Tsiklauri v Secretary of State for the Home Department

JurisdictionScotland
JudgeLord Arthurson
Judgment Date10 June 2020
Neutral Citation[2020] CSIH 31
Date10 June 2020
Docket NumberNo 30
CourtCourt of Session (Inner House)

[2020] CSIH 31

Extra Division

Lord Arthurson

No 30
Tsiklauri
and
Secretary of State for the Home Department
Cases referred to:

Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109

Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15; [2007] 1 FLR 2021; [2007] HRLR 22; [2007] UKHRR 759; 24 BHRC 74; [2007] Imm AR 571; [2007] INLR 314; [2007] Fam Law 587

Khan v Secretary of State for the Home Department aub nom MAK (Pakistan) v Secretary of State for the Home Department [2016] CSIH 13; 2016 SC 536; 2016 GWD 9–175

Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170; [2003] ACD 32

R (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548

R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12; [2014] 2 AC 1321; [2014] 2 WLR 409; [2014] All ER 192; [2014] Imm AR 640; [2014] HRLR 8

R (on the application of Razgar) v Secretary of State for the Home Department (No 2) [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] HRLR 32; [2004] Imm AR 381; [2004] INLR 349; [2004] MHLR 218; [2004] ACD 83

VS (India) v Secretary of State for the Home Department [2017] CSIH 48; 2017 SLT 977

ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348; [2009] 3 All ER 976; [2009] INLR 310

Administrative law — Judicial review — Immigration — Human rights claim — Certification of claim as ‘clearly unfounded’ — Whether Secretary of State entitled to be satisfied claim was clearly unfounded — Nationality, Immigration and Asylum Act 2002 (cap 41), secs 82(1)(b), 92(2)(a), 94(1)

Nino Tsiklauri and Akaki Sidamonidze brought a petition under the judicial review procedure in which they sought reduction of a decision of the Secretary of State for the Home Department to certify their human rights claims as clearly unfounded under sec 94 of the Nationality, Immigration and Asylum Act 2002. On 21 October 2019, the Lord Ordinary (Arthurson) refused permission to proceed in terms of sec 27B of the Court of Session Act 1988 (cap 36). The petitioners appealed in terms of sec 27D(2) of the 1988 Act to the Inner House. The appeal proceeded as a reclaiming motion in terms of rr 38.8(d) and 58.10 of the Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)).

The Nationality, Immigration and Asylum Act 2002 (cap 41) (‘the 2002 Act’), sec 82(1)(b), provides a right of appeal against a decision of the Secretary of State to refuse a human rights claim. Section 92(2)(a) provides that such an appeal must be brought from outside the United Kingdom if the claim has been certified as clearly unfounded under sec 94(1).

The European Convention on Human Rights and Fundamental Freedoms, Art 8, provides, “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

An appeal under sec 82(1)(b) of the 2002 Act may only be brought on the ground that a decision is unlawful under sec 6 of the Human Rights Act 1998 (cap 42), which provides that it is unlawful for a public authority to act in a way which is incompatible with a right under, inter alia, Art 8 ECHR.

The petitioners were nationals of the Republic of Georgia. The first petitioner had arrived in the United Kingdom in 2007. She had discretionary leave to remain. When it came to an end in 2015, she applied for leave to remain. The second petitioner had entered the United Kingdom clandestinely in 2013 and applied for asylum. The petitioners' applications were refused. The petitioners each appealed to the First-tier Tribunal, which dismissed each appeal. Each petitioner was refused permission to appeal to the Upper Tribunal and their appeal rights became exhausted.

The petitioners were spouses with two children, aged five and six years. They lived with their children in the same house as the first petitioner's brother, his wife, and their two children, and the first petitioner's parents. The adult members of the family helped each other with housework and childcare and provided each other with emotional support. The first petitioner's father also provided her with £200 per month by way of financial support.

In 2018, the petitioners claimed that to remove them from the United Kingdom would contravene their rights under Art 8 ECHR. The Secretary of State refused the petitioners' claims and certified them as clearly unfounded in terms of sec 94 of the 2002 Act. The petitioners accepted that the Secretary of State was entitled to reject their claims, but they sought judicial review of the Secretary of State's decision to certify their claims as clearly unfounded in terms of sec 94 of the 2002 Act. The petitioners averred that that decision was irrational because it failed to take into account, or at least failed to afford any weight to, the evidence of the petitioners' wider family living arrangements and the consequences of the removal of the petitioners from the United Kingdom on those arrangements. The Lord Ordinary refused permission to proceed. The petitioners reclaimed.

The petitioners argued that, whether they had demonstrated that family life existed for the purposes of Art 8 ECHR and, if so, whether the petitioners' removal would interfere disproportionately with that family life, were questions which were intensely fact sensitive. They could not be decided other than after the petitioners had had an opportunity to present evidence before the FTT. The certification decision would deprive them of that opportunity when it could not be said that their claims were bound to fail or that on no legitimate view could they succeed.

The Secretary of State argued that the petitioners' concession that he was entitled to reject the petitioner’ claims was effectively a concession that their claims were clearly unfounded, which they were in any event.

Held that: (1) where there was no dispute of primary fact, the court was able to go directly to the certification question and answer it for itself (para 11); (2) a concession that the Secretary of State was entitled to conclude the petitioners' human rights claims were ill-founded was not a concession that a tribunal would necessarily come to the same conclusion after having heard evidence on appeal (para 12); (3) the petitioners' shared living arrangements did not come within the meaning and purpose of Art 8 ECHR; in any event, in order for the human rights claims to succeed on appeal to the FTT, the petitioners would require to show that their removal to Georgia, with the consequent interference with their living arrangements, would be disproportionate, but that proposition was clearly unfounded and it would be bound to fail before the FTT (para 16); and appeal refused.

Kugathus v Secretary of State for the Home Department [2003] INLR 170 considered and ZT (Kosovo) v Secretary of State for the Home Department[2009] 1 WLR 348applied.

The cause called before an Extra Division, comprising Lord Brodie, Lord Malcolm and Lord Woolman, for a hearing on the summar roll, on 12 May 2020.

At advising, on 10 June 2020, the opinion of the Court was delivered by Lord Brodie—

Opinion of the Court—

Introduction

[1] This is an appeal in terms of sec 27D of the Court of Session Act 1988 (cap 36). It proceeds as a reclaiming motion in terms of RCS 38.8(d) and 58.10 (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))). The appellants appeal against the interlocutor of the Lord Ordinary, dated 21 October 2019, refusing...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT