Petition Of Ms V. Secretary Of State For The Home Department For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Drummond Young,Lord Mackay of Drumadoon |
| Neutral Citation | [2013] CSIH 52 |
| Date | 11 June 2013 |
| Docket Number | P1053/12 |
| Court | Court of Session |
| Published date | 11 June 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Mackay of Drumadoon Lord Bracadale Lord Drummond Young | [2013] CSIH 52 P1053/12 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the petition of by M S Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondents: for Judicial review of a decision by the respondent dated 2 October 2012 to remove the petitioner from the United Kingdom to India and of decisions of the respondent dated 9 October 2012 and 21 November 2012 _______________ |
11 June 2013
The background to the petition
[1] The petitioner is a national of India, born in 1976. The respondent is the Home Secretary and is responsible for the enforcement of immigration and nationality legislation and related provisions. The petitioner appears to have entered the United Kingdom illegally in 2001, using a British passport which did not belong to him. He has not been granted leave to enter or leave to remain in the United Kingdom. During 2009 he was found by immigration officials working in a restaurant and was detained as a suspected immigration offender and thereafter interviewed. He was then released from custody, but was directed to report regularly to immigration officials. On 17 August 2009 his solicitors submitted a claim that any attempt to remove him from the United Kingdom would contravene his right to private and family life under article 8 of the European Convention on Human Rights. It was submitted that the petitioner had been living in the United Kingdom for 10 years and had established himself in the community and integrated himself into life in United Kingdom. He was financially self‑sufficient, and had been studying English and food hygiene at college. That claim was rejected by a decision made on behalf of the respondent on 12 December 2011. The petitioner appealed to the first‑tier tribunal, but his appeal was rejected on 21 February 2012. Permission to appeal to the upper tribunal was refused on 9 March 2012, and the petitioner's rights of appeal were exhausted on 21 March 2012.
[2] On 1 May 2012 the petitioner was arrested and detained at Dungavel Immigration Removal Centre, Strathaven. On 2 October 2012 the Home Secretary issued a decision directing that the petitioner be removed from United Kingdom on 12 October 2012. The following day solicitors acting for the petitioner wrote to the United Kingdom Border Agency submitting that certain further information amounted to a fresh claim for breach of the petitioner's human rights under article 8 of the European Convention on Human Rights. That claim was rejected by letter dated 9 October 2012 and a subsequent letter dated 21 November 2012; the second of those letters appears to have been written following the presentation of this petition to the court. The date set for the petitioner's removal was cancelled.
[3] In the present petition the petitioner seeks reduction of the decision of 2 October 2012 directing his removal from the United Kingdom and reduction of the two subsequent decisions intimated by the letters dated 9 October and 21 November 2012. The fundamental contention made by the petitioner is that he has formed a relationship with a S K and her daughter, who are resident in Glasgow, and that accordingly his removal from the United Kingdom would contravene his right to private and family life under article 8 of the European Convention on Human Rights.
The new Immigration Rules
[4] That contention is made against the background of new Immigration Rules, which came into force on 9 July 2012. Certain of the provisions of those rules are important for an understanding of the claim and its treatment by the Home Secretary's officials, and it is appropriate to summarize these at this stage. The requirements that must be met under the new rules by a person who has applied for leave to remain in the United Kingdom on the basis of his or her private life are set out in rule 276ADE. The requirements under that rule that are material in the present case are that the applicant does not fall for refusal under a range of grounds set out in appendix FM and that he or she, if over the age of 25 years, should have lived continuously in the United Kingdom for at least 20 years. Rule 397 deals with deportation. It provides:
"A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention [the UN Convention of 1950 dealing with the status of refugees and the European Convention on Human Rights]. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances of the public interest in deportation is outweighed".
[5] Appendix FM to the new Immigration Rules is intended to set out the provisions relevant to those seeking to enter or remain in the United Kingdom on the basis of their family life with a person who is a British citizen or is settled in United Kingdom: paragraph GEN.1.1. It is thus clearly directed at the rights that are protected by article 8 of the European Convention on Human Rights. Appendix FM contains detailed provisions specifying the requirements for any person who seeks to enter or remain on the basis of family life. The provisions that are potentially material to the petitioner's claim are those relating to relationship requirements and immigration status; it is not suggested that the other requirements, which relate principally to criminal offences, health, failure to co-operate with the immigration authorities, financial resources and ability to speak English, have any application to the petitioner. Relationship requirements are dealt with in paragraphs E-LTRP.1.2-1.11. In summary, these require that the applicant's partner must be a British citizen in the United Kingdom or present and settled in the United Kingdom (or in the United Kingdom with refugee leave or as a person with humanitarian protection); the applicant and the partner must both be aged 18 or over; they must have met in person; the relationship between them must be genuine and subsisting; and they must intend to live together permanently in the United Kingdom. Other requirements exist, but they are not relevant to the petitioner's claim.
[6] Immigration status is dealt with in paragraphs E-LTRP.2.1 and 2.2. The first of these requires that the applicant should not be in the United Kingdom as a visitor, with valid leave granted for a period of 6 months or less, or on temporary admission. Paragraph E-LTRP 2.2 provides as follows:
"The applicant must not be in the UK in breach of the immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1 applies".
Section EX deals with certain exceptions. Paragraph EX.1 is in the following terms:
"This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK".
[7] It should also be noted that the Home Secretary has power to grant leave to enter or remain in the United Kingdom outside the Immigration Rules. This is of the nature of a residual discretion to deal with deserving cases. The Home Secretary has issued instructions to officials as to the approach to be applied in deciding whether to grant leave outside the rules. Paragraph 3.2.7d of these instructions in its current form is in the following terms:
"Exceptional circumstances
Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. 'Exceptional' does not mean 'unusual' or 'unique'. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, 'exceptional' means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely".
A number of factors that may be relevant are then stated; these include the question whether the applicant's immigration status was precarious at the time when he or she began a relationship in the United Kingdom. The definition of exceptional circumstances is designed to deal with cases where a hardship resulting from removal from United Kingdom would be disproportionate to the objective of maintaining consistent control over immigration policy; in such a case removal would amount to a breach of article 8. The definition has been described as giving
"clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused": R (Nagre) v Home Secretary, [2013] EWHC 720 (Admin), at paragraph 14 per Sales J.
The claim made...
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