Tn (ap) For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2014] CSOH 85 |
| Published date | 14 May 2014 |
| Docket Number | P911/13 |
| Court | Court of Session |
| Date | 14 May 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 85 | |
| P911/13 | OPINION OF LORD BOYD OF DUNCANSBY in Petition of T N (AP) Petitioner; For Judicial Review of a decision by the Secretary of State for the Home Department made on 25 November 2013 to certify in terms of section 96(2) of the Nationality Immigration and Asylum Act 2002 an application made by the petitioner for the revocation of a deportation order. ________________ |
Petitioner: K McGuire; Drummond Miller LLP
Respondent: B J Gill; Office of Solicitor to Advocate General
14 May 2014
[1] The petitioner is a national of Zimbabwe. He was born on 12 January 1989. He first arrived in the UK on 11 February 2003 to join his father. He now has an extensive immigration history and a large number of convictions. These are detailed in the Secretary of State's letter of 25 November 2013. I briefly summarise these below.
[2] The letter of 25 November 2013 was a response to a fresh claim under paragraph 353 of the Immigration Rules made on behalf of the petitioner by the present agents dated 6 September 2013 and a request to cancel removal directions following a decision to deport him.
[3] The Secretary of State rejected the fresh claim reaffirming their deportation order. She also issued a certificate under section 96(2) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). Certification of an application under this section has the effect of preventing a further appeal against her decision. The petitioner seeks reduction of that certificate. He also seeks an order that the Secretary of State inform him that he has a right of appeal against the Secretary of State's decision to refuse his applications (a) for leave to remain in the UK on article 8 grounds and (b) for revocation of a deportation order. He does not challenge the deportation order.
Immigration history
[4] The petitioner arrived in the UK on 11 February 2003 and applied for indefinite leave to remain. He was granted leave, extended to 17 March 2011. On 18 February 2008 he applied for indefinite leave to remain as a dependent of his father. By this time he had acquired three criminal convictions. His application was refused. His leave to remain was curtailed so as to expire on 30 November 2008. A deportation order was made on 2 December 2009. By this time he had acquired another five convictions. The petitioner appealed to the First-tier Tribunal. On 6 May 2010 his appeal was allowed on article 8 grounds but refused on asylum grounds. The petitioner was unsuccessful in seeking to appeal the refusal on asylum grounds. Discretionary leave to remain was granted on 9 December 2010. By this time the petitioner had another two convictions. The petitioner was convicted again on 14 June 2011 and on 13 December 2011. The Secretary of State served a liability to deportation letter on the petitioner on 11 January 2010. She also served him with a letter under section 120 of the 2002 Act. Such a letter is commonly known as a One Stop letter. In due course the deportation order was made on 6 March 2012. An appeal was lodged. It was refused by the FTT. He was given permission to appeal to the Upper Tribunal. That appeal was refused. On 23 October 2012 this court refused him permission to appeal to the Court of Session at which point his rights of appeal were exhausted.
[5] The petition contains these averments regarding the petitioner's child.
"6. That the petitioner has a daughter ([CW]) who was born on 20/03/2011. The petitioner's daughter is currently living with her maternal grandparents at [address given]. The maternal grandparents have the main responsibility for looking after [CW]. It is believed that [CW]'s mother has very little contact with her daughter. [CW]'s paternal grandparents (the petitioner's parents) assist with looking after her and she often spends time (during the day and overnight) with them."
These averments were supplemented in oral submissions, in particular by reference to a statement made by the petitioner's mother on 6 September 2013 and which had accompanied the representations. In it she says that she is worried that if the petitioner is removed he will have no chance of building up a relationship with his daughter. Her mother had abandoned her when she realised that she was mixed race. However, she is now trying to build a relationship with her daughter but mostly she is cared for by her maternal grandparents. She apparently lives with her maternal grandparents but the petitioner's mother hopes that if the petitioner was released (from detention) he would be able to be involved in her care. The maternal grandparents would be willing to let the petitioner's parents take care of CW permanently if the petitioner is released. In September 2013 he had apparently seen his daughter on five occasions.
[6] The answers to the petition state that it is believed to be true that the petitioner has a daughter but goes on to give the explanation (i) that the petitioner is not named on CW's birth certificate; (ii) that the petitioner informed the respondent that he was trying to have paternity tests to establish CW's paternity; and (iii) he has not advised the respondents of the result of any such tests. Mr Gill made it clear that while he accepted that the petitioner was the father, the averments of fact in the petition were not accepted, far less the other matters raised in oral submissions and in the note of argument.
[7] The petitioner has been convicted on approximately 12 occasions of around 18 different offences between 2007 and 2011. The offences include assault, theft by shoplifting, acting in a racially aggravated manner with intent to cause distress and alarm, possession of a controlled drug with intent to supply, attempting to pervert the course of justice and attempted fraud. While they are not the most serious of convictions it is notable the number that have resulted in custodial disposals. The longest sentence is one of 8 months 29 days but he has been sentenced to terms of detention in a Young Offender's Institution or imprisonment on 8 or 9 occasions for terms ranging from 2 months to 6 months (twice).
[8] The Secretary of State made her decision to deport the petitioner having concluded that he had an established pattern of offending whilst in the UK and has demonstrated a disregard for the laws of the United Kingdom. The decision was made under paragraph 398(c) of the Immigration Rules.
[9] It is clear from the decisions of both the FTT and the UT that the petitioner has mental health issues. There is a reference to him being schizophrenic but I am not sure if he has been given a formal diagnosis. It appears to have been accepted, however, that he does suffer from mental illness and the provision of mental health services in Zimbabwe has been at issue. It is also clear that his condition and offending have greatly distressed his parents who are fearful for their son should he be returned to Zimbabwe. Both the FTT and the UT clearly had some sympathy with the petitioner. The UT concluded:
"31) The case is a very sad one, particularly for the appellants' parents, as all involved have recognised. However, it is only too predictable that if the appellant were to succeed, it would not be long before the SSHD has to look yet again at whether he ought to be deported, based on further and even more serious offending. That is not conjectural or pessimistic, but justified by the history so far, and the opinion of the clinical psychologist.
32) There is nothing to suggest that there is any meaningful family life between the appellant and his child, or that such family life is likely to develop, or that his departure from the UK would be against her interests."
The law
[10] Section 96(2) of the 2002 Act is in the following terms:
"An appeal under section 82(1) against an immigration decision ('the new decision') in respect of a person may not be brought if the Secretary of State or an immigration officer certifies3/4
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."
Section 120 is as follows:
"120 Requirement to state additional grounds for application
(1) This section applies to a person if3/4
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state3/4
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in3/4
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
In R(J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) Stadlen J set out a four stage process (paragraph 106):
"Under Section 96 (1) and (2) before the Secretary of State can lawfully decide to certify, she has to go though a four stage process. First she must be satisfied that the person was notified of a right of appeal under Section 82 against another immigration decision ( Section 96(1) ) or that the person received a notice under Section...
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