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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MMM (AP) v Secretary of State for the Home Department [2014] ScotCS CSOH_43 (06 March 2014)
URL: http://www.bailii.org/scot/cases/ScotCS/2014/2014CSOH43.html
Cite as: [2014] ScotCS CSOH_43

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OUTER HOUSE, COURT OF SESSION


[2013] CSOH 43

P995/13

OPINION OF LADY SCOTT

in Petition of

M M M (AP)

Petitioner;

against

SECRETARY OF STATE OF THE HOME DEPARTMENT

Respondent:

________________

Petitioner: Caskie; Drummond Miller (for Latta & Co, Glasgow)

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

6 March 2014

Introduction


[1] The petitioner is a citizen of Zimbabwe. He has a long immigration history. He entered the United Kingdom (UK) on 8 March 2008. He claimed asylum on 12 March 2008. He was 19 years of age. He was subsequently granted a six month visa to enter, granted on 27 August 2008. His asylum claim was refused and after various procedures including a successful appeal to an immigration judge, his claim was rejected by the Upper Tribunal (UT) who also refused permission to appeal to the Court of Session. He made further submissions to the respondent which were rejected in a decision letter of 15 August 2013 (6/5 of process).


[2] Further additional submissions (6/4 of process) were then made under rule 353 of the Immigration Rules (the rules). These were on the basis of article 8 of the European Convention of Human Rights (ECHR) regarding the petitioner's private and family life. The essential submission was that having regard to the petitioners length of stay and his established relationship with his partner (JM) his removal would be unnecessary and disproportionate and therefore in breach of article 8. The petitioner had not previously made submissions based upon his having an established relationship or partner. These submissions were rejected in a decision letter of 19 September 2013 (6/3 of process) on the basis that they did not constitute a fresh claim under the rules.


[3] The petition called before me at a first hearing under Rule of Court 58.9. The petitioner challenges the decision of 19 September 2013 as unreasonable on a number of grounds which can be summarised under the following headings

(a) Error in Approach to the Credibility of the claim

(b) Errors of fact

(c) Application of wrong standard of proof

(d) Failure to properly apply anxious scrutiny

(e) Error in approach to the assessment of the Article 8 claim.

The Law


[4] Fresh claims are governed by Rule 353 of the Immigration Rules:

"353. When 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."


[5] Accordingly it was agreed that the stages which the respondent must go through in reaching her decision on this claim are:

(1) Consider whether there has there been previous claim - here there was a human rights /asylum claim.

(2) Consider any further submissions and in the exercise of her discretion decide whether on their merits leave should be granted to remain - here the decision not to grant leave was made and is not challenged.

(3) Consider whether there is a fresh claim - which is the issue here.


[6] It was also agreed that in reviewing the decision made by the respondent in respect of the fresh claim under rule 353 the test was one of Wednesbury unreasonableness.


[7] It was not for this court to decide under rule 353 whether there is a realistic prospect of success, but to apply the Wednesbury test to the decision of the respondent (Lord Hodge in RA v SSHD [2011] CSOH 68 at [18]).


[8] In the decision ABC (AP) [2013] CSOH 32 at [11], Lord Bannatyne has helpfully outlined the approach the court must adopt in cases of this type -

"1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3. The court must ask itself two questions:

1. Has the Secretary of State asked himself the correct question? - that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7). "


[9] Finally it was agreed that in addressing these questions, the Secretary of State should consider all matters, including the immigration history. Within that history she was bound by previous decisions of fact made by any prior fact finders in the case and this would include findings on the credibility of the petitioner.

Petitioners Submissions

Error in Approach to Credibility


[10] Applying this approach, the petitioner's criticism of the decision of the Secretary of State began with the starting point used in her assessment of the credibility of the fresh claim.


[11] The petitioner submitted that the decision letter demonstrated that it was decided at the outset that the petitioner was not credible. First, by having regard to previous decisions of immigration judges that he was not a credible witness (at paragraph 4) and secondly, by deciding that the claimed relationship with JM was not credible as it came so late and if it were genuine he would have mentioned it earlier (at paragraph 5). This, it was submitted, failed to have regard to the supporting material lodged with the submissions which consisted of 12 witness statements all speaking to their knowledge of that relationship. This material corroborated the petitioners claim to a subsisting relationship and partnership with JM over a period of years. If, as the terms of the decision suggested, this relationship had been pulled like a rabbit out of the hat, then this supporting material demonstrated it was a rabbit which had existed for some considerable time.


[12] By making a decision on the petitioner's credibility and the genuineness of the article 8 claim, before considering the supporting material, the respondent had erred in law in similar terms to that identified by Lord Bonomy in AAS v SSHD [2010] CSIH 90 at [9] -

"We are of the view that the Tribunal did err in law in assessing the credibility of the applicant and his wife. We consider that the Determination discloses a structural failing in the approach of the Tribunal in that it indicates that the Tribunal reached conclusions as to the incredibility of the accounts of the first applicant and his wife before considering the significance of the evidence of other witnesses. The evidence of FAS in particular was of direct personal experience and contained details which were plainly material in relation to the credibility of core elements of the account of the first applicant and his wife about their origins, nationality and clan membership as well as their experience of mistreatment. It was thus corroborative evidence on material aspects of the evidence of the first applicant and his wife that ought to have been considered along with their evidence and any other relevant evidence in the round before final conclusions in relation to the credibility of the first applicant and his wife were reached. To leave such significant material out of account in assessing credibility in this case was an error of law of such significance as to vitiate the decision of the Tribunal."


[13] The petitioner then submitted that errors of fact had been made. Notably the respondent dismisses the statement from JM that she cannot accompany the petitioner to Zimbabwe because she cannot speak the languages there (paragraph 5), whereas the material from JM indicates she cannot settle in Zimbabwe for a number of reasons, including her family being settled in the UK and her career. In addition counsel suggested that the respondent had failed to have regard to the relevant background of the asylum claim in respect of the fluctuating status of that claim under various Country Guidance given by the Home office regarding Zimbabwe, where, at times, the petitioner was at risk of persecution and this was a factor which should be taken into account as it could be considered relevant background by an immigration judge.


[14] Thirdly counsel pointed to the references within the decision letter to the "failure to provide any substantive or conclusive evidence of his claimed family life" (at paragraphs 6 and 9) which he submitted demonstrated an error in approach by applying an erroneous standard of proof. All that the petitioner required to show were relevant factors to an assessment of a claim under article 8, which an immigration judge could find established and on the basis of which the petitioner had a realistic prospect of success.


[15] The petitioner also submitted that the Secretary of State had erred in the approach taken to the assessment of the claim under article 8. It was an approach which focussed upon whether or not the rules in Appendix FM R-LTRP1.1 to E-LRTP 4.2 had been met (paragraph 8 of the decision letter) rather than properly making an assessment as required under article 8. The rules may be an attempt to reflect and meet article 8 requirements, but they were not the same as, nor a substitute for, an article 8 assessment. It was possible - as perhaps here - to fall outside the rules and for removal to still be in breach of article 8. Accordingly it was possible for an immigration judge to reach such a conclusion, notwithstanding the claim fell short of the rules. It was an error of law to conflate these rules with an article 8 assessment.


[16] This it was submitted was a significant issue here because the petitioner only fell just short of the rules. For example, whilst JM was not a partner as defined by the rules, because they did not live together, they did in fact stay together part of the week and it was known to the respondent that the petitioner required to live in Home Office supported "single" accommodation, which did not allow for a partner. This latter factor undermined the assertion in the decision letter that the petitioner had failed to provide an explanation for not living together. Further, whilst the petitioner had not complied with signing requirements, there was no history of false information which was more significant. Accordingly, here there was a basis to establish a subsisting family life in any assessment under article 8 which could realistically be successful.


[17] Finally the petitioner pointed to what were said to be inadequate reasons for concluding that the petitioner had failed to show a private life relevant to article 8 (paragraph 13) which again appeared to turn on the decision already made that the claim was not credible.

Respondents Submissions


[18] The respondent submitted that the claim here did not amount to a fresh claim under the rules for a number of reasons.


[19] It was inevitable in the context of the petitioner's immigration history that the claim fell to be viewed as a last ditch attempt and in that context to find the petitioner credible would be to give the petitioner undue credulity which would be unreasonable. There was no good reason for not raising the family life claim before. There had been four further sets of further submissions in this case. The last occasion was only in August of 2013. The petitioner was not a newcomer to the legal process. It was incredible that the existence of JM as a purported partner had not been raised before. There had been adverse credibility findings against the petitioner made previously in the case. Anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner's account (see: Dangol at paragraph [9].) It was submitted that to find the petitioner credible here would be to give undue credulity to the petitioner and would be unreasonable.


[20] In any event there was no realistic prospect of success under an article 8 assessment in this case. An immigration judge was entitled to take a robust view and would be liable to do so here. Reference was made to the approach of the court of appeal in MH (Algeria) v SSHD [2011] EWCA Civ 901 at [34] and [35], where the evidence relied upon could have been produced before and the court found that evidence inherently incredible and as such bound to fail. The court relied in part on the "not unreasonable inference that the appellant was simply seeking to stave off the evil day ", and that the Secretary of State was entitled to be sceptical. That was the position here.


[21] The respondent further submitted that it was significant that the requirements of the rules in the FM Appendix had not been met in the purported fresh claim, not least because the petitioner's girlfriend did not qualify as a partner under the rules. This could not be properly characterised as a failure falling just short of the rules. This failure showed that the article 8 claim was a weak one and not of the quality to engage the rules.


[22] In this situation, where his case fell outside the rules, the petitioner had to demonstrate exceptional circumstances (see: paragraph 3.2.7 of the Secretary of States guidance to officials).


[23] In addition counsel submitted that the petitioner required to show he had a "good arguable case". In this respect he relied upon this criterion being adopted by the Inner House in MS India v SSHD [2013] CSIH 52 at [28] and [30] following the approach of Sales J in R(Nagre) v Home Secretary [2013] EWHC 720 Admin in relation to testing the approach of an article 8 assessment outside the rules. This it was submitted was a higher test than a realistic prospect of success and something short of a compelling case. There had to be a good arguable case before an immigration judge conducts an article 8 assessment.


[24] A further difficulty for the petitioner was that he had a precarious immigration status - as had been recognised in paragraph [10] of the decision letter. As such his claim to an established family life was questionable and in this circumstance he required to show his was an "exceptional" case (see Sales J in R(Nagre) supra at [29]. This was not such a case.


[25] Finally, here the aspect of the claim based on a private life had been previously adjudicated as is seen in paragraphs (55) and (65) of the letter of 15 August 2013 (6/5 of process). That being so this aspect of the claim did not constitute a fresh claim under rule 353.

Discussion

[26] Read as whole it does seem to me that the respondent from the outset formed a clear and adverse view of the petitioner. Namely that he was not credible and that the late provision of the new basis for the article 8 claim was for the purpose "...simply to frustrate..." removal whereby it was not genuine. Having decided this at the outset the conclusion is made that the claim is bound to fail and in my view little or no regard is had to the supporting material.


[27] Even whilst accepting this claim can be viewed as "a last ditch attempt" it nonetheless requires to be approached correctly - that is by an assessment of the credibility of the petitioner not only in the context of his immigration history but also in the context of the new supporting material before drawing any conclusion. By deciding from the outset the petitioner was not credible the respondent moves swiftly to the conclusion the claim was not genuine and was bound to fail.


[28] Although the respondent makes reference at paragraph 5 to "Taking all the evidence in the round" this reference appears to be related only to the petitioner's poor immigration history and the reasoning in the decision suggests that overall this was precisely what the respondent failed to do. There is no mention of the supporting material until paragraph (16) which states :

"Consideration has been given to the documents you submitted in support of your client's claim. However, we consider that in view of the Immigration Judge credibility findings in your client case, and the fact that he is raising issues that he could and should have raised earlier, we have concluded that the documents did not add substantially to his claim."

This suggests clearly that the rejection of the supporting material is made on the basis of the conclusions already reached on credibility and genuineness of the petitioner's claim. There is no reference to the contents of that material. This contradicts an approach of taking all the evidence in the round.


[29] I accept the petitioner's submissions that there is an error of law in the approach taken here akin to that identified by Lord Bonomy in AAS supra. Accordingly I consider the decision displays a procedural error of law in the way the respondent has reached her decision. Such an error is not answered by the respondent's submissions that finding the petitioner credible would be to give him undue credulity. This procedural error vitiates the decision and is sufficient to determine this petition.


[30] I do not need to go further. However, in view of the submissions made it is appropriate to state I consider there is substance in two further arguments made by the petitioner that this decision was unreasonable.

Failure of anxious scrutiny


[31] The first concerns whether the approach of the Secretary of State in reaching her decision has properly applied anxious scrutiny. Having proceeded from the wrong starting point and by failing to have proper regard to the supporting material, I consider the necessary scrutiny is absent. Here, for example, this should include careful scrutiny of the supporting material which consists of 12 statements speaking to the relationship with JM. This material does not emanate from the petitioner himself but it appears to have been viewed as automatically suspect or tainted, because of the decision already made as to the credibility of the petitioner and the genuineness of the claim.


[32] It is well established the Secretary of State's decision will be irrational if it is not taken on the basis of anxious scrutiny (see: Dangol at paragraph [7]). Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see: Dangol at paragraph[ 9]). I am satisfied the supporting statements are material and it is possible that they could affect the decision of an immigration judge in favour of the petitioner.

Approach to Article 8 Assessment


[33] Finally, I consider there is substance in the petitioner's submissions that the respondent's decision conflated the requirements of the rules under FM Appendix with an assessment under article 8.


[34] I agree that the terms of the decision letter suggest the Secretary of State only considered and applied the rules in making a purported assessment under article 8. At paragraph (8) she suggests

"The requirements for family life are set out in Appendix FM of the Immigration Rules. Those seeking leave to remain in the United Kingdom on the basis of their family life must meet requirements on suitability and eligibility, which are set out in R-LTRP.1.1 to E-LRTP.4.2. for the partner route and in R-LTRPT.1.1 to E-LTRPT.5.2 for the parent route."

At paragraphs (12) and (13) the letter emphasises the failure to meet or "qualify" for family life under the rules. And nowhere is there any suggestion that any further or wider consideration is given to an article 8 assessment.


[35] Where a claim does not meet the requirements of the rules it will be necessary for the immigration judge to go on to make an assessment of article 8 applying the criterion established by law. A failure to comply with the rules thus remains the starting point of the article 8 inquiry and not its conclusion. In such an assessment failure to meet the rules is only a factor in the proportionality equation (see : Home Secretary v Izuazu [2013] UKUT 45 at [41]-[43] and [48]).


[36] I have considered the decision in MS India supra that where the case fell outside the rules, it should only be examined in an article 8 assessment where it was "a good arguable case". I have some difficulty in reconciling this threshold test with the need to assess an article 8 claim when it is raised (see: Izuazu supra at [49]). In any event, the exercise of assessing whether there is a good arguable case will often involve, in practice, consideration of the same issues involved in actually carrying out an article 8 assessment.


[37] I cannot accept counsel for the respondent's submission as to what this test means. It seems to me that where there is a good arguable case, there must be a realistic prospect of success. Accordingly, assessment of the claim under article 8 could be characterised as deciding whether there is a realistic prospect of an adjudicator, applying anxious scrutiny, deciding proportionality in favour of the applicant.


[38] What matters here is that no proper article 8 assessment was undertaken and as such there is substance to the petitioner's argument that this constituted a further error of law.


[39] It was also argued by the respondent that, given the petitioner's precarious immigration status, he required to show his was an exceptional case. I have some difficulty with what is "exceptional" in the context of the breadth of article 8 decisions and where the case law indicates that a fact sensitive assessment is necessary. I note the deprecation of such a test by the courts in many immigration law cases - seen for example in Sanade and others [2012] UKUT 48 (IAC) [2012] Imm AR 597; Huang v SSHD [2007] UKHL 11; EB Kosovo v Secretary of State for the Home Department
[2008] UKHL 41
;
[2009] 1 AC 1159; Izuazu, supra at [50]. However I do accept that the petitioner's precarious status undermines the strength of his claim to an established family life.


[40] The imposition of threshold tests of varying descriptions are not easy to follow or apply and sit uneasily with the simultaneous application of the anxious scrutiny that is required. It may be that in the context of interference with Convention rights and the risks attached to asylum cases, the fact finder requires simply to identify factors which realistically could lead to finding in favour of the applicant ( Izuazu ,
supra , at [58] and [78]).


[41] I do not propose to deal with the other submissions made. It is sufficient that I am satisfied that there was a material procedural error in the making of the decision under challenge, which renders that decision unreasonable. For completeness I have identified two other errors of law in respect of the related failure in the application of anxious scrutiny in this decision and separately a failure in the approach taken to the assessment of the claim under article 8.


[42] I therefore repel the pleas-in-law for the respondent, and sustain the second plea-in-law for the petitioner, reducing the decision of the respondent contained in the letter dated 19 September 2013 as unreasonable.


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