Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 70
P955/13	OPINION OF LORD BOYD OF DUNCANSBY in the cause KASHIF MEHMOOD Petitioner; against The Secretary of State for the Home Department Respondent: ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: O'Rourke; Office of the Advocate General

11 April 2014

[1] The petitioner is a Pakistani national who came to the United Kingdom on 19 July 2011. He was issued with a Tier 4 student visa which was valid from 28 June 2011 until 29 October 2012. On 17 August 2013 he was arrested as an overstayer. On 2 September 2013 the respondent set removal directions to remove the petitioner to Pakistan on 7 September 2013. On 5 September 2013 the respondent received further submissions from the petitioner's solicitors. Further attempts were made to remove the petitioner but these are not relevant for this purpose.

[2] The submissions made by the solicitors on 5 September 2013 amounted to a human rights claim based on the fact that the petitioner is in a relationship with a British national. Having considered these submissions, the respondent certified that the claim was clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. The petitioner now seeks to judicially review that decision.

The test
[3] The question of what is meant by the words "clearly unfounded" in section 94(2) of the 2002 Act was recently addressed by the Extra Division in SN v Secretary of State for the Home Department [2014] CSIH 7. In the Outer House ([2013] CSOH 47), I had discussed the submissions that were made to me and, in rejecting the view that even the fanciful prospects of success is sufficient to pass the test, I had said that in my opinion the claim must have some substance and that it must have some realistic prospect of success. In doing so, I had relied on the opinions of Lord Phillips and Lord Neuberger in ZT (Kosovo) v The Secretary of State for the Home Department [2009] 1 WLR 348 at paragraphs 23 and 83 respectively. In the Extra Division, however, the court considered that this had caused some confusion and, referring to the discussion in ZT (Kosovo) said that the majority decision was to the effect that the "clearly unfounded" test was more generous to the applicant than the "realistic prospect of success" test. Lady Clark of Calton giving the opinion of the court (paragraph 17) said that they wished to emphasise the importance of the statutory language and the problems of attempting to reformulate the language.

[4] For the respondent Mr O'Rourke, while not in any way suggesting that the decision in SN was wrong, referred me to the case of MN v The Secretary of State for the Home Department [2012] CSIH 63. The decision of the court given by Lord Carloway appears (at paragraph 6) to endorse the reasoning of Lord Phillips in ZT (Kosovo). At paragraph 12 the court concluded as follows:

"Addressing itself to the test advised by Lord Phillips in ZT (Kosovo) v Secretary of State for the Home Department, this court, looking with an anxious degree of scrutiny at the material presented, concludes that the reclaimer's application, if presented to an Immigration Judge, would have no realistic prospect of success."

Mr O'Rourke submitted that this still remained an accurate description of the "clearly unfounded" test in section 94(2) of the 2002 Act.

[5] Mr Winter for the petitioner took me through the speeches of their Lordships in ZT (Kosovo) for his submission that the majority view was that "clearly unfounded" is a more generous formulation than "realistic prospect of success".

[6] Lord Phillips at paragraph 22 said that the test of whether a claim is "clearly unfounded" is a black and white test. He quoted from his own speech in the case of R(L) v The Secretary of State for the Home Department [2002] 1 WLR 1230 at paragraphs 56 to 58. At paragraph 58 he said:

"If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded."

He continued at paragraph 23 as follows:

"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."

[7] Lord Hope of Craighead said that the question as to whether there is any material distinction between a claim which is not held to have "a realistic prospect of success" and one which is "clearly unfounded" was one of degree. The distinction was between claims which are manifestly (or "clearly") unfounded and those which merit full consideration by taking the rejection to appeal in this country. At paragraphs 52 onwards he discusses the starting point for an examination of the question as to whether or not a claim is "clearly unfounded". His Lordship quoted Lord Hodge's observations in FNG Petitioner [2008] CSOH 22 at paragraph 10 where he said that the focus of the test in section 94 is primarily on the quality of the claim rather than on the prospects of success in an appeal. He concluded that the court should continue to follow the guidance that the House of Lords gave in R (Razgar) v The Secretary of State for the Home Department [2004] 2 AC 368 as to how section 94 cases should be dealt with. The key points in Lord Bingham's opinion in that case were to be found at paragraph 17 where he said that a reviewing court must consider how an appeal would be likely to fair before an adjudicator as the body responsible for deciding any appeal and in paragraph 20 where he said that a reviewing court must assess the judgment which would, or might, be made by an adjudicator on appeal. The question that a reviewing court must ask itself must be subjected to anxious scrutiny. It may become clear that the quality of the claim is such that the facts of the case admit of only one answer. But the process is essentially one of review.

[8] Lord Carswell said that he was of the view that the test of "clearly unfounded" in section 94 and "a realistic prospect of success" did not amount to the same thing (paragraph 62). He went on to say "One can envisage situations - though they may be rare - in which the tests would not produce the same result... The possible difference is not, however, a matter of great consequence."

[9] Lord Browne at paragraph 73 said of the difference between the two tests:

"For the life of me I cannot see any logical distinction between the two. It seems to me plain that if one properly says of a case that it is clearly unfounded, one is saying no more and no less than that it has no realistic prospect of success; and vice versa. To try to find room between these two tests is in my opinion to dance on the head of a pin: they are the opposite sides of the same coin."

Lord Neuberger said at paragraph 81:

"I can see how there might conceivably be circumstances in which a person entrusted with a decision could conclude that a case, which had no realistic prospect of success, might nonetheless not be clearly unfounded. I must admit to finding it very hard to conceive of such a case in practice. In the end, however, each set of facts must be considered by reference to the provision which applies to them."

[10] While the difference may be more academic than real, I accept that the majority in ZT (Kosovo) were of the view that there was such a difference. It is perhaps not surprising therefore that the Extra Division in STN emphasised the importance of the statutory language and the problems of attempting to reformulate the language.

[11] In determining whether or not the respondent was entitled to be satisfied that the claim was clearly unfounded, the court must make their own assessment of the questions that an immigration judge would ask about a claim and whether, on any legitimate view on the law and the facts, any of those questions might be answered in the claimant's favour (see Lord Hodge in FNG Petitioner [2008] CSOH 22, paragraph 14 and Lord Hope of Craighead in ZT (Kosovo) at paragraph 54). In doing so, it must subject the matter to the most anxious scrutiny bearing in mind, as Lord Carswell said in ZT (Kosovo), that the use of the power contained in section 94(2) is a draconian one (paragraph 58).

Submissions for the petitioner
[12] The petitioner contends that since arriving in the United Kingdom he has established a family and private life. He has a Scottish fiancée whom he met in July 2012. They are in a genuine and subsisting relationship. His fiancée has four children from a previous relationship. She is a British citizen. At present they do not live together as they are both Muslim and it is against their religion to live together before they are married. However, they are planning to marry once their immigration status is settled. The petitioner has formed a bond with the children and he sees his fiancée and the children every day. It would be a disproportionate interference in the petitioner's article 8 rights to force him to return to Pakistan.

[13] Mr Winter accepted that the petitioner would not succeed in an application for leave to remain under the immigration rules. However, he submitted that there is a residual discretion vested in the respondent to grant leave to remain outside the immigration rules. These can be granted in exceptional circumstances. He referred me to the decision of the Extra Division in MS v The Secretary of State for the Home Department [2013] CSIH 52 in which Lord Drummond Young, giving the decision of the court, set out paragraph 3.2.7D of the instructions to officials regarding exceptional circumstances. Exceptional circumstances mean circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. The guidance says that that is likely to be the case only very rarely. His Lordship drew attention to the relevant factors that may be prayed-in-aid, including whether or not the applicant's immigration status was precarious at the time when he or she began a relationship in the United Kingdom (paragraph 7). Mr Winter accepted that his position was precarious albeit that at the time the relationship started the petitioner was here legally on a student visa. Lord Drummond Young quoted with approval the decision of Sales J in R (Nagre) v Home Secretary [2013] EWHC 720 (Admin) at paragraph 14 where he said that the definition gave clear and appropriate guidance to relevant officials that if they came across a case falling outside the rules they nonetheless had to consider whether, on the particular facts, there would be a breach on article 8 rights if the application for leave to remain were refused. Accordingly, Mr Winter submitted that there was an obligation on the Home Secretary to consider whether or not there would be a breach of article 8 rights if his application to remain was refused.

[14] It would not be appropriate to require the petitioner to return to Pakistan in order to make an application through the entry clearance officer. It would only be comparatively rarely, certainly in family cases involving children, that an article 8 appeal should be dismissed on the basis that it would be proportionate and more appropriate for the petitioner to apply for leave from abroad R (Chikwamba) v Secretary of State for the Home Department [2008] UKHL 40, per Lord Brown of Eaton-under-Heywood at paragraph 44. In determining these rare cases where it would be proportionate, regard had to be taken to the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate (Chikwamba, paragraph 42). While the interference with private or family life must be real if it is to engage article 8(1) of the European Convention on Fundamental Rights and Freedoms, the threshold of engagement is not particularly high; AG (Eritrea) v The Secretary of State for the Home Department [2008] Imm AR 158 at paragraph 28 per Sedley LJ. Even if in this case family life could not be said to exist, private life includes the right to develop relationships with others. The petitioner's right to develop his relationship with his partner would be interfered with if the petitioner is removed; Niemietz v Germany [1993] EHRR 97, paragraph 29. It would be comparatively rarely in which it is proportionate to require an applicant to make an application for an entry clearance certificate from abroad; R (Kotecha) v The Secretary of State for the Home Department [2011] EWHC 2070 (Admin). It would not be reasonable to expect family life to continue by way of visits and telephone contact from abroad; R (Mansoor) v The Secretary of State for the Home Department [2011] EWHC 832 (Admin) at paragraph 16, Latif v The Secretary of State for the Home Department [2012] Imm AR 659 at paragraph 58.

[15] Accordingly, Mr Winter submitted that the suggestion in paragraph 24 of the respondent's refusal letter that the petitioner could return to Pakistan to apply for entry clearance was unreasonable and would be a disproportionate interference in his article 8 rights. He described it as "Kafkaesque". He would not meet the financial requirements for a spouse's visa. There had been no consideration as to whether the entrance clearance officer would be in a better position to examine the claim. He would be in no better position to examine the claim than an immigration judge. There had been no consideration that if refused the petitioner would not be able to give live evidence. Accordingly, he submitted that it could not be said that there was no prospect of success before an immigration judge. Furthermore, it could not be said that there would be no prospect of success in persuading another immigration judge that there is a good arguable case for the application to be considered outwith the immigration rules.

Submission for the respondent
[16] After dealing with the test to be applied, Mr O'Rourke went on to submit that the issue was the rationality of the decision made by the respondent. He accepted that the test was a low threshold but it was important to bear in mind that article 8 rights were not a dispensing power: Patel and others v The Secretary of State for the Home Department [2013] UKSC 72 per Lord Carnwath, paragraph 57. It was necessary to look at article 8 from first principles; its purpose was in protecting private and family life. He submitted that private life and family life were distinct concepts and that this was not a grey area where private life could morph into family life;

[17] Mr O'Rourke reminded me of the facts and in particular that the petitioner is 24 years old, having entered the United Kingdom as a Tier 4 migrant on a student visa. Such visas did not confer a right of leave to remain in the United Kingdom for an extended period. He entered on 19 July 2011 having lived his whole life before then in Pakistan. His visa was valid until 29 October 2012. He was arrested as an overstayer on 17 August 2013. Prior to the expiry of his Tier 4 visa, it was open to the petitioner to apply for extension of his student visa. When arrested he originally gave false information but eventually gave what is believed to be a true account. He had been working as a security guard from January to September 2012. He also admitted working in a restaurant as a kitchen assistant in March 2013, four months after his visa expired. When he was interviewed by immigration officers he indicated he was in a relationship with a woman who he describes as his fiancée but did not indicate any relationship with the children. The relationship had commenced in about July 2012, three months prior to the expiry of his student visa. Accordingly, it was at a time when his immigration status was precarious. This was a relevant and significant factor; MS v Secretary of State for the Home Department, paragraph 7.

[18] Accordingly, the issue was whether there were exceptional circumstances which would justify an immigration judge in granting leave to remain on article 8 grounds. Mr O'Rourke submitted that family life was not engaged. The petitioner and his fiancée were not living together. There was no financial dependence. The fact that they were not living together demonstrated that family life was not engaged. Indeed, the religious reason that they gave for not living together, in itself, demonstrated the boundary between private and family life. For understandable reasons, the petitioner and his fiancée did not wish to take that final step of living together before they were married.

[19] Mr O'Rourke accepted that the petitioner did however have a private life. The Home Office letter was right to say that it did not accept that the petitioner enjoyed family life. However, the letter was wrong in rejecting the contention that the petitioner enjoyed a private life in this country. He clearly did. The nature of the private life which was established was of daily contact with his fiancée and her children. These however were not aspects of an established family life. There was not the network of convention rights and interests which had been discussed by the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 (see, in particular, paragraph 43). Accordingly, any interference in the petitioner's article 8 rights was in his private, not his family life, and the proportionality of the interference had to be judged accordingly. As Mr O'Rourke put it, in the spectrum of interference with rights it was very much at the lower end of the spectrum.

[20] He submitted that the decision letter was rational. The structure of the letter was to deal with the merits and then to go on to deal with the issues raised by the case of Chikwamba. At paragraph 29 and 30, the respondent had concluded that on the information available his removal would not be contrary to the United Kingdom's obligations under the European Convention.

[21] Mr O'Rourke accepted that a sentence to be found in paragraph 10 to the effect that it was contradictory to say that both the petitioner and his fiancée did not live together but they saw each other every day, was clearly wrong. However, he submitted that that sentence together with the rejection by the respondent that the petitioner enjoyed a private life in this country were not material. At paragraph 14, the respondent had gone on to consider whether, even if it were accepted that the petitioner did enjoy family or private life, the respondent qualified under the immigration rules. He did not. Nor was it accepted that it would be so unreasonable to expect him to return to Pakistan that it would amount to a disproportionate interference in his article 8 rights.

[22] Mr O'Rourke submitted that the issues were, first, whether or not family life or private life was established and, secondly, what were the prospects of appeal.

[23] So far as the first issue is concerned, he had already dealt with that. Turning to the second matter based on the identification of factors in the decision letter, the issue was whether or not it was irrational for the Secretary of State to conclude that the claim was clearly unfounded. He pointed to paragraphs 10 and 21 of the decision letter which dealt with the submissions in relation to the case. He accepted that there was no reference to the precarious nature of the relationship but he said that that was a matter of law and came out of the facts of the case. He referred me to a decision of Lord Burns - APS v Secretary of State for the Home Department [2013] CSOH 16 at paragraph 60 and 61 in which his Lordship had set out the tests. The issue was whether it was an irrational decision to certify under section 94(2) of the 2002 Act.

[24] So far as the submissions regarding Chikwamba were concerned, Mr O'Rourke accepted that it was only comparatively rarely that an appeal should be dismissed when dealing with family life particularly where children are involved. However, he submitted we were not dealing with family life. The issue came back to the proportionality of the interference.

Discussion

[25] I am satisfied that on the information before the respondent was entitled and correct in forming the view that the petitioner did not enjoy a family life in the UK. Family life, as defined in article 8, envisages the formation of a family unit; Beouku-Betts v Home Secretary, paragraph 43. In LD (Article 8 - Best interests of Child) Zimbabwe [2010] UKUT 278 (IAC), the Upper Tribunal considered the nature of family life and noted (at paragraph 21):

"Families normally live together. Family life consists of the inter-dependent bonds between spouses or stable partners and between parents and children with particular strength being placed upon the interests and welfare of minor children. It is not normal for family life to be enjoyed by correspondence and occasional visits."

While the engagement of the petitioner to his fiancé is a step to the formation of that family unit it has not yet occurred. They live apart and there is no financial interdependence between them. I think Mr O'Rourke is correct in saying that their decision not to live together is a recognition of the boundaries of family life, a boundary which, for understandable reasons, they do not wish to cross at this stage.

[26] Mr O'Rourke conceded the respondent was wrong to conclude (at paragraph 5) that the petitioner did not enjoy a private life in this country. He clearly does. Although he has been in this country for a relatively short time he has made friends and one assumes developed some of the web of social relationships that make up private life. Significantly he met his fiancé and has developed a bond with her and her children. However the respondent clearly distinguishes between family life and private life in the decision letter. Having assessed the petitioner against the Immigration Rules dealing with article 8 family life the respondent moves on to assess whether or not the petitioner meets the test for article 8 private life set out in Rule 276ADE of the Immigration Rules. He meets neither test.

[27] The respondent goes on to consider the position if it were accepted that the petitioner enjoyed either a family life or a private life in the UK requiring him to return to Pakistan would interfere with his article 8 rights. She considers that such interference would be in accordance with the law (paragraph 20). It would be a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control (paragraph 24).

[28] The language used by the respondent and her approach to the question follows the guidance of the courts on article 8 issues. In particular the Extra Division in MS (at paragraph 24 of the Court's opinion delivered by Lord Drummond Young) set out the general approach. It is to be found in R (Razgar) v Home Secretary [2002] 2 AC 368, per Lord Bingham at paragraph 17 and in Huang v Home Secretary [2007] 2 AC 167, per Lord Bingham at paragraphs 5 to 18. The critical question was whether the interference was proportionate to the legitimate public end sought to be achieved.

[29] In the application of the new immigration rules, which apply in this case, the court or tribunal must follow a two stage process, first applying the rules and then what might be called the Strasbourg Article 8 case law. However the Extra Division in MS approved the dicta of Sales J in R (Nagre) v Home Secretary where he indicated that if consideration under the rules fully addressed any family life or private life issues arising under article 8 it would be sufficient simply to say that; it would not be necessary to go on and make a separate assessment. The Extra Division commented that it seemed to them that the new rules were likely to deal adequately with the great majority of cases where article 8 private or family life is put in issue. In that event there is no need to go on and consider article 8 separately (paragraph 28).

[30] The Extra Division also considered that the test for exceptionality to be found R (Razgar) for consideration of cases outwith the rules should not be used. That is not to say that one does not look for exceptional circumstances; the guidance used by officials uses that term. However the concern is that in looking for exceptional circumstances a tick box mentality may develop with officials and others failing to go into the substance of the claim. Following Sales J in R (Nagre) v Home Secretary the Extra Division formulated the test in this way.

"If an official, tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so. Such a reason will usually consist of circumstances 'in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.'"

[31] In doing so the Court repeated the language of the guidance. It is only if there is a good arguable case that it would be necessary to go through the application of an article 8 claim in detail.

[32] It is accepted in this case that the petitioner cannot succeed in a claim under the rules. Accordingly the claim has to be outwith the rules. The issue then is whether it is arguable that circumstances exist in which a refusal of the petitioner's article 8 claim would result in unjustifiably harsh consequences such that refusal would not be proportionate. If it is arguable that such circumstances do exist then it must follow that the respondent's decision that the claim is manifestly unfounded is irrational and must be overturned.

[33] The reasons that are founded on by the petitioner in arguing that refusal would result in unjustifiably harsh consequences are largely predicated on the assertion that he has a family life in the UK. On that basis it is said that it would be disproportionate to require the petitioner to return to Pakistan in order to make an application through an entry clearance officer. This submission is made on the basis of R (Chikwamba) v Home Secretary. Lord Brown (at paragraph 42) notes that in an article 8 family case the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate will always be highly relevant. In family cases involving children it should be comparatively rarely that an article 8 appeal should be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad.

[34] These are all important considerations and the respondent deals with these in the letter. She notes that there will be cases where for example a person has an appalling immigration history or has abused the asylum system that it could well be proportionate to require the claimant to return home and make an application from there. She notes the petitioner's immigration history and concludes that requiring him to return to Pakistan and make an application from there would not be disproportionate. It is also relevant to note that the petitioner's immigration status is precarious; he came into the UK on a student visa and is currently an overstayer. The respondent highlights this within her letter at paragraphs 23 and 24. Although not mentioned by the respondent in the decision letter Mr O'Rourke pointed out that the interference is not with the petitioner's family life but with his private life. It is of course true that the petitioner's private life may now have developed a particular quality given his intention to marry but family life as such will not be interfered with. His fiancé has children but they are not his. Neither his fiancé nor the children will have their lives disrupted. I accept these points as valid considerations when assessing whether there is an arguable case.

[35] The petitioner also submits that he has a right to develop relationships and that requiring him to return to Pakistan will interfere with the right to develop that relationship with his fiancé. That submission is based on a statement in Niemietz v Germany (supra) to the effect that "Respect for family life must also comprise to a certain degree the right to establish and develop relationships with other human beings." (paragraph 29). As a statement of principle that seems laudable and unobjectionable. However the context in that case is the development of professional and business relationships and its applicability without qualification in situations such as this must be doubted. There are many barriers to the development of human relations and immigration control is one of them.

[36] The petitioner also complains that it is disproportionate to expect family life to be continued from abroad and he cites a number of authorities in support. It is also true that it is not normal for family life to be enjoyed by correspondence or occasional visits. However, as I have found, the petitioner does not enjoy a family life in the UK.

[37] It is clear that the petitioner would prefer to remain in the United Kingdom and no doubt develop the relationship that he has built up since entering the UK on a student visa. His removal, if that takes place, will cause disruption to his private life. However in my opinion submitting the petitioner's claim to anxious scrutiny, it cannot be said that refusal of the claim would result in unjustifiably harsh consequences for him such that refusal of the application would not be proportionate. Accordingly the certification by the respondent of his claim as manifestly unfounded cannot be held to be irrational.

[38] I shall repel the pleas in law for the petitioner, sustain the pleas in law for the respondent and refuse the petition. I shall reserve the matter of expenses.