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Immigration DN (Rwanda), Petitioner



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Immigration
DN (Rwanda), Petitioner [2014] CSOH 142

A Rwandan national (N) petitioned for judicial review of a decision of the Upper Tribunal (U) refusing him permission to appeal a determination of the First-tier Tribunal (F) refusing N's appeal against a decision by the Secretary of State for the Home Department refusing his application for indefinite leave to remain in the United Kingdom. F had refused N's appeal on the basis that N had entered the UK as a student with the understanding and commitment that he would return to Rwanda on completion of his studies, and refused his application to appeal that decision as there had been no error of law and the decision was proportionate. U refused his application to appeal F's decision on the basis that N could not meet the requirements of the immigration rules, his human rights case was hopeless and there had been no error of law. N submitted that F had failed to have regard to N's societal worth and had considered an irrelevant factor, namely that N's private life in the UK was built up while he had had limited leave to remain, and there was a compelling reason for judicial review as the consequences for N of his inability to appeal were drastic and dire.



Held: Petition refused. (1) Even on the assumption that there were material errors of law on F's part, and that there were corresponding material errors of law in U's decision, no compelling reason for further appeal was demonstrated and it was a gross overstatement to say that N's removal would result in dire and drastic consequences for him. (2) There was no error of law on U's part as it was open to him to find that the appeal was hopeless, and F was entitled to have regard to N's immigration history. (3) F erred in leaving out of account the evidence of N's contribution to the community, but in the circumstances that was not a material error of law as there was no suggestion that N's job involved skills or expertise which would make it very difficult to replace him, and although N's attributes were admirable they were by no means extraordinary, and were not matters deserving of significant weight when it came to the assessment of proportionality, UE (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 975, [2012] 1 W.L.R. 127, considered. Observed, that F ought to have followed the guidance of MS (India) v Secretary of State for the Home Department [2013] CSIH 52, rather than embark immediately on a full scale proportionality assessment he ought to have examined the circumstances put forward by N and determined whether they disclosed a good arguable case for leave to remain being granted outside the immigration rules, and the only reasonable conclusion would have been that they did not.

LWF (China) v Secretary of State for the Home Department [2014] CSIH 24

A Chinese national (F) reclaimed against a decision of the Lord Ordinary refusing her petition for judicial review of a decision of the Secretary of State for the Home Department (S) certifying her claim as clearly unfounded in terms of the Nationality, Immigration and Asylum Act 2002 s.94(2). F had entered the United Kingdom in 2006 on a six month visitor visa, she overstayed and in December 2012, she was served with removal directions. She submitted a human rights claim based on her two year relationship with a UK national (J), which S refused. F's petition for judicial review of that decision was refused by the Lord Ordinary on the grounds that F and J had no family life together, F did not qualify under the new Immigration Rules, and her return to Hong Kong would not be a disproportionate interference with her ECHR art.8 rights.



Held : Reclaiming motion refused. (1) There was nothing to suggest that F would face unacceptable consequences if she were returned to China and no exceptional facts or circumstances had been demonstrated, MS (India) v Secretary of State for the Home Department [2013] CSIH 52, 2013 G.W.D. 23-441, considered. (2) No immigration judge, assessing the case as favourably as possible for F, would have concluded that F's removal from the UK was disproportionate in the circumstances. (3) The Lord Ordinary was entitled to conclude that the only rational view that could have been taken of F's claim was that it was clearly unfounded and her s.94(2) certification should not be reduced, her appeal was bound to fail and S and the Lord Ordinary were entitled to reach the conclusions they did. (4) The reasons given by the Lord Ordinary were adequate to support his conclusion as in this particular case a stark narration of the facts, followed by the Lord Ordinary's conclusion on those facts, was all that was required.

IU (Pakistan), Applicant [2014] CSIH 85

The Pakistani appellant appealed a decision of the Upper Tribunal (U) allowing an appeal by the Secretary of State for the Home Department against a determination of the First-tier Tribunal (F) allowing Z's appeal against S's decision to remove them. F had concluded that interference with the ECHR art.8 rights of Z and their child (C) would be grossly disproportionate and their removal from the United Kingdom would be arbitrary. On appeal U held that F had erred in its approach to the immigration rules and concluded that Z's removal from the UK would not be disproportionate as C was very young, she had been born while Z were temporarily resident in the UK, she was not a British or Union citizen, and her private life was dependent upon her relationship with Z. Z submitted that (1) there was no error in law in F's art.8 assessment and U had erred in law in interfering with that part of F's decision; (2) U had failed to take proper account of Z's situation.



Held: Leave to appeal refused. (1) F's error of approach had permeated the art.8 assessment, there was no separate analysis of the facts that F considered relevant to art.8 and no separate consideration of C's interests, and U had been entitled to conclude that F had erred, to set its decision aside and to remake it. (2) Although it was important to give proper weight to the particular and specific circumstances of an applicant, the court was not persuaded that U's approach in this respect amounted to an error of law. (3) No important point of principle arose for the purposes of the Act of Sederunt (Rules of the Court of Session 1994) 1994 Sch.2 Pt 3 para.41.57(2)(b).

LK v Secretary of State for the Home Department [2015] CSOH 22
The decision which was under judicial review was contained in a letter of 21 February 2013 which had refused leave to the petitioner to remain as a partner. It was conceded that there could be no challenge to the assessment made under the Immigration Rules. It was argued that the last stage had not been undertaken by the decision maker. It was argued there was under art. 8 a “good arguable case” and the failure properly to consider it had resulted in a disproportionate interference with private life. The partner Mr M was an EU citizen and a UK resident and proportionality had to be assessed on the basis that he stayed in Scotland and not in the Philippines where the respondent said he could go to with LK. Further, the respondent had said that the threshold for article 8 was “insurmountable obstacles”. That, however, was just one test for proportionality and was not the only test. Due to the UK nationality of Mr M there was a good arguable case under art. 8.
Held : Petition allowed and decision reduced (1) the narrow issue in this case is whether the respondent was obliged to go further and to demonstrate clearly that she had considered art. 8 outwith the terms of the rules and as a discrete question. In law it is necessary, demonstrably, to do so and that in this case it was not done. This followed from MS v Secretary of State for the Home Department [2013] CSIH 52. It was necessary to consider in particular, the nature of the relationship between the petitioner and his partner Mr M, the effect of the removal of the petitioner to the Philippines on their family life and to ask the correct question of whether the whole facts showed a good arguable case of disproportionality if leave to remain is not granted. (2) The decision letter did not doing any of these things and may have confused matters by relying on a test of “insurmountable obstacles”. There was ample authority for the need to conduct this second stage. (3) Nor was it for the Court to discern a minimum standard of separate art. 8 analysis. It is enough that it has not been done and this disclosed an error in law. (4) A further question arose as to whether it amounts to a material error and whether on reconsideration the result would inevitably be the same. Counsel was correct to say that nothing was inevitable when article 8 is involved. All the facts were before the respondent and it was clear that some have not been properly considered eg the effect on M and the suggestion that he, as a UK resident of many years, should relocate to a country he knows not. The cases showed that the care that is now necessary to take where the interests of third party family members are affected. Proportionality is a difficult and evaluation exercise. It was not for the court to undertake or suggest what should be the result.
The Opinion of the Court noted as follows:-
In opening for the petitioner Mr Lindsay drew my attention to the petition and answers as amended.  The decision which was under review was contained in the letter of 21 February 2013 which had refused leave to the petitioner to remain as a partner.  It was conceded that there could be no challenge to the assessment made under the rules.  The problem arose because the last stage had not been undertaken.  There was under article 8 a “good arguable case” and the failure properly to consider it had resulted in a disproportionate interference with private life.  The other partner Mr M was an EU citizen and a UK resident and proportionality had to be assessed on the basis that he stayed in Scotland and not in the Philippines.  British Nationality was the point and the error was not to carry out the second stage assessment.  Further, the respondent had said that the threshold for article 8 was “insurmountable obstacles”.  That, however, was just one test for proportionality and was not the only test.  Due to the UK nationality of Mr M there was a good arguable case. 
What the letter does not do is to look independently at article 8.  It is not necessary for me to set out or to analyse the various rules and exceptions since it was conceded at the outset that there was not nor could be any challenge under the rules.  The narrow issue in this case is whether the respondent was obliged to go further and to demonstrate clearly that she had considered article 8 outwith the terms of the rules and as a discrete other question.  I am clear in this opinion that  in law it is necessary, demonstrably, to do so and that in this case it was not done.  It was necessary to consider in particular, the nature of the relationship between the petitioner and his partner (Mr M), the effect of the removal of the petitioner to the Philippines on their family life and to ask the correct question of whether the whole facts showed a good arguable case of disproportionality if leave to remain is not granted.

[48]      In my opinion no. 6/3 regrettably does not do any of those necessary things and may have confused matters by relying on a test of “insurmountable obstacles”.  There is ample authority for the need to conduct this second stage, and in the cases, where it is properly done the minister’s discretion is not often interfered with.  (Izuazu is a good example).  I am bound by the decision in MS which I have already referred to.  The Inner House followed Nagre and Izuazu and I refer to what Lord Drummond Young said between paragraphs 23 and 30.  (I should add that I am aware that the test in Nagre may be open to debate in England;  MM (Lebanon), but that is not a concern here).

[49]      Nor is it necessary for me to try to discover a minimum standard of separate article 8 analysis.  It is enough that it has not been done and this discloses an error in law.  A final question arises as to whether it amounts to a material error and whether on reconsideration the result would inevitably be the same.  In my view counsel was correct to say that nothing was inevitable when article 8 is involved.  All the facts were before the respondent (see no. 6/8) and it is clear that some have not been properly considered eg the effect on M and the suggestion that he, as a UK resident of many years, should relocate to a country he knows not.  The cases shown the care that is now necessary to take where the interests of third party family members are affected eg Mansoor where there were no adverse factors and even Boultif, Amrollahi, Sanade and MR (Nigeria) where apparently undeserving applicants were not refused leave to remain .  I refer again to Halleemundeen.    Proportionality is a difficult and evaluation exercise.  It is not one for me to undertake or suggest what should be the result.  I cannot say that in this case the facts when properly considered would inevitably lead to the same result when remitted back.”
M K v Secretary of State for the Home Department [2015] CSOH 13
This is a petition seeking judicial review of a decision by the Secretary of State for the Home Department dated 10 February 2014 refusing to accept that further submissions submitted to her on behalf of the petitioner amounted to a fresh claim for asylum and a claim for breach of the petitioner’s human rights. The petitioner is a national of Pakistan. He entered the United Kingdom in 2002 in terms of a student visa. He remained in the United Kingdom unlawfully after his visa expired in 2004. He is an over-stayer. He avoided immigration control until 2009, when he sought leave to remain on the basis of, inter alia, art. 8. Leave was refused and the refusal was upheld on appeal. In refusing the appeal the petitioner was found to have claimed some £30,000 in benefits and student loans to which he was not entitled on the basis of a false claim to be a British citizen. That finding in fact remained unchallenged by the petitioner. The petitioner continued to remain in the United Kingdom unlawfully. The petitioner submitted further representations in 2013. Those further representations were refused and considered not to amount to a fresh claim. In response to the pre-action protocol letter the respondent issued a supplementary refusal letter dated 10 February 2014. It is against that decision that the present proceedings are directed.
Held : Petition dismissed. (1) In in MS v Secretary of State for the Home Department [2013] CSIH 52 Lord Drummond Young, delivering the opinion of the Court, said inter alia: “[28] … If an official or tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so. Such a reason will usually consist of circumstances "in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" (in the words of paragraph 3.2.7d of the Home Secretary's guidance). We are of opinion that in considering whether such circumstances have been demonstrated by an applicant, the criterion that should be used is that of a "good arguable case", as suggested by Sales J in the passage quoted above. The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed. It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed this test.” (2) After the date of the decision of the First-tier Tribunal MK established and developed private life in the UK. He attained a number of educational qualifications. He enrolled as a student at the University of Strathclyde, Glasgow. He has since 2011 used his advocacy skills to provide considerable assistance to those involved in litigation unable to afford legal representation. He has also engaged in matters which he describes as being of political and constitutional importance. He is a leading member of his local Labour party. He has been involved in various activities associated with the leadership of that party, including the “Better Together” campaign. He has also assisted in a mediation role in a controversy at a local Labour party. He has also established contacts with and become involved in several charitable organisations (including regular fundraising). The documents in process supported the view that the petitioner has a number of transferable skills. Even if he was a talented student, a regular fundraiser, and a politically active networker, “societal value” (albeit a factor that should not be excluded from consideration) is unlikely by itself to be determinative of a case such as this. (3) There was no error of law on the part of the respondent. The material produced by the petitioner did not demonstrate circumstances that, applying the rule of anxious scrutiny, would result in unjustifiably harsh consequences for MK in the event of removal - or that there is a realistic prospect of an immigration judge finding that there is a good arguable case to that effect. The respondent had regard to relevant considerations and she reached a conclusion which she was entitled to reach as regards the proportionality of removal and realistic prospects of success before an immigration judge. The court did not accept that the respondent erred in relation to societal value. This was not an exceptional case where the positive contribution to this country is very significant. The petitioner’s immigration history was poor. His private life, and societal value, was obtained when well aware of his precarious position whilst in the United Kingdom.

The Court said:-

[48] Firstly, in MS v Secretary of State for the Home Department [2013] CSIH 52 Lord Drummond Young, delivering the opinion of the Court, said inter alia:



[28]  …  If an official or tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so.  Such a reason will usually consist of circumstances "in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" (in the words of paragraph 3.2.7d of the Home Secretary's guidance).  We are of opinion that in considering whether such circumstances have been demonstrated by an applicant, the criterion that should be used is that of a "good arguable case", as suggested by Sales J in the passage quoted above.  The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed.  It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed this test.”

[49]      As noted above, the petitioner avers, inter alia, that after the date of the decision of the First-tier Tribunal he established and developed private life in the UK.  He attained a number of educational qualifications.  He enrolled as a student at the University of Strathclyde, Glasgow.  He has since 2011 used his advocacy skills to provide considerable assistance to those involved in litigation unable to afford legal representation (including acting as the authorised lay representative for NA).  He has also engaged in matters which he describes as being of political and constitutional importance.  He is a leading member of his local Labour party.  He has been involved in various activities associated with the leadership of that party, including the “Better Together” campaign.  He has also assisted in a mediation role in a controversy at a local Labour party.  He has also established contacts with and become involved in several charitable organisations (including regular fundraising).

[]          The documents contained in 7/1, 7/2, 7/3 and 7/4 of process support the view that the petitioner has a number of transferable skills.  He is a talented student, a regular fundraiser, and a politically active networker.  He is also adept at maintaining records of correspondence and photographs and is able to produce numerous supportive references.  However, as Mr Dewar recognised, “societal value” (albeit a factor that should not be excluded from consideration) is unlikely by itself to be determinative of a case such as this.

The following passages in the decision letter were highlighted, amongst others, during the hearing:

  • Paragraph 6 of the decision letter states:

In support of your client’s case he has provided almost 600 documents which have been read and considered.  These include, for example, letters of support, evidence of his involvement with the Labour Party and charity involvement.”

 


  • In paragraph 27 it is stated inter alia that:

Your client is 33 years old and a national of Pakistan who lived in Pakistan until the age of 22.  He has therefor spent the majority of his life and his formative years outwith the UK.  Having spent the first 22 years of his life in Pakistan it is considered that he will have no language difficulties on his return to Pakistan … It is further considered that … he will have absorbed the social and cultural aspects of that country.  No evidence has been put forward to show why your client would be unable to re-establish a private life upon return to Pakistan.  It is noted that your client has failed to show that he has no social, cultural or family ties in Pakistan.  In fact it is noted that your client’s parents and siblings live in Pakistan.”

 


  • Paragraph 28 concludes:

“ … For the aforementioned reasons it is not considered that there is a realistic prospect of an Immigration Judge, applying anxious scrutiny, coming to a different conclusion.”

 


  • In paragraph 32 it is stated:

On the basis of the information you have provided, it has been concluded that removing your client from the UK or requiring him to leave would not be contrary to the UK’s obligations under the ECHR.”

 


  • In paragraph 33 it is stated:

As we have determined not to reverse the decision on the earlier claim and have determined that your submissions do not amount to a fresh claim, your client has no further right of appeal.”

 

agree with the respondent’s conclusions – for the reasons outlined by Mr Webster. [54]    The respondent avers, inter alia, that she had regard to the material produced by the petitioner.  She had regard to the relevant consideration.  She applied correct test.  She reached a view she was entitled to reach.  It was a matter of judgment. 



[55]      Having considered the petitioner’s submissions and the productions in this case, I cannot detect any error of law on the part of the respondent. 

[56]      The material produced by the petitioner does not demonstrate circumstances that, applying the rule of anxious scrutiny, would result in unjustifiably harsh consequences for the petitioner in the event of removal - or that there is a realistic prospect of an immigration judge finding that there is a good arguable case to that effect.

[57]      The respondent had regard to relevant considerations and she reached a conclusion which she was entitled to reach as regards the proportionality of removal and realistic prospects of success before an immigration judge. 

[58]      I do not accept that the respondent erred in relation to societal value.  This is not an exceptional case where the positive contribution to this country is very significant.

[59]      The petitioner’s immigration history was poor.  His private life, and societal value, was obtained when well aware of his precarious position whilst in the United Kingdom.”
GAM (Pakistan) v Secretary of State for the Home Department [2015] CSIH 28
A Pakistani national (M) reclaimed against a decision of the Lord Ordinary refusing his petition for judicial review of the refusal by the Secretary of State for the Home Department (S) to grant him leave to remain in the United Kingdom (M (Pakistan) v Secretary of State for the Home Department [2013] CSOH 186, 2014 G.W.D. 1-20). M had sought to rely on para. EX1(b) of the Immigration Rules, arguing that his relationship with his wife (W), a British national, was a genuine and subsisting relationship and that there were insurmountable obstacles to family life with W continuing outside the United Kingdom. S determined that there were no insurmountable obstacles to M and W's relationship continuing in Pakistan, and that the ECHR art.8 did not give couples an inalienable right to choose where they carried on their family life. S further held that M had not demonstrated a good arguable case that refusal of leave to remain would lead to unjustifiably harsh consequences, and accordingly leave should not be granted outwith the Immigration Rules. The Lord Ordinary endorsed S's decision.
Held: Reclaiming motion allowed and S's decision quashed. (1) The right to marry and found a family was in itself a fundamental right protected by art.12 of the Convention and it followed that in an application for leave to remain in, or to enter, the UK as a spouse of someone settled there, consideration had to be given to the spouse's rights, including those under art.8 of the Convention. (2) As a British citizen, W could not be compelled to leave the UK: it was clear that S had proceeded entirely on the basis that W should go to Pakistan, which ignored the fact of her British citizenship and failed to consider that refusal of leave might result in M and W's indefinite separation and whether that indefinite separation could be justified as a proportionate interference with M and W's fundamental right to cohabit as a married couple, and the decision thereby disclosed an error of law. (3) When it came to an assessment of proportionality, it was not appropriate to apply a test of whether there might be an insurmountable obstacle to W being able to join M in Pakistan; that was merely a possible factor which might be taken into account in judging whether a decision was disproportionate. (4) S had applied the wrong test in considering the compatibility of the refusal of leave to remain in the UK with art.8 of the Convention where S had proceeded on the basis of whether refusal of leave to remain would lead to unjustifiably harsh consequences but the issue was whether the interference with private and family life could be justified as proportionate to some legitimate objective. (5) The decision letter was vitiated by error of law in two important respects and the Lord Ordinary had accordingly erred in refusing the petition for judicial review.

SMB (Pakistan) v Secretary of State for the Home Department [2015] CSIH 72

This was decided on 30 September 2015 and appears to make some inroads into the more liberal GAM (Pakistan). Here a national (B) of Pakistan reclaimed against a decision of the Lord Ordinary dismissing his petition for judicial review of a decision of the Secretary of State for the Home Department (S) refusing him leave to remain in the United Kingdom by reason of marriage to a British citizen (X) (SMB (Pakistan) v Secretary of State for the Home Department [2014] CSOH 139, 2014 G.W.D. 30-595). B had entered the UK in August 2000 and had thereafter remained illegally, repeatedly making unsuccessful applications for asylum or leave to remain, which had been based on the ECHR art.8 since 2002 and, since February 2005, included reliance on his marriage to X. In appeals in 2006 and 2009, two immigration judges (J) had each concluded that B's removal would not be disproportionate. In March 2013, S had refused B's application for leave to remain because it had not met the requirements of the Immigration Rules. B challenged that decision on the basis that S had not addressed his art.8 rights outwith the rules, which S treated as a fresh application under art.8. On 2 July 2013, S refused to grant B leave to remain, finding that it would not be unjustifiably harsh to refuse his application and that there was no reasonable prospect of another immigration judge reaching a different conclusion. The Lord Ordinary found that S had not treated the absence of insurmountable obstacles to relocation as determinative and she had not failed to give proper consideration to all the relevant factors and had been entitled to conclude that the legitimate aim of immigration control outweighed the art.8 case.




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