PETITION OF MUHAMMAD ZUBAIR AGIANST SECRETARY OF STATE FOR THE HOME DEPARTMENT
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 73A
P1005/16
OPINION OF LORD ARMSTRONG
In the Petition of
MUHAMMAD ZUBAIR
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Forrest; Drummond Miller LLP
Respondent: Tariq; Office of the Advocate General
4 May 2017
Introduction
[1] The petitioner is a national of Pakistan. The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland. The petitioner arrived in the UK on 19 April 2011, on a student visa, valid until 30 December 2014. On 12 December 2012, he applied for leave to remain. His application was refused on 29 May 2013. On 22 August 2014, he again claimed asylum. That application was also refused, on 10 September 2014. As at 8 April 2015, it was noted that he had stopped reporting, and was considered to be an absconder from that date. On 8 September 2016, he was encountered and arrested, while working at a business address.
[2] On 9 September 2016, the petitioner submitted further representations in terms of paragraph 353 of the Immigration Rules. He maintained that he was in a genuine and subsisting relationship with Hayley Zubair, a UK national, that they had been married by way of an Islamic wedding ceremony, and that she was pregnant with his child. At the time of the application, they had been in a relationship for 16 months and Hayley Zubair was 16 weeks pregnant.
[3] By decision letter, dated 21 September 2016, the respondent refused to treat the further submissions as a fresh claim. Under consideration of Appendix FM of the Immigration Rules, the claim was rejected because the petitioner’s Islamic marriage was not recognised for these purposes, and the relationship had not subsisted for at least two years prior to the application. Under consideration of the application outside the Immigration Rules, the respondent noted the petitioner’s precarious immigration status, and, under reference to section 117B of the Nationality, Immigration and Asylum Act 2002, attached little weight to his private and family life. It was noted that the petitioner’s partner had adequate support available from other members of her family. By this application for Judicial Review, the petitioner sought reduction of the decision dated 21 September 2016, to refuse to treat the application as a fresh claim (“the Decision”).
The Submissions for the Petitioner
[4] The issue was whether the respondent had been wrong to find, in terms of paragraph 353(ii) of the Immigration Rules that, taken together with the previously considered material, the new information did not create a realistic prospect of success. In that regard, the nature of the test was well established. The test was whether there were realistic prospects of another immigration judge reaching the conclusion that the claim might succeed. The test was a modest one. It was not necessary that success was guaranteed (WM (DRC Congo) v Secretary of State for the Home Department (2007) 1 WLR 126, at paragraphs 6, 7, 10, 11; Dangol v Secretary of State for the Home Department 2011 SC 560, at paragraph 4-7).
[5] In particular, in refusing to accept that the new representations amounted to a fresh claim, the respondent had acted irrationally by failing to ask the correct question, namely: “Was there a sensible reason, in all the circumstances, for insisting on the petitioner’s removal from the UK, in order to reapply for leave to remain?”. In that regard, reference was made to the case of Chikwamba v Secretary of State for the Home Department (2008) 1 WLR 1420. In that case, the House of Lords had held that while the maintenance and enforcement of immigration control was a legitimate aim of the respondent’s policy, in relation to Article 8 family claims an appeal should not be dismissed routinely on the basis that it would be proportionate and more appropriate for the applicant to apply for leave from abroad, and that to remove the claimant in that case to Zimbabwe, where conditions were harsh and unpalatable and would have disrupted her family life, would have violated her and her family’s Article 8 rights, and was not justified by the need for effective immigration control. In the course of the decision, there was consideration of whether the true purpose of the policy, which allowed an application to be rejected on the basis that the applicant ought properly to leave the county to apply for entry clearance in his country of origin, was based on the rationale of deterring people from coming to the country, in the first place, without having obtained entry clearance, rather than on grounds of equal treatment amongst applicants (paragraphs 40, 41). In that regard, however, in an Article 8 family case, the extent of the prospective consequential disruption to family life was a relevant consideration (paragraph 42). It had been stated, per Lord Brown of Eaton-under- Heywood, at paragraph 44, that:
“I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an Article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad.”
Thus, the question was whether it was proportionate to require a person to return to his home country in order to apply, from there, to re-enter the UK.
[6] In Secretary of State for the Home Department v Hayat (2012) EWCA Civ 1054, the decision in Chikwamba was considered further. In particular, it was stated, per Elias LJ, at paragraph 30:
“a) Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless...there is a sensible reason for doing so.”
Reference was also made to MA (Pakistan) v Secretary of State for the Home Department (2010) INLR 287, at paragraphs 7 and 9, in which the same approach had been adopted under reference to Chikwamba.
[7] It was accepted that, in the context of that approach, in order to take advantage of the Chikwamba guidance, it was incumbent on the applicant to make representation to the Secretary of State that temporary separation would interfere disproportionately with family life. Additionally, it was now recognised that, in Chikwamba, Lord Brown was not laying down a legal test when he suggested that requiring an application from outside the country would be proportionate, in cases involving children, only “comparatively rarely” (R (Chen) v Secretary of State for the Home Department (Appendix FM – Chikwamba – Temporary Separation – Proportionality) IJR (2015) UKUT 189).
[8] The appropriate course was fact sensitive, and dependant on the particular circumstances of each case. In the present case, the respondent had erred by failing to consider whether there was a sensible reason for imposing the policy. Insufficient weight had been attached to the particular circumstances of the petitioner’s case, most obviously the fact of the imminent birth of his child.
Submissions for the Respondent
[9] In assessing the petitioner’s case outside the Immigration Rules, it had been incumbent on the respondent to take into account sections 117A and B of the 2002 Act. The combined effect of these provisions was that a balancing exercise was required, as between, on the one hand, the interests of the state in maintaining effective immigration control and, on the other, the petitioner’s right to family life. In carrying out that exercise, the effective maintenance of immigration control was legitimately to be viewed as a “sensible reason” in the circumstances of the petitioner in which, by virtue of section 117B(4) and (5), little weight was to be attached to his relationship with his partner when it had been established at a time when he was unlawfully in the UK, or to his private life at a time when his immigration status was precarious. These matters had been taken fully into account by the respondent, at paragraphs 59 and 61 of the Decision.
[10] At paragraph 58, in the context of the onus on the petitioner to demonstrate why removal would be disproportionate, it was noted that no reasons had been submitted by him as to how any temporary separation might breach his ECHR Article 8 rights. On the contrary, at paragraph 61, it was noted that, in that regard, his partner had appropriate support.
[11] At paragraphs 62 and 63 of the Decision, the respondent had decided that, as the petitioner’s private and family life was to be afforded little weight, and in the absence of evidence that his removal would have serious adverse consequences for his private and family life, when weighing these matters against the public interest, his removal would not be disproportionate for the purposes of Article 8. The respondent had fully considered the relevant factors. This was not a situation where implementation of the policy was disproportionate. On a proper consideration of the particular facts of the case, the reasoning of Chikwamba was not supportive of the proposition that the Decision was flawed.
[12] It was appropriate to note the facts which had been under consideration in Chikwamba. In that case, the claimant had been married for six years, the marriage was recognised under UK law, and the claimant had a child, aged 4 years. In circumstances where the conditions in Zimbabwe were recognised as being “harsh and unpalatable”, the decision was that the interference with family life, which would result from return there, would be a disproportionate interference with the claimant’s Article 8 rights.
[13] By contrast, the facts of the petitioner’s case were that he had been married for only 16 months, his marriage was not recognised under UK law, there was no child to be considered at the time of the application, and there was no suggestion that conditions in Pakistan were harsh and unpalatable.
[14] In Chikwamba, in a review of the existing authorities, the court had considered comparable facts and circumstances in a number of other cases. At paragraph 27, reference was made to R (Mahmood) v Secretary of State for the Home Department (2001) 1 WLR 840, in which, at paragraph 23, Lawes LJ had explained the policy:
“Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect – as it is – that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.”
[15] At paragraph 29 of Chikwamba, the case of R (Ekinci) v Secretary of State for the Home Department (2004) Imm AR 15, was considered. Although its facts were exceptional, the poor immigration history of the appellant in that case had been a material factor. In that regard, it had been stated that there was:
“nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any long term, let alone permanent separation of the appellant from his family seems to me abundantly plain...”
Thus, when taking into account the poor immigration history, and despite the appellant having a child, Article 8 had not been breached by return for a short period. In that case, the temporary disruption to family life was not disproportionate when weighed against the state’s interest in maintaining effective immigration control.
[16] At paragraph 31 of Chikwamba, the case of Mukarkar v Secretary of State for the Home Department (2006) INLR 486, was considered. In that case, the claimant was in deteriorating health, and required permanent home help. The decision in favour of the claimant turned on the rationale that it would be unreasonable to expect any of his adult children to run the risk of losing their jobs merely to accompany him to Yemen to stay for an indeterminate period of time while his application was considered.
[17] At paragraphs 32 and 33 of Chikwamba, reference was made to SB (Bangladesh) v Secretary of State for the Home Department (2007) Imm AR 491, for the proposition that, for these purposes, the assessment of the prospects of a successful entry clearance application was not a relevant consideration.
[18] In Chikwamba, Lord Brown, at paragraphs 37 – 42, had set out the policy, and the matters to be taken into account in assessing its legitimacy and proportionality. In particular, at paragraph 37, he set out part of the policy instructions:
“Is the interference proportionate to the permissible aim? ...In many cases, refusal or removal does not mean that the family is to be split up indefinitely. The...policy is that if there is a procedural requirement (under the Immigration Rules, extra‑statutory policies or concessions) requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home to make an entry clearance application from there. In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better positon that a person who does qualify under the rules – he is still expected to apply for entry clearance in the usual way, as the entry clearance officer will consider Article 8 claims in addition to applications under the rules. See Ekinci... In addition, it may be possible for the family to accompany the claimant home while he makes his entry clearance application, in which case there will be no interference at all. For example, where a claimant is seeking to remain here on the basis of his marriage to a person settled in the UK, the policy is that they should return home to seek entry clearance to come here as a spouse under the relevant immigration rule. Where the spouse can accompany the claimant home while he makes his application, there will be no interference. Where this is not possible, the separation will only be temporary. The fact that the interference is only for a limited period of time is a factor that is likely to weigh heavily in the assessment of proportionality.”
[19] The content of paragraphs 41 and 42 in Chikwamba indicated that the maintenance and enforcement of immigration control was a legitimate justification for the policy and would be a sensible reason for these purposes. The question as to whether, in the particular circumstances of any given case, it was proportionate, required an appropriate consideration of the relevant facts. In carrying out the necessary balancing exercise, it was legitimate to take into account (1) the need for, and benefits of, firm immigration control, (2) the relevant immigration history (see Ekinci), (3) the extent and degree of family life under consideration, and (4) the reasons for entering the UK in the first place. In that last regard,
“To advance a genuine asylum claim would, of course, be a good reason. To enrol as a student would not.” (paragraph 42)
[20] It was also relevant to note Lady Hale’s opinion, at paragraph 7 – 8, which laid emphasis on the rights of other family members and, in particular, a child who (as was the case in Chikwamba) would either be separated from her parents or would have to accompany them to endure harsh and unpalatable conditions in a foreign country.
[21] The key factors which had been determinative of the decision in Chikwamba were absent from the petitioner’s case. Rather, in the petitioner’s case, there were six factors which, properly assessed, were indicators that removal from the UK was a proportionate measure, viz:
(1) Unlike the case of Chikwamba, as at the time of the petitioner’s application, there was no child to be considered. On the basis that at that time, the anticipated birth would not be expected for a further five months, there would have been sufficient time to return to Pakistan, make an application, and return, all prior to the due date;
(2) The degree of family life under consideration was weaker than in Chikwamba. In the petitioner’s case, there was no marriage, as recognised by UK law, and his relationship had subsisted for less than two years;
(3) There was available documentary evidence which indicated that the petitioner’s partner would be adequately supported during the petitioner’s temporary removal.
(4) There was no suggestion that the petitioner would be exposed to harsh and unpalatable conditions on return to his country of origin;
(5) The petitioner was a young man who did not require support and care of the type taken into account in Mukarkar; and
(6) As in Ekinci, and under reference to Lord Brown’s observations in Chikwamba, at paragraph 42, the petitioner had a poor immigration history.
[22] Of these factors, viewed in the context of a determination in accordance with the test in WM (DRC Congo), the last consideration, coupled with the statutory requirement to attach little weight to the petitioner’s private and family life, in terms of section 117B of the 2002 Act, would weigh heavily with an immigration judge. In the light of all the identified factors which required to be taken into account, the Decision was reasonable and proportionate.
[23] Given the facts that the petitioner no longer had any right to remain in the UK, his recorded poor immigration history, and that his Article 8 claim had been rejected, the effective pursuit of immigration control constituted a sensible reason for insisting on the petitioner’s removal from the UK. That was consistent with the dicta by Lord Brown in Chikwamba, at paragraphs 41 and 42.
[24] In any event, it was clear that the observations (1) in Chikwamba, to the effect that the requirement, that application for leave should be made from abroad, should be made only “comparatively rarely”, certainly in family cases involving children (paragraph 44), and (2) in Hayat, supra, that it will be disproportionate to enforce such a policy unless there is a “sensible reason” for doing so, were , in light of the decision in Chen, supra, not to be regarded as legal tests.
[25] It was a misconception to suggest, in reliance on Chikwamba, that it is only rarely that it will be proportionate to expect a claimant to make an application for entry clearance from abroad irrespective of his personal circumstances. Rather the matter was dependent on the individual facts of each particular case, including the prospective length and degree of family disruption involved (Chen, supra, at paragraphs 34, 35). The reference in Hayat, supra, to a “sensible reason” did not set out the test for applying the guidance in Chikwamba, and did not reverse the burden of proof on a claimant to place before the Secretary of State all material relied upon to suggest that removal would breach Article 8 (Chen, at paragraph 36).
Discussion
[26] Counsel were at one in that Lord Brown, in Chikwamba, supra, when using the phrase “comparatively rarely” in this context, at paragraph 44, was not laying down a legal test (Chen, supra, at paragraphs 34, 35). The case of Chen is also significant, in relation to the phrase “sensible reason”, used in the same context by Elias LJ in Hayat, at paragraph 30b). In that regard, on the suggestion made in that case that there must be a “sensible reason” to require an individual to make an application for entry clearance from abroad, Judge Gill stated, at paragraph 36:
“I reject the submission. I do not accept that, in using the phrase ‘sensible reason’, Elias LJ was setting out the test for applying the guidance in Chikwamba, nor that he reversed the burden of proof. The burden remains upon the applicant to place before the Secretary of State all material that he or she relies upon to suggest that removal pursuant to the refusal of leave would breach Article 8.”
[27] While the examples of the facts and circumstances taken into account in the cases cited in Chikwamba (Mahmood, Ekinci, Mukarkar, and SB (Bangladesh)), and of the relative weight attached to the factors considered relevant, is illustrative, the proper approach, evident from the authorities on the point, is that the determination of whether enforcement of the respondent’s policy is proportionate in any given case is necessarily fact sensitive, and dependent on the particular facts and circumstances of the case concerned.
[28] Against that background, I am satisfied that, in this case, a proper balancing exercise was carried out by the respondent, weighing the petitioner’s rights to a private and family life, on the one hand, against the interests of the state, on the other. On the basis of the distinguishing factors of the petitioner’s case, as identified by counsel for the respondent, and the absence of any substantiated representation on the petitioner’s behalf, as to how removal would interfere disproportionately with his protected rights, I find that the decision to require his removal from the United Kingdom on the basis that, in the particular circumstances of his case, the need to secure effective immigration control outweighed the other relevant factors to be taken into account, was justified and proportionate. The Decision, the terms of which are comprehensive, and constitute a detailed consideration of all relevant matters, reflect that, and are not indicative of the error of irrationality contended for on behalf of the petitioner.
[29] I was informed that were the Decision to be reduced, the fact that the birth of the petitioner’s expected child would have taken place by the time of any consequent reconsideration might positively influence the ultimate outcome. While that may be so, the present application must be determined on matters as they stood at the date of the Decision.
Disposal
[30] For these reasons, and in circumstances where the petitioner’s first, second and third plea‑in‑law had been superseded by events, I shall repel the petitioner’s fourth plea‑in‑law, sustain the respondent’s third and fourth pleas‑in‑law, and refuse the petition.
[31] I reserve, meantime, all questions of expenses.