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Cite as: [2011] ScotCS CSOH_199

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[2011] CSOH 199



in the Petition of

RQK [Assisted Person]



Judicial Review of a determination by the Secretary of State for the Home Department in terms of the Immigration Rules (HC 395 as amended) Rule 353


Petitioner: Caskie, Advocate; McGill & Co, Edinburgh

Respondent: Webster, Advocate; Office of the Solicitor to the Advocate General

9 December 2011

[1] This Petition is for judicial review of a determination dated 29 March 2011 by the UK Border Agency exercising powers on behalf of the Secretary of State for the Home Department. The Border Agency decision maker concluded that certain further submissions do not amount to fresh asylum or human rights claims in terms of the Immigration Rules (HC 395 as amended) Rule 353.

[2] At the first hearing on 9 November continued to 10 November 2011 Mr Caskie, Counsel for the Petitioner, moved me to sustain the Petitioner's plea and to reduce the Border Agency determination of 29 March 2011. The motion was opposed by Mr Webster, Counsel for the Advocate General on behalf of the Secretary of State, Respondent. He moved me to sustain the Respondent's pleas and to refuse the Petition. Having heard parties' submissions and made avizandum I have formed the Opinion that the Respondent's motion should be granted and that the Petition should be refused.

Immigration history
[3] The Petitioner identifies himself as an Iraqi national with a date of birth of 1 January 1989. On 9 August 2005 the Petitioner was encountered by High Wycombe police walking on the M40. On 9 August 2005 the Petitioner was served with a notice of liability to removal from the United Kingdom form IS 151A. He then became liable to removal subject to any claim for asylum or humanitarian protection. He claimed asylum and stated that he had entered the United Kingdom that day. An asylum interview was arranged for 20 September 2005 but the Petitioner failed to attend claiming that notice received on 16 September was too short. The Petitioner's asylum claim was refused on 7 October 2005. On 28 November 2005 the Petitioner's appeal against refusal of asylum was dismissed. The Immigration Judge found that the Petitioner's account of persecution and his need to leave Iraq was entirely fabricated and untruthful [Production No 6/13, UK Border Agency letter dated 3 August 2009]. Permission to appeal to the High Court was refused on 15 December 2005. On 30 December 2005 the Petitioner became rights of appeal exhausted.

[4] An age assessment interview was first arranged with Birmingham Social Services on 29 September 2005. The Petitioner arrived unannounced with his brother on 27 September 2005. He was advised to attend the interview but failed to attend. On 27 March 2006 the Petitioner met with Birmingham Social Services for an initial interview. An age assessment interview was arranged for 4 April 2006. The Petitioner was age-assessed on 4 April 2006 and found to be over eighteen years of age, i.e. born before 4 April 1986. It was noted that the Petitioner gave different accounts of where he lived in Iraq. In his appeal statement of 27 October 2005 the Petitioner stated that he would produce copies of his birth certificate. He has never done so. The Petitioner subsequently produced an identity [ID] card of unknown provenance showing a date of birth of 7 March 1989. The Petitioner has not adduced evidence from his claimed older brother [see below] as to his age. Age remains a live issue as regards credibility.

[5] The Petitioner applied for assisted voluntary return [AVR] to Iraq on 3 October 2006 which was approved on 5 December 2006. The Petitioner withdrew the application on 7 December 2006. The Petitioner made a second application for AVR on 14 January 2008 which was approved on 16 January 2008. AVR was withdrawn on 2 May 2008 when the Petitioner failed to avail himself of the offer. On 1 May 2009 the Petitioner made a third application for AVR. AVR was refused. In oral submissions Counsel for the Petitioner explained that AVR comes with benefits, accommodation and food, pending return, so that no more than two grants of AVR are normally allowed. The Petitioner's lawyers explained in 2009 that the Petitioner applied for AVR to obtain benefits and National Asylum Support Service accommodation: he did not mean to return to Iraq [Production No 6/8, letter from McGill & Co, Solicitors, dated 31 July 2009].

[6] On 30 July 2009 the Petitioner was detained and served with directions for his removal to Iraq. He made further submissions in terms of Rule 353 on 31 July 2009. The further submissions included letters of support from his brother, sister-in-law, girlfriend, friends and acquaintances in the United Kingdom. On 2 August 2009 the Petitioner displayed disruptive behaviour in detention and was placed in Rule 40 secure accommodation for attacking another detainee. The Rule 353 application was refused by decision dated 3 August 2009. Also by letter dated 3 August 2009, which crossed with the refusal of the first further submissions, second further submissions in terms of Rule 353 were made by the Petitioner. On receipt of the refusal dated 3 August 2009, the Petitioner intimated an intention to apply for judicial review. On sight of the draft Petition the Border Agency on 4 August 2009 cancelled the removal directions and withdrew the decision of 3 August 2009 in order to re-address the Petitioner's Rule 353 further submissions. On 22 February 2010 the Petitioner submitted the ID card referred to above with translation in support of his further submissions. The Decision Letter identifies additional further submissions made on 28 May 2010. This is confirmed by Petitioner's Counsel.

[7] The Petitioner's brother has indefinite leave to remain in the United Kingdom. The Petitioner has resided with his brother and sister-in-law intermittently for a total of about 20 months between August 2005 and November 2010. On 11 August 2009 the Petitioner was released from detention on immigration bail of £1,500 deposited by his brother. The Petitioner has failed to comply with the bail reporting condition on fourteen occasions. In September 2009 the brother contacted the Border Agency to say that he wished the Petitioner to be "deported" to Iraq and to have the bail money refunded. He did not want to jeopardise his own future by "constant let downs" by his brother. The Petitioner now lives in National Asylum Support Service accommodation. The Petitioner's parents and six other siblings continue to live in Iraq. Counsel for the Petitioner does not contest the Border Agency decision maker's finding that the Petitioner has "an appalling immigration history".

Legislative framework
[8] The Human Rights Act 1998 Sched 1, Part 1 ('The Convention'), incorporated by section 1, provides:

"Article 8

Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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."

[9] The Immigration Rules 1994 (HC 395 as amended) made under the Immigration Act 1971 s. 3(2) provide:

"353.- Where a human rights or asylum claim has been refused ... 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."

Immigration Rule 353
[10] Failed asylum seekers can make "further submissions". Immigration Rule 353 stipulates how further submissions are to be treated. I have previously described the Rule 353 two-stage process and the two-part test involved in the second stage [MA (Iran) v Secretary of State for the Home Department [2011] CSOH 8 (19 January 2011)§§ 48- 56]. It is crystal clear from the Border Agency internal guidance lodged as a production for the Petitioner in this case that the first stage in processing a Rule 353 application involves the decision maker deciding whether or not to grant leave to remain on the basis of asylum, humanitarian protection or discretionary leave [Production No 6/9 (replacement version lodged 9 November 2011), UKBA Asylum Process Guidance on Further Submissions, page 12]:

"Two-Stage Process

Paragraph 353 requires that a two stage process be applied when further submissions are received:

·        Stage One - consider whether to grant leave [to remain]

·        Stage Two - decide whether the further submissions amount to a fresh claim.

If stage one results in a grant of leave [to remain], the case owner does not need to proceed to stage two."

[11] Assuming leave to remain is not granted, then the second stage decision - "whether the further submissions amount to a fresh claim" - is whether in effect to grant leave to appeal, the final part of the test being whether an appeal to an Immigration Judge sitting in the First Tier Tribunal might have a "realistic prospect of success". Such a right of appeal is exercisable in-country in terms of the Nationality, Immigration and Asylum Act 2002 s. 92(4)(a).

[12] In case after case UK Border Agency Rule 353 decision letters disclose no clear dividing line between the two stages. This involves two risks for the Border Agency. The first risk is of a challenge to the effect that the decision-making process has not been carried out. The second risk is that the decision maker confuses the two stages, the first of which involves the decision maker's own judgement and the second of which involves a judgement as to the range of reasonable decisions open to an Immigration Judge. There is an element of confusion in the present case, though the point has not been taken by Petitioner's Counsel.

[13] Can you refuse leave to appeal before you make the decision against which the appeal might be taken? In the present case typically, the second-stage decision, effectively to refuse leave to appeal, is announced early on, at paragraph five on page two of the Decision Letter dated 29 March 2011. The first-stage decision to refuse the claim for asylum, humanitarian protection or discretionary leave is not announced until paragraphs 20 and 21 on page ten, and then in brief and cryptic terms. This is not the whole story. There is an earlier reference at paragraph sixteen on page eight to reconsideration and non-reversal of the original decision in relation to asylum, humanitarian protection or discretionary leave: unfortunately the reference seems to involve a cut-and-paste error, referring as it does apparently to decisions made in another case in 2004, more than a year before this Petitioner's arrival in the United Kingdom. Again, no point is taken by Petitioner's Counsel about this matter.

[14] Counsel for the Petitioner focuses his attack on the second-stage Rule 353 decision. He accepts that even though the decision reached by the decision maker on 29 March 2011 was unfavourable to the Petitioner, it was, as regards the conclusion, a not unreasonable one. His point is that the decision-making process leading to the conclusion was flawed; the decision has to be set aside; the process has to be gone through again because, done properly, it might produce a different result; and the different result next time could well be favourable to the Petitioner. In particular, assuming a proper decision-making process by the Border Agency, the Rule 353 stage-two test might well be satisfied. The test is whether the further submissions taken together with the previously considered material, create a "realistic prospect of success" before another Immigration Judge.

[15] The flaws in the process are said to be: (1) application of the wrong test - the decision maker assumed that unless you have cohabitation you cannot have ECHR Article 8(1) "family life" [Wakefield v United Kingdom, No 15817/89, 66 DR 251 (1990)]; (2) irrationality - the decision maker, having concluded that there was no "family life" attempted what was for her the impossible task of assessing whether removal would be a disproportionate interference with that non-existent family life in terms of ECHR Article 8(2); and (3) failure to take relevant material into account - the decision maker, in assessing proportionality, failed to weigh in the balance the disruptive effects of removal on "family life" [Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420] and failed to weigh the dysfunctional aspects of the system of immigration and border control as it applied to the Petitioner [EB (Kosovo) v Secretary of State for the Home Department [2008] 3 WLR 178; HH (Iraq) [2009] EWCA Civ 727].

[16] Counsel are agreed that the proper approach for this Court in reviewing the Decision Letter of 29 March 2011 is the "Wednesbury" approach as laid down by the Inner House in FO v Secretary of State for the Home Department 2010 SLT 1087 under reference to WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495 (9 November 2006) as affirmed by the Inner House in Dangol v Secretary of State for the Home Department 2011 SC 560. The passage in WM (Democratic Republic of Congo) that endorses the Wednesbury approach is at paragraph 9 where Lord Justice Buxton stated: "There is no escaping from the ratio of [Cakabay v Secretary of State for the Home Department [1999] Imm AR 176] that... the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds."

[17] Shortly put it is not for the Court to make or to substitute its own decision on the merits [Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; cf. R (on the application of YH (Iraq)) v Secretary of State for the Home Department [2010] 4 All ER 448]. The significance, according to Counsel for the Respondent, is that some latitude of judgement has to be allowed to the Border Agency decision maker. Counsel for the Petitioner did not contest this; and, indeed, the issues raised by the Petitioner in this case are traditional Wednesbury-type issues about the decision-making process. So far so good.

[18] Dangol makes the assumption, without deciding, that the decision maker must apply "anxious scrutiny" in determining Article 8 ECHR claims; and that failure to apply "anxious scrutiny" constitutes a flaw in the decision-making process [Dangol v Secretary of State for the Home Department 2011 SC 560 at § 9 per Lord Bonomy giving the Opinion of the Court]. I do not need to make any assumption about the application of "anxious scrutiny" because Counsel for the Petitioner, rightly in my view, does not take any point about "anxious scrutiny" and does not submit that I am myself bound to exercise "anxious scrutiny". This is just as well because I am sceptical about the application of "anxious scrutiny" as a standard of review for Article 8 ECHR "private and family life" claims like the present one. "Anxious scrutiny" first aspired to be more than a cliché when it was used, somewhat creatively, by HM Government, faced with ECHR challenges pre-incorporation, to patch a perceived deficiency in judicial review as an "effective remedy" to deal with threatened Article 2 and 3 ECHR "life and liberty" infractions [D v United Kingdom (1997) 24 EHRR 423 at §§ 12, 67, 71; also Soering v United Kingdom (1989) 11 EHRR 439; Vilvarajah v United Kingdom (1992) 14 EHRR 248]. In relation to asylum and Article 3 ECHR claims, Counsel for the Respondent (who also appeared for the Respondent in Dangol) refers to the "formulaic significance" that the expression "anxious scrutiny" has acquired [R (on the application of YH (Iraq)) v Secretary of State for the Home Department [2010] 4 All ER 448 at §§ 22-24 per Carnwarth LJ with whom the other judges agreed].

[19] Returning to the immediate issue, it is unclear how "anxious scrutiny" is any more exacting than applying the conditions for Convention compliance inherent in Article 8 ECHR itself [SKM (Democratic Republic of Congo) v Secretary of State for the Home Department [2010] CSOH 172 (23 December 2010) at §§ 29-31]. On this view, the Border Agency decision maker in the present case has gone further than necessary and has "gold-plated" her decision by bringing "anxious scrutiny" into play. Her conclusion is that: "The new submissions taken together with the previous [sic] considered material do not create a realistic prospect of success, namely that an Immigration Judge applying anxious scrutiny would decided [sic] that the claimant ought to be granted asylum, Humanitarian Protection or Discretionary Leave..." [Production No 6/1, UKBA Decision Letter dated 29 March 2011, § 17].

[20] Parties are also agreed that Lord Bingham's five-stage test for Article 8 ECHR claims applies [R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at § 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?"

There was some discussion of the fourth question: but essentially parties in this case have joined issue on the first question: "is there a family life to be interfered with?" and, on the hypothesis that there is a family life, the fifth and last question: "is removal proportionate to the legitimate public end sought to be achieved?" The proportionality test involves striking a fair balance between the rights of the individual and the interests of the community [R (Razgar) at § 20 per Lord Bingham, at § 44 per Baroness Hale].

Convention rights and immigration
[21] "Human beings are social animals". This was the view of the House of Lords in Huang, in a passage quoted by Lord Bingham in EB (Kosovo) at paragraph 11 [Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 18]. His Lordship developed the thought by reference to the value of family life. In its original form, the proposition supports not the idea of individual rights in opposition to the state but the idea of the state as the necessary context for individual fulfilment [Aristotle, Politics, 1253a]. Article 8(2) recognises the necessary role of the state in upholding a democratic society and countenances interference with individual rights in the public interest.

[22] Lord Bingham continued at paragraph 11, EB (Kosovo): "The Strasbourg Court has repeatedly recognised the general right of states to control entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where [i.e. in which state] they prefer to live." The awkward aspect of the debate about Article 8 ECHR and immigration is that "maintaining immigration control" does not in terms constitute an Article 8(2) public interest justification for interference with Article 8(1) rights; and none of the permitted Article 8(2) public interest justifications has an immediately obvious connection with border control (as opposed to the removal of undesirable aliens). A possible inference is that Article 8(1) has nothing to do with respecting any private and family life rights accruing solely by virtue of the precarious presence of persons who have no right to be in the state in the first place, though this, I suspect, is not an inference that Counsel for the Petitioner would wish to draw.

[23] The issue arises in this case because Counsel for the Petitioner submits that the decision maker has to identify the public interest justification for interference, in terms of Lord Bingham's fourth question, before addressing proportionality, in terms of the fifth question. Counsel says that the various justifications have different weights; and that the relevant factors to be weighed in the balance cannot be identified without knowing what the claimed justification is [cf MH v Secretary of State for the Home Department [2011] CSOH 143 (30 August 2011) § 20]. Counsel suggests, somewhat off the cuff, that the justification for immigration removals might possibly be "the prevention of disorder" understanding "disorder" to be the antonym of "public order" in the French sense, "l'ordre public", a much wider concept [cf ECHR Fourth Protocol, Article 2, "Freedom of Movement" (unincorporated), where the French phrase is used in the English language text]. There are Convention meanings including "public policy". The Convention itself is said to have an "ordre public mission" [Bankovic v Belgium (Admissibility) 44 EHRR SE5 at § 78]. I note in passing that the Law of 19 May 2010 prohibiting the wearing of the niqab and the burqa in France proceeds upon a ministerial recital: "the protection of l'ordre public... extends to prohibiting conduct which challenges the essential rules of the republican social contract, the basis of our society." These are drumly waters. I am content to act as the decision maker has done, on the basis that enforcing and maintaining immigration control is a legitimate aim for the purposes of Article 8(2). This approach is authorised by the jurisprudence of the Strasbourg Court [Nnyanzi v United Kingdom (2008) 47 EHRR 18 at § 76, case cited on a different point by Lord Brown of Eaton-under-Heywood in EB (Kosovo) at § 38].

[24] Counsel for the Petitioner refers to Üner and Maslov for guidance as to the matters to be addressed when answering the Razgar questions (4) and (5) [Üner v The Netherlands (2007) 45 EHRR 14 at §§ 54-55, 57-58; Maslov v Austria
[2008] ECtHR [GC] No 1638/03 (
23 June 2008) at §§ 68, 70-71]. Üner and Maslov belong to the class of cases relating to legally-resident, undesirable aliens liable to be excluded for a period, deported or expelled. These decisions support the proposition, which I agree with, that the legitimate aim in terms of Razgar question (4) has to be specified before the factors relevant to question (5) can be identified for the purpose of the proportionality balancing exercise. In Üner and Maslov "public safety" and "the prevention of disorder or crime" were the "legitimate aims" served by interference in the private and family life of those claimants. However, and as Counsel for the Respondent points out, the Petitioner's pleadings do not raise any issue about failure by the decision maker in the present case to specify a legitimate aim recognised by Article 8(2) ECHR; and the Decision Letter repeatedly identifies the public interest justification as "maintaining effective immigration control" and as "the need to maintain immigration control". As stated above, I shall proceed on the basis that interference with such Article 8(1) ECHR rights as the Petitioner has in the United Kingdom "is motivated by a legitimate aim, namely the maintenance and enforcement of immigration control" [Nnyanzi at § 76].

[25] The other proposition derived by Counsel is that the length of stay in the host country is a factor to be weighed when striking the proportionality balance. I am willing to accept the proposition for the purpose of the current decision although clearly the weight to be attached to length of residence must be different in immigration cases where residence is illegal, precarious and, it may be, clandestine [Nnyanzi at § 76]. The length and quality of the Petitioner's residence is something the decision maker does take into account in assessing proportionality.

Family life
[26] What Article 8(1) ECHR rights does the Petition put in issue? The Petitioner's position is that his relationship with a British citizen girlfriend constitutes Article 8(1) "family life" [Petition, article 16]. Counsel for the Petitioner focuses on one sentence in the decision maker's treatment of the family life claim, namely: "It is accepted that your client was in a relationship with Ms S however, as she has stated they do not live together, it is not accepted that family life exists." Counsel submits that the decision maker has applied the wrong test and has closed her mind to the possibility of family life without cohabitation. In this context Counsel refers to Wakefield v United Kingdom, No 15817/89, 66 DR 251 (1990).

[27] I disagree. Wakefield is authority for the proposition that a non-cohabiting relationship between two individuals kept apart by circumstances - one of the individuals in that case being a double-life sentence, Category A prisoner - may constitute "private life" within the meaning of Article 8(1) ECHR. The Commission found that the relationship did not amount to "family life", holding that "something more than one meeting and correspondence" must exist and that, overall, the application was manifestly ill-founded. I agree with Counsel for the Respondent that the Border Agency decision maker in the present case defines the issue correctly when she states: "Whether family life exists is essentially a question of fact." I agree that she treats non-cohabitation between the Petitioner and his girlfriend as an evidential matter to be weighed with the other evidence; and that she reaches a conclusion which she as fact-finder is well-entitled to reach on the material available to her (insofar as we are concerned with the Rule 353 stage one decision).

[28] The decision maker states: "However, your client's further submissions of 28 May 2010 did not include any letter of support from Ms S and no evidence has been submitted to show if the relationship is still subsisting from her last letter of support in July 2009" [Production No 6/1, UKBA Decision Letter dated 29 March 2011, page 5; page 7 and § 19(iii) at page 9 to the same effect]. Counsel for the Petitioner criticises the decision maker for failing to look for additional material or alternatively for giving weight to the fact that there is an absence of up-to-date information. Counsel makes two points. First, "further submissions" are about "new" or "additional" information, "NEW NOT OLD" as the Border Agency emphasises; and once the Petitioner had submitted the new information about his relationship in 2009 nothing should be made of his failure to repeat it or update it in 2010. Secondly, decision makers have the option of clarifying uncertainties by inviting applicants for interview [Production No 6/9 (replacement version lodged 9 November 2011), UKBA Asylum Process Guidance on Further Submissions, page 15]. The Petitioner should have been interviewed.

[29] I reject this submission. It is self-evident that a "family life" claim based in part on the duration of an unformalised, non-cohabiting relationship ought to be updated by an applicant who wishes to rely on it - if indeed it continues to exist. The further submission dated 28 May 2010 enclosed updated letters of support from the Petitioner's footballing companions but did not include any update from Ms S, a point of distinction that the decision maker was entitled to notice. Also, as Counsel for the Respondent submits, there is no averment in the Petition to the effect that the "family life" does continue to exist as a matter of fact; or that further inquiry at interview would have revealed this. No suggestion to that effect was made in oral submissions by Counsel for the Petitioner. (I give no weight to the argument advanced by Respondent's Counsel, as I understand it, that if the Petitioner has something further to say about his "family life" that does not justify setting aside the decision under review because it is open to the Petitioner to make a further Rule 353 application [JCM Petitioner [2011] CSOH 174 (19 October 2011) at §§ 17-18]).

[30] In any event it seems to me that the decision maker is prepared to take the Petitioner's case at its highest and to assume the existence and continuation of the Petitioner's "family life", such as it may be, for the purpose of conducting the Article 8(2) proportionality balancing exercise. Counsel for the Respondent makes the point, correctly, that the important thing for this exercise as conducted by the decision maker is the substance of the relationship, so far as evidenced, and not the label "family life": the decision maker approaches the matter on this basis and weighs the relevant information. Contrary to the initial submission of Counsel for the Petitioner, I find that there is nothing "irrational" about this exercise.

[31] A factor which the decision maker did not weigh in the balance is the challenge faced in Iraq by Article 8 ECHR, "family life" removees. Counsel for the Petitioner submits that family life within the meaning of Article 8(1) ECHR, such as is claimed by the Petitioner in the United Kingdom, weighs heavily in favour of non-removal to Iraq. The submission assumes that the Petitioner, if removed, would wish to return from Iraq to the United Kingdom to pursue his family life. Whether it is proportionate to order removal in a particular case preliminary to attempted return depends, though not exclusively, on specific country conditions. Counsel for the Petitioner submits that there is a range of guidance on conditions in Iraq and on Article 8 ECHR removals to Iraq. Because the guidance goes both ways, it must be open to an Immigration Judge to conclude that removal to Iraq would be disproportionate; and that the Border Agency decision maker should have so determined.

[32] Counsel reminds me that Rule 353 determinations should take account of "information such as new country information or a new policy" [Production No 6/9 (replacement version lodged 9 November 2011), UKBA Asylum Process Guidance on Further Submissions, page 14]; and that failure by decision makers to have regard to Asylum and Immigration Tribunal "Country Guidance" [CG] can amount to an error of law [R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at § 26-27 citing NM and Others (Lone woman - Ashraf) Somalia CG [2005] UKIAT 00076]. The current list of UKAIT Country Guideline Determinations updated at 27 September 2011 includes SM (Entry clearance application in Jordan - proportionality) Iraq CG [2007] UKIAT 00077 [Production No 6/17]. SM teaches that there are no United Kingdom entry clearance facilities in Iraq itself; and that Iraqis wishing to get United Kingdom entry clearance have to travel to Amman, Jordan. The whole procedure, starting with applying for fresh identity documentation in the home area (in this case Kurdistan Regional Government [KRG] area centred on Kirkuk), obtaining a G Series passport in Baghdad, then travelling to Amman for a pre-booked entry clearance interview, is time-consuming, expensive, complicated and possibly dangerous. Nonetheless the case also instructs us that in general, subject to individual circumstances which militate against removal, it is not disproportionate to require an illegal-immigrant, family-life claimant from Iraq to return there in order to make an out-of-country application for admission.

[33] Since SM the judgment in Chikwamba has been handed down. Chikwamba is authority for the proposition that illegal-immigrant, family-life claimants should not be required to apply for entry clearance from abroad simply as a matter of routine: "...the prospective length and degree of family disruption involved in going abroad to gain entry clearance will always be highly relevant" [Chikwamba v Secretary of State for the Home Department [2008] 1WLR 1420 especially at §§ 40-43 per Lord Brown of Eaton-under-Heywood with whom the rest of the Committee agreed].

[34] Chikwamba has been noticed by the UK Border Agency. Operational Guidance Note Iraq 2009 (Iraq OGN v5.0 June 2009), reviews the case law including SM and states, at paragraph 6.6 [my underlining]:

"Three recent judgments handed down from the House of Lords, most notably Chikwamba v The Secretary of State for the Home Department [2008], have had an impact on the way the UK Border Agency must consider human rights claims under Article 8 of the European Convention on Human Rights (ECHR). All cases should be considered on their own merits taking full account of the Article 8 Casework Instructions, the current absence of entry clearance facilities in Iraq, and the difficulties involved for Iraqis in travelling to the designated entry clearance posts in neighbouring countries. In most cases it is likely to be disproportionate to expect Iraqis who have established family ties in the UK, and for whom there are insurmountable obstacles to family life in its entirety being exercised abroad, to return to Iraq and apply for entry clearance."

I see from the UNHCR website that Iraq OGN v5.0 was reissued as Iraq OGN v5.1 in July 2010 and was current until October 2010. The passage above remained unrevised and was therefore in force during most of the period when the Petitioner's Rule 353 application was under consideration.

[35] Operational Guidance Note Iraq 2010 (v6 1 October 2010) produced by the Respondent states, at paragraph 5.1: "There is no policy which precludes the enforced return to Iraq of failed asylum seekers who have no legal basis of stay in the United Kingdom" [Production No 7/1]. This was the guidance in force on the date of the decision. For the purpose of understanding this sentence, Counsel for the Petitioner makes the point that internal guidance documents are not "policy" so that while there may be no "policy" that precludes return, there may be "guidance" that does. Counsel submits that Iraq OGN v6 is a sort of executive summary and does not displace previous and still relevant guidance, OGN v5 in particular, in relation to failed Iraqi asylum seekers claiming Article 8 ECHR family life rights [§§ 1.1-1.2]. I do not have to decide which guidance document takes precedence because the point made by Counsel for the Petitioner is that the information available would clearly permit an Immigration Judge to form the reasonable view that removal is disproportionate. I return to this matter in the Conclusion, below.

EB (Kosovo) and dysfunctional border control
[36] I suggested above that Article 8(2) ECHR recognises the role of the state in supporting a democratic society. What happens if the state is dysfunctional? What happens if the state's border control institutions are "not fit for purpose" and fail to remove, delay in removing, or botch removal of, failed asylum seekers like the Petitioner? Petitioner's Counsel founds on EB (Kosovo) for the proposition that alleged Border Agency mishandling of the Petitioner's claim weighs in favour of the Petitioner's Article 8 ECHR case for non-removal.

[37] The claimant in EB (Kosovo) applied for asylum on 6 September 1999. He was then aged 13. The claim was refused on 27 April 2004. At the date of the decision conditions in Kosovo had improved and did not justify giving asylum. Had the claim been decided earlier, EB might have been granted exceptional leave to remain with at least a chance thereafter of receiving indefinite leave. The delay was "compounded" by mishandling which included an incorrect refusal of the application, subsequently revoked. (Until his eighteenth birthday on 10 December 2003 the claimant was an "unaccompanied child asylum seeker" [UASC]. It was policy to grant exceptional leave to remain to Kosovar UASCs. There was a suggestion that a cousin who arrived at the same time had been granted exceptional leave followed by indefinite leave.) EB thereafter appealed to an adjudicator on asylum and human rights grounds. Legal process up to the hearing before the Appellate Committee took another four years. In the meantime the claimant entrenched his private and family life in the United Kingdom.

[38] In EB (Kosovo) Lord Bingham said [at § 16]:

"Delay may be relevant... 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."

The contrary view was put by Lord Brown of Eaton-under-Heywood, dissenting on this point, who said [at § 41];

"... I cannot accept that delay may be relevant in reducing the weight to be accorded to the requirements of fair and firm immigration control. Ideally, of course, immigration should be controlled efficiently and expeditiously and not be subject to long delays and repeated mistakes as in the present case. But the general public interest in the application of the Secretary of State's substantive legal rules and policies (which include only allowing article 8 claims when they are substantively made out on the facts) is not diminished and should not be overridden because the system is sometimes incompetently operated."

Lord Brown endorsed the dictum of Lord Justice May in R (Ajoh) v Secretary of State for the Home Department [2007] Imm AR 817 at paragraph 37: "[I]t is not the function of the court to discipline or punish the Secretary of State and his department."

[39] I reject the submission for the Petitioner that institutional dysfunction is a factor to be weighed in the Petitioner's favour in the present case. I do so for three reasons. First, the Petitioner's argument does not come within the ratio of EB (Kosovo). The Appellate Committee was divided on the question. True, the minority view was expressed by Lord Brown of Eaton-under-Heywood alone: but it was expressed with singular cogency. Because of the cogency of this counter-argument, it would be unsafe to extend the principle of EB (Kosovo) beyond the strict, fact-specific ratio of that case.

[40] In any event, as Counsel for the Respondent points out, there was no dysfunction in the present case. The final decision on the Petitioner's asylum claim was made within months. It was for the Petitioner to remove himself from the United Kingdom. By his applications for AVR, three times in the period 2006 to 2009, the Petitioner, whatever his motivation, held himself out as being willing to leave. Within three months of the last refusal of AVR in May 2009, the Petitioner was detained. No point is taken about the passage of time since then. All this I accept. One thing I do not accept - but this is not material to my decision - is the submission by Counsel for the Respondent that failing to remove individuals who have no right to be in the United Kingdom cannot amount to dysfunction. The submission is made by reference to the distinction drawn by Counsel between the delay in EB (Kosovo), which was a delay in decision-making, and the delay in the present case (if there were a delay in the present case, something not admitted), which was a delay in removal.

[41] Secondly, the documents and authorities relied on by Counsel for the Petitioner do not support the allegation of dysfunction. The submission for the Petitioner runs as follows. The attempt to remove the Petitioner initiated in 2005 was dysfunctional because it was contrary to policy. In terms of Home Office policy the Petitioner was non-removable in the period between 9 August 2005, the date of his IS 151A, and 14 January 2008, the date when the policy was withdrawn. The policy was contained in the Departmental Operational Enforcement Manual paragraph 12.3. The relevant part provided: "Enforcement action should not be taken against nationals who originate from countries which are currently active war zones" [HH (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 727 (14 July 2009) at §§ 1 and 4 per Sedley LJ]. The Petitioner is an Iraqi national. Iraq was a "war zone" for the purposes of the policy [HH (Criminal record; deportation: "war zone") Iraq v Secretary of State for the Home Department [2008] UKAIT 00051 § 15]. In terms of the Immigration Act 1971 s. 24A "Enforcement action in relation to a person" includes "the giving of directions for his removal from the United Kingdom ('directions') under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999". The removal directions served on the Petitioner, Form IS 151A dated 9 August 2005, were expressed to be "under paragraphs 9-10A of Schedule 2 of the 1971 Act or section 10(1) of the 1999 Act" - the directions are not produced but the point is not contested. Counsel also referred to the terms of the notes forming part of Home Office policy DP3/96 quoted in BP (DP3/96 - Unmarried Partners) Macedonia) [2008] UKIAT 00045 at paragraph 16:

"(iii) In this instruction commencement of enforcement action is to be taken as either:

(a) a specific instruction to leave with a warning of liability to deportation if the subject fails to do so; or

(b) service of a notice of intention to deport or service of illegal entry papers (including the service of papers during a previous stay in the United Kingdom were [sic] the subject has returned illegally...

The policy was considered in Akhtar v Secretary of State for the Home Department 2001 SLT 1239 where, at paragraph 2, Lord Eassie noted that service of Form IS 151A was accepted "for the purposes of...Home Office policy document DP3/96" as constituting "enforcement action".

[42] Counsel for the Petitioner's submission is not soundly based. HH (Iraq) was about an individual granted exceptional leave to remain in the United Kingdom who had subsequently been convicted of child sex offences and was then made subject to a deportation order. When in force paragraph 12.3 of the Departmental Operational Enforcement Manual applied to criminal justice and similar deportations and not to immigration removals like the Petitioner's [HH (Criminal record; deportation: "war zone") Iraq v Secretary of State for the Home Department [2008] UKAIT 00051 § 26]. The definition of "enforcement action" in the Immigration Act 1971 s. 24A was held by the Court of Appeal to be a definition for the purposes of the offence of "deception" created by that section and, further, was held to give "very little help" in construing the paragraph 12.3 policy about exemptions from deportation and temporary suspension of deportations [HH (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 727 (14 July 2009) at §§ 8 per Sedley LJ with whom his colleagues agreed]. As Counsel for the Respondent submitted, the same sort of points can be made about the restricted application of the definition in Home Office policy DP3/96.

[43] The third reason for rejecting the submission on institutional dysfunction is that, as Counsel for the Respondent submits, there was no causal connection between the alleged dysfunction and the Petitioner's precarious residence in the United Kingdom on the basis of which he claims to have developed a family life. Unlike the situation in EB (Kosovo), delay has not led to any loss of advantage for this Petitioner. Also, in EB (Kosovo) the dysfunctional system yielded "unpredictable, inconsistent and unfair outcomes", presumably by reference to the different treatment, possibly, of EB's cousin. There is nothing like that in the Petitioner's case. In sum, the Border Agency decision maker cannot be faulted for failing to weigh the alleged dysfunction when striking the proportionality balance. There was no relevant dysfunction.

[44] I reject the submission that the decision maker's hypothetical proportionality balancing exercise is flawed because it fails to weigh "the prospective length and degree of family disruption involved in going abroad to gain entry clearance" [Chikwamba supra]. Assuming for this purpose that the Petitioner has a family life in the United Kingdom, and that his family life is shared with Ms S, that family life is, on any reasonable view, of the most slender kind. No individual circumstances which militate against removal are advanced on the Petitioner's behalf. He provides no information about future intentions. In that situation the decision maker cannot be faulted for leaving the potential disruption to family life out of account in relation to both stages one and two of the Rule 353 test. The factors weighing in favour of removal are very weighty. The decision maker concluded that "there would be no realistic prospect" of an Immigration Judge "coming to a different conclusion" or "concluding that [the Petitioner's] Article 8 rights would be breached if he were removed to Iraq". These were entirely reasonable conclusions, as Counsel for the Petitioner accepts.

[45] In any event, it seems to me that the real issue is as to the actual question rather than as to the hypothetical question, namely whether there is in fact a "family life" at all within the meaning of Article 8(1) ECHR. The decision maker is well entitled on the information available to her to conclude that there is not. What the decision maker fails to do distinctly is to express a view as to whether there is a realistic prospect of the Petitioner persuading an Immigration Judge that he, the Petitioner, has a family life in the United Kingdom within the meaning of Article 8(1). Equally, however, Counsel for the Petitioner makes no distinct challenge to this aspect of the Decision Letter. It is not mentioned in the Petition and is not raised in oral submissions. In the circumstances, having regard to the fact that the decision maker is clearly aware of the correct test for stage two, I am prepared to accept that the decision maker's general conclusions about the lack of a "realistic prospect of success" apply to this matter too [Production No 6/1, UKBA Decision Letter dated 29 March 2011, § 12, last sentence, § 17]. Again, the decision maker is well entitled in my view to reach this conclusion. On this basis the hypothetical proportionality balancing exercise, whether properly undertaken or not, is superfluous.

[46] I shall repel the Petitioner's Plea-in-Law, sustain the Respondent's second and third Pleas-in-Law and refuse the Petition. I shall reserve in the meantime all questions of expenses.

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