Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 7

P488/15

OPINION OF LORD BURNS

In the petition

MC

Petitioner;

for

Judicial Review of the decision of the Secretary of State for the Home Department dated 1 September 2014

Respondent:

Pursuer:  Byrne, Advocate;  Drummond Miller, Solicitors

Defender:  Webster, Advocate;  Office of the Advocate General

 

13 January 2016

Background

[1]        The petitioner was born on 5 October 1993 in Malawi and brought to the United Kingdom by her brother in 2007 when aged 13.  Her only surviving parent (her mother) had died in shortly prior to her leaving Malawi.   In the petition it is stated that she had been diagnosed as HIV positive in 1999.  She claims that she has not returned to Malawi and has completed her schooling in the United Kingdom.  She is said to have done well there and paragraph 6 refers to various testimonials from organisations such as Waverley Care where she has been involved in the care of young people with HIV.  She is a student at the City of Glasgow College.

 

Immigration History
[2]        6/4 of process is a letter from the respondent dated 27 June 2014.  It states that the petitioner entered the United Kingdom with an unaccompanied child visa on 15 August 2007 valid from 10 August 2007 to 10 February 2008.  On 12 July 2013 she applied for leave to remain under the private and family life 10 year route.  Her application was rejected as invalid on 15 November 2013.  She applied again in June 2014 which was refused on 1 September 2014 (the decision) with no right of appeal.  It is that decision which she now seeks to review in this court.

[3]        Her application to remain in the United Kingdom was determined under rule 276ADE(1) of the Immigration Rules.   In her circumstances the only basis on which it could be considered was under sub-paragraph (vi).  At the date of the application letter of 27 June 2014 the rule had not been amended.  At the date of decision, amendments had been made.  I have shown below the wording of this rule prior to its amendment in brackets and italics and with the amendments underlined.

“(vi) subject to sub-paragraph 2, is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but (has no ties (including social, cultural or family) with the country) there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”

 

The decision proceeded to assess the petitioner’s application under the rule as amended and stated:

“It is not accepted that there would be very significant obstacles to your integration into Malawi, if you were required to leave the UK because

 

Although you were almost 14 when you arrived you have still spent the majority of your life in Malawi and will still have ties there.  You state that your only family is two brothers in the UK but you have supplied no evidence of contact with them and no details of your support network.  You have explained how you were accommodated and how your essential living needs were met whilst you were still at school.

 

You were diagnosed with AIDS in 1999, when you arrived in the UK you were felt to be in a relatively good clinical condition, and it was also noted that you had commenced antiretroviral therapy in Malawi in 2002.  Treatment in Malawi is available and according to the World Health Organisation, this service is improving.

 

Consequently, you fail to meet the requirements of paragraph 276ADE1(vi) of the Immigration Rules.”

 

Accordingly her application under the Rules was refused.  The letter then sets out, in a paragraph entitled “Decision on Exceptional Circumstances”, the following:

“In support of your application you have raised the fact that you are suffering from HIV/AIDS.  According to the World Health Organisation, treatment for your condition is available in Malawi.  Consideration has been given to the difference in the standard of medical facilities in Malawi compared with that available here.  Although it is accepted that the health care systems in the United Kingdom and Malawi are unlikely to be equivalent, this does not mean that your case is exceptional and does not entitle you to remain here.

 

On the basis of the available information it has been concluded that suitable medical treatment is available in your country of origin.

 

You have not provided any evidence to suggest that you would be denied medical treatment, nor that you would be unable to travel to obtain treatment.”

 

 

The petitioner’s submissions

[4]        Mr Byrne’s principal argument was that the reasons given by the respondent were inadequate.  Rule 276ADE at the time of the petitioner’s application had required her to show that she had “no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”.  According to Ogundimu (article 8 – new rules) Nigeria 2013 UKUT 60 (IAC,) ties meant ties of substance.  Although it had been changed after the petitioner’s application to that quoted above, the quality of the ties both in Malawi and in the UK were of relevance.

[5]        The statement in the refusal letter that the petitioner will still have ties in Malawi was an unfounded assertion.  The evidence presented to the respondent in the form of the statement of the petitioner was to the effect that her parents had died prior to leaving Malawi when she was 13 and that there was “nothing in Malawi for her”.  She had received no help from distant relatives when her mother died.  She had no immediate family remaining in Malawi and was in contact with one person, a family friend, who was not a blood relative.  She had distant cousins with whom she had no contact.

[6]        Upon that evidence there was no basis for a finding that the petitioner would have any substantial ties in Malawi should she return there.

[7]        The Tribunal in Ogundimu had said at paragraph 123 that ties involve something more than merely remote and abstract links to the country of proposed removal. It involves there being a continued connection to life in that country and something that ties a claimant to his or her country of origin.   A rounded assessment of all the relevant circumstances was required not limited to social, cultural and family circumstances.  Here there was no analysis of the nature of the ties which the petitioner could be said to have.

[8]        For that reason the decision letter was flawed.  No proper reasoning had been advanced.  Reference was made to Leisure Inns UK Ltd v Perth & Kinross District Licensing Board 1991 SC 224 at pages 231 to 232 and to Wain v SSHD 2005 SLT 875 at 882G to J.

[9]        Secondly, Mr Byrne argued that there had been no proper assessment of private life accrued and enjoyed domestically in the United Kingdom.  That was an essential part of any proportionality assessment that required to be done in a claim under article 8 of ECHR.  He asked me to follow the same approach as the Inner House in the case of Murza 2015 CSIH 28 at paragraph 20. 

[10]      Mr Byrne also referred to the case of Balogun v UK 2013 56 EHRR 3 at 126 where at paragraphs 43 to 52 the court sets out and analyses the sort of criteria which are required to be taken into account in order to assess whether the expulsion of a foreign criminal was necessary and proportionate.  These included the solidity of social, cultural and family ties within the host country and within the country of destination.  The age at which the person entered the host country will be of relevance as will be whether they spent a large part or even all of their childhood in that country.  For a settled migrant very serious reasons are required to justify expulsion.

[11]      Although that case, and others Mr Byrne cited, related to foreign criminals, he submitted these criteria were relevant.  There was no adequate assessment, in particular, in the decision letter of the solidity of ties within the UK which the petitioner had advanced in the documents lodged with her application.

 

The respondent’s submissions

[12]      Mr Webster for the respondent examined the factual background of the petitioner.  She had entered the United Kingdom aged 13 and had spent the majority of her youth in Malawi.  She was now an adult and the nature of her private life here was insubstantial as presented in the application.  There was no suggestion of a relationship with her brothers.  She accepted that she has some family and friends in Malawi. There was no assertion by her that she is not on speaking terms with her relatives there.  He pointed to the differences in those facts from those in Balogun where the applicant had arrived in the United Kingdom at the age of 3 and, at the age of 19, was granted indefinite leave to remain in the United Kingdom.

[13]      The petitioner is a citizen of Malawi, had been brought up there until the age of 13.  She had been educated there and spoke the language.  It was therefore a reasonable inference that she would have ties in Malawi.  He accepted that ties required to be ties of substance but the fact that the petitioner had spent the first 13 years of her life in Malawi and not in the UK provided a proper basis for the inference drawn.  He accepted that it was also necessary to have regard to the solidity of ties within the host country.  At paragraph 51 of Balogun, the court had scrutinised the respective solidity of ties in the host country and the country of origin.  He submitted that that is what the decision did in the petitioner’s case.  There were family connections in Malawi where the petitioner had grown up for a substantial part of her life and therefore she must be imbued with some sense of cultural traditions there.  In any event, it could not be the case that she had no ties with that country.  So far as her ties in the United Kingdom are concerned, as the Secretary of State had pointed out, there were no details of the petitioner’s support network within the United Kingdom and no evidence of contact with her brothers.  Accordingly, the nature of private life in this country was very limited.  The health concerns which arose in this case were dealt with by setting out the treatment in Malawi which was available.  Standing the fact that very little was said about her private life in the UK and that the letter accompanying the application dated 27 June 2014 (6/4 of process) emphasised her medical condition, it was not surprising that the Secretary of State had concentrated on the medical consequences upon the petitioner on return to Malawi.  There was nothing exceptional in the petitioner’s case which would justify a decision in her favour outwith the rules.  He referred to AAA 2015 CSIH 31 where the court considered the nature of the new immigration rules which came into force in 2012.  At paragraph 5 the court said that there would be no need to conduct a full separate examination of the facts on an application of article 8 outside the rules if all the relevant issues had already been addressed in the consideration under the rules.  In this case all article 8 considerations had been taken account of under the rules apart from the medical issues raised which were dealt with properly under exceptional circumstances.

[14]      Mr Webster argued that no very significant obstacles to integration in Malawi had been demonstrated in this case and the respondent was justified in coming to the conclusion set out in the decision on the information before her. 

[15]      He pointed out that in MS v SSHD 2013 CSIH 52 at paragraph 22 the court had said that the power to give effect to Convention rights in any manner that respects the fundamental objectives of the Convention meant that the acts of the respondent and her officials should not be assessed too critically in the light of statements made in Strasbourg case law and there was considerable discretionary power as to how the convention was implemented in individual cases. 

[16]      Mr Webster emphasised that the new rules were not concerned with whether or not there were no ties but whether there were very significant obstacles to the petitioner’s integration in Malawi.  The absence of ties are only one component of potential obstacles. 

[17]      The petitioner contends that the statement that no details had been provided of her support network disregarded the evidence she submitted especially from Waverley Care.  However, having regard to the nature of the information provided the Secretary of State was justified in reaching the conclusion she did.  

Discussion and decision
[18]      Rule 276ADE(1) is concerned with applications for leave to remain on the grounds of private life within the UK. An applicant of 18 years of age or above who has lived for less than 20 years in the UK is now required to show that there would be very significant obstacles in her integration into the country to which she is to be sent.  It was not disputed that the petitioner had established a private life in the UK or that it would be interfered with if she was to be removed to Malawi.  The purpose of the rule is to assess whether the interference caused by her removal from the UK to Malawi would infringe the right to respect for her private life.  Mr Webster accepted that a proper application of the rule involved a consideration of the quality or “solidity” of social, cultural and family ties both in the United Kingdom and, in this case, in Malawi.  The nature of the respective ties to the United Kingdom and Malawi is an important, if not definitive, means by which the existence and significance of obstacles to integration in Malawi can be assessed.  

[19]      The application of the rule thus involves an examination of the right to respect for her private life against the background of the private life built up in the UK and the private life she could expect to have in Malawi.  I do not consider that, absent some specific consideration, there is need for a separate assessment of the proportionality of removal outwith the rules if account is taken of the quality of ties in both countries.  Here, because of her medical condition, such an exercise was properly done.

[20]      But in approaching the rule, it is necessary for the decision maker to have regard to all the circumstances advanced by the petitioner in her application.   Mr Webster argued that inferences could be drawn from those circumstances which he said informed the quality of private life which the petitioner would have in Malawi.  That is correct and I consider the way in which it was put, albeit briefly, gives adequate explanation of the way in which the assessment of private life in Malawi was carried out.  

[21]      But if the drawing of inferences is proper in respect of the position in Malawi, the same must be true of the position here.  An assessment of the private lives in each country is needed if the right to respect to private life is to be given proper attention.  So it could be inferred, from the information advanced, that she had spent her formative adolescent and young adult years in the UK, had undergone secondary and further education here and thus had established roots here.  One couple with whom she was friendly provided a letter outlining the support they had given to her.  The information from Waverly Care was capable of demonstrating the support she derived from and which she gave to that organisation and the young people she had helped.  

[22]      It is to be borne in mind in this exercise that the petitioner addressed herself in the application letter of 27 June 2014 to the rule as it then was and to the point that she had no ties in Malawi and not to the point that there would be very significant obstacles to integration in Malawi. 

[23]      The decision letter in this case does consider, in very broad terms, the existence of her ties in Malawi and those she had in the United Kingdom.  However, it does not properly address, in my view, the nature of her private life in the UK.  The petitioner had lived here from the age of 14 to the age of 20, had spent her formative years here and had been educated at secondary school and college in this country.  These circumstances were capable of yielding a legitimate inference that she had developed ties with people and organisations here as described in the documents provided with her application. While it is correct to say that there was no evidence of contact between the petitioner and her brothers in the United Kingdom, it was not accurate to say that no details had been provided of her support network in the United Kingdom.  On the contrary, she had provided a number of letters from the Children and Families Project Worker of the Waverley Care Centre which described in some detail the petitioner’s contribution to the POZ Youth Peer Support Group for young people in which the petitioner had participated.  The material presented was at least capable of demonstrating that this petitioner had fairly strong connections with project workers and those involved in the project which helped support young people with HIV.  Furthermore, the petitioner had not only attended secondary school in Scotland but had also obtained a Diploma in Hospitality Management at the City of Glasgow College in 2013.  A letter from her friends a Mr and Mrs Keir demonstrated that she had support from them also. 

[24]      Accordingly, there was material advanced by the petitioner which was at least capable of demonstrating that her ties in the United Kingdom were considerably stronger than those that might exist in Malawi.  I do not consider that a proper examination of the material presented and the inferences it might yield is set out in the decision letter.  As a result, the required balanced assessment of the respective ties in each country had not been done.  The assessment of her private life here has been distorted by the erroneous view that no details of her support network was provided. The decision letter’s reference to how she was accommodated and how her essential living needs were met whilst she was still at school as part of the assessment of private life here appears to be historic and of little, if any, relevance.  

[25]      I will therefore reduce the decision contained in the letter of 1 September 2014 and that contained in the letter of 25 March 2015 as sought in the petition.