Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 16

P240/13

 

Lord Eassie

Lady Smith

Lord Malcolm

 

 

OPINION OF LORD EASSIE

in the petition

by

KHALID AHMAD (AP)

Petitioner and Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

 

Act:  Devlin;  Drummond Miller LLP (for Latta & Co, Glasgow)

Alt:  Webster;  Office of the Advocate General for Scotland

 

20 February 2015

Introductory

[1]        The petitioner and reclaimer in this petition for judicial review is a citizen of Afghanistan.  He was granted a visa to undertake studies at a college of tertiary education in Glasgow and came to the United Kingdom for that purpose in August 2012.  He paid tuition fees and began to pursue his studies.

[2]        The petitioner’s visa permitted him to undertake paid employment not exceeding 10 hours per week.  On 24 January 2013 immigration officers attended at a fast food shop in Glasgow in which the petitioner was working.  From talking with another employee in the shop, an immigration officer concluded that the petitioner had worked for more than 10 hours in that week and on that account the officer concluded that the petitioner had breached the condition in his visa restricting the number of hours for which he might undertake paid employment.  The petitioner disputed that he had worked for longer than permitted under the terms of his visa.  He was nonetheless detained and taken to a removal centre.  The employee upon whose information the immigration officer acted has since retracted any statement which he may have made to the officer indicating that the petitioner had worked for more than 10 hours in that week.  The manager subsequently provided a statement to the effect that the petitioner was not employed to work for more than 10 hours.  There is thus a factual dispute whether the petitioner breached to any extent the temporal condition restricting his ability to undertake paid employment.

[3]        On 13 February 2013 the petitioner was served with removal directions; he was to be removed to Afghanistan on a charter flight on 19 February 2013.  The notice of removal directions advised him – “This is NOT an appealable decision”.  Two days after the issue of the removal directions, namely on 15 February 2013, solicitors acting for the petitioner wrote by fax to the United Kingdom Border Agency stating inter alia:

“Our client wishes to make a human rights claim under article 8 of the European Convention on Human Rights on the basis that it would be a disproportionate interference to his rights to a private and family life to remove him from the United Kingdom due to him having worked in breach of his conditions.  It is our client’s position that he has not breached these conditions at all.

 

Should you be minded to maintain your position in relation to the alleged illegal working and given the impact and severity that this would have upon our client’s human rights, it is submitted that he be afforded the opportunity to have his case before an independent and impartial Tribunal….”.

 

The letter concluded with a request for an urgent response, failing which the client’s instructions were to raise judicial review proceedings. 

[4]        On 18 February 2013 the UK Border Agency responded.  When responding the Agency had before it material submitted with the letter of 15 February 2013 and in connection with a bail application which had been made earlier on behalf of the petitioner.  The Secretary of State took the view that the petitioner’s human rights claim was “clearly unfounded” and certified such in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002 – “the 2002 Act”. 

[5]        The bail application which had been made by the petitioner was refused by an immigration judge on 25 February 2013.  On the following day, 26 February 2013, the Secretary of State issued fresh directions for the removal of the petitioner from the United Kingdom by a chartered flight proceeding to Kabul on 18 March 2013.  Those removal directions were similarly not appealable (otherwise than by a petition for judicial review).  The petitioner accordingly brought the present proceedings.  By interlocutor dated 12 March 2013 the Lord Ordinary, among other things, suspended ad interim the removal directions.

 

The judicial review petition and the Lord Ordinary’s decision

[6]        As the Lord Ordinary notes in paragraph [8] of her Opinion[1], when it was raised the petition canvassed issues as to the appropriateness of the procedure followed by the Secretary of State in issuing removal directions (which are not appealable to an immigration tribunal) without first issuing a decision to remove the petitioner,  which might be capable of appeal to such a tribunal.  In addition, but importantly, the petitioner also challenged the certification by the Secretary of State of the petitioner’s human rights claim as “clearly unfounded”.  In the event, the Secretary of State later addressed the first of those challenges by issuing on 24 September 2013 a notice of a decision to issue removal directions – which would constitute an “immigration decision” appealable in terms of section 82(1) of the 2002 Act.  However, she adhered to her certification that the petitioner’s claim that removing him from the United Kingdom would result in a breach of his human rights was “clearly unfounded”.  Accordingly the challenge to the certification of the human rights claim remained and was the issue before the Lord Ordinary at the first hearing.

[7]        The Lord Ordinary refused the petition.  In doing so she took the view that the human rights claim was in some manner discrete from and independent of any issue whether the petitioner had breached the condition of his visa.  At paragraphs [27] and [28] of her Opinion the Lord Ordinary says:

“[27]    The real issue here is whether the challenge to the certification decision is just that, or in truth, a challenge to the immigration decision and whether there is any substance to that challenge.

[28]      The fundamental flaw in the petitioner’s substantive submission is that he has sought to introduce the factual position in respect of the immigration decision – the disputed facts over the breach of conditions - into the assessment of the determination of the human rights claim.  Whereas the factual basis of the human rights claim is wholly different and separate and concerns the facts underlying the claim of disproportionate interference with his article 8 rights.  The latter include the facts of his residence, his college course, his family ties here etc”. 

 

The petitioner maintains that the approach adopted by the Lord Ordinary is erroneous.

 

Judicial review of a “clearly unfounded” certificate

[8]        Although, as I understood matters, it is not a matter of dispute between parties, it is helpful to bear in mind from the outset the nature of the exercise involved in a judicial examination of whether a claim was validly certified in terms of section 94 of the 2002 Act as “clearly unfounded”.  The leading exposition of the test is to be found in the judgment of Lord Phillips of Worth Matravers in ZT (Kosovo) v Home Secretary [2009] UKHL 6;  [2009] 1 WLR 348:

““22     The test of whether a claim is ‘clearly unfounded’ is a black and white test.  The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof - in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230, paras 56—58 I put the matter as follows:

 

‘56.      Section 115(1) empowers - but does not require - the Home Secretary to certify any claim ‘which is clearly unfounded’.  The test is an objective one:  it depends not on the Home Secretary’s view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had.  A claim is either clearly unfounded or it is not.

 

57.       How, if at all, does the test in section 115(6) differ in practice from this?  It requires the Home Secretary to certify all claims from the listed states ‘unless satisfied that the claim is not clearly unfounded’.  It is useful to start with the ordinary process, such as section 115(1) calls for.  Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.  If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded;  if not, not.

 

58.       Assuming that decision-makers who are ordinarily at the level of executive officers - are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above.  In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions.  If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded.  If that point is reached, the decision-maker cannot conclude otherwise.  He or she will by definition be satisfied that the claim is not clearly unfounded.  Miss Carss-Frisk for the Home Secretary has properly accepted that this is the correct approach.’

 

23        Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer.  If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded.  It follows that a challenge to the Secretary of State’s conclusion that a claim is clearly unfounded is a rationality challenge.  There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered.  If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State’s view was irrational.”

 

It is, in my view, apparent from that exposition that the question is not whether, on the material considered by the Home Secretary (through her official), the Home Secretary could reach the decision which was reached.  Essentially the court is required to reach its own conclusion, the criterion being one which a court can readily supply.  Further, in cases such as the present, in which there may be a dispute respecting an issue of primary fact, it may be observed that in his judgment in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230 – from which Lord Phillips of Worth Matravers quoted above – his Lordship went on to say:

“[60]    As we shall explain, an issue of credibility arose in this case in relation to ZL.  The Secretary of State gave her the benefit of the doubt and his decision did not turn on credibility.  Where an applicant’s case does turn on an issue of credibility, the fact that the interviewer does not believe the applicant will not, in itself, justify a finding that the claim is clearly unfounded.  In many immigration cases findings on credibility have been reversed on appeal.  Only where the interviewing officer is satisfied that nobody could believe the applicant’s story will it be appropriate to certify a claim as clearly unfounded on the ground of lack of credibility alone”.

 

The petitioner’s human rights claim

[9]        It is necessary next to set out the essence of the petitioner’s human rights claim.  As already foreshadowed, that claim is based on article 8 ECHR (protection of private and family life).  The petitioner maintains, and avers in the petition, that he has private and family life in Scotland.  He has a brother who lives in Glasgow.  He has a girlfriend in Glasgow (who was prepared to provide money bail for him) and various other friends.  His private life also extends to the pursuit of his studies.  Removing him from the United Kingdom would constitute a major interference with that private and family life;  and such an interference is not justifiable in terms of article 8. 

[10]      Counsel for the petitioner accepted from the outset that the questions for consideration in relation to a claim under article 8 ECHR were set out by Lord Bingham of Cornhill in paragraph 17 of his opinion in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27;  [2004] 2 AC 368; 

“17       In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal.  This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator.  In a case where removal is resisted in reliance on article 8, these questions are likely to be:  (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?  (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?  (3) If so, is such interference in accordance with the law?  (4) If so, is such interference 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?  (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

 

[11]      Counsel submitted that the answer to the first of those questions was plainly in the affirmative.  Even if private life were “exiguous”, there could yet be an interference – cf. R (Aguilar Quila & Another) v Secretary of State for the Home Department [2011] UKSC 45;  [2012] 1 AC 621.

[12]      As to the second of those questions, it was clear that the interference which was proposed was not some technical or peripheral encroachment on the petitioner’s private life in Scotland.  It was a drastic measure, disruptive of that private and family life.  Reference was made to AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801;  [2008] 2 All ER 28 and VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5;  [2009] Imm AR 436.

[13]      The third question was whether the interference was in accordance with the law.  On that matter, the submission for the petitioner was that the interference was not in accordance with the law for the very reason that the petitioner had been given the right to be in the United Kingdom.  He had not breached any condition attaching to that right.  Any removal, where the petitioner had not breached any condition, would thus not be in accordance with the law.

[14]      The answer to the fourth of the questions identified by Lord Bingham of Cornhill was plainly in the negative since no such national security or similar purposes arose.  And the fifth question only arose where all the other questions answered adversely to the petitioner.  And, depending on the circumstances and nature of any breach, there might yet be questions as to the proportionality of removing the petitioner from the United Kingdom.

 

Is the human rights claim “clearly unfounded”?

[15]      I leave aside for the moment the issue whether there be a dichotomy between the human rights claim and the existence of an “immigration decision” within the meaning of section 82(2) of the 2002 Act having the consequences which found favour with the Lord Ordinary and which, I understand, also find favour with your Ladyship and your Lordship.

[16]      In my view, counsel for the appellant was well founded in his submission that without inquiry into the facts the petitioner’s human rights claim - that removing him from the United Kingdom to Afghanistan would constitute an infringement of his rights under article 8 ECHR - cannot properly be said to be “clearly unfounded”.

[17]      The petitioner avers that he has a brother who lives in Glasgow.  He has a girlfriend (willing to provide money bail for him) in Glasgow.  He says – unsurprisingly – that he has friends in Glasgow particularly among other students.  And of course he is engaged in his studies in Scotland (it has never been suggested that he has not genuinely pursued his studies).  In my opinion it cannot be said that the petitioner clearly has no private or family life at all in the United Kingdom. I would add that most, if not all, of this information was before the Home Office official on 18 February 2013 who appears to have accepted that the petitioner had a private life in the United Kingdom, albeit limited.

[18]      It is, I think, also clear that the enforced removal of the petitioner will constitute an interference with that private and family life. 

[19]      That being so, one turns to the second of the Razgar questions, whether the consequences of the interference are such as potentially to engage the operation of article 8.  The focus at this stage is on the nature of the interference and its consequences for the particular private and family life in question.  As was put by Sedley LJ in paragraph [28] of the judgment of the court which he delivered in AG (Eritrea) v Secretary of State for the Home Department:

“[28]    It follows, in our judgment, that while an interference with private or family life must be real if it is to engage article 8(1), the threshold of engagement (the ‘minimum level’) is not a specially high one.  Once the article is engaged, the focus moves, as Lord Bingham’s remaining questions indicate, to the process of justification under art 8(2) It is this which, in all cases which engage art 8(1), will determine whether there has been a breach of the article”.

 

In the present case the interference by the State is the significant interference of removing the petitioner from the United Kingdom to Afghanistan.  In my opinion it cannot be said that the consequences of that step for the petitioner’s private and family life in the UK are other than substantial.  The first two questions set out in Razgar are thus answered in the affirmative.   Accordingly – as Sedley LJ points out – one then moves to the Razgar questions which are directed to whether the State may justify that interference.

[20]      The first of those justification questions is question (3) – whether the interference is in accordance with the law.  The petitioner’s case is that this question is to be answered in the negative.  Since he has not breached the condition attached to his visa, he is entitled to remain in the United Kingdom and continue his studies.  I did not understand it to be submitted by counsel for the Secretary of State that, if it were the case that the petitioner had not breached the relevant condition of his visa, the directions for his removal would nonetheless be in accordance with the law.  Of course, whether the petitioner did commit any breach of the condition may be a matter of dispute.  He has consistently denied having breached the condition. There are statements in support of that position. There is no documentary evidence conflicting with the petitioner’s denial.   In my view it cannot be said that the circumstances relevant to this issue are so clamantly against the petitioner that the Secretary of State could not fail to prove to a fact finding tribunal that the alleged breach had occurred.  Accordingly, at this stage in the proceedings, it is, in my opinion, not possible to say that the removal of the petitioner from the United Kingdom is clearly in accordance with the law. It should be added that the author of the letter of 18 February 2013, written on behalf of the Secretary of State, proceeds wholly on the basis of not accepting the petitioner’s account of not having breached the visa condition. The certification is thus flawed in at least the respect that it does not begin to contemplate the possibility that a fact finder hearing evidence might reach a view in favour of the petitioner.

[21]      In a sense one might stop at this point in the Razgar analysis since the remaining questions are postulated upon a positive answer to the question whether the interference is in accordance with the law.  But, for completeness, if one goes on with the analysis it is apparent that, assuming that the interference is in accordance with the law, any potential justification does not involve any of the factors – such as national security - in question (4).  The final question (again assuming the interference to be in accordance with the law) raises the issue of proportionality.  The legitimate public end invoked in this connection by the Secretary of State is the public interest in maintaining immigration control.  That is, of course, an important public interest.  But, in my view, that consideration cannot be said to be  in every case a factor of such preponderance as always to outweigh any counterpoise.  An overall assessment in the individual case is yet required.  Thus were the eventual factual situation, having regard to a proper interpretation of the terms of the condition of the petitioner’s visa, to be that any breach was minor or technical it would at the least be arguable that removal, and its consequent interference with the petitioner’s studies and other private and family life, would not be proportionate.  While before the Lord Ordinary the petitioner appears to have accepted that the issue of proportionality would be answered against him, counsel – as I understood him – departed from that concession on recognising that the extent to which the petitioner might have breached the condition of his visa could be a factor in the proper assessment of proportionality. 

[22]      For all these reasons the conclusion which I have reached is that the petitioner’s human rights claim cannot properly be certified as clearly unfounded. That conclusion is, of course, reached subject to the qualification mentioned in paragraph [15] above; and to that matter I now turn.

 

The “Immigration decision” appeal issue

[23]      That matter is the approach adopted by the Lord Ordinary.  I have already set out paragraph [28] of her Opinion, but for convenience I repeat it:

“[28]    The fundamental flaw in the petitioner’s substantive submission is that he has sought to introduce the factual position in respect of the immigration decision – the disputed facts over the breach of conditions - into the assessment of the determination of the human rights claim.  Whereas the factual basis of the human rights claim is wholly different and separate and concerns the facts underlying the claim of disproportionate interference with his article 8 rights.  The latter include the facts of his residence, his college course, his family ties here etc”.

 

For my part, I do not see any such fundamental flaw; nor do I see that it is the stark compartmentalisation of fact, inherent to the alleged flaw, which the Lord Ordinary perceived - and which I understand your Ladyship and your Lordship also to perceive. 

[24]      I have already set out in detail the several elements of the claim by the petitioner that implementing the directions issued for his removal from the United Kingdom would infringe his right to private and family life under article 8 ECHR.  One of those elements is that the removal would not be in accordance with the law; hence the interference with that private and family life cannot be justified by the State.  The unlawfulness of the petitioner’s removal (because he has not breached his visa conditions) is an integral part of the human rights claim.  In my view, when the Lord Ordinary says that “…the factual basis of the human rights claim is wholly different and separate and concerns the facts underlying the claim of disproportionate interference with his article 8 rights”, she has not properly understood the nature of, and the elements comprised in, the petitioner’s claim that removal from the United Kingdom would result in an interference with his private and family life which is incompatible with that article 8.

[25]      In my view there is nothing unusual or difficult in the notion that two discrete legal claims may possess an overlapping factual element, or overlapping factual elements.  Looking only to the field of asylum and immigration, it is a commonplace that a claim for asylum may be coupled with an ECHR claim both based on factual considerations which to a greater or lesser extent overlap. While I recognise that it may be an understandable looseness of language on the part of the Lord Ordinary, it is technically incorrect to say that the “immigration decision” is about whether the petitioner breached a condition of his visa[2]. The” immigration decision” is a decision that directions be given for the removal of the petitioner from the United Kingdom.

[26]      It should also be borne in mind that at the outset the measure with which the petitioner was confronted was simply the directions for his removal – “this is NOT an appealable decision”.  The petitioner’s remedy at that stage was confined to bringing a petition for judicial review relying on his ECHR rights under article 8.  While the Secretary of State certified that claim as “clearly unfounded” it was not suggested that it failed to be a human rights claim because it involved a factual dispute whether the petitioner had breached the condition of his visa which might be made the subject of an immigration decision (were such a decision to be issued).  If – as seems unquestionable – the petitioner had at the outset a claim, whether meritorious or not, that his removal from the United Kingdom would be incompatible with article 8 ECHR, I do not see how it can be said that the claim is altered or affected – so as to cease to be a human rights claim - by the fact that in September 2013 the Secretary of State issued a decision which opened up an avenue of appeal to an immigration tribunal.

 

“In country appeal”

[27]      The Lord Ordinary also acceded to a submission on behalf of the respondent that the advancing of a human rights claim was an attempt to circumvent the provisions in the 2002 Act whereby an appeal against certain “immigration decisions” may only be pursued if the appellant is outwith the United Kingdom.  At paragraph [31] of her Opinion the Lord Ordinary says:

“[31]    Were the petitioner to be correct in his submissions, then it seems to me in any case where there is a dispute of fact underlying an immigration decision, of which there are many, section 92(4) would be largely ineffective and its purpose to prevent meritless human rights claims becoming a mechanism for achieving an in country appeal undermined, along with the intention of parliament to generally render appeals against immigration decisions ‘out of country’”. 

 

A submission to broadly similar effect was repeatedly advanced by counsel for the respondents at the hearing of this reclaiming motion.  As I understood it, the contention was that for the purposes of the 2002 Act a human rights claim could not include any factual, or other, matter which might be addressed in an “out of country” appeal against an immigration decision.  To hold otherwise, asserted counsel, would be to subvert the legislative intention that appeals against immigration decisions must be pursued “out of country”.

[28]      The general context or background to this contention is conveniently described by the Lord Ordinary in paragraph [13] of her Opinion:

“[13]    It is worth noting at this stage that, whilst the challenge was restricted simply to the decision to certify the claim, in the context of the statutory provisions regarding appeal of an immigration decision, such a challenge was of practical importance.  This is because whilst an appeal against an immigration decision under s 82(1) and (2)(g) of the 2002 Act cannot be made from within the United Kingdom and requires to be made ‘out of country’, in terms of s92(4) of the said Act where the appellant has made a human rights claim his appeal can be made within the United Kingdom.  However this right is removed by s 94(2) where the human rights claim is certified as unfounded by the Secretary of State.  Accordingly the decision to certify is the obstacle to the petitioner taking advantage of s92 and pursuing his appeal against the immigration decision from within the United Kingdom”.

 

[29]      It is, in my view, convenient to begin with the definition of a “human rights claim” contained in section 113 of the 2002 Act.  It means a claim by a person “…that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998….as being incompatible with his Convention rights”.  The term “Convention rights” is to be construed in accordance with section 1 of the Human Rights Act 1998.  I would observe first that it is not every possible claim under the Human Rights Act 1998 which comes within the notion of a “human rights claim” for the purposes of the 2002 Act.  The definition in the 2002 Act requires that it be the removal of the person concerned from the United Kingdom which would give rise to incompatibility with his Convention rights.  Secondly, it is, in my view plain that the human rights claim advanced by the petitioner comes within that definition.  And thirdly, that definition is not in any way qualified by any provision to the effect that the human rights claim may not include any element capable of being the subject matter of an “immigration decision”.

[30]      An “immigration decision” is defined in section 82(2) of the 2002 Act by reference to a catalogue of decisions.  As I understand it, the decision issued in September 2013 was a decision that the petitioner should be removed from the United Kingdom by removal directions (section 82(2)(g)).  It may be observed that such a decision is not confined to the question whether the petitioner might have breached a term of his visa or the extent to which such a breach may have occurred. A decision by the Secretary of State simply that a person has breached a condition of a visa or other leave to remain does not constitute an “immigration decision”

[31]      Section 82(1) gives a right of appeal to the tribunal in respect of the immigration decisions listed in section 82(2).  However, section 92(1) of the 2002 Act provides:

“(1)      A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies”.

 

Subsections (2) to (3D) of section 92 specify various immigration decisions which the section applies; but these do not include the immigration decision issued by the respondent in September 2013 respecting the petitioner.  Importantly however, subsection (4) of section 92 provides:

“(4)      This section also applies to an appeal against an immigration decision if the appellant –

 

1. has made an asylum claim, or a human rights claim while in the United Kingdom, or
2. ....”

 

The legislation thus envisages an appeal against an immigration decision being accompanied by a human rights claim.

[32]      The protection against abuse of section 92(4)(a) is to be found in section 94 of the 2002 Act:

“(1)      This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).

 

….

 

(2)        A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State satisfies that the claim or claims mentioned in subsection (1) is or are clearly unfounded”.

 

Again, it seems to me that the legislature recognises that appeals against an immigration decision may run with a human rights claim.  In such circumstances the case will be decided while the appellant is in the United Kingdom.  I venture to suggest that the rationale is obvious.  If a person has an arguable human rights claim, removing him from the United Kingdom pending the hearing of his appeal will in itself be liable to constitute a breach of the person’s Convention rights and place the United Kingdom in breach of its obligations under the ECHR. 

[33]      In my view these statutory provisions set out a scheme of arrangements whereby, depending on the claim or claims advanced, some appeals fall to be heard only when the appellant is outwith the United Kingdom but others, including those in which a human rights claim in terms of the definition in s 113 of the 2002 Act is made, are heard “in country”. The provisions fall to be applied according to their terms.  I see no basis upon which it can be said that there is some overwhelming or primary parliamentary intention that there be a presumption that appeals against an immigration decision be decided when the appellant is outwith the country, requiring the cases for which the legislature has provided an “in country” appeal to be treated as some lex specialis to be narrowly construed. Nor can I see any statutory provision which requires the definition of a human rights claim contained in section 113 of the 2002 Act (to which counsel for the respondent did not refer in his principal argument) to be subject to the implied qualifications for which he contended.

[34]      Accordingly, differing from your Ladyship and your Lordship, I consider that the reclaiming motion is well-founded.  The interlocutor of the Lord Ordinary dated 28 November 2013 should be recalled and in its place an interlocutor should be pronounced reducing the certification of the petitioner’s human rights claim made in terms of section 94(2) of the 2003 Act by letter of 18 February 2013 and affirmed by the Secretary of State by letter of 24 September 2013.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 16

P240/13

 

Lord Eassie

Lady Smith

Lord Malcolm

OPINION OF LADY SMITH

in the cause

KHALID AHMAD (AP)

Petitioner and Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondents:

Act:  Devlin;  Drummond Miller LLP (for Latta & Co., Glasgow)

Alt:  Webster; Office of the Advocate General for Scotland

20 February 2015

Background

[35]      The petitioner, a national of Afghanistan, entered the UK on 21 August 2012 on a student visa which allowed him to study for a HND at North Glasgow College.  It was a condition of that visa that he was not permitted to work more than ten hours each week. Five months after arriving in the UK, on 23 January 2014, the petitioner was encountered by officers of the UK Borders Agency, working at a takeaway food shop in Glasgow.  After having questioned him and his employer, they concluded that he had been working more than ten hours per week and that he was , therefore, in breach of the terms of his visa.  The petitioner’s position is that he had not been working more than ten hours per week.  There is, accordingly, a dispute between parties regarding the issue of whether or not he has breached the terms of his visa.

[36]      The petitioner was served with the removal directions referred to  by Lord Eassie and his agents responded, on his behalf, in their letter dated 15 February 2013 , stating:

“Our client wishes to make a human rights claim under Article 8 of the European Convention on Human Rights on the basis that it would be a disproportionate interference to his rights to a private and family life to remove him from the United Kingdom due to him having worked in breach of his conditions. It is our client’s position that he has not breached those conditions at all.”

 

Nothing further regarding the petitioner’s private and family life was said in that letter.  Rather, it simply asserts that the basis for his human rights claim is that he did not breach his visa.  That would accord with counsel’s central submission in the reclaiming motion which was that unless it is plain that the petitioner breached his visa conditions, removal would be a disproportionate interference with his right to private life.

[37]      In his petition for judicial review, the petitioner avers, but the respondent does not admit, that he commenced his college course and has paid substantial college fees; the respondent refers to him having said at interview that he had only paid £1500 of the £4,900 fee which he was due to pay . He also avers that he has friends in the UK and a brother who has lived in Glasgow for ten years (statement 11). Removal would, he avers, interfere with his ability to have contact with them.  Beyond those very general averments, however, no details about his alleged private and family life were provided by the petitioner.

 

The Issue

[38]      The issue for the Lord Ordinary was whether or not the respondent’s decision to certify the petitioner’s human rights claim as wholly unfounded was irrational and/or unlawful. It was said to be irrational and unlawful because there was a dispute about primary fact and in those circumstances, it can never be said that a claim is wholly unfounded: ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, Lord Phillips of Worth Matravers at paragraphs 22-23.  It is, I consider, important to focus on the nature of the factual dispute; in the present case, what is disputed is the respondent’s contention that the petitioner had been working in breach of his visa conditions.   

 

The petitioner’s claim

[39]      The factual dispute that has arisen and on which the petitioner’s challenge to the respondent’s certification is based is not about the nature and extent of the petitioner’s private and family life in the UK, if any.   As above noted, whilst the letter from the petitioner’s solicitor dated 15 February 2013 advising that he wished to make “a human rights claim” refers to the petitioner’s “private and family life” it provides no information at all about what it is that is said to be that private and family life in this country; his averments do not advance matters beyond the generalities referred to above.

[40]      The respondent had regard to the assertion that there would be a breach of the petitioner’s right to private and family life and, also, to some very limited information that was, through other means, before her. In the decision letter, at p.3, under reference to the approach of Lord Bingham of Cornhill in SSHD v Razgar [2004] UKHL 27, she states:

“It is accepted that your client arrived in the UK on 21 August 2012. However, on 23 January 2013, your client was arrested at Chellos Takeaway and subsequently found to be working in breach of the terms of his Visa.

There is little evidence showing that your client’s removal would interfere in a significantly serious enough manner with any limited life he has developed in the UK. It is not accepted therefore that his removal will interfere with his right to respect for his private life in a sufficiently serious enough manner to engage Article 8..” 

 

In the last paragraph on p.3 of that letter, the respondent notes that several letters of support from former colleagues at the takeaway had accompanied the petitioner’s bail application. On the basis that they could constitute friendships, the respondent added that :

“Whilst removal will interfere with the friendships your client has developed in the UK and may sever these entirely, it is not considered that this renders your client’s removal disproportionate. In any event given modern forms (sic) communication there would be no reason why these friendships cannot be maintained in some fashion after removal.”

 

I agree with Lord Malcolm (see paragraph 62 of his opinion) that the “further” observation made by the respondent in the penultimate paragraph of p.3 would not justify certification under section 94(2) of the 2002 Act.  However, I do not read it as relating to the respondent’s earlier conclusion that article 8 ECHR was not engaged and it is clear that it was that earlier conclusion on which certification was based.

[41]      The assessment by the respondent that any private life established by the petitioner was so limited that article 8 ECHR was not engaged has not been challenged in these judicial review proceedings. Furthermore, for present purposes, it is of significance that nothing relating to the nature and extent of the petitioner’s private life was or is a matter of disputed fact - possibly because so little is said about it.  The petitioner’s contentions regarding art 8 ECHR are, rather, that there may be a disproportionate interference because, on his account of matters, he had not breached his visa and if that is correct, the respondent has no right to remove him.

[42]      Whilst the respondent also considers whether or not removal of the petitioner would amount to a disproportionate interference with his right to private life or would otherwise not strike a fair balance – issues that would have arisen if she had required to consider whether or not the proviso to article 8 was met - her primary decision was that article 8 ECHR was not engaged at all.

[43]      As for family life, under reference to the cases of Chikwamba v SSHD [2008] UKHL 40 and Beoku-Betts v SSHD [2008] UKHL 39, the respondent observed, at p.4 of the letter:

“Your client has not provided any evidence of any family life in the UK. No consideration has therefore been given to the effect your client’s removal would have on other family members.” 

 

As in the case of the respondent’s assessment of the petitioner’s private life, her assessment that, on the information available to her, he had no family life in the UK has not been and is not the subject of any challenge by the petitioner. 

[44]      So, as Lord Malcolm observes, at no stage has the petitioner put forward information relating to his private and family life as would raise an arguable case that his removal would breach a fundamental right protected by art 8 ECHR.  His case seems, rather, to rest on the proposition that it is to be assumed that, if he is removed, there will, arguably, be a disproportionate interference with his private life perhaps on the basis that simply by having been in the UK for five months he is bound to have established some private life.

 

Discussion

[45]      Adopting the sequential reasoning set out by Lord Bingham at paragraph 17 of the decision in Razgar, the first two questions were answered in the negative by the respondent and the petitioner has not and does not challenge her having done so.  In those circumstances, the remainder of Lord Bingham’s questions did not actually arise for the respondent. This was not, for instance, a case where the petitioner asserted that he had, in some particular way, established a private life in the UK: see, for instance, the circumstances of the applicants in Slivenko v Latvia 2003 39 EHRR 490 at para 96, a decision of the Grand Chamber. 

[46]      Had those questions arisen and had such circumstances applied, the respondent may well have found it difficult to certify the human rights claim as clearly unfounded, for the reasons explained in the ZT (Kosovo) case.   Those were not, however, the circumstances of this case.

[47]      I accept that, at one point in submissions, counsel asserted that there would be drastic and disruptive interference with the petitioner’s private and family life. However, I would refer to the paucity of factual basis for that assertion, as already discussed.  The only advance on the information before the respondent is the general case averred at statement 11 to the effect that he has friends and a brother in the UK.  Even assuming that it is appropriate to take account of those averments, thus going beyond the information that was available to the respondent when determining the outcome of this challenge to her decision, that cannot, in my view, be sufficient to justify affirmative answers being given to the first two of the Razgar questions.  Had the dispute between the petitioner and respondent been about whether or not he had established private and/or family life in the UK – if, for example, the petitioner had alleged that he had a long term relationship with a UK citizen, had children here, had close relationships with family members living nearby, had become an integral part of his local community etc, none of which was accepted by the respondent – the first two Razgar  questions would naturally fall to be answered in the petitioner’s favour. But those are not the circumstances of this case.

[48]      The petitioner’s approach throughout has been to focus on the dispute about whether or not he was working in breach of his visa.  For the above reasons which, essentially, accord with those of the Lord Ordinary, I am satisfied that that approach is fundamentally flawed. It fails to recognise that the respondent made an unchallenged and, in the circumstances, unchallengeable decision that article 8 was not engaged - or as is sometimes said “in play”– at all.  I cannot accept that the existence of a separate issue – whether the petitioner breached his visa – causes art 8 to become engaged.  The visa issue was not an art 8 matter and its existence did not create any potential for the human rights question to be determined in the petitioner’s favour.  It would be illogical to regard it as doing so. Moreover, the statutory scheme for out of country appeals would be wholly undermined; all that any appellant would need to do to avoid removal would be to make a bare assertion that he has a private and/or family life in the UK.

[49]      I, accordingly, agree with Lord Malcolm that the reclaiming motion should be refused and with his reasons for so concluding. I would adhere to the interlocutor of the Lord Ordinary.

[50]      I would add that, in common with Lord Malcolm, I have, since writing the above, read Lord Eassie’s opinion. I regret to say that I cannot, for the reasons already stated, agree with his analysis or proposed disposal.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 16

P240/13

 

Lord Eassie

Lady Smith

Lord Malcolm

OPINION OF LORD MALCOLM

in the cause

by

KHALID AHMAD (AP)

Petitioner and Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Act:  Devlin;  Drummond Miller LLP (for Latta & Co, Glasgow)

Alt:  Webster; Office of the Advocate General for Scotland

20 February 2015

[51]      The petitioner is a national of Afghanistan who entered the United Kingdom on a student visa which gave him the right to work in the UK for up to 10 hours each week.  On 24 January 2013 he was found working in a Glasgow takeaway restaurant.  Managerial staff told immigration officers that he had been working in excess of the said limit.  He has always denied any breach.  Directions were made to remove the petitioner from the UK.  The next month, agents forwarded a human rights claim in terms of part 5 of the Nationality, Immigration and Asylum Act 2002, noting that the manager had retracted his evidence as to the petitioner’s working hours.  The respondent refused the claim, and certified it as clearly unfounded in terms of section 94(2) of the Act.  The effect of this certification was that any appeal against the immigration decision could only take place after the petitioner’s removal from the UK.  (Absent such certification, a human rights claim opens up the possibility of an “in-country” appeal, preventing or at least delaying removal.) 

[52]      The petitioner has raised proceedings for judicial review.  At a hearing before the Lord Ordinary, it was submitted that the certification was irrational and/or unlawful.  It was argued that, standing the dispute as to whether the petitioner had or had not breached the terms of his student visa, and the retraction of the evidence against him, there was no basis upon which it could be said that his claim was clearly unfounded.  The Lord Ordinary rejected this proposition, essentially on the view that the issue as to whether there had been such a breach has no bearing upon anything which might be described as a human rights claim.  The petitioner has now appealed against that decision, arguing that in this respect the Lord Ordinary was in error. 

[53]      The petitioner’s grounds of appeal all raise basically the same point, namely that resolution of the factual dispute is relevant to what is said to be a human rights claim in terms of the Act.  It is submitted that if the immigration decision was wrong, in the sense that in truth the petitioner did not exceed the working hours limit, any removal based upon the proposition that he did breach his visa requirements would amount to “a more than technical interference” with the private life enjoyed by him in the UK, and would not be in accordance with the law.  This court is asked to conclude that “the factual basis of the immigration decision is central to the determination of the petitioner’s human rights claim”. 

[54]      For the respondent it is submitted that, in the present circumstances, a distinction falls to be made between any appeal against the immigration decision and the making of a human rights claim.  The latter relates to the removal from the UK consequential upon the directions, not to the validity or otherwise of the underlying decision to remove.  The merits of a human rights claim (or an asylum claim) made under part 5 of the Act are not dependent upon resolution of any factual dispute directly concerning the immigration decision, as opposed to the impact of removal in compliance with that decision. 

[55]      I am of the opinion that the respondent’s approach is correct, and that the Lord Ordinary’s decision should be upheld.  Before explaining my reasons it is appropriate to summarise the relevant statutory provisions. 

 

Part 5 of the 2002 Act
[56]      Section 82 provides a general right of appeal against immigration decisions.  Section 84 specifies the available grounds of appeal.  Section 92 states that a person may not appeal from within the UK, unless his appeal is of a certain kind, including if he “has made an asylum claim or a human rights claim while in the United Kingdom.”  The former is defined (section 113) as a removal which would breach the UK’s obligations under the Refugee Convention, and the latter as a claim made to the Secretary of State at a designated place that removal would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the claimant’s Convention rights (emphasis added).  Section 94 applies to an appeal under section 82 where the appellant has made an asylum or a human rights claim (or both), and disallows an appeal from within the UK if the Secretary of State has certified that the claim or claims is or are clearly unfounded. 

 

The petitioner’s claim and the respondent’s decision
[57]      The claim was made by way of letter dated 15 February 2013.  The operative part stated:

“Our client wishes to make a human rights claim under Article 8 of the European Convention on Human Rights on the basis that it would be a disproportionate interference to his rights to a private and family life to remove him from the United Kingdom due to him having worked in breach of his conditions.  It is our client’s position that he has not breached these conditions at all.”

 

[58]      By letter dated 18 February 2013 the claim was refused.  The decision letter summarised the petitioner’s immigration history and the events leading to the removal direction, including the evidence that he had breached the conditions of his entry to this country by working excessive hours in a takeaway restaurant.  For present purposes it is sufficient to note that the author concluded as follows:

“There is little evidence showing that your client’s removal would interfere in a significantly serious enough manner with any limited private life he has developed in the UK.  It is not accepted therefore that his removal will interfere with his right to respect for his private life in a sufficiently serious enough manner to engage article 8.  The decision to remove your client is in accordance with the law and will pursue a legitimate aim.  This is the need to maintain an effective immigration control. 

 

It is not accepted that the removal of your client would amount to a disproportionate interference with his right to respect for his private life or would otherwise not strike a fair balance.  Your client has been resident in the UK for less than 6 months.  Any private life that he has built up in the UK has been during the period August 2012 until January 2013 when he was encountered working in breach of the terms of his visa. 

 

Further the length of his residence/private life in the UK has been curtailed by his own failure to comply with conditions given to him in relation to his residence in the UK by the immigration authorities.  No satisfactory explanation has been provided for these failures and it would be wrong to allow him to benefit from his own wrongdoing. …

 

In addition, after considering all the evidence…the Secretary of State has decided that your human rights claim is clearly unfounded and hereby certifies it as such under section 94(2) of the Nationality, Immigration and Asylum Act 2002.  As your asylum and human rights claims have been certified as clearly unfounded, you may not appeal while within the United Kingdom.”

 

[59]      The basis put forward in support of the human rights claim is that the petitioner did not breach the terms of his student visa.  Nonetheless it is apparent that the respondent had regard to such information as was available concerning the petitioner’s private and family life in the UK.  It was decided that article 8 was not engaged; and in any event, any interference would be proportionate.  None of that related to the factual dispute concerning the hours worked in the restaurant.  It was an assessment of the impact, if any, of removal upon the petitioner’s article 8 rights.  In my view that is the correct approach when considering a human rights claim under the Act.  It is true that the respondent added a further consideration based upon the petitioner’s failure to comply with the terms of his student visa, a point which is in dispute.  Is this sufficient to undermine the certification that the human rights claim was clearly unfounded? 

 

Discussion
[60]      The essence of the petitioner’s position is that his challenge to the factual basis of the immigration decision creates a human rights claim, and that, given the uncertainties as to the truth of that matter, the Secretary of State could not lawfully certify his claim as clearly unfounded.  In my opinion, the premise of this proposition is flawed.  To offer to prove that the immigration decision was wrong because the petitioner did not exceed the specified working hours does not, in itself, give rise to a human rights claim within the meaning of part 5 of the Act.  Both an asylum and a human rights claim focus upon the effect of a removal, no doubt often under reference to any adverse conditions for the removed person in the foreign country, but also, at least in respect of a human rights claim, in respect of any incompatibility brought about by interference with Convention rights enjoyed in this country.  There will be many challenges to immigration decisions which do not involve any incompatibility with Convention rights – and I would regard the terms of the letter of 15 February 2013 as a good example.  The letter does not justify an assertion that removal will breach the petitioner’s Convention rights; but rather that he should not be removed because the immigration decision is not supported by the facts.  A potentially meritorious claim that removal will be incompatible with ECHR, either because of article 8 rights enjoyed in the UK, or because of the conditions the claimant will face in the foreign country, will allow an appeal against an immigration decision to proceed in advance of any removal; but it would be counter to the scheme of the Act that an appeal limited to the factual basis of an alleged breach of visa terms could, of itself, have that result. 

[61]      Another way of looking at this is to conclude that article 8 was not engaged by the claim made in the letter of 12 February 2013.  That was the approach of the respondent.  For myself I am in agreement with the following observation of the Lord Ordinary:

“The fundamental flaw in the petitioner’s substantive submission is that he has sought to introduce the factual position in respect of the immigration decision – the disputed facts over the breach of conditions – into the assessment of the determination of the human rights claim” (paragraph 28).

 

[62]      Earlier I noted that the decision letter also stated that the curtailment of the petitioner’s residence/private life had been brought about by his own failure to comply with the terms of his student visa.  In itself that proposition would not justify the certification, since it raises a matter of disputed fact which, in the circumstances of the present case, would require to be resolved by way of the appeal.  However, once it is understood that a human rights claim is one based upon the consequences of removal, it becomes clear that the petitioner has no more than a factual appeal under section 82, which, in terms of the Act, does not prevent enforcement of the removal directions.  He has not put forward, either in the letter of 15 February 2013 or during these proceedings, anything which can properly be described as a potentially meritorious human rights claim under part 5 of the 2002 Act. 

[63]      After writing the above I had the advantage of reading the opinion of Lord Eassie in draft.  I therefore offer the following elaboration upon the reasons for the view which I have taken.  An arguable article 8 human rights claim under part 5 is a separate matter from any challenge to the factual basis of the decision to remove.  It involves an assertion that the appellant’s removal from the UK would create hardship in terms of a breach of article 8 of such seriousness as to justify non-enforcement of the removal directions.  Such a claim arises independently of the merits or otherwise of the underlying decision.  The issue of proportionality is concerned with striking a fair balance between the rights of the individual and the interests of the community.  For example, even if the appellant has breached his visa conditions, does his removal involve a breach of his article 8 rights to such an extent as to override the public interest in the enforcement of the decision that he should be removed?  The assessment relates to the impact of a removal upon an appellant, or sometimes his family, not on the factual merits of the decision to remove him.  A general reading of the provisions in part 5 of the Act, for example sections 94 and 94A, supports this approach.  And I note that the Razgar questions arise in the context of this balancing exercise.  So far as the third Razgar question is concerned, in my view it is not aimed at the validity of the immigration decision, but at guarding against arbitrary decision-making. 

[64]      At no stage has the appellant put forward information relating to his private and family life as would raise an arguable case that his removal will breach a fundamental right protected by article 8.  The purported human rights claim depends upon the proposition that he did not breach the working hours condition.  There is no suggestion that, even if the breach had been accepted by him, or was proved, removal would breach his human rights.  In short, the petitioner has no more than an appeal against the decision that removal directions would be issued. 

[65]      It will nearly always be possible to point to some interference brought about by a removal, for example with studies in the UK, friendships forged, etc.  Such matters are not elevated into a breach of article 8 simply because of a parallel challenge to the factual accuracy of the grounds for the immigration decision.  Were it otherwise, it would be a simple matter to frustrate the clear intention of Parliament that, absent any arguable asylum or human rights claim, appeals against immigration decisions do not suspend the enforcement of removal directions.  Given the scheme of this part of the Act whereby, in general, immigration appeals take place out of country, there is, I suggest, a logic in the qualification whereby removal directions are suspended when it is arguable that the removal would, in itself, be unlawful as amounting to a breach of the Convention. 

 

Decision
[66]      For essentially the same reasons as those given by the Lord Ordinary, I would refuse the reclaiming motion and adhere to her interlocutor.