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Cite as: [2016] ScotCS CSOH_95

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 OUTER HOUSE, COURT OF SESSION

[2016] CSOH 95

 

P110/16

OPINION OF JUDGE J GORDON REID, QC

In the cause

WILLIAM MURINGANI

Pursuer;

for

Judicial Review of a decision of the Secretary of State for the Home Department

Defender:

Act:  Caskie;  Drummond Miller LLP

Alt:  Webster; Office of the Advocate General

5 July 2016

 

Introduction
[1]        In this judicial review petition, the petitioner seeks reduction of a certificate granted by the Secretary of State for the Home Department (the respondent) under section 94B of the Nationality, Immigration and Asylum Act 2002 (as amended) that he should be removed from the United Kingdom pending his appeal to the First‑tier Tribunal (Immigration and Asylum) against a deportation order made on 6 November 2015, in which he makes an article 8 ECHR claim.  Certification is on the basis that his removal, would not be unlawful under section 6 of the Human Rights Act 1998.

[2]        After sundry procedure, a substantive hearing took place on 27 May 2016.  No evidence, whether by affidavit or otherwise was led.  Although other remedies were mentioned in the petition, these were not pursued.  The only live issue concerned the section 94B certificate on which I heard detailed submissions on behalf of the parties.

 

General background
[3]        The petitioner, who was born on 2 February 1983, is a citizen of Zimbabwe.  He came to the United Kingdom on or about 25 January 2001 on a six months visitor’s visa.  After his visa expired following the grant of an extension to 31 October 2002, he remained in the United Kingdom as an overstayer.  Since then, he has been convicted of a number of serious offences of dishonesty.  His presence in the United Kingdom has been unlawful or at least precarious.  He has served several prison sentences of sufficient significance that they would at least normally justify his deportation, although the commission of serious criminal offences is not a trump card.  Other considerations, such as article 8 ECHR may be relevant.

[4]        Following completion of a prison sentence in October 2015, the petitioner was transferred to Immigration Service detention.  In about February 2016, the First‑tier Tribunal granted bail (which was originally refused) and he was released.  He currently resides at an address in Coventry with his wife, their two young children, aged 4 and 3 years, and his wife’s daughter, aged 12 years.  This was a requirement of the grant of bail.

 

Statutory background
[5]        Section 94B[1] of the 2002 Act provides as follows:

“94B.  Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

 

(1)        This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under –

 

(a)        section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), [applicable here] or

 

(b)        section 3(6) of that Act (Court recommending deportation following conviction)

 

(2)        The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

 

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”

 

[6]        There is no dispute that the petitioner is a “foreign criminal” within the meaning of section 32(5) of the UK Borders Act 2007.  As such, the respondent was obliged to make a deportation order unless the petitioner fell within one of the statutory exceptions set out in section 33 of the 2007 Act.  The decision was made to deport him in accordance with section 3(5)(a) of the Immigration Act 1971 (as a person whose deportation was deemed to be conducive to the public good).

 

The section 94B certificate
[7]        The certificate, which forms part of a lengthy, 14 page letter to the petitioner from the Home Office, dated 6 November 2015, headed DECISION TO REFUSE A PROTECTION AND HUMAN RIGHTS CLAIM (which on the copy I have been provided with begins on page “3”) records that:

“Certification under section 94B of the Nationality, Immigration and Asylum Act 2002 (page 14)

 

The Secretary of State may certify a human rights claim  under section 94B of the Nationality, Immigration and Asylum Act 2002 where she considers that, despite the appeal process not having been begun or not having been exhausted, removal of that person to the country or territory to which he is proposed to be removed, pending the outcome of an appeal in relation to his claim, would not be unlawful under section 6 of the Human rights Act 1998 (public authority not to act contrary to Human Rights Convention).  The grounds upon which the Secretary of State may certify claim under subsection (2) include (in particular) that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed.

 

Consideration has been given to whether your Article 8 claim should be certified under section 94B of the 2002 Act.  The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome any appeal you may bring.  The Secretary of State does not consider that such a risk exists because the evidence provided does not demonstrate such risk exists in your case. All the available evidence and information provided has been considered, however you have provided no evidence to demonstrate that returning you to Zimbabwe before the outcome of any appeal that you may lodge, will not lead to a risk of serious irreversible harm in your case.  Although you claim to have a relationship with your children, it is not accepted that your deportation will affect the welfare of your wife or your children in the UK.  Therefore, it has been decided that to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the UK.

 

Decision (page 14)

 

As explained above, your protection and human rights claim has been refused.  It is not accepted that you fall within any of the exceptions to deportation at a section 33 of the UK Borders Act 2007.  Therefore, section 32 (5) of the same Act requires the Secretary of State to make a deportation order against you.  A deportation order has been made against you and is enclosed with this decision.

 

Appeal (page 14)

 

You do not have a right to appeal against the decision to deport you.  However, you may appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the decision to refuse your protection and human rights claim under section 82 (1) of the 2002 Act.  You may only exercise your right of appeal from outside the UK.

 

Any appeal must be made on one or more of the following grounds:

 

 

You must not appeal on grounds which do not apply to you.  You must also explain the reasons that you are appealing against the decision and provide any supporting evidence that is available to you in order to substantiate your grounds of appeal.

 

You are reminded that as you have previously been served with a notice under section 120 of the 2002 Act, if your circumstances change so that you have new reasons for wishing to remain in the UK, or grounds on which you should be permitted to remain in the UK or grounds on which you should not be removed from or required to leave the UK, you must tell us about these reasons or grounds as soon as reasonably practicable.

 

Removal

 

If you do not leave the UK as required you will be liable to enforced removal to Zimbabwe. 

…..

If you wish to seek legal advice you must do so now.”

 

[8]        The effect of such certification (which has occurred here) is that the petitioner must be removed from the United Kingdom before resolution of his appeal to the First‑tier Tribunal against the deportation order.  There is no statutory right of appeal against such certification.  Any challenge to it must be by judicial review proceedings.

 

The petitioner’s case
[9]        The petitioner relies on article 8 ECHR. 

[10]      Essentially, the petitioner says that (i) the respondent did not certify his article 8 claim as clearly unfounded so he must have some prospect of successfully appealing the deportation order, (ii) he has a genuine and subsisting relationship with his children and step‑child, (iii) temporary removal will have a significant impact on his relationship with his family giving rise to a breach of article 8 ECHR, (iv) the respondent did not properly or adequately consider section 94B(2), and, in particular, failed to distinguish between deportation and removal, (v) her position on the question of the petitioner’s relationship with his family is inconsistent and has not been properly considered, and (vi) if the certification is flawed it is not inevitable that the same decision would be reached again.

[11]      In submissions, the focus was on the petitioner’s relationship with the children rather than with his wife, although his petition is wide enough to cover both.[2]

 

The respondent’s position
[12]      The respondent (based on Mr Webster’s focussed note of argument and cogent presentation) says that (i) she was entitled to find and has found that the petitioner did not have a genuine and subsisting relationship with his children and step‑child, (ii) the petitioner’s immigration status in the United Kingdom has been precarious or unlawful since 2002, (iii) his serious criminal record weighs heavily against him in the assessment of the proportionality of his removal (iv) the petitioner is a recidivistic foreign criminal, and (v) there is a strong public interest in the deportation of foreign criminals;  thus the respondent’s decision was reasonable, (vi) such family and private life as the petitioner has, has been the subject of significant disruption as a consequence of his convictions and punishment, (vii) the correct approach to section 94B is set out in R (Kiarie and Byndloss) v Secretary of State for the Home Department[3] and (viii) any insufficiency of analysis of whether removal pending appeal would infringe the ECHR rights of the applicant or any other person by the respondent was not material; the same decision would have been made if the correct test had been applied.  This is not one of the relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm to the petitioner or any other person attendant on his return to Zimbabwe pending the outcome of his appeal.

 

Petitioner’s immigration history and history of criminality
[13]      The petitioner was admitted to the United Kingdom on a visitor’s visa in January 2001.  It expired, after being extended to 31 October 2002.  Since then he has remained in the United Kingdom unlawfully or on a precarious basis.

[14]      On 27 January 2006, he was served with a notice informing him that he was an overstayer, and on 25 August 2006 he was notified that he was an illegal immigrant.

[15]      On 22 September 2006 he was convicted at Coventry District Court of two counts of deception and sentenced to 9 months’ imprisonment.

[16]      On 1 July 2008, he lodged an asylum claim.  This was refused on 28 August 2008.  He appealed.  The tribunal refused his appeal on 29 October 2008.  In its written decision, the tribunal noted that the evidence seriously undermined the credibility of his (and the other appellant’s) claims; there was found to be no risk of persecution in Zimbabwe; their immigration history was regarded as quite appalling.  The other appellant was his then female partner with whom he had a relationship.[4]

[17]      Permission for review was refused and on 25 March 2009, his appeal rights had become exhausted.

[18]      On 16 September 2009 he was convicted at the same court of various offences of dishonesty; he was sentenced to a 24 month community order and required to undertaken 160 hours of unpaid work.  For present purposes, I assume he complied.

[19]      On 22 March 2012, he was convicted at the same court of further charges of dishonesty and sentenced to 26 weeks custody which he appears to have served.

[20]      On 3 November 2014, he was convicted at Warwick Crown Court of 4 charges of theft and subsequently sentenced, on 12 December 2012 to 20 months’ imprisonment.  The sentencing judge made the following remarks when passing sentence:

“You do not have a long prison record compared with some who come before the Crown Court but your convictions are telling.  You have been before the court on several occasions, always for matters of dishonesty and, in particular, obtaining by deception, obtaining services dishonestly, false representations, and now stealing from your employer.  That is a gross breach of trust.

 

Mr Speed has everything that could possibly be said on your behalf, but the fact is  over £14,000 worth of goods were entrusted to you, or (sic) you took advantage of taking from your employer.

 

I ignore the fact that you gave the most ridiculous account trying to excuse your actions in interview and overlook that, but this breach of trust of over £14,000 is significantly higher than that £2000 minimum to £20,000 bracket that is appropriate in this case, and the starting point being of two years’ custody, and then I increase that because of your previous convictions as an aggravating factor.  That the (sic) takes the matter to 30 months.”

 

[21]      On 9 January, 2015, he was notified of a decision to deport him.  That letter was sent to the Governor of HM Prison, Featherstone, Wolverhampton.  The letter stated inter alia that the petitioner was not required to reply to the decision but should he wish to raise reasons why he should not be deported he had to make any representations in writing to the Home Office within 20 working days from the date of service of the decision notice.  The notice was served on 13 January 2015. 

[22]      The decision notice is headed and provides inter alia as follows:

“DECISION TO DEPORT PURSUANT TO THE IMMIGRATION ACT 1971 AND THE UK BORDERS ACT 2007

 

1.         Under the heading Reasons for deportation, reference was made to the petitioner’s conviction at Warwick Crown Court noting that under section 32 (5) of the UK Borders Act 2007, it was noted that the Secretary of State must make a deportation order in respect of a foreign national who has been convicted in the United Kingdom of an offence and has been sentenced to a period of imprisonment of at least 12 months, unless the foreign national fell within one of the exceptions set out in section 33 of the same Act.  The Notice continued:

 

Your deportation is also considered to be conducive to the public good because of your previous convictions.  Between 22 September 2006 and 22 March 2012 you amassed 3 convictions for 12 offences for fraud and kindred offences.

 

2.         Under the heading, Section 55 of the Borders, Citizenship and Immigration Act 2009, the decision notice stated inter alia as follows:-

 

The Home Office’s duty to safeguard the welfare of children as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 has been taken into account and the best interests of your children have been a primary consideration in making this decision.  However, the best interests of the child are not the only or paramount consideration when deciding whether or not a foreign criminal should be deported.

 

The consideration of your children’s best interests has been based on all information and evidence currently available to the Home Office.  You calim (sic) to have 2 children.  However, you have provided no documentary evidence to prove this.  Furthermore you have provided no evidence to show that you are the primary carer for the children’s (sic).

 

Therefore, on the basis of information currently available, it is considered that there is no evidence that the care of the children will be anything other than safe and effective when you are deported from the United Kingdom or that your presence is needed to prevent your children from being ill-treated or their health or development being impaired.

 

Protection Status

 

Destination country or territory

 

The Secretary of State proposes to give directions for your removal to, the country of which you are a national.  If there are any reasons why you should not be deported there, or if there are any reasons why you believe you should be deported to another country or territory, you must tell us in writing within 20 working days of the date of service given at the end of this letter.  If you submit such reasons, consideration will be given to them before you are deported.  You will not be forcibly removed from the United Kingdom within 20 working days of this decision unless you have already reached your earliest possible date of removal under the Early Removal Scheme and you sign the attached disclaimer stating that you do not wish to raise any objection to your deportation.

 

If you wish to seek legal advice you are advised to do so as soon as possible.

 

…….

 

One-Stop Notice

 

This is a notice served under section 120 of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014).[5]

 

What you must do now:

 

You must now tell us about any reason you have for wishing to remain in the United Kingdom, any grounds on which you should be permitted to remain in the United Kingdom or any grounds on which you should not be removed from or required to leave the United Kingdom.

 

You do not need to tell us about any reasons or grounds which you have already told us in a claim or application or in a previous response to a notice served under section 120.

 

If you do not tell us now about a reason or ground you currently have and you tell us later, if we refuse your claim you may not have a right of appeal against the refusal of the claim.

 

What you must do in the future

 

If your circumstances change so that you have new reasons for wishing to remain in the United Kingdom, or grounds on which you should be permitted to remain in the United Kingdom and grounds on which you should not be removed from or required to leave the United Kingdom, you must tell us about those reasons or grounds as soon as reasonably practicable.

 

You should continue to tell us about any new reasons or grounds as soon as reasonably practicable after they arise.

 

If you do not tell us as soon as reasonably practicable and you tell us later, if we refuse your claim you may not have a right of appeal against that refusal.

 

You do not need to tell us about any reasons or grounds which you have already told us in your claim or application or in a previous response to a notice served under section 120.

 

If you wish to provide reasons why you should not be deported, you must do so within 20 working days of the date of the service given at the end of this letter……………….

 

If it is not possible to provide the documentary evidence to support your claim then you must explain the reason so that we can take this into account.  You will not be given a further opportunity to tell us why you should not be deported.

 

If you inform us of any reasons why you should not be deported from the United Kingdom, or if you have already made representations which have not been considered in this decision, further consideration will be given to your circumstances and we will advise you of whether or not your deportation will be pursued.  If it is decided that you do not qualify to remain in the United Kingdom, you will be advised of whether you have the right to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) under section 82 of the Nationality, Immigration and Asylum Act 2002.

 

In certain circumstances, the Secretary of State may certify a claim so that any appeal can only be brought after the person has left the United Kingdom.  These provisions are at sections 94 and 94B of the 2002 Act.  In other circumstances the Secretary of State may certify a claim so that there is no right of appeal.  These provisions are at section 96 of the 2002 Act.  If you have any reasons why you should not be expected to appeal only after you have left the United Kingdom, you must inform us within 20 working days of the date of service given at the end of this letter (9 January 2015)

 

……………

 

If you have not already done so, you may wish, to consider seeking legal advice.”

 

[23]      On 18 January 2015, the petitioner made written representations in relation to the notice of decision to make a deportation order.  I consider this letter further below.

[24]      The petitioner completed his period of custody on 12 October 2015, and was then transferred to immigration service detention.  As noted above, he was released on bail on 25 February 2016.

 

The decision letter dated 6 November 2015
[25]      After narrating the history set out above, the respondent concluded that there were no substantial grounds for believing that there was a real risk of serious harm to the petitioner on return to Zimbabwe (page 7).  This ruled out granting the petitioner Humanitarian Protection in the UK in accordance with paragraph 339C of the Immigration Rules (as amended).  This finding is not challenged.

[26]      The petitioner’s claims under article 2 ECHR (that he would be unlawfully killed on return to Zimbabwe) and article 3 (that on return to Zimbabwe, he will face inhumane treatment or punishment) were considered but it was concluded that the petitioner did not qualify for Humanitarian Protection.  The respondent certified under section 94(1) of the 2002 Act that the petitioner’s articles 2 and 3 claims were clearly unfounded (pages 7, 8, and 13).  These findings were not challenged.

[27]      The decision letter then considered whether the petitioner would not be eligible for a grant of Humanitarian Protection by reason of paragraph 339D of the Immigration Rules.  Under reference to his conviction, on 3 November 2014, of four counts of theft, his sentence to 20 months’ imprisonment, and the sentencing judge’s comments on passing sentence, the respondent concluded that not only did he not qualify for Humanitarian Protection, but that also because of his conviction and imprisonment he had been excluded from a grant of Humanitarian Protection under paragraph 339 D(iii) (pages 7 and 8).

[28]      The respondent also considered that there was no Zambrano derivative claim.  This was also not challenged.  In reaching this conclusion, the decision letter noted (page 8) that the petitioner stated that he has family life with his wife, his stepdaughter, and two  biological children.  The decision letter stated that there was no requirement for any of the children to leave the EEA upon the petitioner’s removal as they would continue to live in the UK with their mother.

[29]      The decision letter then considered the petitioner’s article 8 claim in some detail.  It began by noting (page 9) that the Immigration Rules provided a complete code for considering article 8 claims when considering such a claim from a person liable to deportation on the basis of criminal convictions.  It noted that Parliament’s view was set out at section 117A to 117D in part 5A of the 2002 Act (as inserted by the Immigration Act 2014).  The decision letter referred, in turn, to a letter from the petitioner dated 18 January 2015.

[30]      The letter dated 18 January 2015 (which was written when the petitioner was still in prison) stated that the petitioner had provided photocopied documentation of his marriage to Elizabeth Ayema (d.o.b. 27 October 1977) on 2 August 2014, his two biological children who are all British nationals namely P (male), born January 2012 and P (female) Muringani, born November 2013.  He also stated that he had a stepdaughter who is in his wife’s biological daughter, a British national named N born February 2003.  The letter continued:

“I have been a stepdad to her since when she was 5 yrs old………

 

…………

 

Grounds Of Appeal

 

I am an active father and the primary carer of all my three children and play a big role in their lives.  My deportation will not safeguard the welfare of the children as set out in Section 55 of the Borders Citizenship and Immigration Act 2009; neither will they have a safe and effective life.

 

I am also legally married to Elizabeth Ayema who has Indefinite Leave to Remain in the United Kingdom, so under Article 8 (right to family life) my deportation would breach my right to family life and my wife’s too and would be unduly harsh to my wife’s right to family life.  I am the main baby sitter when my wife is at work.  At the moment she is on ‘Income support’ as she can’t go to work and would be state reliant for the next 10 years.

 

I have now been socially and culturally integrated in the United Kingdom as I have been in the country 15yrs, which is all of my adult life.  There will be significant obstacles in preventing me settling in Zimbabwe as I have no relatives or family left and I have no family ties and still fill (sic) that I will be persecuted as I lost all family members in the 2008 violent elections.

 

Bail And Release

 

I have been in the United Kingdom 15yrs and during my court hearings or Home Office reporting appointments I have never absconded even after convictions.  I would like to appeal for me to be considered for Home Detention Curfew (H.D.C) as my due date is 31 May 2015.  I will be on a curfew and if I abscond it will be a criminal offence and prison recall, furthermore after (H.D.C) I would have to report to a Probation Officer in Coventry every month until 12th of August 2016 and to the Solihull reporting centre, I would continue reporting as well.  In addition I would not object to dally (sic) reports to the local police station.  I would propose to reside at the family address ….  And my wife has agreed to be my guarantor.  This means I won’t be a burden to the state as my wife would return to work and look after me whilst I look after the kids.”

 

[31]      The decision letter continued (page 9) by noting that the petitioner had submitted a letter from a school to confirm that the petitioner was that the guardian of N, and a supporting letter from his wife. 

[32]      The decision letter then stated (page 9) that:

“Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of less than four years but at least 12 months.  Therefore, in accordance with paragraph 398 of the Immigration Rules, the public interest requires your deportation unless an exception to deportation applies.  The exceptions are set out at paragraphs 399 and 399A of the Immigration Rules.”

 

[33]      The decision letter then notes (page 9) that:

 

“The Home Office’s duty to safeguard the welfare of children as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 has been taken into account and the best interests of your children have been our primary consideration in making this decision.  However, the best interests of the child are not the only or paramount consideration and must be balanced against other relevant factors, including the public interest in deporting foreign criminals, to determine whether your deportation is proportionate.  Paragraphs 398 and 399 of the Immigration Rules take into account that a child’s best interests are capable of outweighing the public interest and set out in what circumstances that will be the case.”

 

[34]      After noting that the consideration of all the children’s best interests has been based on all the information and evidence then currently available to the Home Office, the decision letter proceeded as follows (page 10):

“The effect on your children and stepdaughter by the decision to deport you have been put into consideration along with the evidence available.  However, it is considered that all three children are and have been in the care of their mother, who had cared for them without any assistance from you.  Consideration has been given below to the effect deporting you will have on your children and step-daughter and to whether the best interests of all three children outweigh the public interest in deporting you.”

 

[35]      The decision letter then refers (at page 10) to paragraph 399(a) of the Immigration Rules (exception where the foreign criminal has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and a British citizen or has lived in the UK continuously for at least 7 years immediately preceding the date of the immigration decision and it would either be unduly harsh for the child to live in the country to which the person is to be deported and would be unduly harsh for the child to remain in the UK without that person).

[36]      In the decision letter, it is not disputed that the petitioner and his wife have stated in their letters that she needs the petitioner’s return as he was the carer when she went to work.  It is also accepted that the petitioner’s stepdaughter is in the UK because the petitioner has stated that he has been her guardian for the last 7 years.

[37]      The decision letter then considers in detail the material relating to the petitioner’s family life with the three children as follows:  (page 10):

“It is not accepted that you have a genuine and subsisting parental relationship with your children and step-daughter.  A genuine and subsisting relationship means more than a biological relationship and more than presence in a child’s life.  It requires a significant and meaningful positive involvement in a child’s life with a significant degree of responsibility for the child’s welfare.  Although you claim in your submissions and that of your spouse’s that you are the primary carer for all of the children, no evidence has been submitted to show that you have such involvement.  You have not provided evidence to show your wife’s full-time employment, prioir (sic) to your incarceration requiring you to be a full-time carer for the children.  More so you claim to be your step-daughter’s guardian, however no documentary evidence has been provided other than a letter from her school detailing a school trip.  This is not sufficient evidence to show that you have been her guardian for the past 7 years, as claimed.  It is noted from your appeal determination dated October 2008 that you were then in a relationship with Ms P….  and any relationship formed with your wife will be after this date.[6]  Your marriage certificate also show (sic) that you were living at a different address to your wife at the time of your marriage.[7]  It is therefore not accepted that your involvement with your step daughter has been as long as you have alleged.  It is considered reasonable to expect that if you have a genuine and subsisting parental relationship with your children and step-daughter, that such evidence would be available to you.”

 

It is not accepted that it would be unduly harsh for your children and step-daughter to live in Zimbabwe, the country to which you are to be deported.  It is noted that your spouse, who is their primary carer, is also originally from Zimbabwe.  No evidence of any obstacles preventing your spouse and children from integrating to life in Zimbabwe have been submitted.  It is considered that your children are young enough to adapt to life abroad with the support of you and your spouse, should you as a family unit wish to remain together.  It is also considered the same with regards to your step-daughter, as you have claimed you are her legal guardian.  The decision to deport you has no particular outcome for your children.  It is considered that it is in the children’s best interest to remain in the UK with their mother, to enjoy the benefits and entitlements as British citizens.  The decision for your children to return to Zimbabwe with you, is one that you and your wife will have to decide.  As such, it is not considered unduly harsh for your children and step-daughter to join you in Zimbabwe because many parents would legitimately take their children to live in other countries.

It is not accepted that it would be unduly harsh for your children and step-daughter to remain in the UK even though you are to be deported.  You have not provided any evidence to show that your presence in the UK is needed to prevent your children and step-daughter from being ill-treated, their health or development being impaired, or their care being other than safe and effective.  It is acknowledged that your absence may result in some negative emotional impact on them, but they will continue to live with their mother, who will continue as she had done during your incarceration to support them as they adapt to life.

 

Therefore, having considered all available information, it is not accepted that you meet the requirements of the exception to deportation on the basis of family life with a child.

 

As already stated, this decision does not prescribe any particular outcome for your children or step-daughter.  The result of this decision means that you and your partner are required to make a decision about whether your children accompany you to Zimbabwe or remain in the UK.”

 

[38]      The decision letter then considers the petitioner’s claim to have a family life in the UK with his partner under reference to paragraph 399(b) of the Immigration Rules, and whether the petitioner meets the private life exception to deportation as set out at paragraph 399A of the Immigration Rules.

[39]      In relation to the claim to have a family life, the respondent has accepted that the petitioner has a genuine and subsisting relationship with Mrs Ayema.  The decision letter, however, continues (page 12):

“It is not accepted that your relationship with Mrs Elizabeth Ayema was formed when you were in the UK lawfully and your immigration status was not precarious.  This is because since being granted a six-month visitors (sic) visa and a year’s extension, you have had no further valid leave to remain during your residence and would have known the possibility that you may be removed.  It is noted that you sought asylum after seven years of residence, however this application was considered on its own merits and was refused.

 

It is not accepted that it would be unduly harsh for Mrs Elizabeth Ayema to live in Zimbabwe if she chose to do so.  You have not provided any evidence to show that your spouse would face hardship in continuing a family life with you outside the United Kingdom should she choose to join you.  Furthermore, your spouse is a national of Zimbabwe and therefore will have the adequate knowledge of the culture, customs and the language being no barrier.

It is not accepted that it would be unduly harsh for Mrs Elizabeth Ayema to remain in the UK even though you are to be deported.  You have not provided any evidence that there would be a serious adverse impact on Mrs Elizabeth Ayema such that the public interest in deporting you is outweighed.

 

Therefore, having considered all available information, it is not accepted that you meet the requirements of the exception to deportation on the basis of family life with a partner.”

 

[40]      In relation to the private life exception to deportation, the decision letter (page 12) stated inter alia :

“It is not accepted that you have been lawfully resident in the UK for most of your life.  This is because you were granted 18 months leave as a visitor and you subsequently overstayed.

 

It is not accepted that you are socially and culturally integrated in the UK.  This is because you have stated that you will be financially supported by your spouse, rather than contributing to the economic wellbeing of the country.  You have been convicted of 16 offences and have provided no evidence that you make any positive contribution to society.  The sentencing judge in your case stated: You have been before the court on several occasions, always for matters of dishonestly and, in particular, obtaining by deception, obtaining services dishonestly, false representations and now stealing from your employer.  That is in gross breach of trust.

 

It is not accepted that there would be very significant obstacles to your integration into the country to which it is proposed to deport you.  This is because you are a national of Zimbabwe and you spent 17 years of your life there.  You therefore cannot be considered “estranged” from your country of origin, by no means of the culture and customs.

 

Therefore, having considered the individual facts of your case, it is not accepted that you meet the requirements of the private life exception to deportation.”

 

[40]      Finally, the decision letter (page 13) considered whether there were very compelling circumstances which would justify a decision not to deport the petitioner.  The decision letter noted that there was significant public interest in deporting the petitioner because of his convictions, his immigration status over 14 years and the fact that his private and family life were formed when his immigration status was unlawful and precarious.  The decision letter continued:

“In order to outweigh the very significant public interest in deporting you, you would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation. 

 

[41]      The decision letter then recounted some of the points already made in relation to the petitioner’s private life in the United Kingdom and his immigration history, as well as the petitioner’s view of his ability to reintegrate back into life in Zimbabwe, noting that it was not accepted that he had no family ties in Zimbabwe.  The decision letter then stated (page 13):

“In considering your family life with your children and step-daughter, it is considered that you have not provided strong enough evidence to sustain your claim.  However, consideration has been given to your Article 8 claim as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 and balanced against other relevant factors in your case, even if you able (sic) to demonstrate that you have a genuine and subsisting parental relationships (sic) with all three children, it is considered that there would be nothing unduly harsh for them to remain in the care of their mother, who is their current sole carer or follow you to Zimbabwe.  It is accepted that you have a family life with your spouse, however the requirements of exception to deportation as set out above do not apply in your case.

 

Therefore, having considered the facts of your case, it is not accepted that there are very compelling circumstances which outweigh the public interest in seeing you deported.”

 

[42]      The conclusion in the decision letter on the article 8 claim was that:

“….  having considered all available information about your circumstances including the best interests of your children and step-daughter, it is considered that your deportation would not breach the U.K.’s obligations under ECHR Article 8 because the public interest in deporting you outweighs your right to private and family life.

 

Discussion
Approach to this Judicial Review Application
[43]      In spite of the lengthy discussion on paper and in submissions, the application does not seek judicial review of the decision to deport, but instead it seeks to reduce the certificate under section 94B of the 2002 Act contained within the body of the decision letter at page 14.

[44]      It is worth remembering that the traditional grounds of challenge in a judicial review application are essentially limited to taking into account the irrelevant, failing to take into account the relevant, error of law and irrationality.  The examination of the decision making process has become more wide-ranging and more sophisticated where, for example, the procedural guarantees inherent in article 8 ECHR and/or the substantive rights therein are in issue.  The respondent’s findings of fact are open to review on normal Wednesbury principles applied with the anxious scrutiny appropriate to the context; the court forms its own view on the question of proportionality but giving appropriate weight to any balancing exercise carried out by the respondent.  Nevertheless, the weight to be attached to the relevant considerations before the respondent when the decision whether to certify is being taken, are, subject to questions of irrationality or Wednesbury unreasonableness, largely within the province and discretion of the decision maker and not the court.  Even where the statutory condition in section 94B(2) and the criteria in subsection (3) are met, the respondent still has a discretion whether to certify or not.

[45]      Mr Caskie made the general submission that the decision letter was a highly structured document.  He did not elaborate on what he meant by this but I have assumed that he meant that it was compartmentalised and was of the nature of a template or style document.  Given the nature and complexity of this area of law and the considerations to be taken into account, it is not surprising that a structure has been provided to ensure so far as possible that the applicable statutory provisions have been correctly identified and complied with; and that the various statutory criteria have been applied to the relevant facts.

[46]      It is plainly part of the general principles of sound administration of immigration control that workable rules are known, consistent, predictable, and fair between one applicant and another.  There is plainly a need to discourage non-nationals admitted to this country temporarily from believing that they can commit serious crimes such as fraud, deception and other breaches of the law.[8][9]  These considerations apply equally to decisions under section 94B.

[47]      Textual similarities can be seen in the language of the decision letters in Kiarie[10]

[48]      It is clear to me, however, that the decision letter has carefully assessed all the relevant material placed before the respondent when the decision to deport and certify was made.  In particular, it can be seen from the extensive quotations I have made from the decision letter, that the petitioner’s article 8 claims have been fully considered.  Although these considerations feature in that part of the decision letter relating to deportation, the decision letter, which includes the section 94B certification, must be read as a whole.  Doing so makes it clear that the article 8 analysis has been carried across or must be taken as having been carried across and fed into the justification for certification that the removal of the petitioner from the United Kingdom pending the outcome of an appeal to the First‑tier Tribunal (Immigration and Asylum) would not be unlawful under section 6 of the Human Rights Act 1998.  In the Certification section (page 14), the respondent expressly states that consideration has been given to whether the petitioner’s article 8 claim should be certified under section 94B of the 2002 Act.  That detailed consideration has already taken place in an earlier part of the decision letter where all the relevant material produced by or on behalf of the petitioner in support of his article 8 claim is discussed and properly analysed at length.  It would be surprising if that detail were to be or had to be repeated.  In these circumstances, it seems to me that the substance of the respondent’s duty in relation to section 94B has been discharged.  In particular, viewing the decision letter as a whole, it is clear that the respondent has not simply focused on the question of serious irreversible harm.  The respondent has fully considered, insofar as she has been able on the information provided, the effect on the article 8 rights of the petitioner’s departure from the United Kingdom.

[49]      That detailed consideration does not seem to me to be open to successful challenge on the grounds of perversity or any other basis in spite of Mr Caskies’ powerful and passionate submissions.  The petitioner’s article 8 claim will be considered, in due course by, the tribunal dealing with his deportation appeal.  This view, if it is sound, requires me to reject most of Mr Caskie’s submissions and dismiss the petition.

[50]      However, there are a number of specific arguments advanced by the petitioner, which I need to consider.

 

Distinction between deportation and removal
[51]      The petitioner accepts that the respondent is obliged to take deportation action against the person sentenced to over 1 years imprisonment unless, insofar as material, to deport the person would give rise (sic) breach of their Convention rights.[11]

[52]      The petitioner accepts that if deported, he will unlikely be able to return to the United Kingdom.  If, on the other hand, he is removed and wins his statutory appeal, he may return.  The purpose of this alleged distinction is to say that the respondent has not properly addressed the effect of temporary removal (as opposed to deportation) on the petitioner’s article 8 claim, with particular reference to his relationship with the three children.  This is said to explain why the petitioner does not challenge the respondent’s conclusions regarding his effective permanent separation from the children as he has an alternative remedy before the First-tier Tribunal (Immigration and Asylum). 

[53]      Whatever distinction may be drawn between deportation (long term removal) and removal (temporary or long-term), the material provided to the respondent in support of the petitioner’s article 8 claim did not assert that each would or even might have a different effect on the merits of that claim.  This is, in spite of the fact that when the notice of decision to deport the petitioner was intimated to him on or about 9 January 2015, he was specifically asked to inform the respondent if he had any reasons why he should not be expected to appeal only after he had left the United Kingdom.  No question therefore arises of the respondent infringing the petitioner’s article 8 rights by failing to either request further information or herself make further enquiries about the petitioner’s domestic situation in the event of his departure from United Kingdom pending his statutory appeal.  Ultimately, no argument based on procedural unfairness was pursued by the petitioner, and the averments in article 35 of the petition were not supported.

 

Application of the wrong test
[54]      The petitioner says that although the respondent has stated the correct test under section 94B, she has misapplied it by focusing on the question of serious irreversible harm.  That argument does not take into account the detailed consideration given to the article 8 claim elsewhere in the decision letter and so cannot be accepted.  In my opinion, the respondent had the correct test at the forefront of her mind and properly applied it.

[55]      The petitioner also says that the respondent failed to disregard section 117C of the 2002 Act (as amended) which, it is said, applies to deportation not removal.  In this section of the decision letter (page 9), the respondent begins by correctly stating that any interference with an individual’s article 8(1) rights will only be unlawful if it is first established that such a right exists and then only if the interference is not for one of or more of the public interest reasons set out in article 8(2), or if the interference is disproportionate to such a public interest reason.  She also correctly states that Parliament’s view of what the public interest requires for the purposes of article 8(2) is reflected in sections 117A-D in part 5A of the 2002 Act, as amended.  These provisions are intended to reflect Strasbourg jurisprudence on the balancing of proportionality.  The expression of the public interest plainly applies to decision‑makers such as the respondent, as well as to courts and the tribunal.

[56]      Section 117B and C set out a number of general considerations which are expressed to be in the public interest such as little weight being given to the private life, or a relationship formed with a qualifying partner that is established at a time when the person is in the United Kingdom unlawfully, or his immigration status is precarious in order to determine whether an interference with that person’s article 8(1) rights is justified under article 8(2); and the more serious the offence committed by a foreign criminal (ie a non‑British citizen who has been sentenced to a period of imprisonment of at least 12 months) the greater is the public interest in deportation of the criminal.

[57]      These and other general considerations in part 5A of the 2002 Act, reflected in pre‑existing case law, are matters which fall to be taken into account when assessing an article 8 claim whether that claim is directed to the question of deportation or removal.  Deportation includes removal.  It is an act of removal.  Removal, like deportation may be indefinite or even long-term.  Thus, section 97A of the 2002 Act enables the respondent to certify that a decision to make a deportation order was taken on the grounds that the person’s removal would be in the interests of national security.

[58]      The petitioner’s letter dated 18 January 2015 is his response to the respondent’s request in the decision notice dated 9 January 2015 for information as to why he should not be expected to appeal only after he had left the United Kingdom.  This request appears to meet the point discussed in AN (Afghanistan) & Ors[12] where a family’s statutory appeals for indefinite leave to remain in the UK were dismissed.  There, the Court of Appeal considered the argument that there had been no assessment of what the child in question’s life would be in the foreign country; the child’s needs required to be ascertained and, in the absence of an appropriate assessment or report, the decision to refuse leave was flawed.[13]  The court stated that in the vast majority of cases the tribunal will expect the relevant interests of the child to be drawn to the attention of the decision maker by the individual concerned.[14]  A similar view was expressed JA (AP)[15] and in Application by A[16]  Here, it can reasonably be said that the respondent raised the right questions and gave the respondent the opportunity to answer them at the right time.[17]

[59]      Moreover, the respondent was entitled to proceed on the basis that all the information which the petitioner wished to place before her was contained in his representations.[18]

[60]      Returning to the petitioner’s letter dated 18 January 2015, he states, somewhat confusingly, that his wife is on income support and could not go to work and would be state reliant for the next 10 years.  In the same paragraph, he states that he is the main babysitter when his wife is at work.  All this was written when he was still in prison. 

[61]      There was nothing in the material before the respondent to justify her refining her assessment in the light of any distinction between deportation and removal, or to require her to make further investigations about the nature or scope of the article 8 claim.  If one asks and applies the five Razgar questions as set out in KBO v Secretary of State for the Home Department,[19] and in particular, the Inner House’s analysis of Lord Bingham’s second question, the inevitable conclusion would be that any interference would not have consequences of such a nature as to be disproportionate to the legitimate public end sought to be achieved.  In KBO, the facts were very significantly different from the present facts and were sufficient to entitle the original immigration judge to conclude that allowing the appellant to remain in the United Kingdom was proportionate to the aims of immigration control.[20]

[62]      Such material as there is in relation to the petitioner’s domestic circumstances is somewhat overwhelmed by the detail of the petitioner’s precarious or unlawful immigration history and his very significant criminal convictions.  It is difficult to see how the disruption to the petitioner’s family life would be significantly different to the destruction caused by his three prison sentences.  No particular concerns have been founded upon by petitioner in his letter dated 18 January 2015.

 

Application of the correct test
[63]      As matters currently stand, the correct test is set out in Kiarie by a unanimous decision of the Court of Appeal relating to UK legislation.  I consider that I should follow this test unless there are some compelling reasons not to do so.  I have identified no such reasons even although an appeal has, I understand, been taken to the UK Supreme Court.

[64]      The Court of Appeal noted the strong public interest in the deportation of foreign criminals who have committed serious criminal offences contrary to the laws of the United Kingdom.  A very strong claim is required to overcome Parliament’s express declaration that the public interest is injured if the criminal’s deportation is not effected.  Something very compelling is required to outweigh the public interest in removal.  These statements, using slightly different language to make essentially the same point, underline the great weight to be attached to the deportation or removal of foreign criminals when carrying out the article 8 exercise.  Although, as I have already noted above, the public interest is not a trump card, it is of some significance that Parliament has chosen to allow removal pending the outcome of the statutory appeal against deportation, provided that it does not breach section 6 of the 1998 Act [21]  It is accordingly not difficult to see that the interference with the exercise of the petitioner’s article 8 right has been in accordance with the law, and necessary in a democratic society for the prevention of disorder or crime, whether or not one describes the petitioner’s substantial criminal record as recidivistic.  However, one classes that criminal record, I reject the notion that it is at the bottom of the scale of criminality for deportation purposes.  The overall picture as at November 2015 was, on any view, that there was a significant risk that the petitioner would commit further offences of a similar nature.  The respondent was entitled to take the view that the public interest in deporting criminals outweighed the petitioner’s article 8 rights and the rights of those affected by it.  I agree with that view.

The best interests of the children
[65]      It is well settled that the welfare of the petitioner’s children (I include the stepdaughter) was a primary (though not necessarily the only primary) consideration in the assessment of his arguments under article 8.  The petitioner argues that the respondent ought to have but did not attach very great significance to the best interests of the children.  The petitioner’s facts are largely to be found in the relatively brief terms of his letter dated 18 January 2015. 

[66]      The petitioner relies on Nunez v Norway.[22]  However, Nunez does not assist the petitioner.  The equivalent foreign criminal, the applicant, was the mother of two young children, born in 2002 and 2003.  Custody proceedings had determined that a long-lasting separation between her and the young children would have very serious consequences for those children.  They would be particularly vulnerable should anything happen that made the children’s father, from whom the applicant had separated, no longer able to assume parental responsibilities completely.  The applicant had been the primary carer of the children; she was given a generous right of contact to the children pending her expulsion; it was assumed she would return to Norway after the expulsion period; the children’s contact with both parents would be optimised if the care was granted to the father.  It was common ground that the best interests of the child should be a primary consideration.

[67]      The court (which did not speak entirely with one voice) identified various factors to be taken into account including the extent to which a family life is effectively ruptured, whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of their family life within the host state would be from the outset precarious; in that situation the removal of a non‑national family member would be incompatible with article 8 only in exceptional circumstances.[23]  The court considered that the public interest in favour of ordering the applicant’s expulsion weighed heavily in the balance when assessing proportionality.[24]

[68]      In the light of material before it and the unusual circumstances of the case, including the children’s long lasting close bonds to their mother, the decision in the custody proceedings in which the welfare of the children was carefully considered, the disruption and stress that the children had already experienced and the long period that had elapsed before the immigration authorities took their decision to order the applicants expulsion with a re‑entry ban, the court was of the view that the applicant’s expulsion with a two‑year re‑entry ban would constitute a very far-reaching measure vis-a-vis the children.  It was not convinced in the concrete and exceptional circumstances of the case that sufficient weight had been attached to the best interests of the children for the purposes of article 8.  The court was therefore not satisfied that the authorities of the respondent State acted within the margin of appreciation when seeking to strike a fair balance between its public interest in ensuring effective immigration control, on the one hand, and the applicant’s need to be able to remain in Norway in order to maintain her contact with her children in their best interests, on the other hand.  The applicant’s expulsion was a violation of article 8.  [25]

[69]      Other cases were cited to me but it is clear from the authorities, particularly Maslov v Austria,[26] that the weight to be attached to the respective criteria identified in them will inevitably vary according to the specific circumstances of each case.  Here, the facts and circumstances of the case inevitably lead to the conclusion that much greater weight must be attached to the petitioner’s immigration history and his repeated criminal convictions than to the evidence and information provided to the respondent about his family life and the relationship with all three children, and how it might be affected by his departure from the United Kingdom with or without them and his wife.  That being so, it is difficult to see how any other decision could be made given the very significant and clear imbalance between the competing considerations focused in this case.  The fact that the respondent has not certified the petitioner’s article 8 claim, as clearly unfounded, does not infer that she considered that it had merit.

 

Result
[70]      I shall sustain respondent’s fourth plea-in-law, dismiss the petition and reserve all questions of expenses, including the expenses of the amendment procedure completed at the outset of the hearing.



[1] In force with effect from 28 July 2014; see Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order SI/2014/1820 art 3(n); amendment is pending under the Immigration Act 2016 pt 3 s63(2).

[2] See Statement XIV page 11D of Record dated May 2016.

[3] [2016] 1 WLR 1961 paragraphs 31, 37, 42, 43, 44, 73, 74.

[4] See paragraph 37 below

[5] S120 applies to a decision to deport or remove.

[6] The commencement, from about 2008, of the petitioner's relationship with his wife is not disputed.

[7] According to the petitioner’s letter dated 18 January 2015, the marriage took place on 2 August 2014.

[8] CH v Home Secretary 2016 [CSOH] 46 Lord Philip at paragraph 23.

[9] Huang v The Home Secretary [2007] 2AC 167 at paragraph 16, per Lord Bingham in connection with the task facing an appellate Immigration Authority.

[10] At paragraphs 21, 26; there are, no doubt, others.

[11] Note of Argument paragraph 1.

[13] Paragraphs 19 and 21.

[14] Paragraph 22.

[15] [2016] CSOH 52 at paragraph 19, per Lord Doherty.

[16] [2015] NIQB 58, paragraphs 41 and 42, per Gillen LJ.

[17] ZH (Tanzania) v Home Secretary [2011] 2AC 166 at paragraph 36, per Baroness Hale of Richmond.  That case did not concern a foreign criminal. 

[18] CH (AP) [2016] CSOH 46 paragraph 25.

[19] [2009] CSIH 30 paragraph 6, as the petitioner proposes in his note of argument, paragraph 48.

[20] See [2009] CSIH 30 at paragraphs 22 and 23, and the facts at paragraphs 2 and 3.

[21] Paragraph 42, 44.

[23] Paragraph 70.

[24] Paragraph 73.

[25] Para 83-85.

[26] [2009] INLR 47 ECHR at paragraph 68.


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