Vishal Suri (ap) Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2015] CSOH 118 |
| Court | Court of Session |
| Published date | 01 September 2015 |
| Year | 2015 |
| Date | 01 September 2015 |
| Docket Number | P808/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 118
P808/14
OPINION OF LORD BANNATYNE
In the petition
VISHAL SURI (AP)
Petitioner;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Pursuer: Bovey QC, Winter; Drummond Miller LLP
Defender: Komorowski; Office of the Advocate General
1 September 2015
Introduction
[1] The petitioner seeks judicial review of a decision of the Secretary of State for the Home Department to certify the petitioner’s human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) in a letter dated 21 April 2014 (“the decision letter”).
Background
[2] The petitioner is an Indian national. On 13 May 2010 the petitioner was encountered during a visit conducted by Glasgow Immigration Enforcement Unit to a restaurant in Stirling. When spoken to the petitioner stated that his name was Gurnail Singh born in Pakistan. However, when questioned again about his identity he stated the true position regarding his identity. He further advised he was born on 25 November 1971 in India and that he had arrived in the UK in or around August 2009 having been granted a six months visitor visa. He was arrested on suspicion of being an overstayer. On 13 May 2010 he was granted temporary release. He failed to report to the immigration authorities. On 29 March 2014, the petitioner was detained by the police and transferred to Dungavel detention centre. On 3 April 2014 removal directions were set to remove the petitioner to India on 22 April 2014.
[3] Following his detention on 14 April 2014 the petitioner instructed solicitors to lodge representations on his behalf based on article 8, ECHR. Those representations stated that the petitioner first entered the UK in or around the middle of 2008 on a six months visitor’s visa. He thereafter returned to India after spending three months in the UK. He then re-entered the UK in or around August 2009. In addition the said representations stated that he was currently engaged to a British national, JT. They had been together since May 2012. They began living together in June 2012. They intended to marry in the near future. Various documents were lodged in support of the petitioner’s representations. The representations stated that the relationship was genuine and subsisting. With respect to the petitioner’s fiancée it was also represented that: she is British, has lived all of her life in the UK, cannot speak Hindi or Punjabi, has all her family in the UK and has no ties with India. It was asserted in these circumstances it would not be proportionate to remove the petitioner.
[4] In terms of the decision letter, reading short: the Secretary of State concluded that it had not been demonstrated that first the petitioner was in a genuine and subsisting relationship with JT and secondly, that, even if he were in such a relationship, his removal from the UK would not breach his article 8 rights. On each of the foregoing bases the claim was held to be clearly unfounded in terms of the 2002 Act section 94(2). The first conclusion reached by the respondent was not insisted upon in the arguments before this court. The issue therefore before this court related to the decision that even if he was in such a relationship his article 8 rights were not breached by his removal.
The test of clearly unfounded in terms of the 2002 Act
[5] The test of clearly unfounded has been described in a number of ways. It is a case which has no prospects of success (see: R on the application of AK (Sri Lanka) v Secretary of State for the Home Department 2010 1 WLR 855 at paragraph 34 per Laws LJ); if the claim cannot on any legitimate view succeed, it is clearly unfounded; the claim “is so clearly without substance that the appeal would be bound to fail”; an “arguable case” or one that could “on any legitimate view succeed” would not qualify for certification (see: R on the application of Bagdanavicius v Secretary of State for the Home Department 2004 1 WLR 1207 at paragraph 58 per Auld J). The Inner House in SN v Secretary of State for the Home Department 2014 CSIH 7 gave definitive guidance as to the proper approach to this issue where it stated the following:
“The statutory test for certification in terms of section 94(2) of the 2002 Act is whether the petitioner’s claim or claims ‘is or are clearly unfounded’. In carrying out such certification, the respondent must apply section 94(3) of the 2002 Act. We consider that it may lead to confusion to attempt to explain or replace the statutory words by other wording where there may be different shades of meaning in the different formulations. In attempting to explain the statutory test, the Lord Ordinary used a number of different expressions including reference in paragraph 14 of his opinion to a claim which ‘must have some realistic prospect of success’. He then concluded ‘to state that the prospects of success must be realistic is to say no more than that a judge properly applying his mind to the appeal under section 82(1) would be properly entitled to uphold the claim’. We consider that this does cause some confusion and we refer to the discussion in ZT (Kosovo) v Secretary of State for the Home Department 2009 1 WLR 348. The majority decision was to the effect that the ‘clearly unfounded’ test is more generous to the applicant than the ‘realistic prospect of success’ test. That latter test which is very familiar to the courts in considering fresh claims under rule 353 of the Immigration Rules is commonly referred to as a very low threshold test. In our opinion the statutory test at section 94(2) of the 2002 Act referring to claims which are ‘clearly unfounded’ is an even lower test which is more generous to an applicant. We accept that there is some confusion in the discussion in the Lord Ordinary’s opinion of the test to be applied and that this arose because the Lord Ordinary was trying to deal with various formulations advanced. We wish to emphasise the importance of the statutory language and the problems of attempting to reformulate the language.”
Section One
The first issue
[6] Against that background the first issue raised was this: what was the proper approach of the court when considering a judicial review arising out of section 94(2) of the 2002 Act?
Submissions on the first issue: The role of the court
[7] In short the petitioner’s position on this issue was this: where the courts have the same material as that put before the Secretary of State, they are in as good a position to determine as she is: Bagdanavicius, supra paragraph 58 per Auld LJ; Razgar v Secretary of State for the Home Department 2004 2 AC 368 at paragraph 16-18 (per Lord Bingham), paragraph 26 (per Lord Steyn), paragraph 27 (per Lord Walker) and paragraph 69 (per Lord Carswell); FNG v Secretary of State for the Home Department 2009 SC 373 at paragraphs 9-14 per Lord Hodge. It was submitted that if the court concluded that a claim could not be bound to fail in circumstances where the Secretary of State had reached a contrary view, the court, would necessarily conclude that the Secretary of State’s view was irrational. In support of this contention reference was made to ZT (Kosovo) v The Secretary of State for the Home Department (see: paragraphs 22 and 23 per Lord Phillips, paragraph 54 per Lord Hope, paragraph 65 per Lord Carswell, paragraph 75 per Lord Carswell, and paragraphs 82-83, per Lord Neuberger. Beyond that Mr Bovey relied on a number of Scottish decisions where the foregoing approach had been adopted: MN v Secretary of state for the Home Department 2011 SCOH 121; TW (Eritrea) v Secretary of state for the Home Department 2011 CSOH 88; and Khalid Ahmed v Secretary of state for the Home Department 2015 CSIH 16 at paragraph 8 per Lord Eassie.
[8] With respect to ZT (Kosovo) it was Mr Bovey’s position that on a proper reading of their Lordship’s decision as a whole it was the court’s view that in such matters the court’s own view was decisive of whether a claim was clearly unfounded or not. He emphasised that in the instant case there was no dispute of primary fact and therefore whether the claim was clearly unfounded was only susceptible to one rational answer, namely: in the petitioner’s favour. It was his position that the Secretary of State was not better placed to make an assessment of how a specialist tribunal might assess the Secretary of State’s decision. The Secretary of State was a party to proceedings and the court was not. Whoever made the decision must exercise a judgement on the whole facts of the case. The decision must accord with the requirements of anxious scrutiny that would be exercised by an immigration judge, see: MN v Secretary of State for the Home Department 2014 UKSC 183 per Lord Carnwath paragraph 31 and Dangol v Secretary of State for the Home Department 2011 SC 506 at paragraph 9.
[9] The Secretary of State’s position in reply in short was this: the role of the court when determining the legality of a certificate under section 94 of the 2002 Act was one of review. In advancing this argument Mr Komorowski relied on the guidance given by the House of Lords in ZT (Kosovo). He submitted that the Lords in this case had specifically considered the above question and had rendered the unanimous view that the role of the court was one of review.
[10] It was his position that in so far as there might be observations in cases suggesting otherwise, sometimes proceeding on the agreement of counsel, they must be read as subject to and qualified by the unanimous views of the House of Lords, expressed, when specifically invited to resolve that question.
[11] Mr Komorowski went on to submit that the real question was this: did this differentiation in role have any consequences? He submitted that it did have consequences. He argued that on a proper analysis of ZT (Kosovo) the judges held that different decision-makers might legitimately come to differing views and...
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