William Muringani For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Neutral Citation | [2016] CSOH 95 |
| Published date | 06 July 2016 |
| Docket Number | P110/16 |
| Court | Court of Session |
| Year | 2016 |
| Date | 05 July 2016 |
[2016] CSOH 95
P110/16
OPINION OF JUDGE J GORDON REID, QC
In the cause
WILLIAM MURINGANI
Pursuer;
for
Judicial Review of a decision of the Secretary of State for the Home Department
Defender:
Act: Caskie; Drummond Miller LLP
Alt: Webster; Office of the Advocate General
5 July 2016
Introduction
[1] In this judicial review petition, the petitioner seeks reduction of a certificate granted by the Secretary of State for the Home Department (the respondent) under section 94B of the Nationality, Immigration and Asylum Act 2002 (as amended) that he should be removed from the United Kingdom pending his appeal to the First‑tier Tribunal (Immigration and Asylum) against a deportation order made on 6 November 2015, in which he makes an article 8 ECHR claim. Certification is on the basis that his removal, would not be unlawful under section 6 of the Human Rights Act 1998.
[2] After sundry procedure, a substantive hearing took place on 27 May 2016. No evidence, whether by affidavit or otherwise was led. Although other remedies were mentioned in the petition, these were not pursued. The only live issue concerned the section 94B certificate on which I heard detailed submissions on behalf of the parties.
General background
[3] The petitioner, who was born on 2 February 1983, is a citizen of Zimbabwe. He came to the United Kingdom on or about 25 January 2001 on a six months visitor’s visa. After his visa expired following the grant of an extension to 31 October 2002, he remained in the United Kingdom as an overstayer. Since then, he has been convicted of a number of serious offences of dishonesty. His presence in the United Kingdom has been unlawful or at least precarious. He has served several prison sentences of sufficient significance that they would at least normally justify his deportation, although the commission of serious criminal offences is not a trump card. Other considerations, such as article 8 ECHR may be relevant.
[4] Following completion of a prison sentence in October 2015, the petitioner was transferred to Immigration Service detention. In about February 2016, the First‑tier Tribunal granted bail (which was originally refused) and he was released. He currently resides at an address in Coventry with his wife, their two young children, aged 4 and 3 years, and his wife’s daughter, aged 12 years. This was a requirement of the grant of bail.
Statutory background
[5] Section 94B[1] of the 2002 Act provides as follows:
“94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation
(1) This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under –
(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), [applicable here] or
(b) section 3(6) of that Act (Court recommending deportation following conviction)
(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”
[6] There is no dispute that the petitioner is a “foreign criminal” within the meaning of section 32(5) of the UK Borders Act 2007. As such, the respondent was obliged to make a deportation order unless the petitioner fell within one of the statutory exceptions set out in section 33 of the 2007 Act. The decision was made to deport him in accordance with section 3(5)(a) of the Immigration Act 1971 (as a person whose deportation was deemed to be conducive to the public good).
The section 94B certificate
[7] The certificate, which forms part of a lengthy, 14 page letter to the petitioner from the Home Office, dated 6 November 2015, headed DECISION TO REFUSE A PROTECTION AND HUMAN RIGHTS CLAIM (which on the copy I have been provided with begins on page “3”) records that:
“Certification under section 94B of the Nationality, Immigration and Asylum Act 2002 (page 14)
The Secretary of State may certify a human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002 where she considers that, despite the appeal process not having been begun or not having been exhausted, removal of that person to the country or territory to which he is proposed to be removed, pending the outcome of an appeal in relation to his claim, would not be unlawful under section 6 of the Human rights Act 1998 (public authority not to act contrary to Human Rights Convention). The grounds upon which the Secretary of State may certify claim under subsection (2) include (in particular) that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed.
Consideration has been given to whether your Article 8 claim should be certified under section 94B of the 2002 Act. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome any appeal you may bring. The Secretary of State does not consider that such a risk exists because the evidence provided does not demonstrate such risk exists in your case. All the available evidence and information provided has been considered, however you have provided no evidence to demonstrate that returning you to Zimbabwe before the outcome of any appeal that you may lodge, will not lead to a risk of serious irreversible harm in your case. Although you claim to have a relationship with your children, it is not accepted that your deportation will affect the welfare of your wife or your children in the UK. Therefore, it has been decided that to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the UK.
Decision (page 14)
As explained above, your protection and human rights claim has been refused. It is not accepted that you fall within any of the exceptions to deportation at a section 33 of the UK Borders Act 2007. Therefore, section 32 (5) of the same Act requires the Secretary of State to make a deportation order against you. A deportation order has been made against you and is enclosed with this decision.
Appeal (page 14)
You do not have a right to appeal against the decision to deport you. However, you may appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the decision to refuse your protection and human rights claim under section 82 (1) of the 2002 Act. You may only exercise your right of appeal from outside the UK.
Any appeal must be made on one or more of the following grounds:
- that your removal from the UK is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to the European Convention on Human Rights).
You must not appeal on grounds which do not apply to you. You must also explain the reasons that you are appealing against the decision and provide any supporting evidence that is available to you in order to substantiate your grounds of appeal.
You are reminded that as you have previously been served with a notice under section 120 of the 2002 Act, if your circumstances change so that you have new reasons for wishing to remain in the UK, or grounds on which you should be permitted to remain in the UK or grounds on which you should not be removed from or required to leave the UK, you must tell us about these reasons or grounds as soon as reasonably practicable.
Removal
If you do not leave the UK as required you will be liable to enforced removal to Zimbabwe.
…..
If you wish to seek legal advice you must do so now.”
[8] The effect of such certification (which has occurred here) is that the petitioner must be removed from the United Kingdom before resolution of his appeal to the First‑tier Tribunal against the deportation order. There is no statutory right of appeal against such certification. Any challenge to it must be by judicial review proceedings.
The petitioner’s case
[9] The petitioner relies on article 8 ECHR.
[10] Essentially, the petitioner says that (i) the respondent did not certify his article 8 claim as clearly unfounded so he must have some prospect of successfully appealing the deportation order, (ii) he has a genuine and subsisting relationship with his children and step‑child, (iii) temporary removal will have a significant impact on his relationship with his family giving rise to a breach of article 8 ECHR, (iv) the respondent did not properly or adequately consider section 94B(2), and, in particular, failed to distinguish between deportation and removal, (v) her position on the question of the petitioner’s relationship with his family is inconsistent and has not been properly considered, and (vi) if the certification is flawed it is not inevitable that the same decision would be reached again.
[11] In submissions, the focus was on the petitioner’s relationship with the children rather than with his wife, although his petition is wide enough to cover both.[2]
The respondent’s position
[12] The respondent (based on Mr Webster’s focussed note of argument and cogent presentation) says that (i) she was entitled to find and has found that the petitioner did not have a genuine and subsisting relationship with his children and step‑child, (ii) the...
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