Hummayun v Secretry of State for the Home Department

Introduction

In this application the claimant challenges the decision of the Secretary of State for the Home Department, the defendant, to refuse to treat as a fresh claim representations made by the claimant concerning her removal of herself and daughter to Pakistan.

The claimant first entered the United Kingdom on 25 August 2006 on a UK visa valid from 27 July 2006 until 27 July 2007. Upon expiry of the visa she remained in the United Kingdom. She had a child, a daughter, on 25 September 2007. It is understood, however, that shortly thereafter she separated from her husband. She made an application for asylum on 19 November 2010. She was served with an IS151A notice on 19 November 2010 as a person liable to removal, and her asylum application was refused on 7 December 2010. Thereafter, she lodged an appeal against this decision to the First-tier Tribunal on 16 December 2010, which appeal was rejected on 17 January 2011.

The basis of her appeal had been, in summary, that she had separated from her husband and that, were she to be returned to Pakistan as a separated woman with a child, she would be at risk, given that her husband was a Shi'a Muslim, whereas she was from a Sunni family. The claimant's application to the Upper Tribunal to appeal the decision of the First-tier Tribunal was refused on 9 March 2011. On 18 November 2011 the claimant made further representations to the Secretary of State for the Home Department relying upon article 8 of the European Convention on Human Rights. The Secretary of State for the Home Department responded to these submissions in three letters, dated 2 July 2012, 25 September 2012, and 28 May 2014.

The Secretary of State for the Home Department's conclusion was that the representations were not sufficient to lead her to change her prior position, and that therefore leave to remain was refused. She found, in particular, that the representations did not amount to a fresh claim such as to entitle the claimant to a new and fresh appeal to the First-tier Tribunal.

The claimant first threatened to apply for judicial review on 24 July 2012. The substantive application was lodged on 25 July 2012. This application focused upon the first occasion that the defendant had refused the claimant's representations for reconsideration as set out in the decision letter of 2 July 2012. The defendant's letter of 25 September 2012 took account of the facts and matters raised in the judicial review. Nonetheless, permission to apply for judicial review was granted by His Honour Judge Gilbert QC on 2 January 2013.

The judge had concluded that it was properly arguable that the interests of the child had not been properly considered in accordance with the requirements of the judgments of the Supreme Court in ZH Tanzania v SSHD [2011] UKSC 4. This prompted a further reconsideration of various points on the part of the Secretary of State for the Home Department, in particular, relating to article 8 of the Convention.

B.

The Grounds of Challenge: the relevance of the rights of the child

As matters stand, the defendant's substantive reasons are found in the letters of 25 September 2012 and, more comprehensively, in the more recent decision letter of 28 May 2014. The two bases, or grounds, upon which the claimant advances her case, can be summarised as follows. First, it is argued that any removal of the claimant and hence her child would be unreasonable and disproportionate under article 8 of the Convention. In particular, the claimant relies upon the following factual matters. The child is nearly 7 years of age and has resided in the United Kingdom for her entire life. She has never visited Pakistan. The family ties of the child, excluding those with her mother, are firmly rooted in the United Kingdom. The child also has a relationship with the mother's current partner, who is an Iranian failed asylum seeker with no leave to remain in the United Kingdom. He cannot be expected, it is said, to go to Pakistan, so that the child would, in effect, lose this relationship. Further, the new partner plays the role of a substitute father to the child, which is important given the absence of any contact between the child and a natural father.

These concerns are, it is said, heightened by the claimant's own fears for her safety and hence that of her child should she be returned to Pakistan. The claimant also asserts the lack of a network of support in Pakistan itself. It is said in addition that the child will not get a proper education in Pakistan and that this needs to be contrasted with the present state of affairs, which is that the child has a stable and satisfactory education in the United Kingdom.

In relation to all these matters, the claimant's central submission is that these were not sufficiently individually or collectively assessed by the Secretary of State for the Home Department in her decision letters. The claimant cites in support various judgments and authorities which include ZH (Tanzania) which places the interests of children very high up the list of factors to be taken into consideration and accords such factors great weight. I will return to this judgment shortly. The cases relied on also include R (YH) v SSHD [2010] EWCA Civ 116 which reinforces that all the considerations which might turn in favour of a child must have been properly taken into account. See paragraph 24 of that judgment.

Further reference is made to R (Tinizaray) v SSHD [2011] EWCH 1850 where the court reiterated that factors identified in section 1 of the Children's Act 1989, which emphasises the need to take account of the child's welfare as a paramount consideration, needed also to be born in mind by the defendant.

Finally, reference is made to MK (best interests of child) India [2011] UKUT 00475 IAC which makes clear that the long term educational needs of a child are a relevant and important consideration.

The second ground of challenge is framed in terms of overall article 8 considerations, this time focusing upon the claimant and her family and private life in the United Kingdom. It is said, in particular in paragraph 17 of the claimants' skeleton argument, that this is in effect supplemental to ground 1. In this connection, the claimant identifies the following relevant facts and matters. First, that the claimant has an established private and family life with her new partner in the United Kingdom and removal would violate his rights, since he, as an Iranian national, cannot be expected to live elsewhere, nor would it be reasonable for him to do so, even though he is a failed asylum seeker in the United Kingdom. Second, that no modern means of communication can amount to a proper substitute for a close physical and intimate relationship between these partners and with the children. Third, that the claimant has been present in the United Kingdom for nearly 8 years since 2006.

C.

Relevant Legal Considerations: the extent to which the interests of the child are paramount

I turn now to consider the legal framework applicable to the issues arising in this case. The legal framework in cases such as this is well established and I do not propose to recite it in any great detail. In making her appraisal, the defendant is required to apply paragraph 353 of the Immigration Rules. The specific approach to paragraph 353 has been considered in two principal authorities of the Court of Appeal, namely WM (DRC) v SSHD [2006] EWCA Civ 1495 and MN (Tanzania) v SSHD [2011] EWCA Civ 193. The approach to be adopted by the Secretary of State for the Home Department is to ask whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claims in considering the new material, together with the material previously considered. The test here has been described as "somewhat modest" in favour of an applicant in AK (Afghanistan) v SSHD [2007] EWCA Civ 535. But given the centrality of arguments relating to the child, the Secretary of State for the Home Department must also have regard, when considering article 8 and proportionality, to the authorities highlighting the substantial importance attached by the law to the interests of the child.

While these interests can undoubtedly weigh very heavily in the scales, they do not always amount to trump cards.

In ZH (Tanzania) at paragraph 25, Baroness Hale stated of the Strasbourg jurisprudence as follows:

"25.

Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as 'a primary consideration'. Of course, despite the looseness with which these terms are sometimes used, 'a primary consideration' is not the same as 'the primary consideration', still less as 'the paramount consideration'. Miss Joanna Dodson QC, to whom we are grateful for representing the separate interests of the children in this case, boldly argued that immigration and removal decisions might be covered by section 1(1) of the Children Act 1989:

'When a court determines any question with respect to –

the upbringing of a child; or

(b)

the administration of a child's property or the application of any income arising from it

The child's welfare shall be the court's paramount consideration.'

However, questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1:

'The term 'best interests' broadly describes the well-being of a child... The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that:

the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9);

the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).'"

In paragraph 26 of the same judgment, after considering the Australian jurisprudence, Baroness Hale then said this:

"26.

This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia."

To similar effect, Lord Kerr, in paragraph 46 of the judgment, having stated that he agreed with Baroness Hale, stated the following:

"46.

It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."

A similar conclusion was arrived at by Lord Hope.

D.

Analysis

I turn now to the analysis of the case before me. In view of the case law it is necessary to examine two principal matters. First, whether the defendant addressed herself to all relevant matters; and secondly, applying anxious scrutiny, whether the inferences and conclusions drawn were reasonable and justified upon the basis of the evidence. I shall deal with each ground separately. I turn, therefore, to ground 1, which focuses upon the rights of the child. The analysis here must turn essentially upon the reasoning of the defendant in the decision letter of 28 May 2014. This is because the decision letter 25 September 2012 addressed primarily the claimant's personal article 8 arguments and only to a far less detailed extent, the child's rights, although it is right to record that even in that letter the Secretary of State for the Home Department did address the position of the child. She held that the child was not a British citizen and, at that point in time, had only 5 years' presence in the United Kingdom and did not satisfy the requirements of the Immigration Rules, including the exceptional circumstances requirements. In that letter, the Secretary of State for the Home Department also considered the educational position of the child were she to be removed to Pakistan and any risks that the child would face in Pakistan.

Nonetheless, the analysis in the letter of May 2014 is far more comprehensive. In this letter, the Secretary of State for the Home Department considered the position of the claimant and the child under the Immigration Rules and in terms of exceptionality. The letter reflects an acknowledgement that the child's position has changed and that the analysis needed to be updated and re-performed. The letter makes it clear that the Secretary of State for the Home Department addressed herself to all aspects of the position of the child including: first, the age and nationality of the child; second, the fact that the child had resided in the United Kingdom for the entirety of her life; third, the extent and nature of the ties that would have formed in the United Kingdom and which would be severed if she was moved to Pakistan; fourth, the child's educational position in the United Kingdom and the availability of education in Pakistan, including the fact which was taken into account that the child was fluent in Urdu; fifth, that there could be no basis for separation of mother and child and an acknowledgement that the child wished to remain with her mother and that this was her intent; and sixth, the child's ability to adapt to life in Pakistan.

The Secretary of State for the Home Department also considered the related position of the child in relation to her position, vis à vis her mother and her mother's new partner. The matters taken into account included, first, that the claimant retained strong social, linguistic, and cultural ties with Pakistan which would assist the child to adapt; second, the length of time the claimant had been in the United Kingdom; third, the genuineness of her relationship with her new partner, who was a failed asylum seeker and who is now listed as an immigration absconder; fourth, the factor that even if the relationship was genuine, which the Secretary of State seriously doubted, the relationship of the partner was precarious; fifth, the extent of the family life formed by the claimant.

In relation to these factors, the Secretary of State for the Home Department addressed herself to all of the relevant considerations and formed a view which is not one which jumps out of the page as being irrational or untenable. The conclusions are reasonable and are justified by the evidence. This was one of those cases where the interests of the child were acknowledged to be important but were held not to be violated by the removal of her mother, whom she would accompany abroad.

The Secretary of State for the Home Department also considered the quite separate balancing exercise which needs to be undertaken in an article 8 proportionality exercise. In this case the circumstances pertaining to the individual, including those which are found to be exceptional, must always be balanced against broader public interest considerations arising in the implementation of a firm but fair immigration system. The mere fact that a claimant may have exceptional circumstances is merely one side of the proportionality equation. The public interest considerations on the other side of the equation need also to be placed into balance therewith: see the judgment of the Upper Tribunal in McLarty (Deportation - proportionality balance) [2014] UKUT 315 (IAC) at paragraphs 29, 42, 43.

In short, the Secretary of State fully complied with her legal requirement to make the child's welfare a primary consideration. Indeed, no criticism is made of the approach adopted by the Secretary of State for the Home Department to the decision making process. It is also not suggested that any specific fact identified in the decision letters has been incorrectly stated. The challenge is essentially as to the weighing exercise. As to this, there is nothing, in my judgment, which comes remotely close to showing irrationality or unreasonableness, even applying a test which attracts a very high relative weight to the interests of the child. On the facts, the Secretary of State for the Home Department addressed the relevant considerations, made clear that she was according primary weight to the child's welfare but decided, nonetheless, that this did not outweigh other relevant factors including, but not limited to, public interest considerations.

There was no error in the approach that was adopted and it follows that ground 1 does not succeed. As a postscript to ground 1, I should add that the claimant repeated in a skeleton argument points related to her fears for her safety, should she returned to Pakistan. This raises, once again, arguments advanced previously as part of her failed asylum claim, including in the course of her appeal to the First-tier Tribunal. No new evidence has been put forward to develop or enlarge upon the evidence that she was not able to succeed upon at an earlier stage. For this reason, in my judgment, the point is not an arguable one. It has, in any event, been decided by the First-tier Tribunal and at an earlier stage, and is res judicata.

As to ground 2, these do not in and of themselves come close to establishing a private life of sufficient strength to lead to the Secretary of State for the Home Department's decision being overturned. The facts and matters raised were all addressed in the decision letters. These were conclusions that were well within the defendant's margin of appreciation to make. For these reasons, ground 2 also fails.

E.

Conclusion

It follows that the application for judicial review as a whole does not succeed. I am quite satisfied that an independent tribunal would not in any realistic sense come down in favour of the applicant in considering the new material together with the material previously furnished.

MR RAWAT: Does your Lordship have a copy of the summary assessment put in? There is an application for costs.

MR JUSTICE GREEN: Yes, I have it.

MR RAWAT: I understand the claimant is not in receipt of legal aid.

MR JUSTICE GREEN: Yes. The sum sought is?

MR RAWAT: My Lord, it is on page 2. The amount comes to £13,265.34.

MR JUSTICE GREEN: Yes. And what has generated the bulk of those costs?

MR RAWAT: The bulk of the costs, my Lord, would be down to the work that was done in relation to advising in relation to a further decision letter, 28th.

MR JUSTICE GREEN: So it is the fact that there was a series of additional letters?

MR RAWAT: Yes.

MR JUSTICE GREEN: Yes.

MR RAWAT: The letter of September 2012 accompanied the summary grounds of defence and then the second more recent letter was followed very swiftly by the detailed grounds.

MR JUSTICE GREEN: Yes. Yes, Mr Read, in relation to costs and indeed anything else?

MR READ: Indeed, my Lord. I am not able to advance an argument against costs.

MR JUSTICE GREEN: What about the sum involved? It is quite substantial.

MR READ: Indeed. I cannot come to a view of a positive view that my client would be able to find the sum. It would seem to counsel that it would be a rather hopeful sum to be asking for, a matter of blood from a stone. If she is likely to be leaving the United Kingdom, it is even less likely to be found, my Lord. So I am not sure to what effect a costs order would be.

MR JUSTICE GREEN: Yes. Is there anything you wish to say about specific items?

MR READ: No.

MR JUSTICE GREEN: No. I will say this, Mr Read, that when I read the papers, I did not think it was a strong application. I do not know what advice your instructing solicitors gave to the client or the extent to which or the level of fees that they have extracted from her.

MR READ: My Lord.

MR JUSTICE GREEN: Had they been here, I might have questioned them as to the value of the advice that they have given her to pursue this, which ultimately leads to, and which will lead to, an order for costs. It will be a matter for them and their relationship with their client as to how they deal with this. I am going to make an order for costs in favour of the defendant for £10,000.