AS (India) v Home Office [2019] CSOH 43

Case comment by Michael Way, Advocate

Lady Wise allows immigration ‘fresh claim’ judicial review

Facts

The petitioner was a national of the India. He sought judicial review of the Home Office’s decision to refuse to accept his further submission as a fresh claim, under Immigration Rule 353.

The petitioner had entered the UK as a visitor in 2006 and overstayed. He formed a relationship with a British national in 2010 and they would go on to marry in 2013. After their marriage, the petitioner applied to regularise his immigration status on the basis of this relationship. This application was refused and an appeal to the First-tier Tribunal was unsuccessful. The petitioner then made further submissions to the Home Office in August 2017, which were swiftly rejected.

This case concerned further submissions made in October 2017. The Home Office again swiftly rejected the submissions. What set these further submissions apart were that they included an expert report from an Indian advocate (“Expert Report”), as well as references to the Home Office’s Country Information and Guidance on India (“Country Guidance”), highlighting issues of gender discrimination and violence that women can face.

Issues

The petitioner’s central contention was that given his wife’s health and work status, alongside the difficulties obtaining a visa and other cultural difficulties, there would be insurmountable obstacles for them to have to move to India as a couple. The Home Office refusal letter had failed to even acknowledge the Expert Report and made only scant reference to the Country Guidance. This was said to be a material error. The petitioner contended that there had been a failure to consider the further submissions with the requisite “anxious scrutiny”.

The respondent’s position was that any failure to properly demonstrate consideration of the Expert Report and the Country Guidance was not a material error. It was not an error to fail to demonstrate consideration of material that would not have been created a realistic prospect in front of an immigration judge. The respondent contended that there was nothing in the new material that would have led to a different conclusion.

The questions for the Court were therefore:

1. Was there a failure by the Home Office to substantively consider the Petitioner’s further submissions?
2. If yes, would the outcome in front of a hypothetical Immigration judge have inevitably been the same?

Decision

Lady Wise allowed the petition and reduced the Home Office’s decision (at [25]). Her ladyship concluded that the failure to give any proper consideration to the new documentation was a material error.

The respondent had, quite fairly, conceded that there was nothing to demonstrate that the Home Office had given substantive consideration to the new documents. The error was, in effect, conceded. On the question of materiality, Lady Wise was satisfied, however, that had the documents been properly scrutinised that “the outcome may not have been the same on the issue of insurmountable obstacles” (at [21]). The error was, therefore, material.

This was because the Expert Report would have been admissible evidence in the Tribunal and could not be dismissed as “simply implausible” (at [20]). The Expert was qualified to give his opinion on visa and social welfare requirements in India. Moreover, his comments on the treatment of women in Indian society largely echoed the Country Guidance. An Immigration judge would have required to give this all careful consideration – in particular the Home Office’s own Country Guidance (at [20]).

The respondent further argued that, even if the Expert report could be accepted and it would not be possible for the petitioner’s wife to go with him to India, the decision letter had considered the article 8 implications of the petitioner being removed and his wife remaining. The petitioner accepted that he would have to demonstrate “exceptional circumstances” for an article 8 claim to succeed in those circumstances. Lady Wise, however, did not consider that that there was “any discernible conclusion” on the proportionality of such an option and she could not be satisfied that an article 8 claim would necessarily fail (at [22]). However, given the conclusion at [21] it was not necessary to reach “any definitive conclusion on this point” (at [23]).

Analysis

This is a not atypical example about how the Court will deal with a judicial review following a refusal of further submissions under Immigration Rule 353. The requirement for “anxious scrutiny” means that there is generally scope of a petitioner to argue that, when the Home Office has rejected their claim, they have not had the benefit of the requisite standard of decision-making care.

Where, on the face of the decision, there has been a failure to consider potentially relevant material, as in this case, all the respondent can sensibly argue is that the error was immaterial. In the circumstances, Lady Wise appeared to be content to give the benefit of the doubt to the petitioner.

Representation

Ampersand’s Graham Maciver appeared for the respondent.

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LB (Gambia) Petitioner [2019] CSOH 45

Case comment by Michael Way, Advocate:

Lord Pentland refuses judicial review in “foreign criminal” deportation case

Facts

The petitioner was a national of the Gambia. He sought judicial review of an Upper Tribunal (“UT”) decision to refuse him permission to appeal against a decision of the First-tier Tribunal (“FTT”).

The petitioner was 39 years old. His claim was that he had been granted refugee status in Italy in 2008. However, he had subsequently received drug-related convictions in Sweden in January 2012 and July 2013, resulting in 4-month and 24-month sentences of imprisonment. He was deported from Sweden in 2013 and banned from re-entering for 10 years.

Having left Sweden, the petitioner appears to have travelled from the Gambia through Senegal and Spain to the Republic of Ireland. He claimed asylum in Ireland. He appealed the initial rejection, but left for the UK before his appeal was heard.

Ultimately, the petitioner was detained by police in the UK in May 2016. His Swedish convictions were discovered. The Home Office issued a deportation order some 15 months later. The petitioner responded by making a human rights claim and applying to transfer his refugee status from Italy to the UK. The petitioner’s claims were rejected by the Home Office and so he appealed to the FTT.

Issues

There were two broad attacks on the FTT’s decision. First, the FTT had arguably erred in finding that the petitioner did not have refugee status in Italy. Moreover, it was incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status. Second, the FTT had arguably erred by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007. The UT had adopted these errors in refusing permission.

The questions for the Court were therefore:

1. Did the FTT arguably err by finding the petitioner did not have refugee status in Italy?
2. Was it incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status?
3. Did the FTT arguably err by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007?

Decision

Lord Pentland was not with the petitioner on any of the questions. The petition was refused (at [29]).

The Court found that the issue of the petitioner’s alleged refugee status was a factual finding which was “amply supported by the evidence before the FTT” (at [18]). The FTT judge had made sustained adverse criticism of the petitioner’s credibility (see {12]-[17]). He did not accept any of the documents produced were genuine and gave reasons for disbelieving anything the petitioner said in support of his case (at [17]). No error arose.

Neither was it incumbent, in the circumstances, for the Home Office to verify the petitioner’s refugee status documentation. Such a duty may arise where it would be “simple and straightforward” to verify, the documents were crucial and were said to come from an otherwise unimpeachable source. Lord Pentland upheld the respondent’s submission that in this case verification would have been “far from straightforward” (at [20]). This point fell to be rejected.

As to the erroneous label of “foreign criminal”, this was dismissed by Lord Pentland as being a “purely technical and theoretical” point (at [28]). The FTT judge had “complied with the Guidance in substance and in spirit”. The court noted the significance of Guidance to the effect that those convicted of sentences in the UK and those convicted abroad should be treated alike in order to give proper effect to Article 8 ECHR (at [25]). The UT was entitled to refuse leave and no error arose.

Analysis

This decision will be welcomed by the Home Office. It provides a reminder that the Court will be slow to entertain technical or theoretical errors in such circumstances.

The case also demonstrates the difficulties that petitioners face where they have been fixed with an adverse credibility finding in the FTT. Having been found incredible, even otherwise objective evidence supportive of your case can be rejected where you are the primary source of the information.

Once Counsel is involved at the stage of a judicial review the damage may be too severe to rehabilitate even a once promising claim. Agents should bear in mind that Counsel can be instructed to appear in the FTT. While nothing can be guaranteed, by front loading the preparation, such difficulties further down the line may be avoided.

Representation

Ampersand’s Graham Maciver appeared for the respondent.

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