Petition Of B O (ap) For Judicial Review Of A Decision By The Secretary Of State For The Home Department, Dated 7 June 2015
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2016] CSOH 29 |
| Date | 17 February 2016 |
| Docket Number | P684/15 |
| Court | Court of Session |
| Published date | 17 February 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 29
P684/15
OPINION OF LORD ARMSTRONG
In the Petition of
B O (AP)
Petitioner;
for Judicial Review of a decision by the Secretary of State for the Home Department,
dated 7 June 2015
Respondent:
Petitioner: Forrest; Drummond Miller LLP
Respondent: Webster; Office of the Advocate General
17 February 2016
Introduction
[1] The petitioner is a national of Turkey. The respondent is the Secretary of State for the Home Department. The petitioner entered the United Kingdom on 24 May 2000 and, despite numerous applications, was never granted a residence permit or leave to remain in the United Kingdom. He was detained on 18 May 2015. On 7 June 2015, the respondent rejected an application by the petitioner for leave to remain. On 17 June 2015, removal directions were issued in respect of the petitioner but, in the event, his removal did not take place following presentation of the present petition. The petitioner seeks reduction of the decision dated 7 June 2015 (“the Decision”). It was conceded, on the petitioner’s behalf, that reduction of the removal directions, dated 17 June 2015, was no longer necessary.
The facts
[2] In October 1999, the petitioner married EC in Turkey. Following their move to Northern Ireland, M, their daughter, was born on 2 November 2000. In 2001 the petitioner and his wife separated. The petitioner moved to Edinburgh where he continued to live, and his wife and daughter continued to live in Northern Ireland. In 2011, the petitioner and his wife were divorced. Although he sent money to contribute to M’s upbringing, his former wife did not allow him contact with her. In about March 2014, the petitioner’s former wife agreed to cooperate in allowing him to have contact with M. He had contact with her, for the first time since 2011, in December 2014. He continued to contribute to her financial support.
[3] On 4 June 2015, following a decision of a First‑tier Tribunal judge, dated 18 February 2014, to refuse an appeal by the petitioner under section 82(1) of the Nationality, Immigration and Asylum Act 2002, the petitioner made an application for leave to remain in terms of Appendix FM of the Immigration Rules, on grounds of his ECHR article 8 right to a family life. In support of that application, there was submitted (1) a statement by the petitioner, dated 2 June 2015, in which emphasis was placed on the changed situation in relation to his ability to have contact with M, (2) a hand-written letter from his former wife, posted on 10 May 2015, to the effect that M was distressed by the possibility of her father’s deportation and that the petitioner sent £50 per fortnight as a contribution towards her support, and (3) a hand-written letter from M, now aged 15 years, stating that the petitioner had been in regular contact, that he was sending £50 every fortnight and that
“It’s better having him here as I do need his support. …. He’s a really good Dad and I need him here. Please don’t send him back to Turkey”.
That application, dated 4 June 2015, was determined by the Decision.
Submissions for the petitioner
[4] The criteria which the petitioner required to satisfy in order to be granted limited leave to remain as a parent were set out at Section R-LTRPT of Appendix FM of the Immigration Rules. In that regard, the issues which arose were (1) whether the petitioner satisfied E-LTRPT 2.4 (a)(ii) (whether he had direct access to the child as agreed with the parent with whom the child normally lives) and 2.4(b) (whether he had provided evidence that he was taking an active role in the child’s upbringing), and (2) whether for the purposes of Section EX1, in its application to E-LTRPT 3.2, the petitioner had a genuine and subsisting relationship with his child. It was submitted that there was evidence which fulfilled these criteria, provided by the enclosures submitted with the application dated 4 June 2015, and that therefore there was a realistic prospect of success before another immigration judge.
[5] Reduction of the Decision was sought on the basis (1) that in rejecting the petitioner’s application, no account was taken of the possible effect of the new information submitted, in relation to whether a claim under the immigration rules might succeed, and (2) that inadequate consideration was given to the best interests of his child.
[6] Under reference to WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337, the test which such an application had to meet was a modest one which must be informed by anxious scrutiny (paragraphs 6, 7 and 11).
[7] Paragraph 6 of the Decision included the statement that it was not accepted that the new evidence provided any reasons why the petitioner’s contact as it currently stood could not continue on his removal to Turkey. However, in the context of the applicable test, as to whether the petitioner could be said to have a realistic prospect of success before another immigration judge, that statement betrayed flawed reasoning. The correct approach was for the respondent to consider whether another immigration judge might take the view that the petitioner had now brought himself within the Immigration Rules.
[8] In Alibinu v Secretary of State for the Home Department [2015] CSOH 155, a case which concerned the issue of whether the criteria of E-LTRPT 2.4(a) and (b) had been satisfied, the decision in question had been reduced on the basis that the decision-maker, by failing to apply the required anxious scrutiny, had not applied the relevant test correctly. At paragraph 67, it was stated:
“An immigration judge considering the matter afresh would be considering a family situation where by definition the petitioner did not live with his daughter, but may still take an active role in her upbringing, or whose removal might in any event be contrary to her best interests. An immigration judge might decide that there was a genuine and subsisting relationship, even if it could not be described as one in which the petitioner took an active role in C’s upbringing. In any event it may be difficult to find that such a relationship does not have an effect on the child. Therefore if there is a relationship that in itself may be argued to amount to an active role in upbringing.”
[9] As for the need to take the best interests of the child properly into account, the respondent had been wrong to state in the Decision, at paragraphs 8 and 9, (1) that the petitioner’s removal would not adversely impact on the child, and (2) that there was no substantial evidence that he had played any positive role financially. These statements ignored the content of the letters submitted in support of the application.
[10] Although in the decision dated 18 February 2014, the issue of the child’s best interests had been touched upon, it had not been fully explored. Although, at paragraph 17, it had been recognised that the child might suffer disappointment at the prospect of her father moving to Turkey, the emphasis of consideration had been on the petitioner himself rather than on his child.
[11] Reference was made to ZH (Tanzania) v Secretary of State for the Home Department [2015] 2 AC 166, at paragraphs 23, 29-34. Not only were the best interests of the child a...
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