Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 184
P240/13	OPINION OF LADY SCOTT in the Petition of KA (AP) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department and Answers for THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

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

Respondent: Webster; Office of the Advocate General

28 November 2013

Background

[1] The petitioner is a citizen of Afghanistan who arrived lawfully in the United Kingdom under a student visa on 21 August 2012. His student visa allowed him to undertake an HND in Business Studies at the North Glasgow College. By January 2013 he had commenced his studies and he had paid substantial overseas student fees in respect of his course. He worked at a take away food shop in the city.

[2] A standard condition of the petitioner's student visa was that he may work in the United Kingdom up to a maximum of 10 hours per week. On 24 January 2013 immigration officers attended at the take away food shop and interviewed the petitioner and his manager. The petitioner maintained that he only worked less than 10 hours per week. The shop manager indicated the petitioner worked in excess of 10 hours per week. The Immigration officer decided that the petitioner had worked in excess of 10 hours and was therefore in breach of the conditions attached to his visa.

[3] The relevant statutory provisions regarding the right of appeal against this decision are s10(1)(a) of the Immigration and Asylum Act 1999 (the 1999 Act) which provides that:

"10(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if -

(a) Having only a limited leave to enter or remain he does not observe a condition attached to the leave or remains beyond the time limited by the leave;"

The right of appeal against this immigration decision in terms of s82(1) and s82(2)(g) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) which provides:

"S82(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2) In this part 'immigration decision' means -

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999"

s92 of 2002 Act which provides that:

"92(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies "

[4] On 13 February 2013 the petitioner was issued with removal directions and detained pending removal. An application for bail was unsuccessful. Subsequent to the petitioner's detention and following upon service of a notice of potential liability concerning employment of persons in breach of the immigration rules, the manager of the take away shop retracted his statement to the immigration officer.

[5] On 15 February 2013 the petitioner's agents made a human rights claim in a written application to the respondent (6/11 of process) on the basis that his removal would infringe his rights under article 8 of the European Convention of Human Rights, in that his removal for a breach of working conditions would constitute a disproportionate interference to his rights to a private and family life. In support of his claim information was provided (as had been produced with the bail application) that he had a brother who lived in Glasgow, that he had formed a relationship and had a partner and that he had made many friends.

[6] On 18 February 2013 the respondent issued a decision letter (6/12 of process) rejecting the human rights claim under article 8 and certifying that that the claim was clearly unfounded in terms of s94(2) of the 2002 Act.

s94 of the 2002 Act provides :

"S94(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).

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

[7] On 26 February 2013 further removal directions were issued for removal on 18 March 2013 but on 12 March 2013 the court granted first orders and suspended ad interim the said removal direction. On or about 24 September 2013, a further notice of a decision to remove was issued.

The Issues

[8] The petition for judicial review raised a number of different challenges including a challenge that there was no proper immigration decision made and the failures in respect of same were such as to render that decision unlawful and unreasonable. The further notice of a decision to remove issued on 24 September 2013 essentially removed this challenge. This decision re-affirmed the certification under s94(2) of the 2002 Act, previously made. In this context, these issues concerning the immigration decision to remove the petitioner were not insisted upon and the scope of review was significantly narrowed.

[9] Importantly, it was accepted by the petitioner before me that the appropriate challenge to the immigration decision to remove him, was by way of appeal to an immigration judge in terms of s82(1) and (2)(g) of the 2002 Act. It was submitted that it was the intention of the petitioner to pursue such an appeal of the original immigration decision, which would be directed to the dispute of the facts as to whether he worked in breach of his conditions. This would extend to the subsequent retraction by the manager, of his statement to the immigration officer.

[10] Accordingly the only challenge presented by the petitioner at the hearing concerned the certification decision of the respondent - namely the decision to certify the claim under article 8 as clearly unfounded in terms of s94(2) of the 2002 Act. The petition seeks reduction of the certification decision on the basis it was irrational and separately was unlawful.

[11] In response the respondent challenged the competence of such a review where there was a statutory appeal procedure and further and in any event, the petition fell to be repelled in that the certification decision was one the Secretary of State was entitled to make.

[12] Accordingly the two remaining issues before me were -

Whether it was competent to seek judicial review of the decision by the Secretary of State to certify the article 8 claim as clearly unfounded; and if so whether the certification decision under s94(2) fell to be reduced as unlawful or unreasonable.

[13] It is worth noting at this stage that, whilst the challenge was restricted simply to the decision to certify the claim, in the context of the statutory provisions regarding appeal of an immigration decision, such a challenge was of practical importance. This is because whilst an appeal against an immigration decision under s82(1) and (2)(g) of the 2002 Act cannot be made from within the United Kingdom and requires to be made 'out of country', in terms of s92(4) of the said Act where the appellant has made a human rights claim his appeal can be made within the United Kingdom. However this right is removed by s94(2) where the human rights claim is certified as unfounded by the Secretary of State. Accordingly the decision to certify is the obstacle to the petitioner taking advantage of s92 and pursuing his appeal against the immigration decision from within the United Kingdom.

Competence of Judicial Review

[14] The petitioner first submitted that as he now only sought reduction of the certification decision under s94(2) the appropriate means of challenge was by way of judicial review and indeed such a challenge was not uncommon. There was no appeal procedure under the statute and as such there was no impediment to review and there was no other remedy available.

[15] It was submitted that whilst the respondent relied upon the decision in R (Lim & Anr) v Secretary of State for the Home Department [2007] EWCA Civ 773 the position in that case fell to be distinguished here, in that in (Lim) the challenge was directed to the underlying immigration decision and not, as here, to certification. The immigration decision here was to be pursued by way of appeal, but this petition was separate to that, being directed simply to the certification decision.

The Certification Decision

[16] In his second substantive submission the petitioner argued that the decision to certify the claim as "clearly unfounded" was unlawful or unreasonable on the basis that as the petitioner disputed in fact whether or not he was in breach of his conditions, certification of his claim as clearly unfounded was not rationally open to the respondent.

[17] The nature of the clearly unfounded test was considered by the United Kingdom Supreme Court (UKSC) in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348. In the leading judgement at
[22]-[23] Lord Phillips of Worth Matravers explained -

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

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

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

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

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

[18] It was submitted that the import of this decision was that if, on any legitimate view of the facts or law, a claim can succeed, then it cannot be clearly unfounded. In other words the decision maker requires to consider the factual basis of the claim in the context of the background information and consider whether it is capable of belief and only where it cannot on any legitimate view succeed, can certification be made. It was submitted that here, where there is an underlying dispute of the facts as to whether there had been a breach of conditions, on any view, the petitioner's claim is capable of belief and as such cannot be reasonably determined as clearly unfounded.

[19] The petitioner also referred to the well-known passage of Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 in respect of the approach to be adopted in any assessment of an article 8 claim.

"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? "

[20] The petitioner submitted that the respondent had found that article 8 was engaged and addressed the various questions set out in Razgar. I would note here that, whilst the respondent addresses all of these questions in the decision letter of 18 February (6/12 of process), it is clear from the terms of the decision it is not accepted by the respondent that article 8 is engaged, albeit she nevertheless goes on to consider each question.

[21] In the petition the petitioner appears to challenge the lawfulness of the certification decision under question 3 in Razgar, but this was not raised in submissions. At one point in submissions the petitioner appeared to criticise the approach taken to question 4 in Razgar and it was submitted that on one legitimate view, interference could not be justified where there was an underlying dispute over the facts of the breach of conditions. It was then submitted that if such a legitimate contrary view is capable of being reached, then the respondent could not rationally certify the claim as unfounded. At the same time it was expressly accepted by the petitioner that he did not dispute the finding that such interference was proportionate.

Respondent's Submissions

[22] The first submission was to challenge the competence of judicial review on the basis that the process of certification arose within the scheme for appeals under the statutory framework and as such was not amenable to such review.

[23] Further it was submitted what was really being challenged here was the decision on the facts contained within the removal decision. That immigration decision was clearly on the appeal process established under the statute. The petitioner has an out of country appeal and standing that right it would not be appropriate to exercise the supervisory jurisdiction.

[24] The focus of the petitioner's submissions was in fact the immigration decision and this petition for review was an attempt to circumvent the statute. The respondent relied upon the decision in Lim supra and Lord Justice Sedley's distinction between matters of fact which do and do not transcend the statutory appellate provisions. In that decision, at paragraphs [20]-[22] and [25], it was clearly envisaged that "pure questions of fact" which ought not to be susceptible to judicial review, included questions such as whether or not there was a breach of working conditions.

[25] The certification decision was one for the respondent and is not to be interfered with save on Wednesbury grounds of review. Applying that test the certification decision was made properly and all the appropriate factors considered. There were no pleadings in respect of whether interference with article 8 rights here was necessary and in any event, interference was justified by the requirements of immigration control. Given the facts regarding the petitioner's residence and the concession made by the petitioner that removal was proportionate, then the human rights claim made was clearly unfounded and the correct decision reached.

Decision

[26] In respect of the submissions regarding the competence of this petition, I am satisfied that where the challenge is directed only to the certification decision, then judicial review is competent. It is well established that judicial review is a remedy of last resort, so that where a statutory appeal is available the court will exercise its discretion in all but exceptional cases by refusing to entertain an application for judicial review (Lim at paragraph [13] ). However, here, there is no statutory means of appeal against certification and I am not persuaded by the respondent that the certification process falls to be considered within statutory appeals structure and so ought not to be entertained. This it seems to me fails to recognise the absence of any provision for challenging this particular decision.

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

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

[29] Accordingly whilst of course I accept the test as set out by Lord Phillips in ZT (Kosovo) supra is correct and I accept that where there is a dispute of fact, it is difficult to see any claim being one which can properly be declared as clearly unfounded, this test applies to the facts of the human rights claim under consideration, not those underlying the immigration decision itself. Read properly the test, set out by Lord Phillips in R(L) v Secretary of State for the Home Department [2003] 1 WLR 1230 and adopted in ZT (Kosovo) at paragraph [22], is directed to consider "the factual substance and detail of the claim" and by claim he is referring to the human rights claim not the immigration decision.

[30] As was acknowledged by the petitioner, it is, at least in part, because there is a factual dispute that an appeal against the immigration decision to remove the petitioner, lies properly with an immigration judge who is in a position to assess the facts, including any new facts founded upon.

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

[32] It would be very different if there was any dispute of the facts upon which the article 8 claim was made. But there was none and the petitioner expressly accepted the decision was proportionate.

[33] In so far as I understood the criticisms of the Secretary of State's assessment of the claim in terms of whether interference was necessary (question 4 in Razgar) again these seem to me to be misplaced. The question being addressed is based upon the effect of removal and whether it is necessary in a democratic society. This court, in reviewing this decision, is assessing whether on consideration of all the materials before an adjudicator that the answer would and should be yes. As explained by Lord Bingham in Razgar at paragraph [19] -

"19 Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah [2004] 2 AC 323, 339, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively."

[34] I do not consider that the underlying factual dispute over the immigration decision to remove the petitioner has any bearing upon the assessment of this question being considered under the article 8 claim. Further, given the approach in Razgar above, I do not see any basis for any legitimate contrary view to that taken by the respondent here.

[35] The averments in the petition on the lawfulness of the decision were not pursued before me and the petitioner did not dispute the finding that removal was proportionate. That being so and in the absence of any dispute over the facts of the human rights claim (as opposed to the immigration decision to remove) I do not consider there is any substance to the challenge made to the certification decision.

[36] Accordingly, for these reasons I repel the petitioner's plea in law 3, the respondent's plea in law 1A and sustain the respondent's plea in law 3 and refuse this petition for judicial review.