Petition Of Valentya Yakovleva (ap) Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Beckett |
| Neutral Citation | [2016] CSOH 139 |
| Date | 04 October 2016 |
| Docket Number | P1378/15 |
| Court | Court of Session |
| Published date | 04 October 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 139
P1378/15
OPINION OF LORD BECKETT
In the petition of
VALENTYA YAKOVLEVA (AP)
Petitioner;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Petitioner: Caskie; Drummond Miller LLP
Respondent: Tariq; Office of the Advocate General
4 October 2016
Introduction
[1] In this petition for judicial review, the petitioner Valentya Yakovleva, a citizen of Ukraine, seeks reduction of a decision of the Secretary of State for the Home Department (SSHD) dated 14 October 2015. Having refused the petitioner’s application for leave to remain, the SSHD certified that the claim was clearly unfounded which precluded an in country appeal to the First Tier Tribunal. It is the decision to certify which the petitioner seeks to reduce.
The facts of the case
[2] The petitioner is a widow aged 66. Her only daughter, her son-in-law and her two grandchildren live in central Scotland and the petitioner has been visiting them regularly since 2001. On 7 July 2010 she entered the UK on a visitor’s visa valid until 1 January 2011 but she has not left again. Her application of 30 December 2010 for leave to remain on compassionate grounds was refused. Her human rights claim of 7 March 2014 was refused on 29 April 2014 with no right of appeal. On 18 September 2015 she was served with a notice requiring her to state any additional grounds she relied on to remain in the UK and her response was met with the decision of 14 October 2015.
The petition
[3] The petition narrates an acceptance of the decision relating to family life under the Immigration Rules. In paragraph 9, it is averred that the SSHD left out of account the fact that the petitioner had spent significant amounts of time in the UK between 2007 and 2010. In paragraph 10, the petitioner avers that the SSHD left relevant considerations out of account in reaching a decision on private life under the Immigration Rules, particularly by failing to recognise the difficulty which the petitioner is likely to have in gaining entry clearance in future.
[4] In paragraph 11 the petitioner attacks the SSHD’s assessment outwith the Immigration Rules of the implications of Article 8 of the European Convention of Human Rights. It is averred that the SSHD failed:
i) to assess whether the petitioner had family life with her daughter, son-in-law and grandchildren and whether “that relationship of dependency” amounts to family life;
ii) to assess the petitioner’s private life in the UK;
iii) to consider the nature and extent of the relationships and fails to indicate what weight they were given in assessing proportionality;
iv) to take account of the petitioner’s health problems;
v) to state whether the weight given to be accorded to immigration control was diminished by the period of time over which the petitioner had been able to remain in the UK without the SSHD taking action against her.
vi) The SSHD had left out of account the best interests of the petitioner’s grandchildren.
[5] In paragraph 12, it is averred that a failure to provide reasons in respect of the considerations outlined in the preceding paragraph betrayed a failure to apply anxious scrutiny. It is then averred that the SSHD operated a dysfunctional immigration system as demonstrated by the petitioner’s detention in December 2015 when the petitioner had been in the UK for 5 years.
The decision letter of 14 October 2015, No 6/1 of process
[6] At page 1 the petitioner’s immigration history is summarised and it is noted that she had leave to enter and did enter the UK between: July 2001 and January 2002; July 2003 and January 2004; September 2004 and March 2005; August 2005 and February 2006; August 2006 and August 2007.
[7] At paragraph 7 it was explained that the application was considered on the basis of the petitioner’s family and private life under Appendix FM and paras 276ADE (1) – CE of the Immigration Rules. At paragraph 9 it was explained that the petitioner did not meet the family life criteria under the Rules because she did not have a partner or any dependent children under the age of 18 in the UK.
[8] Consideration was given to the private life aspect of the petitioner’s claim under the Immigration Rules and particularly against Rule 276ADE 1(vi), which would deem an applicant to qualify under the private life rules if there would be very significant obstacles to their integration into the country to which they would have to go if required to leave the UK. It was noted in paragraph 12 that the petitioner was 65 and has lived in the UK since 7 July 2010.
[9] The reasons why the petitioner was deemed not to qualify under that Rule are given in paragraph 16:
“It is not accepted that there would be very significant obstacles to your
integration into Ukraine, if you were required to leave the United Kingdom.
It is considered that you spent three years in Ukraine living alone before coming to the UK and therefore you are able to lead the same life upon return. You have provided no evidence to suggest that you would not be able to support yourself in Ukraine and it is further considered that your daughter and son-in-law could provide the same support to you in Ukraine as they currently do in the UK. It is considered that your relationships with your grandchildren, your daughter and son-in-law could all be continued from abroad through modern forms of communication and that it would also be open to you to make the appropriate entry clearance applications as you have done in the past.”
[10] Paragraphs 19 - 23 state:
“Exceptional Circumstances
19. It has also been considered whether your application raises any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.
20. You have provided a document dated 18 September 2015 which addresses the water infrastructure damage in Eastern Ukraine. The article does not include any reference to Kharkiv being affected by these problems and instead focuses on the conflict affected areas of Donetsk and Luhansk regions. There is insufficient evidence to demonstrate how this would affect your return to Kharkiv and as such this cannot be considered as an obstacle to your return.
21. You have stated that you have a future fear on return to Ukraine. As this is a request for international protection your claim constitutes an Asylum application under the terms of Paragraph 327 (b) of the Immigration Rules. Any future fear you have on return to Ukraine must be made in person at Asylum Screening Unit, Lunar House, Croydon. Consequently your claimed future fear on return to Ukraine has not been considered in this decision…
22. It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of leave outside the Rules.
23. In addition your Human Rights claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State’s official to certify that the claim is clearly unfounded unless they are satisfied that it is not clearly unfounded.”
[11] In paragraph 24 it is explained that the claim is considered to be clearly unfounded because the petitioner does not meet the requirements for leave to remain within the Immigration Rules on grounds of family life or private and has been certified. It is then stated:
“…Further you have not raised any circumstances that are considered to be exceptional. In light of this and the consideration above, it is considered that your application for leave to remain on the basis of Human Rights is clearly without substance and cannot succeed on any legitimate view.
25. This means that you may not appeal whilst you are in the United Kingdom.”
The legal background
[12] In the light of submissions made in the petitioner’s note of argument, referring amongst others to Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 and GHB v United Kingdom [2000] EHRR 545, parties presented a joint note by counsel containing a concession on behalf of the respondent in the following terms:
“The respondent accepts that the relationship between a parent and adult child and grandparent and grandchild can in principle engage Article [8] ECHR.”
The note then continues in these terms:
“However, the respondent will argue that the petitioner’s claim based on her family life outside of the Immigration Rules arising from these relationships has been considered in the Secretary of State’s decision. The respondent will also argue with reference to the Singh and GHB cases that these relationships attract a lesser degree of protection than claims based on family life between partners or parents and dependent and minor children.”
[13] The Nationality, Immigration and Asylum Act 2002 (the 2002 Act), section 94 contains the following:
“94 Appeal from within United Kingdom: unfounded human rights or protection claim
(3) If the Secretary of State is satisfied that a claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded.
(4) Those States are—
…(x) Ukraine…”
[14] Sections 117A and 117 B of the 2002 Act provide:
“117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in...
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