S.a. V. The Secretary Of State For The Home Department

JurisdictionScotland
CourtCourt of Session
JudgeLord Brodie,Lord Drummond Young,Lord Justice Clerk
Judgment Date06 June 2013
Neutral Citation[2013] CSIH 62
Publication Date26 June 2013
Docket NumberP238/12
Date06 June 2013

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk Lord Brodie Lord Drummond Young [2013] CSIH 62

P238/12

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the reclaiming motion

SA

Petitioner and Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

_______________

Act: Devlin; Drummond Miller LLP

Alt: McGregor; Office of the Advocate General

6 June 2013

Background
[1] The reclaimer (appellant) has an immigration history which is best described as protracted.
She maintains that she arrived in the United Kingdom clandestinely in or about December 2004 via Ghana. She came by boat and found herself in London, where she boarded a bus to Aberdeen; all of this accompanied by her daughter, who is now aged 9. She now also has a son aged 5. The respondent does not accept this version of events for a variety of reasons and considers that the reclaimer is in fact SOA, who arrived with her daughter directly from Nigeria on a visitor's visa, granted on 23 November 2005.

[2] The reclaimer's troubles in the UK began in March 2007, when she was arrested for possession of a forged Nigerian passport. In October 2007, the sheriff put her on probation for three years. Very soon after that, on 2 November 2007, the reclaimer claimed asylum. This was refused on 2 February 2009. On 31 March 2009, her appeal against that refusal was dismissed by an Asylum and Immigration Tribunal and, on 1 May 2009, her application for that decision to be reconsidered failed.

[3] In both June and September 2009 the reclaimer produced new information, which she maintained satisfied the terms of paragraph 353 of the Immigration Rules regarding "fresh" claims. The rule requires the information to contain facts which are significantly different from those before the original Tribunal; meaning that the new grounds must create a realistic prospect of success (ie a reversal of the original decision) upon a re-assessment of the situation. On 15 and 24 September 2009, the reclaimer's new claims were rejected but, following an interview with the reclaimer and her instigation of judicial review proceedings, it was decided that her position should be revisited. Mental health reports were obtained relative to the new material. However, on 20 August 2011, her claim was again rejected by the respondent. This was on the same basis that the new information did not create a realistic prospect of success. In the body of this decision were significant adverse findings concerning the credibility of the reclaimer.

[4] On 14 October 2011, a First Tier Tribunal refused the reclaimer's appeal against the respondent's decision. The issue at the hearing of the appeal was whether the reclaimer and/or her two children were entitled to humanitarian protection in terms of articles 3 and 8 of the European Convention on Human Rights. It was noted by the FTT that, during the course of her previous asylum claim, the designated immigration judge had considered the reclaimer's account to be "garbled and self-contradictory" and that she could not be regarded as "a reliable witness". Although, as the FTT correctly stated, the findings on credibility were not binding, nor were they challenged. They were based, in summary, upon the recovery of material, notably photographs, bank statements, children's clothing and the application for the visitor's visa (supra) in the flat of a male person (also Nigerian), which demonstrated fairly convincingly that the reclaimer had fabricated material parts of her account, especially that she had had no contact with the father of her youngest child since 2006. The findings were strongly indicative of the reclaimer: (1) not being who she said she was; (2) not having entered the UK as she said she did; and (3) living in family with the male person at the flat.

[5] Notwithstanding the somewhat damning criticisms of the reclaimer's credibility, the FTT went on to consider the new material presented in relation to the reclaimer's mental health. This revealed that the reclaimer did have significant problems, for which she had received medical treatment and substantial social work support. However, the FTT paid particular attention to the lack of credibility attaching to the account given by the reclaimer about her past history, not only as narrated in the immigration process but also to both a psychiatrist and a psychologist. The FTT concluded as follows:

"21 The evidence before me does not indicate that the [reclaimer] is currently threatening suicide or harm to her children, although she has done so in the past. Her children have been returned to her and it is anticipated that compulsory protection measures will soon be removed because of the progress she has made. There is a possibility that the appellant's mental health may deteriorate if faced with imminent removal, but that is a situation that can be managed and monitored, with appropriate support being given to the appellant and her children before and during the journey if it is required. By the time the appellant and her children reach Nigeria, the threat of removal will have passed, the stress of uncertainty will have been removed and the fact of return will have become a reality ... The evidence does not suggest that there is a reasonable degree of likelihood that, given her current state of mental health, she will deliberately harm either herself or her children. She has improved considerably since her low point in 2010. Should her mental health deteriorate again in the future, there is treatment available for mental health problems in Nigeria, albeit that it may not be of the same standard as that offered in the UK and may not be free of charge. The risks and difficulties of her life in Nigeria may be much greater than would be the case if she were permitted to remain in the UK. She and her children may well have a happier life and better prospects in the UK, but that is not the test. I find that the evidence before me does not indicate that there is a real risk of the appellant and her children being exposed to conditions of such harshness and difficulty as to result in intense physical and mental suffering".

On this basis the FTT rejected the reclaimer's case for protection under Article 3.

[6] The FTT then assessed the Article 8 claim, under reference to R (on the application of Razgar) v Secretary of State for the Home Department (No. 2) [2004] 2 AC 368. The FTT was particularly concerned about the position of the two children. The children were described (para 25) as "clearly ... in no way responsible for" the reclaimer's actions in entering the UK and remaining there illegally. They were said to be "innocent children". The FTT noted that it required to have regard to their welfare and best interests as "a primary consideration". The effect of a decision to return the family to Nigeria would, the FTT expressly stated, be:

"27 ... to uproot the children from their present environment and require them to relocate to a very different environment. ... The obvious conclusion is that it would be in the children's best interest to avoid this scenario and permit them to remain in the UK".

Nevertheless, the FTT reasoned, it was necessary to see whether there were other factors, the cumulative effect of which would outweigh the primary consideration of the children's welfare. The FTT decided that there were such factors. The FTT concluded that:

"33 ... their interests in remaining in the UK are outweighed by the public interest in maintaining economic order and the rights of others by applying a consistent immigration control. The [reclaimer's] conduct in deliberately flaunting the UK's immigration laws is a matter which must be weighed in the balance. There is a strong public interest element in sending the message that persons breaching the rules will not be allowed to benefit from doing so. The [reclaimer] has proved herself to be a valued and well-liked member of the community during her time in the UK, but article 8 is not intended to be used as a vehicle for rewarding good behaviour. The Convention is designed to give direction to the protection of fundamental human rights, not the conferment of individual advantages or benefits".

Accordingly, the FTT found that the decision to remove the reclaimer was proportionate in terms of Article 8(2) of the Convention.

[7] The reclaimer applied to the FTT for permission to appeal to the Upper Tribunal. This was, broadly, on the basis of errors in the assessment of the psychiatric and psychological evidence and in the balancing exercise relative to the best interests of the children, as set against the other factors. A differently constituted FTT refused leave to appeal, holding that the grounds advanced disclosed no arguable error of law and simply amounted to disagreement with the "careful and fully reasoned findings of the immigration judge".

The Decision of the Upper Tribunal
[8] The reclaimer applied to the Upper Tribunal for leave to appeal.
Since this reclaiming motion proceeds upon an application for judicial review of the UT's decision (and not that of the FTT), it is of critical importance to note, first, the precise nature of the application for leave to appeal to the UT and, secondly, the exact terms of the decision made. Leave to appeal, or "permission" to do so, as it is put in section 11 of the Tribunals, Courts and Enforcement Act 2007, may be granted in respect of "any point of law arising from a decision made by" a FTT.

[9] Form 1AUT-1 (Upper Tribunal (Immigration and Asylum Chamber) - Application for Permission to Appeal") is available for completion. Section F (Reasons for appealing) asks the applicant to state what error(s) of law have been made by the FTT. The reclaimer completed this form by inserting three paragraphs, the second of which is no longer relevant. The first paragraph refers to the description of the "Innocent children" in...

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