Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 216
P414/11	OPINION OF LORD BANNATYNE in the Petition of H S (AP) Petitioner; against For judicial review of a decision made on 10th January 2001 by the Secretary of State for the Home Department that representations on behalf of the petitioner did not constitute a fresh claim for asylum ­­­­­­­­­­­­­­­­­________________

Petitioner: Winter; McGill & Co

Respondent: McIlvride; Office of the Solicitor to the Advocate General

23 December 2011

Introduction

[1] The petitioner seeks judicial review of a decision made on 10 January 2011 by the Secretary of State for the Home Department (the respondent) that representations on behalf of the petitioner did not constitute a fresh claim for asylum.

Background
Immigration History

[2] The petitioner is a citizen of China who arrived in the United Kingdom on 21 February 2000 and claimed asylum on 23 February 2000. The application was refused by the respondent as the petitioner did not return a form within a specified period. Later, in July 2000 the petitioner's agents contacted the respondent and a further four months later the petitioner advised the respondent of a change of address. The petitioner's claim for asylum was reconsidered but was refused and the petitioner was served with that decision on 11 July 2001. The petitioner appealed and after sundry procedure his appeal rights were exhausted on 15 January 2002. The petitioner again notified the respondent of a new address and on 21 August 2002 an employer applied for a work permit in respect of the petitioner. That application was granted by the respondent, but she refused to grant the petitioner leave to remain to work for that employer. Thereafter the petitioner stopped reporting to the respondent for a period of about 18 months. On or about 18 May 2004 an MP wrote to the respondent about numerous Chinese immigrants he believed to be living in his constituency, and that list contained the name of the petitioner. The petitioner was again asked to report but failed to do so. On 1 July 2008 the petitioner was detained as a suspected illegal immigrant and was released two days later. About 16 months later the petitioner was requested by the respondent to attend at an interview but failed to do so. The petitioner attended an appointment on 10 December 2009. On or about 31 March 2010 further representations were made on the petitioner's behalf. On 10 January 2011 the respondent issued the letter containing the challenged decision. On or about 6 April 2011 the petitioner was detained and served with directions for his removal to take effect on 10 April 2011. The removal directions were cancelled following the granting of first orders in this petition.

[3] In addition within the decision letter consideration was given by the respondent to paragraph 395C of the Immigration Rules which is in the following terms:

"[395C Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf.]."

Immigration Rules Relevant to the Challenged Decision
[4] Rule 353 of the Immigration Rules governs consideration of fresh claims and is in the following terms:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

Submissions for the petitioner
[5] There were five detailed challenges to the respondent's decision advanced on behalf of the petitioner.

(i) The respondent having held that the petitioner had a private life in the United Kingdom went on to conclude that nevertheless the removal of the petitioner was a legitimate interference in pursuit of the permissible aim of maintaining effective immigration control.

[6] Counsel for the petitioner accepted that maintenance of effective immigration control may form part of the permissible aim of prevention of disorder.

[7] However, he submitted that in carrying out the assessment of whether the petitioner's removal would as a matter of fact contribute to the maintenance of effective immigration control the respondent must consider whether there is in fact an effective system of immigration control to be maintained.

[8] Counsel contended that the petitioner's immigration history belied the existence of effective immigration control and showed to the contrary that there was no effective system of control to be maintained.

[9] In development of this argument counsel referred to certain elements in the petitioner's immigration history: during the eleven years the petitioner had been in the United Kingdom he had maintained contact with the respondent for six and a half years including from July 2008. During the period that the petitioner was in contact with the respondent he had had no leave to remain in the UK but the respondent had taken no effective action against him to remove him. Counsel submitted from this history that the conduct of the respondent contradicted any alleged concerns on her part to maintain effective immigration control and undermined the reason for deciding to remove the petitioner. He thus submitted that the decision was rendered unreasonable and irrational.

[10] Counsel in support of the said submissions referred me to the decision in Omar v Secretary of State for the Home Department [2009] 1 WLR 2265 and in particular drew my attention to the observations of Moses L.J. at 2268, paragraph 8:

"Moreover, it seems to me that the Secretary of State is under an obligation to see that she sets an example in the speedy conclusion of appeals. She must take the final responsibility for delays within those departments responsible for ensuring fair and effective immigration control. Effective immigration control requires a stringent approach to delays caused by those responsible for that control."

[11] In addition he referred me to certain further observations from Moses L.J. at page 2273, paragraph 32:

"Her avowed attempt to protect the public interest is seriously undermined by a delay of nearly one year in pursuing the appeal which he considers necessary to safeguard that interest."

(ii) Counsel then argued that if his first ground of argument did not find favour with the Court, ie. that there was no Article 8(2) purpose to the respondent's decision then the issue of delay was relevant to the assessment of proportionality by the respondent.

[12] Given that the respondent had to have regard to this in the assessment of proportionality it was counsel's position that the decision was unreasonable and separately irrational in that the respondent had failed to have regard when carrying out this assessment to the issue of delay.

[13] In seeking to advance this assertion counsel relied on a number of separate arguments:

(a) the respondent in her decision letter asserted that the petitioner was aware he had no right to be in the United Kingdom but the respondent left out of account in the assessment of the weight to be given to that, that the notification of that position was given to the petitioner as long ago as 11 July 2001 and that the Secretary of State had subsequently granted permission to an employer to employ the petitioner, that the petitioner was never told of any actual intention to remove him and that that was the position until 2011.

(b) The respondent asserted that the period the petitioner had amassed in the UK was as a result of his history of absconding and non-compliance. While that was true for four and a half years of the period it was not true in respect of the other six and a half years the petitioner had been in the United Kingdom where the cause of the petitioner amassing this period of residence was the respondent's failure to act.

(c) The respondent asserted in the decision letter that part of the initial delay in determining the petitioner's asylum claim was as a result of delay in the respondent receiving change of address details from the petitioner. However the respondent did not go on to indicate how that contributed to the delay.

(d) The respondent referred to the petitioner's changes of address between 2006 and 2008 without any indication of how that was material. If that change of address was not independently material the respondent had double counted the petitioner having lost contact with the Secretary of State and in so doing the respondent was unreasonable.

(e) The respondent asserted in the decision letter that the petitioner's sense of impermanence in the United Kingdom could not have faded nor could he have been given the impression he would eventually be allowed to stay in the United Kingdom and that the respondent would not enforce his removal if he did not leave voluntarily. The respondent goes on to assert that the majority of the petitioner's time in the United Kingdom was as a result of his non-compliance and history of absconding when in fact that is inaccurate. The majority of the petitioner's time in the United Kingdom has been as a result of the six and a half years he has spent in the UK, when the respondent has known of his whereabouts but taken no steps to remove him.

(iii) Further the petitioner's counsel contended that in considering these matters as detailed above the respondent had approached the matter in the wrong way in that she had asked herself the wrong question namely: she failed to ask herself how an immigration judge would address these matters (see WM (DRC) v SSHD [2006] EWCA Civ 1495 per Lord Justice Buxton at paragraph 11.)

(iv) It was argued that the respondent had wrongly concluded that there was no inconsistency between the petitioner's case and other similar cases. Counsel further submitted that in these circumstances the respondent had been wrong in holding that the dicta in EB (Kosovo) v SSHD [2009] 1 AC 1159 was not relevant to consideration of the petitioner's case. Reading short in that case it was held that the inconsistency of approach on the part of the Secretary of State to the applicant's case and that of his cousin demonstrated that there was a dysfunctional system operating.

[14] In support of the submission that the foregoing dicta was relevant in consideration of the petitioner's case counsel relied on the fact that the respondent had permitted 161,000 people to remain under her Case Resolution Scheme including almost 12,000 Chinese citizens, all of whom like the petitioner were failed asylum seekers with no right to remain in the United Kingdom. It was thus submitted that when regard was had to these particular factors that the respondent had dealt with the petitioner in an inconsistent way which showed that the system was dysfunctional.

(v) It was lastly argued that in considering Immigration Rule 395C the respondent had not clearly applied a different test to that in considering whether the removal would breach Article 8. It was submitted that the tests to be applied were different. If the test were the same there would be no need to consider such matters under Article 8 and Immigration Rule 395C. That there was a need to consider such matters in terms of each of these provisions indicated that the consideration required differed and the test to be applied under Immigration Rule 395C must be more generous to the petitioner. Rule 395C it was submitted should properly be regarded as, amongst other things, an ECHR 'near miss' provision. In failing to so recognise and apply such a test the respondent's decision was irrational.

Reply for Respondent
[15] Counsel opened his submission by referring to a number of cases which he asserted set the legal framework for considering the challenged decision.

[16] He first took me to R (Razgar) v SSHD [2004] 2 AC 368. He referred me initially to the speech of Baroness Hale of Richmond at 396, paragraph 45 who observed:

"Sometimes, the reason for expulsion will be immigration control, which is a legitimate aim 'in the interests of the economic well-being of the country'".

Secondly he referred me to the judgment of Lord Bingham of Cornhill at page 390, paragraph 20 who observed:

"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."

[17] Counsel accepted that the observations of Lord Bingham had been commented upon by the same judge in Huang v SSHD [2007] 2 AC 167 at pages 187/188, paragraph 20:

"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this Opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, paragraph 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

[18] Counsel accepted, in light of the foregoing that there may be circumstances (though few in number) in which a decision said to be pursuant of lawful immigration control could be disproportionate. EB (Kosovo) relied on by the petitioner he accepted was an example of such, however, the circumstances of that case were wholly different from those of the petitioner.

[19] Counsel sought to distinguish the case before me from the circumstances of the appellant in EB (Kosovo) by reference to the speech in that case of Lord Bingham of Cornhill at pages 1184 and 1185 where he sets out the immigration history of the applicant between paragraphs 1 and 5.

[20] Counsel particularly drew attention to the fact that the applicant had an extensive private and family life in this country. It had taken the Secretary of State four and a half years to resolve an application for asylum. It took the Secretary of State two years to correct an erroneous decision. The applicant had a cousin whose circumstances in all material respects were exactly the same as the applicant's and he was given leave to remain.

[21] At paragraph 16, at page 1189 Lord Bingham makes observations as to the relevance of delay when considering the weight to be accorded to the requirement of firm and fair immigration control:

"Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the applicant's cousin, who entered the country and applied for asylum at the same time and his position is not said to be materially different, was granted exceptional leave to remain, during the two year period which it took the Secretary of State to correct his erroneous decision to refuse the applicant's application on grounds of non-compliance. In JL (Sierra Leone) v Secretary of State for the Home Department [2007] Imm AR 396, heard by the Court of Appeal at the same time as the present case, there was a somewhat similar pattern of facts. JL escaped from Sierra Leone with her half brother in 1999 and claimed asylum. In 2000 her claim was refused on grounds of non-compliance. As in the applicant's case this decision was erroneous, as the Secretary of State recognised eighteen months later. In February 2006 the half brother was granted humanitarian protection. She was not. A system so operating cannot be said to be 'predictable, consistent and fair as between one applicant and another'. ... To the extent that this is shown to be so, it may have a bearing on the proportionality of removal, or of requiring an applicant to apply from out of country. ..."

[22] It was counsel's position that no such similarity of circumstances between the petitioner and any other person had been shown in the instant case and that accordingly no dysfunctionality of the type referred to in EB (Kosovo) could be shown.

[23] Counsel further observed that even in the extreme circumstances of dysfunctionality illustrated in the case of EB (Kosovo) their Lordships had made it clear that regard had to be had to the substantial administrative burden on the authorities see: Lord Hope of Craighead at 1193, paragraph 27 where he observed as follows:

"Allowance must also be made for the administrative burden that is unavoidable if the system is to be fair, and a case ought not to succeed merely because it might have been stronger if it had been determined earlier."

And Baroness Hale of Richmond at 1194, paragraph 32 where she observed:

"In particular, I agree that prolonged and inexcusable delay on the part of the decision making authorities must, on occasion, be capable of reducing the weight which would normally be given to the need for firm, fair and consistent immigration control and the proportionality exercise. That is a legitimate aim which will normally carry great weight in immigration cases. The heavy administrative burdens which such a system entails are well understood."

[24] As regards the Omar case counsel submitted that this was of no great assistance to the appellant as the observations the Court made were in the context of whether the failings of the legal representatives of the respondent could be imputed to her in circumstances where they had failed to mark an appeal timeously. This was a situation of a one-off mistake by legal representatives of the respondent and the observations of the Court had no bearing on the issue of systemic failure.

[25] Counsel then turned in light of those authorities to examine the decision letter.

[26] He commenced by looking at the immigration history as set out at page 2 of the decision letter and stressed the following, that:

"As at 17 March 2000 the petitioner's asylum claim had been dismissed due to the petitioner not completing or returning the asylum questionnaire nor providing any reasonable explanation as to why; as at 29 June 2001 his asylum claim was reconsidered; as at 11 July 2001 the petitioner was served with a notice to an illegal entrant and notice of removal directions. From this the petitioner would understand that the clear intention of the respondent was to remove him. As at 15 January 2002 his appeal rights had been exhausted; as at 16 March 2003 he was granted temporary admission, however temporary admission was granted where it was intended to remove and where removal could not be immediate. Thereafter on 16 November 2003 he had absconded. This was the last occasion on which he had complied with reporting requirements. On 18 May 2004 an MP as part of a generic letter sent about all Chinese nationals within his constituency referred to the petitioner. Not until 1 July 2008 was the petitioner back in contact with the respondent. He was released in March 2009, however, this was to enable removal by the obtaining of an address in China to return him to. Again these actions were in order to facilitate his removal. On 17 November 2009 he did not attend at an interview. Following this the petitioner provided an invalid address. The respondent's department had to get colleagues in China to put these addresses to the Chinese authorities."

It was counsel's submission that when that immigration history was looked at it supported the respondent's decision in relation to proportionality.

[27] At page 4 and 5 the respondent had considered the case of Razgar. Counsel submitted that the respondent had sought to apply the test in Razgar and had done so carefully. The application of that test had been entirely rational having regard to the petitioner's circumstances. The respondent had then gone on to consider EB (Kosovo) and he submitted that she had carefully sought to apply the guidance in that case to the circumstances of the petitioner.

[28] Having dealt with Razgar and EB (Kosovo) the respondent then made it expressly clear that she had in mind whether an immigration judge would hold it to be disproportionate to remove the petitioner and therefore she applied the correct test.

It was counsel's submission that the reasoning contained in the letter displayed no irrationality in relation to the principal ground of challenge namely dysfunctionality arising from delay.

[29] As regards the subsidiary argument that there was dysfunctionality not just through delay but unequal treatment it was counsel's position that the scheme to which reference was made in the course of submissions by the petitioner was a discretionary scheme. It was not set out in the petition and no argument had been advanced in the course of oral submissions how the Chinese nationals who had been allowed to stay in this country had individual circumstances the same as the petitioner and thus the behaviour of the respondent could be rendered irrational. It was his submission that the argument under this head simply did not get off the ground. He submitted that no information had been put before the Court as to how this petitioner had been treated unfairly.

[30] As to the argument in terms of Immigration Rule 395C it was counsel's position that this rule falls to be considered on its own terms. It was quite clear from the decision letter that the respondent had done so and that this argument was unstateable.

Discussion
[31] It was advanced in the petition repeatedly and contended without further elaboration in oral argument that in approaching her decision the respondent had not asked herself the correct question as directed by the Court of Appeal in AK (Afghanistan) and WM (DRC) v SSHD namely: she failed to have regard to how an immigration judge would address these matters. I find that this submission has no merit. At paragraph 11 of the decision letter the respondent asks the correct question and refers specifically to both of the said cases. The respondent has also earlier, when considering the relevance of EB (Kosovo) to the petitioner's case at paragraph 9, also asked the correct question. Nothing in the decision letter suggests that having asked the correct question she then did not apply herself to answering that question.

[32] So far as the petitioner's ground of challenge that the petitioner's immigration history supports the proposition that there is no effective immigration control to be maintained and that the conduct of the respondent contradicts any alleged interest on her part in maintaining immigration control I am not persuaded that this is correct.

[33] Between 23 February 2000 when his asylum application was made and 15 January 2002 when his appeal rights were exhausted the respondent on the basis of the immigration history was properly considering the asylum claim of the petitioner. No undue delay during said period on the part of the respondent is identified.

[34] From about August 2002 for eighteen months the petitioner stopped reporting to the immigration authorities therefore any delay during said period was entirely due to the actings of the petitioner.

[35] From 18 May 2004 the petitioner disappeared for a further four years until 1 July 2008. Again any delay was the fault of the petitioner and not the respondent.

[36] So until 1 July 2008 there was no delay which could support any argument that the respondent was not concerned to maintain immigration control in the petitioner's case.

[37] There followed a delay of sixteen months for which no particular reason is advanced before the petitioner was interviewed. However, this has to be considered in the context of the enormous administrative burden on the respondent which burden was recognised by the Court in EB (Kosovo) and when viewed in that light does not support any lack of concern relative to immigration control on the part of the respondent.

[38] The above observations in my view equally apply to the ten month delay in the respondent reaching her decision on the petitioner's further representations made on 31 March 2010.

[39] In my judgment nothing in the immigration history of the petitioner supports the contention that there is no effective immigration control and that the respondent was not interested in the maintenance of immigration control.

[40] The petitioner further argued that even if I held there was an Article 8(2) purpose to the respondent's decision nevertheless she had failed to take into account the issue of delay in reaching her decision on proportionality. I am not persuaded that this is correct.

[41] I am unable to identify any errors or deficiencies in the respondent's assessment of proportionality.

[42] I would generally observe that paragraph 9 in which the respondent considers proportionality extends over some three pages. It appears to me that it contains full and careful consideration of the issue of proportionality including a careful analysis of the petitioner's immigration history and of the issue of any delay which had occurred and the reasons for that. The respondent was clearly entitled to have regard to the petitioner's absconding and the length of it. There is nothing in the respondent's actings relating to the periods when she was aware of the petitioner's whereabouts that could have given the petitioner the impression he would be allowed to stay and could have caused his sense of impermanence to fade. Rather when aware of his whereabouts the respondent's actings have all been directed to considering his various applications to remain and consistently holding that he should not remain. In addition the exercise at paragraph 9 is conducted in the context of the respondent firmly having in mind the observations of the Court in Razgar and EB (Kosovo) which in my view are correctly applied to the facts of the petitioner's case.

[43] There is nothing irrational or unreasonable in the way that the respondent has reached her decision on proportionality.

[44] The petitioner went on to develop a further argument based on EB (Kosovo) to the effect that he had been treated unequally in the same way as the applicant in EB (Kosovo) was treated unequally and thus there had been inconsistency in treatment. The circumstances in EB (Kosovo) were these: during the period of delay the applicant it was held had a legitimate expectation of being allowed to remain in the United Kingdom given the treatment of his cousin, who had been allowed to remain and whose circumstances in all material respects were the same as his cousin.

[45] I had no difficulty in rejecting the submission that the petitioner had been treated unequally as the applicant had in EB (Kosovo). The petitioner's case was in no way comparable to the applicant's in EB (Kosovo). The applicant in that case was able to point to the treatment of a person whose circumstances were in all material respects the same as someone who had been treated entirely differently. The petitioner was unable to point to either an individual or a group of persons whose position was in all material respects the same as the petitioner and who had been treated entirely differently. What was relied on to support this submission was reference to the Case Resolution Scheme and in particular that 13,000 Chinese failed asylum seekers had been allowed to remain in this country in terms of that scheme.

[46] However, what was not averred in the petition and what was not submitted in the course of oral argument was that the appellant's circumstances were in all material senses the same as all of these people who had been allowed to remain in this country under that scheme or any of the persons who had been allowed to remain in this country under that scheme. It does not appear to me that it can be argued that the treatment of the petitioner has been inconsistent, unequal, and unfair on the basis of a comparison with another large group of persons whose particular circumstances are unknown. I do not believe that it can be said that the appellant's case falls within the ambit of the judgment in EB (Kosovo) on the issue of inequality of treatment and the respondent has correctly held that this aspect of the judgement in EB (Kosovo) relating to inconsistency in approach does not apply to the petitioner.

[47] Lastly I turn to the argument based on the respondent's failure when considering Rule 395C to apply a test which is more generous to the appellant than when considering Article 8.

[48] I firstly observe that no authority was put forward by counsel for the petitioner in support of this contention.

[49] Immigration Rule 395C places a duty on the respondent before a decision to remove is made to have regard to all relevant factors including the factors as listed in the rule.

[50] Thus the respondent must carry out this exercise before removing. The respondent has carried out this exercise at paragraph 12 of the decision letter. In my view the respondent has fully and carefully carried out the exercise which she was required to undertake in terms of the rule. She has considered all of the relevant factors. She has considered this matter separately from her consideration of Article 8.

[51] Given the above circumstances I am unable to identify any error of law in the way that the respondent has considered Rule 395C. In my view the decision in terms of Rule 395C cannot be criticised.

[52] Moreover I do not believe on a proper construction of Immigration Rule 395C that the test to be applied must be more generous to an applicant than a consideration of Article 8. The test I believe is a different one from that in terms of Article 8. The rule requires the respondent to take account of all relevant factors. Certain of these factors may not be relevant to considerations in terms of Article 8. For example certain compassionate circumstances may not be relevant to a consideration of the petitioner's Article 8 rights but require to be considered in terms of Rule 395C. Thus the respondent may have to consider different factors under Article 8 and Rule 395C and could reach a different decision in terms of each. The respondent has recognised this by considering the two issues entirely separately and considering in terms of each decision the relevant factors for that specific decision.

[53] However, it does not follow that because Rule 395C and Article 8 considerations are different the test under Rule 395C must necessarily be more generous to the petitioner. Nor does it mean that properly understood it is a near miss provision and so if you just fail under Article 8 you must be successful in terms of Rule 395C. I believe that that is a misconstruction of the rule. Rule 395C is what it is, namely a separate consideration of the applicant's position having regard to the provisions of the rule itself. I accordingly reject the petitioner's argument in terms of this rule. Moreover, if I am wrong in my construction of the rule I believe having regard to all I have referred to relative to the petitioner that he would not have been successful in terms of a "near miss" provision.

Decision
[54] For the foregoing reason reasons I sustain the third plea-in-law for the respondent and dismiss the petition.