A.n. V. Against Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Clarke,Lord Menzies |
| Neutral Citation | [2013] CSIH 111 |
| Court | Court of Session |
| Published date | 12 December 2013 |
| Year | 2013 |
| Date | 12 December 2013 |
| Docket Number | P246/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 111 | |
| Lord Menzies Lady Clark of Calton Lord Clarke | P246/12 OPINION OF THE COURT delivered by LADY CLARK OF CALTON Reclaiming Motion in Petition of A.N. Petitioner and Reclaimer; against decisions of the Secretary of State for the Home Department Respondent: _______________ |
Alt: Webster; Office of the Advocate General
12 December 2013
Summary
[1] This opinion relates to a reclaiming motion by the petitioner and respondent from the interlocutor of the Lord Ordinary dated 21 September 2012. The Lord Ordinary refused the prayer of the petition in which the petitioner sought to challenge two decision letters of the respondent dated 16 February 2012 and 20 March 2012 in which the respondent refused to treat further submissions made on behalf of the petitioner as a fresh claim in terms of paragraph 353 of the Immigration Rules.
History
[2] The history recorded by the Lord Ordinary in paragraphs 1 to 2 of his opinion was not in dispute. The Lord Ordinary narrated:
"The petitioner is from Malawi. He claims that his partner came to the United Kingdom in February 2005 in order to study. He states that he left Malawi in June 2006 and travelled to Ireland. After three months he came to the United Kingdom without entry clearance in order to join his partner. He returned to Ireland in January 2008 to continue studying. He claims to have made several trips to the United Kingdom in order to visit his partner and their daughter. In September 2008 he applied for a visa to visit the United Kingdom, but this was refused. In 2009 he returned to Malawi for a week and then came back to Ireland. In April 2010 he states that his cousin brought his two sons to Ireland to see him. Their mother is in Malawi and agreed that they could move to live with the petitioner.
[2] In June 2010 the petitioner and his sons came to the United Kingdom as his daughter, who was living with his partner, was ill. On 31 August 2010 he was encountered by immigration officials at his partner's home and was arrested. On 28 September 2010 he claimed asylum with his partner, their daughter and his two sons as dependents. That claim was refused on 1 November 2010. The petitioner appealed against that decision, but the appeal was dismissed on 24 December 2010. He applied for permission to appeal against that decision, and permission was granted on 2 February 2011. The appeal was considered before the Upper Tribunal, which dismissed it on 28 November 2011; the result was that the original determination by the Secretary of State was affirmed. Appeal rights were exhausted on 16 December 2011."
It is clear from the papers before us that throughout the proceedings the petitioner's application to remain in the United Kingdom has focused on his concerns relating to the welfare of his children if he is forced to return to Malawi. One of his sons is HIV positive and his daughter suffers from congenital heart problems. His present partner is also said to be HIV positive. His three children are of school age.
Further submissions
[3] A letter of further submissions dated 2 February 2012 was sent on behalf of the petitioner and reclaimer to the respondent. The further submissions made reference to health issues affecting family members and focused on problems relating to stigmatisation, discrimination, the risk of violence, unemployability and social isolation suffered by people with HIV in Malawi and the difficulties of obtaining medical treatment. Specific issues were also raised about the health issues of the daughter born in the UK on 25 March 2008. General issues about the best interests of the children were also raised. These included difficulties about providing for them and problems in relation to their education. By letter dated 16 February 2012, the respondent refused to treat the submissions as a fresh claim. By letter dated 2 March 2012, solicitors for the petitioner and reclaimer lodged further submissions which stressed the vulnerability of the family, threats to their life expectancy and problems of poverty in Malawi affecting the availability of necessary drugs and healthcare. The submissions were accompanied by various documents recorded in the appendix at pages 9 to 51 and pages 185 to 268.
The decision letters
[4] The decision letters were prepared by officials on behalf of the respondent. It was not in dispute that both decision letters required to be read together on the basis described by the Lord Ordinary in paragraph 6 of his opinion.
[5] In the decision letter dated 16 February 2012, the various documents enclosed with the further representations included a document entitled "HIV and Aids in Malawi" listed in paragraph 8. In considering the further representations, the respondent, as she was entitled to do, took into account prior evidence recorded within the reasons for refusal letter dated 28 October 2010 issued by the designated immigration judge. The respondent in paragraph 14 relied on the views of the designated immigration judge in relation to the health service and the availability of medical treatment in Malawi. Against that background the respondent considered the various documents made available. At paragraph 18 she commented:
"the third report is entitled 'HIV and Aids in Malawi'. There is no indication when this report was compiled, and there is no indication as to how this report is relevant to your client. It is noted that the report confirms, as found by the designated immigration judge at your client's appeal, that medication for those who are HIV positive is available. Indeed a very similar report was before the designated immigration judge at your client's appeal."
The respondent at paragraph 23 concluded "that there would be no breach of your client's article 3 rights by his removal from the UK." Consideration was then given to article 8. There was no specific consideration given to the best interests of the children.
[6] In the decision letter dated 20 March 2012, there is a list of the documents submitted for consideration in paragraph 9. In paragraph 18, the respondent again relied on the views and conclusions expressed by the immigration judge in said refusal letter dated 28 October 2010 about the health service provision and the availability of medical treatment in Malawi. That is the starting point for the respondent's consideration of the further material. At paragraph 33 the respondent concluded that:
"Taking into account that there are organisations available to help those who are HIV positive, that there are health services available for you and your family, the IJ's previous findings in the case law of N your submissions do not create a realistic prospect of success, under another Immigration Judge, applying anxious scrutiny."
There is then a consideration by the respondent of article 8 issues followed by a consideration which purports to be a consideration of the best interests of the children. In paragraph 49 the respondent concluded that:
"It is not considered to be contrary to the best interests of your client's children to return to Malawi or alternatively that the removal would be a disproportionate interference with the right to respect for their private lives."
In paragraph 50 the respondent concluded that:
"Even if it were to be said that the best interests of the children were to remain in the UK that is a primary consideration and not the only one. It is not considered that the best interests of your children on this occasion outweigh the need to maintain an effective form of immigration control..."
[7] The final conclusion of the respondent was that the submissions did not amount to a fresh claim.
The opinion of the Lord Ordinary
[8] The Lord Ordinary having set out the history considered in paragraphs 4 and 5 the general legal framework which applied under particular reference to WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447; FO v Secretary of State for the Home Department 2010 SLT 1087 and Dangol v Secretary of State for the Home Department 2011 SC 560. There was no criticism of the general approach which the Lord Ordinary adopted. In paragraphs 15 and 16 consideration was given to the grounds of challenge adopted by the petitioner before the Lord Ordinary. As these grounds of challenge were reflected in the submissions made to this court albeit perhaps with different emphasis, it is sufficient to refer to the submissions made on appeal. At paragraphs 17 to 25, the Lord Ordinary set out his reasoning for rejecting the submissions made on behalf of the petitioner. He concluded in paragraph 26:
"...I hold that the two decision letters were lawful and reasonable, and took the relevant factors into account. They were in accordance with rule 353 of the Immigration Rules. The prayer of...
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