Issue 51 November 2010 - Current Awareness: Immigration, Libya & UK

 

IMMIGRATION - IM Pe titioner [2010]CSOH103

The petitioner, IM, is a citizen of Libya who arrived in the United Kingdom in 2008 with leave to enter as a visitor. In 2009 she sought asylum. Her application was refused by the Secretary of State and her appeal against refusal was dismissed by an Immigration Judge in June2009.Her appeal rights ended in November 2009. In December 2009 she was detained pending removal but, in the light of submissions made, her removal was cancelled. Those submissions were made under reference to her right to respect for her family life under art.8 ECHR. By a decision letter the Secretary of State refused to accept that IM’s removal from the United Kingdom would give rise to a breach of her art.8 rights. The Secretary of State further declined to accept that IM’s representations constituted a fresh claim with a consequent right of appeal against removal.

In this application for judicial review, IM sought a reduction of the latter decision. IM asserted that her removal would give rise to a breach of herart.8 right to family life for the following reasons. She states that she has formed a relationship with a man, M, who was born in Libya but who was granted asylum in the United Kingdom in 2003 and became a naturalised British citizen in May 009. IM and M have known one another since their early teenage years in Libya, when M was a friend of the petitioner’s older brother. After her arrival in the United Kingdom, M made contact with IM. He visited her on a number of occasions and their relationship developed.

IM stated that in September 2009, she and M underwent a marriage ceremony at the Manchester Islamic Centre. This marriage is not recognised as valid under English or Scottish law because they have not obtained a certificate of approval from the Secretary of State. IM further stated that she and M have cohabited and that she suffered a miscarriage in December 2009.

Held: petition dismissed. (1) The statutory background to the making of a “fresh claim” is inr.353of the Immigration Rules which provides as follows: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”

(2) Parties were in agreement that the approach to be adopted by the court was as explained by Buxton L.J. in WM (DRC) v Secretary of State for the Home Department [2006]EWCACiv.1495 at paras 8–11: that is, that the decision of the Secretary of State is challengeable only on Wednesbury grounds, with the rider that a decision will be challengeable as irrational if not taken on the basis of “anxious scrutiny”. At para.11, Buxton L.J. set out the Matters which the court must address as follows: “First, has the Secretary of State asked himself the correct question? 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. Secondly, 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? If the court cannot be satisfied that the answer to both of these questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.” This approach has been adopted by the court in Scotland, notably in the decision of the Second Division in FO Petitioner [2010] CSIH 16 at para.23. It has also been reaffirmed by the Court of Appeal in England in R (TK) v Secretary of State for the Home Department [2009] EWCACiv. 1550 at para.10.

(3)That approach needed explanation in light of further decisions. In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 at para.75, Lord Brown of Eaton-under-Heywood addressed the question: in this particular context is there any material difference between a supervisory and an appellate jurisdiction? His Lordship’s answer (in the context of a certification case) was as follows: “Could the court ever reach the position of saying: we ourselves do not think that an appeal to the AIT in this case would have been bound to fail but we think that it was reasonable for the Secretary of State to decide that it would? In my opinion it could not. If the court concludes that an appeal to the AIT might succeed, it must uphold the challenge and allow such an in-country appeal to be brought.”

(4) The approach in the present case was for the Lord Ordinary to make his own assessment of how an Immigration Judge might have decided the matter on the basis of the material available to the Secretary of State.

(5) It was a feature of the present case that IM’s application to make a fresh claim proceeded on entirely different grounds from the claim which had previously been refused by the Secretary of State and, on appeal, by the Immigration Judge. There was accordingly no dispute that the material contained in the submissions made in December 2009 had not already been considered. The issue was whether the Secretary of State was entitled to conclude that this material, taken together with that which had been considered previously, created no realistic prospect of success in an appeal by IM against refusal of leave to remain in the United Kingdom.

(6) On the determinative issue of whether even if the Secretary of State had applied the correct test, whether the decision on the merits was irrational, the Lord Ordinary considered the dictum of Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2A.C. 368 at para.17: “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?”

(7) Applying that test under reference to what an immigration judge would do, the decision letter narrated the Secretary of State’s conclusions in that regard: “A new Immigration Judge in considering your client’s right to respect for family life would note that your client is a single female who has entered into a relationship with a British national and that they have undergone an Islamic marriage, which as mentioned above, is not recognised under British law. Your client has provided photographs to evidence the Islamic marriage but has provided no further evidence to substantiate that the relationship is genuine and subsisting or any evidence that they are in fact residing together. As such a new Immigration Judge would conclude that your client formed her relationship in the full knowledge of her immigration history, knowing that she had no right to be here and could be removed at any time. As such your client’s removal from the United Kingdom would not breach her Article 8 right to family life.”

(8) On a fair reading of this paragraph, the Secretary of State is indicating a conclusion that an Immigration Judge would answer either the first or second of Lord Bingham’s questions in the negative ,i.e. that the judge would find that removal of the petitioner from the United Kingdom would not engage the operation of her art.8 right to family life. If that were so, then it would indeed follow that an appeal would have no realistic prospect of success. From a reading of the remainder of the decision letter, it appeared that in reaching this conclusion the Secretary of State was influenced by the following factors:

• the fact that the petitioner entered into her Islamic marriage without having applied for a certificate of approval;

• the fact that she entered into her Islamic marriage at a time when she had no valid leave to remain, her asylum application had been refused and her application for reconsideration had also been refused;

• the fact that her relationship with M began at a time when she had no valid leave to remain;

• the fact that she did not apply for a certificate of approval until she was facing removal from the United Kingdom;

• the fact that she had been resident in the United Kingdom and, separately, in a relationship with M, for only a short period of time; and

• the petitioner’s failure to provide further evidence to illustrate a genuine and subsisting relationship or evidence of cohabitation.

(9) In relation to this last factor, it should be noted that in support of her application for leave to remain, the petitioner provided an affidavit of M. M states unequivocally that the marriage was genuine. His description of his relationship with IM is more equivocal. The nature of the relationship is not specified and he states that since the date of the marriage the petitioner has “mostly” been living with him although when from time to time he is away working she has lived with her brother. Adopting the approach to the court’s task the Lord Ordinary was satisfied that an appeal by IM to an immigration judge against the Secretary of State’s refusal of leave to remain in the United Kingdom would have no realistic prospect of success, even bearing in mind that the matter must be given anxious scrutiny and that the test is whether the prospect of success is no more than fanciful.

(10) Taking the view most favourable to IM of the material supplied to the Secretary of State, there is insufficient evidence to satisfy an immigration judge that she and M have family life which is such as to engage art.8. The material supplied to the Secretary of State seems to have been directed towards establishing the genuineness of the marriage rather than the genuineness of the relationship. There was nothing in either the submissions or M’s affidavit which vouched for the existence of a relationship of a nature that could reasonably be described as family life. An appeal would have no realistic prospect of success.

(11) Although counsel for IM placed reliance on the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] 1W.L.R. 1420, the Secretary of State considered that the case was distinguishable on its facts, and that in any event even if an immigration judge accepted that the petitioner and M had a genuine and subsisting relationship it would not be disproportionate to require the petitioner to return to Libya for a short period of time in order for her to apply for the correct entry clearance. In the view of the Lord Ordinary a crucial feature of Chikwamba was that no-one doubted that an application by the claimant for entry clearance after having been removed to Zimbabwe would be successful because of the strength of her art.8 case. That feature appears to me to be absent in the present case. If, as washeld, an immigration judge in the present case would decide that the petitioner’s art.8 rights would not be breached by removal per se, it did not make a difference that, after having been removed, she may apply from Libya for entry clearance with a right of appeal against any refusal. Moreover, it seems clear from Chikwamba that the House of Lords was there addressing a situation where the only reason given for requiring an art.8 claim to be made from abroad was the application of the quoted policy. It was clear from the terms of the decision letter read as a whole that the same cannot be said in the present case and, accordingly, Chikwamba was not in point.