 6/7 of Process), illustrating the steps taken by the petitioner to become self employed. These documents also post-dated the Immigration Judge's decision. Thirdly, a series of letters had been produced confirming that the petitioner had made friends and that he attended a Catholic Church in Aberdeen.
[5] In relation to the decision letter itself, it was acknowledged that the relevant Immigration Rule, paragraph 353 was there set out together with a record of the further submissions made. It was accepted the paragraph 11 of the decision letter set out the appropriate test for the respondent, namely that of whether the new material, taken together with the previously considered material, created a reasonable prospect of success applying also the requirement of anxious scrutiny. In relation to the relevant test reference was made to Dangol v Secretary of State for the Home Department 2011 SC 560 at 564-565.
[6] The first main argument presented for the petitioner was that the respondent had erred in finding that there was no realistic prospect of success for the petitioner before another Immigration Judge based on the new material taken together with the old. It was contented that what the respondent had done was decided that the petitioner's claim would be bound to fail rather than looking at matters through the prism of an Immigration Judge would regard them. It was accepted that this was not a case involving family life. The petitioner's argument was that he enjoyed a private life in the United Kingdom. The respondent had accepted that a private life had been established but went on to reject the contention that interference with that Article 8 right would be disproportionate. The relevant passages of the decision letter in relation to Article 8 are paragraphs 38-58. Counsel for the petitioner criticised the decision letter for narrating a view that the skills the petitioner had gained in the United Kingdom could be used in Zimbabwe (para 48) noting that this was a matter another Immigration Judge would take into consideration whilst not cording any conclusion in that particular section on whether this would lead to a realistic prospect of success. Thus it was said that all the respondent had done was reach her own conclusion on the establishment of private life in the United Kingdom without addressing the issue of whether an Immigration Judge would so conclude.
[7] The second argument centred on the question of interference with the established private life. The respondent records in the decision letter that the petitioner's Article 8 rights had been considered alongside the case of Razgar v Secretary of State for the Home Department [2004] 2 AC 368. There, Lord Bingham had set out 5 issues to be identified considering the application of Article 8 of the ECHR to an argument against removal. The questions to be considered are stated in the following terms:
"In a case were removal is resisted in reliance on Article 8, these questions are likely to be:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
[8] It was accepted for the petitioner that the decision letter followed these five questions in turn. However, the conclusion at paragraph 57 of the decision letter that the Secretary of State considered that the petitioner's removal from the United Kingdom would be proportionate could be a starting point only. While it was also accepted that paragraph 58 then went on to address how an Immigration Judge, applying the rule of anxious scrutiny would view the matter, that paragraph was said to be "infected" by reference to an exceptionality rule. What the respondent had concluded was as follows:
"It is not accepted that your client's case is so exceptional that an Immigration Judge, applying the rule of anxious scrutiny, taking all these facts into account, would find that he would be exposed to a breach of Article 8 of the ECHR if returned to his home country".
[9] Reference was made to Huang v Secretary of State for the Home Department [2007] 2 AC 167. In that case it was clearly stated that where a removal or refusal of leave to remain amounted to a breach of the fundamental right protected by Article 8 would be unlawful and that the Immigration Authority would not in addition require to address whether or not the case met a test of exceptionality. It was argued that the respondent in this case had fallen into error by looking for the petitioner to meet an exceptionality test.
[10] It was argued that the respondent had erred because she had taken into account matters that she should not have relied on and had also failed to take into account matters she should have had regard to. Again reference was made in this context to Razgar and the questions identified by Lord Bingham. Particular reference was made to consider the legitimate aim in considering proportionalities. At first Counsel seemed to argue that there was no clear legitimate aim identified by the respondent in this case. He accepted, however, that the respondent, in paragraph 56 of the decision letter had referred to the guidance from Lord Bingham in Razgar where he had identified that:
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis".
The issue of legitimate public aim was not pursued further. Rather, what was contended was that there had been no sufficient analysis of the material produced by the petitioner in considering the final stage of the five questions test. Counsel accepted that the decision letter had scrutinised the correspondence produced from church members and others in paragraphs 49 and 50. However, it was argued that...
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