Petition Of P S (ap) For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2013] CSOH 59 |
| Date | 16 April 2013 |
| Docket Number | P1249/12 |
| Court | Court of Session |
| Published date | 16 April 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 59 | |
| P1249/12 | OPINION OF LORD BANNATYNE in the Petition of P S (AP) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department and Answers for the Secretary of State for the Home Department Respondent: ________________ |
Petitioner: Forrest; Drummond Miller LLP
Respondent: Smith; Office of the Advocate General
16 April 2013
Introduction
[1] The petitioner was born in 1974. 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.
Immigration History
[2] In 1998 the petitioner entered the UK. He lived at first with family in Glasgow. He subsequently moved to Bradford. In or around 2004, he claimed that he had developed a serious medical condition. He claimed that he had pains in his chest and was unable to breathe. He claimed that he had vomited blood. He attended hospital but the condition was not diagnosed. He remained at large in the community in Bradford. Sometime later he returned to Glasgow and again took up residence there. He claimed that his medical problems persisted. He complained of pain in his head. He again went to hospital on several occasions. No firm diagnosis was obtained. Hospital staff suggested that he might require to undergo treatment. He was detained as an in-patient in Glasgow Western Infirmary on several occasions, but always released. He stated that he had last required in-patient treatment approximately 5 to 6 years ago.
[3] On 24 July 2012, the petitioner claimed asylum and breach of his human rights, including his right to a private life in the UK. He was interviewed by the respondent on 30 August 2012. In terms of a letter dated 14 September 2012 ("the decision letter") the respondent rejected his claim. In particular she rejected his claim that to remove him from the UK would disproportionality interfere with his right to a private life in the UK. She in addition certified his claim as clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002.
[4] On 6 November 2012, the respondent detained the petitioner. On 15 November 2012 she issued directions to remove him from the UK on 5 December 2012.
The petitioner's relationship with India
[5] The petitioner was born and brought up in India. He received his education in India. He lived in several cities in India. He worked in India and was able to support himself there. He speaks Hindi and Punjabi. His parents, siblings and cousin live in India. He has remained in contact with his parents while in the UK.
[6] The petition called before me for a first hearing on 29 January 2013 when Mr Forrest appeared for the petitioner and Ms Smith for the respondent. The petitioner sought reduction of the decisions of 14 September 2012 and 15 November 2012. The argument before me related entirely to the lawfulness of the decision letter of 14 September 2012. The challenge was confined to the decision refusing the petitioner's claim that his right to a private life in terms of article 8 ECHR would be breached by his return to India. It was accepted by Mr Forrest that the decisions on the petitioner's asylum claim and his claim regarding breach of his right to family life were unchallengeable.
The Issue
[7] The general background to the issue before me was the changes to the Immigration Rules (HC 194) which took effect at 9 July 2012 (hereinafter referred to as "The new Rules"). In general terms the issue of principle between the parties was this: what effect had the changes in the Immigration Rules had on the way in which, a decision of the type made by the respondent, in the instant case could lawfully be made. The position on this issue, taken by the two parties in the course of the discussion before me, can be summarised as follows: it was argued on behalf of the petitioner that the changes had had no material effect. It was contended on behalf of the respondent that the changes had had a very material effect.
Submissions for the petitioner
[8] Mr Forrest's primary submission was this: the respondent had erred in law when considering whether the removal of the petitioner would be a disproportionate interference with the petitioner's right to a private life in terms of article 8 ECHR in that she had failed to consider whether the petitioner had a claim that his right to respect for his private life in terms of article 8 may be infringed outwith the new Rules.
[9] It was Mr Forrest's primary contention that notwithstanding the changes to the Immigration Rules the question of compliance with the requirements of article 8 remained separate from and additional to the question of whether a person had an entitlement to remain in the United Kingdom under the new Rules. Thus, any decision maker who required to consider the petitioner's claim would require to follow a two stage process: asking, first, whether in terms of the new Rules the petitioner was entitled to remain in the United Kingdom and, secondly, whether, there would be a breach of article 8: this second stage would require the decision maker to come to an independent view as to whether the decision maker's decision was article 8 complaint, by going through the five step procedure as set out by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at paragraph 17. Mr Forrest accepted that from 9 July the new Rules applied and they sought to prescribe exactly how a test of proportionality was to be met and thus defined a way in which an article 8 claim was to be dealt with. However, they did not exclude such claims outwith the Immigration Rules. In support of this he referred me to Huang v The Secretary of State for the Home Department [2007] 2 AC 167 and the well known observations of Lord Bingham of Cornhill at paragraph 17 when delivering the Opinion of the Court. He contended that a claim outwith the Rules required the respondent to recognise and have regard to and if appropriate give effect to a person's rights, in terms of ECHR including in terms of article 8 as laid out in the relevant domestic and Strasbourg jurisprudence (see: Syed and another v The Secretary of State for the Home Department [2011] EWCA Civ 1059 at paragraph 35). In addition he directed my attention to the introduction to appendix FM (GEN 1.1) and sections in the explanatory memorandum appended to the statement of changes introducing appendix FM and rule 276ABE. It was his position that the necessity for the decision maker to approach the matter in the way as set out by Lord Bingham of Cornhill in Huang was in no way ousted by the new Rules. Mr Forrest referred me to a case of the Upper Tribunal in which the effect of the changes brought about by the new Rules was discussed, namely: MF (article 8 - new Rules) (Nigeria [2012] UKUT 00393(IAC). Mr Forrest first pointed to paragraph 23 of the determination where the Upper Tribunal observes:
"Whilst, by virtue of their setting out specific requirements that have to be met in order for claims brought under the new family life or private life heads to succeed, it might be thought that the legal effect of these new Rules is to provide a complete code for assessing article 8 claims, we do not see that this is, or can be, the case for a number of reasons."
Thereafter the Upper Tribunal between paragraphs 23 and 25 set out their reasons for their said view.
Mr Forrest then referred me to the following further observations in the determination at para 32:
"It might be thought that one could deduce from the proposition that Immigration Rules very often have the force of law the position that insofar as the new Rules regulate how article 8 claims are to be assessed, judges must apply them in the same way as primary decision makers, so that the old two stage assessment is for the most purposes collapsed into a one stage assessment. But that would be wrong. The rules do not and cannot replace the law that is binding upon us."
[10] At paragraph 41 the Upper Tribunal then concludes as follows:
"the need for a two stage approach in most article 8 cases remains imperative because the new Rules do not fully reflect Strasbourg jurisprudence as interpreted by our higher courts and in particular they do not encapsulate the Maslov criteria."
[11] Mr Forrest then turned to apply the foregoing analysis to the terms of the decision letter itself.
[12] In the decision letter the issue of the petitioner's private life was dealt with by the respondent between paragraphs 66 and 71. Mr Forrest submitted that on a proper understanding of this section of the decision letter there was nothing, or at least very little, which indicated that any or sufficient consideration outwith the rules had been accorded to the petitioner's article 8 claim. Specifically at paragraph 67 he contended that all the respondent had looked at was the applicable new Immigration Rule. Between paragraph 68 and 70 he accepted that there was some indication that the respondent had given consideration to matters outwith the rule, however, when read in the context of paragraph 71 it was his submission that it was clear that the only factors which had been had regard to were those contained within the rule itself. In paragraph 71 the respondent expressly referred to the petitioner's failure to fulfil the requirements of rule 276BE of the Immigration Rules and referred to no other factors when she went on later in that paragraph to state that his removal from the UK would not amount to a disproportionate breach of his rights to family and private life.
[13] In summary therefore it was Mr Forrest's position that the respondent had erred by treating the new Rules as determinative of...
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