Petition Of Ms Against The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2016] CSOH 160 |
| Date | 11 November 2016 |
| Docket Number | P803/15 |
| Court | Court of Session |
| Published date | 11 November 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 160
P803/15
OPINION OF LADY WOLFFE
In the Petition of
MS
Petitioner
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent
Petitioner: Bovey QC, McGuire; Drummond Miller LLP
Respondent: Webster; The Advocate General for Scotland
11 November 2016
Introduction
[1] The petitioner seeks to remain in the UK and has applied for leave to remain (“LTR”). By letter dated 4 June 2015 (“the Decision Letter”) the Secretary of State for the Home Department (“the SSHD” or “the Secretary of State“) refused to treat the petitioner’s further submissions as a fresh claim; she rejected his application based on family and private life within the Immigration Rules (“the Rules”); and she also refused his application outwith the Rules. This is a petition for Judicial Review of certain parts of the Secretary of State’s Decision Letter.
Background
[2] The petitioner is a citizen of Pakistan. He arrived in the United Kingdom on 15 April 1998. He claimed asylum the same day and was granted temporary admission. The petitioner’s claim for asylum remained undetermined for six years, until he withdrew it in about 21 June 2004. At that time the petitioner acquired a right to reside in the United Kingdom, following his marriage to a Spanish citizen. He was issued with an EEA residence permit, valid until 21 June 2009 (“the EEA residence permit”).
[3] On 2 July 2012 the petitioner applied for indefinite leave to remain (“ILR”) in the United Kingdom on the basis of residency for a period of 14 years, and which was the required period for a person to be granted ILR (“the petitioner’s first application for ILR”). On 12 July 2012 the period of presence required for the purpose of ILR was extended to 20 years. On 20 August 2012 his application for ILR was refused.
[4] On 18 September 2012 the petitioner made a further application for ILR (“the petitioner’s second application for ILR”). That application was refused on 23 September 2013, with a right of appeal. His appeal was heard by an immigration judge on 28 January 2014 and was dismissed on 10 February 2014. The petitioner sought permission to appeal against the immigration judge’s decision to the First‑tier Tribunal (“FtT”) on 19 February 2014 but was refused permission to appeal on 30 April 2014. The petitioner’s further application for permission to appeal on 12 May 2014 was refused on 11 June 2014. His appeal rights were exhausted on 11 June 2014.
[5] On 18 July 2014 the petitioner was detained working in Tain without authority to do so. Representations were made on the petitioner’s behalf on 4 August 2014 but were rejected in a decision dated 8 September 2014 (“the petitioner’s first fresh claim representations”). The petitioner brought a Judicial Review to challenge that decision in about October 2014 (“the first Judicial Review”). During the currency of those proceedings, the petitioner married and, as those matters could not be considered as part of the first Judicial Review process, he had his petition dismissed on the day of the first hearing, on 6 May 2015.
Characterisation of the Different Periods of the Petitioner’s Presence in the United Kingdom
[6] The petitioner entered the UK on 15 April 1998 and has been present in the UK since then. The parties differed as to the characterisation of his status from time to time, that is, whether it was lawful, unlawful or precarious. The question of characterisation is relevant in two respects: first, because of the Strasbourg jurisprudence concerning family or private life established while one’s immigration status was precarious, and secondly because of the statutory disregard in Part 5A of the 2002 Act for any rights accrued (for the purposes of Article 8) during a period of unlawful or precarious residence. The parties divided the petitioner’s presence in the UK into three periods, as follows:
(a) 1998 to 2004: Temporary admission: The petitioner arrived in the UK on 15 April 1998. He claimed asylum on arrival and he was granted temporary admission the same day. His application for asylum was undetermined for six years, until it was withdrawn on 21 June 2004.
(b) 2004 to 2009: Marriage to an EEA national: The petitioner married a Spanish national on 21 June 2004. As the spouse of a national of a Member State of the EU he had certain rights associated with the free movement of person afforded to EU citizens. As a consequence the petitioner was granted his EEA residence permit valid until 21 June 2009.
(c) 2009 to present: As noted above, at paragraph [4] to [5], after the petitioner’s EEA residence permit expired, he made two applications for ILR and he exercised the appeal rights associated with the second application for ILR. He also submitted the first further representation and sought Judicial Review of the Secretary of State’s rejection, which proceedings were insisted on for a period of six months.
[7] Mr Bovey argued that periods (a) and (b) were lawful and only periods (a) and (c) were precarious. Mr Webster argued that only period (b) was lawful, but even then it was precarious. Mr Webster argued that periods (a) and (c) were precarious and unlawful. To the extent that there was agreement, it was that the petitioner’s status in periods (a) and (b) were precarious. The parties’ principal disagreement was as to his status in period (b).
Decision Under Challenge
[8] After dismissal of the first Judicial Review, the petitioner made further representations seeking to have these treated as a fresh claim and to be granted LTR on several bases within the Rules; and otherwise to be granted LTR outwith the Rules. By a decision dated 4 June 2015 (“the Decision Letter”) the Secretary of State refused to treat his claim as a fresh claim and refused his application under and outwith the Rules. It is the Secretary of State’s determination of those matters that is the subject matter of this petition.
The Further Submissions and Supporting Documentation
[9] The petitioner’s agents’ letter to the Further Submissions Unit of the Home Office dated 8 May 2015 (lodged as 6/2) identified (at page 3) what was said to be new material. This was the information under the rubric “relationship”, and which narrated that the petitioner and his partner had been in a relationship since 2012; that this had been conducted initially on a long‑distance basis but they began residing together on a permanent basis on 16 June 2014. While they had planned to marry on 8 August 2014, this had not taken place due to the detention of the petitioner the preceding month after he had been found working illegally. It was also stated that the petitioner and his wife (whom I shall refer to as “KI”) had married on 12 December 2014 in Edinburgh, and had resided together as man and wife since then. Details of the various addresses where they had resided were provided. It was also stated (on page 2 of 6/2) that the petitioner and his wife intended to live together permanently.
[10] The Decision Letter sets out the documentary material provided. Its summary of the new material, which is not suggested to be incorrect, is as follows:
“You have submitted a letter from your representatives, Drummond Miller LLP, dated 08 May 2015. You have married a British citizen on 12 December 2014 and submit your application on the basis of your family and private life.
You claim a decision to refuse you leave to remain in the UK would breach your rights under Article 8 of the European Convention on Human Rights (ECHR). You claim to be in a genuine and subsisting relationship and there are insurmountable obstacles to your family and private life continuing outside of the United Kingdom.”
[11] It was noted that the petitioner had submitted the following documents:
“ 1) An email of support from your wife, [KI] dated 08 May 2015;
2) An updated letter of support from [FI] and [AI] (your wife’s adult children);
3) 2 original bank statements for Ms [KI] dated 28 April 2015 and 01 May 2015;
4) An annual mortgage statement from ‘The Mortgage Works’ dated 31 October 2014 in the names of Mr [II] and Mrs [KI];
5) Principle statement of terms and conditions of employment from X‑Clusive Gaming in relation to a permanent part‑time contract dated 10 February 2015 addressed to Mrs [KI] …;
6) Original Bolton Council tax bill issued on 29 January 2015 in the name of Mrs [KI];
7) Original Edinburgh council tax bill issued on 13 November 2014 in your name and Ms [KI];
8) Photocopy of photograph page of UK passport and photograph side of driving license for [KI];
9) Original extract of an entry in a Register of Marriages for [KI] and yourself;
10) Letter and contract of employment from Brennand Schoolwear Ltd dated 01 May 2015 for Ms [KI] along with 13 wage slips dated between 26 February and 21 May 2015;
11) A copy of your solicitors letter from 04 August 2014;
12) Original P60 for year ending 5 April 2015 for [KI];
13) 9 wage slips from Remnant Kings Central Ltd dated between 25 September 2014 to 01 January 2015;
14) Various photographs.”
The Decision Letter
Determinations within the Rules
[12] After noting this material, the Decision Letter continued:
“It has been decided that the decision of 23 September 2013, upheld by the Immigration Judge on 10 February 2014, should not be reversed and you do not qualify for asylum, Humanitarian Protection, limited Leave to remain on the basis of your private or family life; or Discretionary Leave for the reasons above.
All your submissions have been considered previously. They are not significantly different from the evidence that has previously been considered and therefore, they do not amount to a fresh claim.” (Emphasis added.)
[13] The Secretary of State determined that the petitioner’s submissions did not amount to a fresh claim. She also required to consider the petitioner’s application from the perspective of Article 8 on the basis of his family...
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