S.m. For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2012] CSOH 172 |
| Date | 07 November 2012 |
| Docket Number | P192/12 |
| Court | Court of Session |
| Published date | 07 November 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 172 | |
| P192/12 | OPINION OF LORD STEWART in the Petition of S M Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 26 February 2012 in terms of the Nationality, Immigration and Asylum Act 2002 s. 94(2) certifying that the petitioner's claim was clearly unfounded and Answers for The Secretary of State for the Home Department Respondent: ________________ |
Petitioner: Gibson, advocate; Drummond Miller LLP
Respondent: MacGregor; Office of the Solicitor for the Advocate General
7th November 2012
[1] This case is about a 39-year old, South African, male visa overstayer who has been in the United Kingdom for over nine years. He is the petitioner. He wants to remain, maybe to settle, in the United Kingdom; and he claims that he should be allowed to do so on human rights grounds. The United Kingdom Border Agency [UKBA] acting for the respondent minister takes the opposite view. The issue in these proceedings as I understand it is not so much about whether the petitioner ought to be allowed to remain but whether he should be allowed to stay pending an appeal against the decision that he should be removed. I heard submissions on 27 June 2012 and made avizandum. Having considered the points made by counsel and the documents and authorities to which they referred me I have decided that this is a petition that must be refused.
Background
[2] The petitioner was born in Rhodesia [Zimbabwe] of British descent on 2 April 1973. His step-father was a high-ranking officer in the Rhodesian army. When Zimbabwe became independent in 1981 the family fled to South Africa and were given South African citizenship. After leaving school the petitioner trained and worked in South Africa as a recording and stage sound technician. In September 2003, at the age of 30, the petitioner entered the United Kingdom on a six-month visa. He claims that his passport was stolen within months of arrival. He lived in London initially. He lived in Wales for eight months in 2007 and then moved to Edinburgh where he has lived ever since. His claim, as now presented, depends on the accumulation of a private life in Edinburgh.
[3] The petitioner came to the attention of the authorities in July 2011 when he was reported by his girlfriend N S after an argument. He was granted temporary admission subject to weekly reporting to the police. On 10 February 2012 he was detained and accommodated at Dungavel Immigration Removal Centre. On that date the petitioner was served with directions for his removal from the United Kingdom to South Africa on 23 February 2012. The petitioner made an application for judicial review of the decision to remove him. The presentation of the application resulted in the non-enforcement of the removal directions. The petitioner also, by letter dated 21 February 2012 from his solicitors, made "fresh representations" to UKBA for leave to remain on human rights grounds, viz. European Convention on Human Rights [ECHR] art. 8 (right to respect for private and family life). By letter dated 26 February 2012 UKBA refused the petitioner's ECHR art. 8 application and further certified in terms of the Nationality, Immigration and Asylum Act 2002 s. 94(2) that the petitioner's human rights claim was "clearly unfounded". The effect of "clearly unfounded" certification is to deny the petitioner an in-country appeal to an immigration judge in the First-tier Tribunal (Immigration and Asylum Chamber). Fresh removal directions were served on 27 February 2012, using "NOT appealable" form IS.151D, with removal set for 2 March 2012. The petitioner lodged a fresh application for judicial review - this petition - which resulted in the removal directions again not being enforced. The petition is directed at the "clearly unfounded" certification decision.
Legislation and case law
[4] As a rule "immigration decisions", such as the determination of the petitioner's human rights claim which resulted in refusing him leave to remain and the decision to remove him, can be appealed to an immigration judge in terms of section 82(1) of the Nationality, Immigration and Asylum Act 2002. However, section 92 of the 2002 Act restricts the right to appeal from within the United Kingdom; and section 94 provides:
"(1) This section applies to an appeal under section 82(1) where the applicant has made an asylum claim or a human rights claim (or both).
[...]
(2) A person may not bring an appeal to which this section applies if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."
In terms of section 113(1), the interpretation section, a "human rights claim" is a claim to the effect that removing a claimant from, or requiring him or her to leave, the United Kingdom would be contrary to the claimant's ECHR rights insofar as incorporated by the Human Rights Act 1998. If a human rights claimant is entitled to live in one of the so-called "white list" states specified in section 94(4), section 94(3) obliges the Secretary of State to certify the failed claim as "clearly unfounded" unless satisfied that it is "not clearly unfounded". South Africa is one of the white-list states. If the petitioner were removed to South Africa, he could, if I understand counsel for the respondent correctly, bring an out-of-country appeal in terms of subsection (9) and section 95. He could in any event apply for entry clearance to come back to the United Kingdom.
[5] A claim is "clearly unfounded" if it is "bound to fail". The question raised by this application is whether the UKBA officer who made the decision of 26 Feb ruary 2012 properly decided, bearing in mind the subsection (3) presumption, that the petitioner's human rights claim was "bound to fail". The words "bound to fail" envisage a claim that has no prospect of succeeding before an immigration judge properly directed as to the law and properly instructed as to the facts assuming the most favourable interpretation from the applicant's point of view. There is equivocation in the jurisprudence as to how the court should review "bound to fail" decisions: is the issue of the straight yes-or-no kind, to which there is only one correct answer; or does it allow for a margin of judgment and a reasonable difference of opinion? If the latter, reviewing courts can only strike down decisions that are flawed on Wednesbury principles of review; and then matters have to go back to UKBA for re-determination. If the former, reviewing courts can adjudicate the merits of these claims for themselves.
[6] The official Home Office line, according to counsel for the respondent, is that the correct approach is the one followed by, for example, Lord Bannatyne in AMC, that is Wednesbury-type review; and counsel then, I thought paradoxically, told me that the quality of the decision letter is not in point and that I can put the UKBA reasoning to one side because "what matters is the outcome", namely whether the claim is bound to fail or not. Counsel for the petitioner on the other hand majors on a claimed flaw in the decision-making process and argues for a re-determination by UKBA. A way of reconciling these approaches is to say that, although there are decision-making errors by UKBA, any decision-making errors are immaterial because the correct result was achieved and a re-determination would inevitably come to the same conclusion - which is what the submission of counsel for the respondent amounts to. Accordingly, counsel for the respondent opposes a remit for determination of new by UKBA [FNG v Secretary of State for the Home Department 2009 SC 373 at § 14; ZT (Kosovo) v Secretary for the Home Department [2009] 1 WLR 348 at §§ 21-23 per Lord Phillips of Worth Matravers, at §§ 52-53, per Lord Hope of Craighead (concurring and dissenting); AMC Petitioner [2011] CSOH 155 at §§ 56-65].
[7] Counsel agree that the merits of ECHR art. 8 claims have to be tested by reference to Lord Bingham's five-point Razgar checklist as subsequently refined [Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at §§ 16-20 per Lord Bingham of Cornhill; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 20 per Lord Bingham of Cornhill giving the opinion of the appellate committee]. In Razgar at paragraph 20, Lord Bingham stated:
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
The Huang refinement emphasises that exceptionality is not a qualitative test but a quantitative assessment of the number of cases likely to succeed on ECHR art. 8 grounds. The appearance in the lexicon of the term "exceptional" owes something to the Strasbourg judgments in three ECHR art. 3 cases; and the language of those judgments may owe something in turn to the fact that in the United Kingdom cases the issue was about the application of the Secretary of State's "exceptional leave" policy [D v United Kingdom (30240/96) (1997) 24 EHRR 423; Ben Said v United Kingdom (44599/98) (2001) 33 EHRR 10; Henao v Netherlands (13669/03) 24 June 2003 ECtHR; Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at §§ 4 and 6 per Lord Bingham of Cornhill, at §§ 30 and 40 per Lord Walker of Gestingthorpe, at § 72 per Baroness Hale of Richmond; see also R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 and R (Ekinci) v Secretary of State for the Home Department [2004] Imm AR 15].
The issue between parties
[8] There is some lack of clarity in the UKBA decision in the present case as to whether checklist points one and two should be answered in the petitioner's favour: but, like the decision-maker and counsel for the respondent, I am prepared to approach matters on the hypothesis that...
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