RK, PETITION OF AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2018] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RK, PETITION OF AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2018] ScotCS CSOH_21 (09 March 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_21.html Cite as: [2018] CSOH 21, [2018] ScotCS CSOH_21

[1] The petitioner is a citizen of the Democratic Republic of Congo (“DRC”). He arrived

in the UK in December 2004 and sought asylum. His claim was refused and he has been

present in this country ever since. In 2008 he was convicted of possession of six false

identity documents and sentenced to one year’s imprisonment on each charge concurrently.

The respondent decided to deport him and an appeal against that decision was refused. He

subsequently made further submissions including a proposed Article 8 claim based on his

family life with a partner and their child. (The Petitioner’s partner is referred to as his wife

in some of the paperwork. Although not by the respondent. It is not clear whether their

marriage would be recognised under domestic law but I shall refer to them as if they are

either married or at least holding themselves out as married). These further submissions

were not accepted and an appeal against that refusal in 2012 was unsuccessful. The

petitioner became appeal rights exhausted on 10 June 2013. This petition concerns further

submissions made by him in June 2014, with further supporting information added in both

2015 and 2016. The respondent declined to accept those submissions as a fresh claim. The

relevant decision of the respondent was taken on 8 May 2017 and the petitioner seeks

[2] The petitioner’s further submissions, which he contended amounted to a fresh claim,

required to be considered in terms of paragraph 353 of the Immigration Rules HC 395C,

“When a human rights or asylum claim has been refused or withdrawn or treated as

withdrawn under paragraph 333C of these rules and any appeal relating to that

claim is no longer pending, the decision maker will consider any further submissions

and, if rejected, will then determine whether they amount to a fresh claim. The

submissions will amount to a fresh claim if they are significantly different from the

material that has previously been considered. The submissions will only be

(ii) taken together with the previously considered material, created a realistic

[3] In consequence of the petitioner’s criminal conviction, the terms of section 117C of

the Nationality, Immigration and Asylum Act 2002 are applicable. These provisions are in

“117C Article 8: Additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is

(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period

of imprisonment of 4 years or more, the public interest requires C’s

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(5) Exception 2 applies where C has a genuine and subsisting relationship with a

qualifying partner or a genuine and subsisting parental relationship with a

qualifying child, and the effect of C’s deportation on the partner or child

(6) In the case of a foreign criminal who has been sentenced to a period of

imprisonment of at least 4 years, the public interest requires deportation,

unless there are very compelling circumstances over and above those

(7) The considerations in subsections (1) to (6) are to be taken into account where

a court or tribunal is considering a decision to deport a foreign criminal only

to the extent that the reason for the decision was the offence or offences for

[4] Mr Caskie identified four challenges to the respondent’s decision. The first related to

the correct approach to a rule 353 application. In essence, the respondent’s decision letter,

number 6/1 of process, states twice that the respondent did not accept that the petitioner’s

material “would result in a decision to grant you asylum” and that “… nothing leads me to

believe an immigration judge would take a different view …” The correct approach was

well established and a realistic prospect of success means only that the petitioner must

establish that he could succeed before a fresh immigration judge, not that he would succeed

[5] It was acknowledged that the respondent in this case would submit that,

notwithstanding the use of the word “would”, if the decision letter is read as a whole it is

clear that the respondent was aware of and applied the correct approach. It was anticipated

that the respondent would refer to a decision of Lord Ericht in MA v SSHD [2017] CSOH 109

in which the same point about expression in the respondent’s letter had been taken and

rejected. Lord Ericht had expressed the view (at paragraph 16-19), that while such wording

was deficient, the sentence could not be read in isolation and that the letter had to be read as

a whole. Mr Caskie pointed out that in the case of MA v SSHD what the court was dealing

with was very different from the present case in that MA had three criminal convictions

relating to the supply of drugs and in each case had been sentenced to a period of

imprisonment of 4 years or more. The different provision of section 117C(6) had accordingly

applied to him in that he would have to show very compelling circumstances before the

public interest would not militate in favour of deportation. Accordingly the hurdle of

showing whether there was a realistic prospect of success had been far higher for that

petitioner. His submissions had been found to be “… so lacking in substantive merit” that

there was no realistic prospect of a judge taking a different view.

[6] Turning to the decision letter in this case, it was accepted that at paragraph 68

thereof the correct test is set out. The application of that test to the facts of the case begins at

“Since this determination approximately four years has passed, M has been born and

the two nieces have joined the family. Based on the information submitted nothing

leads me to believe an immigration judge would take a different view if asked to

consider the changes in your circumstances during the time which has passed since

the original determination. What must also be considered is that you had been

served a deportation order on 27 January 2009 and therefore all of your family life

has been built with the knowledge that your time in the UK was precarious”

[7] At paragraph 80 of the decision letter having concluded that the submissions do not

“This is because the new submissions taken together with the previously considered

material do not create a realistic prospect of success. This means that it is not

accepted that, should this material be considered by an immigration judge, your

submissions would result in a decision to grant you asylum, humanitarian

protection, limited leave to remain on the basis of your family or private life or any

[8] The petitioner’s argument had been that there had been material changes since his

previous application in 2012. He and his partner now had a child under the age of four and

two nieces of his partner who had been victims of sexual abuse in their own country had

come to the UK and been accepted by the petitioner as part of his family. Mr Caskie did not

seek to argue that the approach taken by Lord Ericht was wrong insofar as his decision had

reiterated that the court requires to look at the decision letter as a whole. The concern was

that in the present decision letter, at paragraph 80 in particular, the respondent appeared to

be specifically interpreting the test of creating a realistic prospect of success by reference to

what the outcome would be before an immigration judge rather than whether the

circumstances of the case could lead to such a judge reaching a different decision. Counsel

accepted that the expression used by the respondent in explaining what was meant by a

realistic prospect of success could mean different things depending on the context and to

that end he sought only to argue that the court must be careful to look at the context of the

decision being made to see whether the operative part of the decision was properly made.

[9] The second challenge to the decision related to an alleged failure to analyse the

inevitable fracturing of the petitioner’s family that would result from the petitioner

requiring to return to the DRC. At paragraph 33 of the decision letter it is noted that the

petitioner’s wife and the two nieces who have joined her in this country are said to be

victims of sexual abuse and indicates that “this would possibly be an issue in terms of the

family returning to the DRC”. However, the letter continues to reject the proposition that it

would be unduly harsh for the children to remain in the UK even though the petitioner is to

be deported as they would continue to benefit from the health and education system here

and because the nieces have been in the petitioner’s care only for approximately four years

and that now, aged 17, they were of an age to be able to understand the reasons for the

separation. In relation to those nieces and also the petitioner’s son M, the respondent

concluded (at paragraph 35) that the petitioner would be able to keep contact with all the

children through modern means of communication. Under reference to the decision of the

upper tribunal in Omotunde v SSHD [2011] 1 NLR 684, paragraph 29, Mr Caskie submitted

that there was judicial support for the view that internet and telephone calls do not

substitute for the daily care and interaction between someone such as the petitioner and his

child or children in the sense required for family life. Counsel submitted that as the decision

letter made no comment on whether the respondent regarded such modern means of

communication as a substitution for family life it is unclear what view was taken on this.

Does the respondent think it ameliorates the harm of fracturing the family or not? The

youngest child, M, was aged two and a half at the time of the decision and it was

questionable whether the reference to keeping contact with him through modern means of

communication was appropriate. If the decision is reduced the respondent would have to

look at the matter again and consider the availability of modern communication in the

context of the separation between him and these children and form a view.

[10] The third challenge made to the respondent’s decision was the extent to which

reliance had been placed on elderly findings in relation to the children in question.

Mr Caskie submitted that this was illustrated by paragraphs 34, 35 and 52 of the letter. In

paragraph 34 the respondent rejected the contention that it would be unduly harsh for the

children to remain in the UK even if the petitioner was to be deported. A passage from the

immigration judge’s decision of 22 November 2012 is quoted at the end of that paragraph

relating to the older child of the petitioner and his wife (“MKAK”) who was the only child in

the family at that time. Although paragraph 35 narrates that since that determination in

2012 the petitioner and his wife have had another child (M) and that the petitioner’s wife’s

two nieces had joined them in the UK there is no analysis of the up to date circumstances of

the children which was a material factor in the petitioner’s proposed fresh claim. It was

significant, contended Mr Caskie, that the petitioner’s wife has settlement in the UK and that

the youngest of the children in the family, M, is a British citizen. The respondent had relied

further on the immigration judge’s decision of 22 November 2012 at paragraph 52 of the

letter. That paragraph related exclusively to the older child, MKAK. It was hard to see how

the circumstances for that child’s primary care in 2012 were relevant to the question of the

childcare being provided by the petitioner now in light of the three additions to the family.

[11] The fourth challenge related to the issue of delay and the petitioner’s particular

circumstances of continuing to be in this country almost a decade after the decision to

deport was first considered, during which time he had fathered two children and accepted

two near relatives of his wife to be admitted into the family. Counsel referred to the

decision of the UK Supreme Court in R (Agyarko) v SSHD [2017] 1 WLR 823. At

paragraph 52 of the judgment in that case Lord Reed addressed the importance of

proportionality in decisions of this sort. His Lordship had emphasised that the cogency of

the public interest in the removal of a person living in the UK unlawfully was liable to

diminish if there is a protracted delay in the enforcement of immigration control, stating that

from the other perspective that meant that more weight would be given to family life, even

precarious family life, after a considerable passage of time. Further, in EB (Kosovo) v SSHD

[2009] 1 AC 1159 Lord Bingham of Cornhill had addressed the issue of delay in the decision

making process in an immigration context. In particular, one of the ways in which delay

may be relevant was that if months and then years pass without a decision to remove being

made it is likely that the sense of impermanence will fade and the expectation on the part of

someone like the petitioner will grow that if the authorities had intended to remove him

they would have taken steps to do so. This was an issue that may affect the proportionality

of any removal. A further way in which delay might be relevant is discussed at

paragraph 16 of the decision in EB (Kosovo). That is that it may reduce the weight otherwise

to be accorded to the requirements of firm and fair immigration control if the delay is shown

to be the result of a dysfunctional system which yields unpredictable, inconsistent and

unfair outcomes. In the present case, while the respondent could not dispute the years of

delay, the focus in the answers to the petition (at paragraph 18) is on the various

applications for reconsideration or review presented by the petitioner over the years. In

doing so the respondent had failed to have regard to a material matter, namely the very

significant period of years that has passed, regardless of reasons, to see how that might feed

into the decision on realistic prospect of success. The decision to deport the petitioner had

been made in January 2009. Litigation had taken place in one form or another between 2009

and 2014. Some of that litigation was on any view well founded. In any event, between

2014 and 2017, indisputably the respondent had done nothing either to progress the removal

of the petitioner or deal with his further representations. That passage of time was

important because as the UK Supreme Court had stated in the case of the Christian Institute

and Others v The Lord Advocate [2016] UKSC 51, at paragraph 89, the more tenuous the link

between the objective pursued by state intervention and the achievement of one of the

legitimate aims the more difficult it is to justify significant interference with an individual’s

private and family life. Mr Caskie also relied on the decision of the Grand Chamber of the

European Court of Human Rights in Maslov v Austria (2008) 47 EHHR 20. At paragraph 57

of that judgment the court had referred to a number of criteria established in previous cases

that it would use in order to assess whether the expulsion of a foreign national from the

relevant state was necessary in a democratic society and proportionate to the legitimate aim

pursued. These included the nature and seriousness of the offence committed by the

applicant, the length of time he had been in the relevant country, the time that had elapsed

since the offence was committed, his family situation including whether there are children of

any marriage and if so their age and other relevant matters. The court emphasised, at

paragraph 70 of the judgment, that those criteria were ultimately “… designed to help

evaluate the extent to which the applicant can be expected to cause disorder or engage in

[12] On the basis of these authorities, Mr Caskie submitted that it was not enough in the

circumstances of the present case for the respondent to rely simply on the criminal

conviction in 2008. She required to give consideration to the considerable lapse of time

without any further offending and to make clear that this had been taken into account.

Indisputably an immigration judge would apply the criteria in Maslov v Austria and could

find in favour of the petitioner, thus giving him a realistic prospect of success. The

respondent had failed to apply anxious scrutiny to the petitioner’s case. For each and all of

the four bases of challenge Mr Caskie submitted that the decision should be reduced and the

[13] Ms Smith for the respondent addressed the four challenges made by Mr Caskie. She

characterised the first question as being whether the respondent had applied the correct test

in considering the submissions that were said to amount to a fresh claim. She pointed out

that the correct test had been set out at paragraph 68 but conceded that thereafter the

decision letter was unhappily worded on this point. She clarified that the explanation for

realistic prospect of success being worded as “this means that it is not accepted that, should

this material be considered by an immigration judge, your submissions would result in a

decision …” had become a standard passage in such letters and that while the wording was

on any view unhelpful, each decision letter must be considered on its own terms. Some

latitude required to be given to the respondent. Counsel very fairly acknowledged that the

difficulty for the respondent in this case is that the word “would” appears twice in

significant passages of the decision letter, unlike the case of MA where it only appeared

once. As against that, however, the correct exposition of the test also appeared twice in the

current decision letter at paragraphs 78 and 80. Ms Smith submitted that the approach

should be to step back and look at the meaning of the letter as a whole and decide whether

the correct test had been applied. In relation to the reference in MA v SSHD to that

petitioner’s further submissions being “so lacking in substantive merit that there was no

reasonable prospect of a judge taking a different view” counsel pointed out that it was the

Lord Ordinary who had expressed the matters that way and not the respondent in the

decision letter. She submitted that a comparison of the merits of the case of MA and the

present petitioner was unhelpful. All applicants are entitled to a lawful decision and the

first point about the respondent’s approach should be decided solely on the basis of

whether, the correct test having been enunciated, the use of the unfortunate term “would”

appearing twice was sufficient to conclude that the respondent had not applied the correct

[14] On the second issue of whether the respondent took full account of the way in which

the family would be fractured on the petitioner’s departure, counsel commented that there

appeared to be two aspects to the petitioner’s argument, namely first that the respondent

did not consider this issue properly and secondly that even if it had been considered

properly inadequate reasons had been given for the conclusion. Ms Smith submitted that

this was not a fair characterisation of the way in which the respondent had dealt with the

matter. The petitioner’s complaints amounted to little more than that he disagreed with the

decision made. The decision letter sets out accurately the situation of the various children in

the petitioner’s life in some detail. Arguments can always be made about the weight to be

attached to certain factors and disagreement could be expressed with the conclusion but it

was wrong to say that the respondent had not considered the point raised. In relation to

reasons, these were sufficient. The background was that the respondent was weighing the

importance of the petitioner’s family life against the public interest in deportation and in

that context concluded that ongoing electronic contact between the petitioner and his

children would be satisfactory. There is always a balancing exercise to be carried out. It was

accepted by the respondent that the petitioner had constituted family life that would be

diminished if he is removed from the country. However, the decision maker had to balance

all of that against the other factors including that the petitioner had developed family life

knowing that he was subject to a deportation order. In essence no crisp error of law had

[15] Turning to the third issue of the respondent having relied too heavily on old findings

from the Immigration Judge’s decision in 2012, counsel submitted that it was both relevant

and necessary for previous circumstances relating to the petitioner to be taken into account.

It could not be said that his current situation was not also taken into account and so any

reliance in the decision letter on the old findings of the Immigration Judge were balanced by

that consideration. In any event, the context in which there was detailed reference to the

previous circumstances at paragraph 52 of the decision letter related primarily to credibility

and reliability. For the reasons given the Immigration Judge had not accepted the

petitioner’s claim that he was the primary carer of the child in question at all. A previous

adverse credibility finding was always relevant. Further, in relation to the proposed new

claim, the petitioner now maintains he continues to be the primary carer of the child under

discussion in 2012 and now also the carer of additional children. It was entirely appropriate

for the respondent to have considered that fresh information in the context of previous

findings. It was all part of the balancing exercise that the respondent required to carry out.

[16] On the issue of delay and its significance to this case, Ms Smith agreed that the

relevant guidance should be taken from the decisions given in EB (Kosovo) v SSHD [2009] 1

AC 1159 at paragraphs 14-16 already referred to by Mr Caskie. The respondent’s position

was that only the second of the two factors mentioned by Lord Bingham was relevant in the

present case, namely the passage of time without a decision to remove being made.

However as counsel for the petitioner had also relied on the third possible relevance of

delay, namely that of delay shown to be the result of a dysfunctional system, that would also

be addressed. Ms Smith submitted that the years prior to 2014 when the petitioner was

engaged in ongoing litigation could not help him so far as any delay argument was

concerned. She accepted that the period 2014-2017 was relevant in principle but any delay

on the part of the respondent was restricted to that three year period and not the eight years

mentioned by Mr Caskie. In any event, the petitioner was clearly someone who had

understood that challenges could be made to decisions of the respondent that may or may

not be successful. Accordingly the whole period took place against a background of a

certain understanding on his part that the deportation order was there and that he could not

rely on any period of inaction and silence while waiting for the latest decision. He has been

legally represented and can be assumed to have been given advice about the precariousness

of his situation. While he has continued to contest deportation by providing new

information in 2014 and 2015, this itself distinguished him from someone who had “fallen

under the radar”. While a period of three years between the lodging of proposed fresh

submissions and a decision by the respondent was a long period it was not unheard of. It

was submitted that this case was not in the territory of delay caused by a dysfunctional

system. There had been no unpredictable, inconsistent or unfair outcomes. In any event the

[17] It was submitted further that there is a distinction between the type of immigration

control referred to in EB (Kosovo) and the deportation of criminals with which this case is

concerned. The circumstances in EB (Kosovo) were very different. It might also be said that

in this case delay had helped the petitioner as his position was stronger in that he had

established more of a family life. It was inappropriate to allow him to take advantage of a

delay insofar as it strengthened his claim while at the same time arguing that the system was

dysfunctional, as the latter argument could only help the disadvantaged.

[18] Counsel for the respondent made certain submissions on legitimate aim. She

emphasised that the deportation of foreign criminals in an immigration context is the

legitimate aim behind the decision of the respondent. The only real complaint made was

one of balance and there was no dispute that the criminal conviction and sentence had to be

balanced against the petitioner’s creation of a family life. The matter came down to one of

anxious scrutiny. Unless the petitioner could show that the balancing exercise had not been

properly carried out the petition could not succeed on this point. There was no need for the

respondent to list the criteria recorded in the Maslov v Austria case. However

paragraphs 50-65 of the decision letter were sufficient to cover the various aspects of the

balancing exercise. Having carried out that detailed balancing exercise the respondent had

concluded that the public interest in deporting the petitioner was greater than the

[19] Finally, Ms Smith submitted that the respondent’s decision letter was a detailed one

exhibiting that anxious scrutiny had been undertaken. The accepted and significant change

in the petitioner’s family life is set out correctly and comprehensively and the petitioner had

been given the full benefit of that added weight. The respondent had been entitled to reach

the conclusion that she had and the petition should be dismissed.

[20] This case involves the use by the respondent of what is apparently a standard

expression when considering submissions under paragraph 353 of the Immigration Rules to

see if they amount to a fresh claim. It was not in dispute before me that the reference, on

two occasions, in the decision letter to realistic prospect of success amounting to a

requirement that the petitioner’s submissions “would” result in a favourable decision by an

immigration judge was inappropriate and deficient. The question is whether, even where

stated twice, this error in expression in the circumstances of this particular case was

illustrative of failure by the respondent to apply the correct test. The proper approach to

considering whether or not further submissions amount to a fresh claim is set out in the

often cited passage from the judgment of Buckstone LJ in WM (DRC) v SSHD [2006] EWCA

“The question is not whether the Secretary of State himself thinks that the new claim

is a good one or should succeed, but whether there is a realistic prospect of an

adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be

exposed to a real risk of persecution on return: see §7 above. The Secretary of State

of course can, and no doubt logically should, treat his own view on the merits as a

starting-point for that enquiry; but it is only a starting point in the consideration of a

question that is distinctly different for the exercise of the Secretary of State making

up his own mind. Second, in addressing that question, both in respect of the

evaluation of the facts and in respect of the legal conclusions to be drawn from those

facts, has the Secretary of State satisfied the requirement of anxious scrutiny?”

[21] It is clear from the acknowledged correct approach to such submissions that it is

wrong to describe the test of realistic prospect of success in the way that appears twice in the

decision letter in this case. It is important that the hurdle to be overcome by the petitioner in

a paragraph 353 claim is a modest one. It has been described as having to show that there is

more than a fanciful prospect of success – AK (Sri Lanka) v SSHD [2009] EWCA Civ 447. As

counsel for the petitioner in this case did not go so far as to submit that the use of the

expression “would” result in success before an immigration judge as opposed to “could”

result in such success vitiates the decision, the question then becomes whether, reading the

decision letter as a whole, the respondent has applied the correct test and has shown that she

has done so. That was the approach taken by Lord Ericht in the case of MA v SSHD

[2017] CS0H 109, where analysis of the decision letter illustrated that there was no substantive

merit in the further submissions submitted, and so in that case there was no realistic

prospect of a judge taking a different view. I agree with the approach taken in that case. I

would add, however, that in the circumstances of the case before me, where the respondent

has twice used the incorrect expression under reference to the applicable test, a particularly

careful analysis of the letter is required to see whether the respondent has exhibited not just

a statement of the correct test but also its application, including satisfying the requirement of

anxious scrutiny. While what matters is whether the correct test was applied rather than

what language was used, the respondent’s unfortunate use of language on two occasions in

the present case is sufficient to alert the reader to the possibility of error in its application.

As Mr Caskie put it, what mattered was whether the operative part of the decision was

properly made. That involves consideration of the particular ways in which it is said to be

[22] Turning to the first of the substantive challenges to the terms of the decision letter,

the petitioner claims that the respondent failed to analyse properly the anticipated fracturing

of the petitioner’s family that would result from him requiring to return to the DRC. The

respondent required to consider whether it would be unduly harsh for the children of the

family to remain in the UK following deportation of the petitioner. The respondent’s

conclusion on that point is that the petitioner would be able to keep contact with all four

children through modern means of communication. The issue is whether something more

was required in terms of balancing the quality of that contact against the impact on the

children of being separated from (in the case of MKAK and M) their father and in the case of

the nieces, a father figure. In Omotunde v SSHD [2011] INLR 684 Blake J, sitting as president

of the Upper Tribunal (Immigration and Asylum Chamber (“UTIAC”) rejected a

submission that family life hitherto enjoyed between an active parent and a small child

could be appropriately maintained by telephone calls or other “modern methods of

“If it is justified to interfere with the right of respect for family life because of a

contrary compelling public interest, so be it and the fact of electronic communication

may provide some means of continued contact, but the internet and telephone calls

do not substitute for the daily care, engagement and attendance on a young child

that is the essence of family life in this context.” (para. 29).

The context of that case was also deportation of a foreign criminal. Of course there will be

cases where the unsatisfactory nature of maintaining a parent-child relationship through

internet and telephone calls is outweighed by the legitimate aim of deporting a foreign

national with a record of offending from the country. What is required in such a

proportionality assessment is an indication of why in any particular case the ability to keep

contact with children through electronic means is sufficient. The nature of the criminal

conduct in question whether it was an isolated conviction or not and the time that has

elapsed since its commission, may all be factors, as will the ages and abilities (if known) of

the children I conclude that the respondent’s decision letter on this particular issue is

deficient insofar as it does not directly address that balance. It states only that the petitioner

“will be able to keep contact with your children through modern means of communication

along with more traditional methods” without specifying whether it is the respondent’s

view that in the circumstances of this particular case, having regard to the relevant

competing factors, that would be sufficient. In other words the availability of such modern

means of communication is relied on, but not whether in the circumstances of the present

case such means are sufficient to justify the acknowledged interference with family life.

[23] The petitioner contends also that the respondent has placed too much reliance on

elderly findings in relation to the issue of family life as it stood when an immigration judge

looked at the matter in 2012. At that time there was only one child of the petitioner and his

partner and the immigration judge did not accept at that time that the petitioner was the

main carer or at least heavily involved in providing childcare to that child. On this issue I

accept the contention of counsel for the respondent that it is perfectly acceptable to quote

from a previous decision of an immigration judge in relation to issues of credibility. Further,

it cannot be said that the respondent did not address directly the additional information

provided about the petitioner’s nieces and the new child of the relationship. In particular, at

paragraph 53, it is noted that the petitioner’s partner still only works part time, that the two

nieces are of an age where they could take some responsibility in the household and

concludes that it is not accepted that the petitioner is the primary carer for the children.

That is a specific finding that the respondent was entitled to make on the basis of the

available information. Accordingly, while references to the situation in 2012 in relation to

the issue of childcare were relevant only in relation to credibility or as a starting point for the

discussion, it seems to me that that is the context in which they are set out. It cannot be said

that the respondent has not dealt with the claim that the petitioner is the primary carer of

additional children. This particular matter is adequately dealt with by the respondent in the

decision letter, in contrast to the issue of the separation of the petitioner from the children on

deportation dealt with above. The respondent does not dispute that the petitioner is actively

engaged in family life in this country. The specific issue being addressed in paragraphs 52

and 53 was that of childcare. The additional reference to the 2012 determination at

paragraph 34 is in the context of the continuing support that would be provided to both

natural children of the relationship if the petitioner was removed. That was a matter that

the immigration judge had found relevant in 2012 in relation to the older child of the

relationship and the respondent concludes that it would also be a relevant factor for the

younger child. Again, in the context of the point being addressed at that stage in the

decision letter, I do not consider that the respondent has attached too much weight to the

2012 decision. That does not mean that sufficient weight has been attached to the

petitioner’s current family circumstances, simply that using the previous findings as a

[24] The final challenge in this case, in relation to the issue of delay, highlights the

unusual circumstances of the petitioner’s situation. Having been convicted in

February 2008, a full decade has now passed since the decision to deport him was first

considered, the liability to deport letter having been served on 17 March 2008. There is no

doubt that the weight of the public interest supporting deportation of foreign criminals is

generally very considerable, a point made by Lord Reed in R (Agyarko) v SSHD [2017] 1

WLR 823 at paragraph 51. However in that case, Lord Reed went on to state the following:

“It is also necessary to bear in mind that the cogency of the public interest in the

removal of a person living in the UK unlawfully is liable to diminish – or, looking at

the matter from the opposite perspective, the weight to be given to precarious family

life is liable to increase – if there is a protracted delay in the enforcement of

[25] In EB (Kosovo) v SSHD [2009] 1 AC 1159 Lord Bingham of Cornhill identified three

ways in which delay in the decision-making process in an immigration matter might be

relevant. The first and most obvious way is that the longer the period of delay the more an

applicant may develop close personal and social ties relevant to an Article 8 claim. The

respondent accepted in that case that an applicant’s claim will necessarily be strengthened in

that respect by delay. It is the two possible further ways in which delay may be relevant

that arose for discussion in this case. The issue was expressed by Lord Bingham in the

“15 Delay may be relevant in a second, less obvious, way. An immigrant without

leave to enter or remain is in a very precarious situation, liable to be removed at any

time. Any relationship into which such an applicant enters is likely to be, initially,

tentative, being entered into under the shadow of severance by administrative order.

This is the more true where the other party to the relationship is aware of the

applicant’s precarious position. This has been treated as relevant to the quality of the

relationship. Thus in R (Ajoh) v Secretary of State for the Home Department

[2007] Imm AR 817, para 11, it was noted that ‘It was reasonable to expect that both [the

applicant] and her husband would be aware of her precarious immigration status’.

This reflects the Strasbourg court’s listing of factors relevant to the proportionality of

removing an immigrant convicted of crime: ‘whether the spouse knew about the

offence at the time when he or she entered into a family relationship’: see Boultif v

Switzerland 33 EHRR 1179, para 48; Mokrani v France 40 EHRR 123, para 30. A

relationship so entered into may well be imbued with a sense of impermanence. But

if months pass without a decision to remove being made, and months become years,

and year succeeds year, it is to be expected that this sense of impermanence will fade

and the expectation will grow that if the authorities had intended to remove the

applicant they would have taken steps to do so. This result depends on no legal

doctrine but on an understanding of how, in some cases, minds may work and it

16. Delay may be relevant, thirdly, in reducing the weight otherwise to be

accorded to the requirements of firm and fair immigration control, if the delay is

shown to be the result of a dysfunctional system which yields unpredictable,

[26] Counsel disagreed as to what the relevant period was in terms of delay in this case.

Mr Caskie’s position for the petitioner was that as the petitioner has been in the United

Kingdom since 2004 and a decision to deport him taken in 2008 the respondent has tolerated

his presence for about a decade. While it was accepted that periods of litigation up until

2014 at least put the petitioner on notice that the respondent continued to oppose any

attempt to resist deportation, since then there had on any view been a three-year period

during which the petitioner had received no response to his submissions in support of a

fresh claim. Throughout that time there was no information to suggest that the petitioner

had reoffended and it was contended that the respondent failed to have regard to that lapse

of time in reaching a conclusion that a continued reason for pursuing the petitioner’s

removal was one of public safety. The respondent disputes that any period prior to 2014

could be relevant and does not accept that there has been any significant delay in the

petitioner’s case, the three years to consider his current application being unfortunate but

not unique. More importantly the respondent’s position is that the petitioner has benefited

from delay in the way EB (Kosovo) anticipated he is entitled to benefit in that the strength of

[27] The way in which delay may have affected the petitioner and his claim is that

identified as the second relevant factor in EB (Kosovo). Although the petitioner’s relationship

with his partner was entered into at a time when his status was extremely precarious, years

have passed during which the couple have not only given birth to a second child, but the

petitioner’s partner has had two nieces placed with her in this country following the grant of

refugee status for them. The youngest child M has been given British citizenship. It is in

these respects that on the face of it, during the last three years or so it might be expected that

the petitioner’s sense of impermanence will have faded, as he has been free to develop his

expanded family unit without challenge or adverse inquiry. A deportation order based on

someone being a danger to public safety through having committed a crime is by definition

an order that the state has an interest in enforcing promptly. I accept that prior to 2014 the

respondent was unable to enforce the deportation order due to a number of appeal and

review proceedings at the instance of the petitioner, albeit that one or two of those achieved

a modicum of success. What cannot be ignored, however, is that by the time the three-year

period of delay between 2014 and 2017 arose the petitioner had already established a family

life. It is the impact on the balance between respecting that family life and the need to

remove him on public safety grounds that is affected by the three-year period of delay.

Accordingly what was required was a careful proportionality assessment balancing the

nature and seriousness of the original criminal conviction against the period of delay and

consequent further development of family life. It was not disputed by counsel for the

respondent that the criteria listed in Maslov v Austria [2008] 47 EHRR 20 were applicable,

simply that they did not need to be set out in terms in any decision letter. While that is

undoubtedly correct, I have concluded that in the particular circumstances of this case, the

absence of any reference to the very significant period of time that has elapsed since the

commission of the relevant offence and the petitioner’s family situation leaves the reader in

doubt as to whether the respondent has truly evaluated whether the petitioner is someone

who is likely now to engage in any criminal activities if not deported. Such an evaluation is

essential; otherwise the respondent would effectively be able to refuse any application under

paragraph 353 of the rules from a foreign criminal sentenced to a period of imprisonment of

less than four years without taking account of the passage of time since the commission of

the offence in the context of the extent and strength of their family relationships.

[28] On the undisputed facts of this case, the petitioner is someone who has lived openly

in this country for many years since the decision to deport him was taken. He has created

and enlarged a family and there is no indication that he has reoffended. On the basis of

those undisputed facts it was incumbent upon the respondent to explain clearly why the

criminal conviction of 2008 outweighed the relevant and more recent information in relation

to the additions to the petitioner’s family. Having taken three years to assess the proposed

fresh claim the respondent has not shown how these competing factors have been balanced.

I do not consider, however, that the third way in which delay may be relevant arises in this

particular case. While the delay of three years in dealing with the petitioner’s application is

excessive and hopefully unusual, there was nothing to support that it resulted from a

dysfunctional system yielding the outcomes referred to by Lord Bingham in EB (Kosovo).

[29] For the reasons given above, I am not satisfied that the respondent has considered

correctly whether the petitioner has a realistic prospect of success before a fresh adjudicator,

applying the rule of anxious scrutiny. The important developments of the birth of the

petitioner’s son M and the reception of his partner’s two nieces into the family were

sufficiently important matters that an explanation was required as to why it was considered

satisfactory for M in particular who was under the age of three, to keep contact with his

father using modern means of communication such that physical separation was justified.

Further, the absence of reference to the very lengthy passage of time in this case and the

impact of that on the prominence or otherwise to be given to the criminal conviction as

compared with the significant family life established is illustrative of a lack of anxious

scrutiny in this particular case. These are material errors justifying reduction of the decision.

[30] For reasons given above I will sustain the plea in law for the petitioner and reduce

the decision of 8 May 2017. I will reserve meantime all questions of expenses.

Scottish Court of Session Decisions