Ahmed Fathe Ayache, R (on the application of) v Secretary of State for the Home Department

The applicant, who is a citizen of Sierra Leone born on 7 July 1982, was issued with entry clearance on 11 August 1995 and entered the UK on 17 August 1995, aged 13. He then applied for and, on 24 July 1996 was granted, indefinite leave to remain.

On 5 December 2003, aged 21, the applicant was convicted of 2 counts of conspiracy to handle stolen goods, 2 counts of theft, robbery and having a firearm with intent to commit an indictable offence. He was sentenced to 5 years’ imprisonment in total. On 11 May 2004, notice of intention to deport was served upon the applicant. Deportation was not pursued.

He was convicted of further offences:

On 10 February 2015, the applicant was served with a decision to deport. His representations, on Article 8 and 3 grounds, on why he should not be deported were refused for reasons set out in a letter dated 11 September 2015. His Article 8 human rights claim was certified under s94B Nationality, Immigration and Asylum Act 2002 (Footnote: ¹) and his Article 3 claim was certified under s94 of the 2002 Act as clearly unfounded.

On 9 December 2015, the applicant made the instant judicial review application challenging the respondent’s decision to certify his Article 8 claim. There was no challenge to the certification of the Article 3 claim.

The applicant sought and, on 18 ^th May 2016, was granted permission by Collins J in the following terms:

Although initially contended by the respondent that the Article 8 claim had been certified under s94(1), this was no longer a live issue at the hearing before me, the respondent accepting that only the Article 3 claim had been certified under s94(1); the applicant has an out of country appeal against the refusal of his Article 3 claim. The Article 8 claim was certified under s94B.

The letter of 11 ^th September 2015 considers (in so far as is relevant to the s94B challenge), in sub-headed paragraphs, the applicant’s immigration history ([3] – [8]), the reasons for his deportation ([9] – [13]), ‘ Zambrano ’ ([14] – [17]), Article 8 ([18] – [22]), ‘very compelling circumstances’ including his history of offending, the public interest in his removal, the impact on his family of his removal, the best interests of his children, the impact of removal on his private life and his arrival prior to the age of 18 ([23] – [[88]). [115] – [116] consider and decide certification under s94B in the following terms:

The only issue to be determined by the Tribunal is the lawfulness of the decision to certify under s94B. The applicant relies upon the following grounds:

“The respondent has made a material mistake of fact/failed to consider material matters and that relevant material matters were not considered.”

“The respondent failed to consider or apply policy/failed to consider material matters relevant to procedural fairness.”

With regard to the first of those grounds, the applicant submitted the respondent had failed to give adequate consideration to evidence submitted that he was married to Ms Digpal and that he maintained a relationship with Ms Digpal and his daughter as a husband/father. He submitted that it was plain from the evidence filed with the judicial review application form that the respondent’s conclusions were unsustainable. In making this submission, the applicant relied upon post decision evidence. The applicant submitted that the Tribunal was not, when considering the lawfulness of the certification of a claim under s94B, confined only to consideration of the material that was before the respondent on the date of the decision but should consider all the material presently before the Tribunal

With regard to the second ground, the applicant referred to the respondent’s policy on certification under s94B, as amended following Kiarie and Byndloss [2015] EWCA Civ 1020. Particular reference was made in the grounds accompanying the application, by way of example, to paragraph 3.27 and the absence of a return route. The applicant referred to the Ebola outbreak and the poor travel infrastructure which, it was submitted, gave rise to a significant risk that the applicant would face serious difficulties and that the respondent had failed to consider this possibility thus amounting to a procedural breach of the applicant’s Article 8 rights. This was not significantly pursued in those terms before me. Rather the applicant relied upon the Guidance issued to Home Office staff on 1 December 2016, which had been produced following Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020. It was therefore, it was submitted, the correct process to be followed. There had been no formal application to amend the grounds to include reliance upon this guidance. Nor was it referred to in terms in the skeleton argument submitted by the applicant although reference is made to the claimed failure by the respondent to follow the Guidance. Although some objection was raised by the respondent, it was acknowledged that the Guidance reflected the Secretary of State’s position following Kiarie and Byndloss (Footnote: ²) . I am satisfied that this issue is properly before me albeit not raised formally in the grounds. The issue is the lawfulness of the s94B certificate and thus it must take account of Kiarie and Byndloss and by extension the Guidance issued by the respondent as a consequence. Thus in this case it is not said to be an error by the SSHD in failing to apply Policy but as the approach set out in the guidance is the proper approach it should have been followed but was not.

On 20 ^th December 2016, the Court of Appeal handed down judgment in Caroopen and Myrie v SSHD [2016] EWCA Civ 1307. I invited the parties to make written submissions if so advised on the extent that decision may impact upon this application and I received submissions from both parties, which I have taken into account.

The applicant did not refer to any authority under which evidence submitted after the decision the subject of challenge and not before the decision-maker, whether accompanying the judicial review application or thereafter, could or should be taken into account in the review of the decision the subject of challenge. It is plain that the jurisprudence does not permit of a ‘rolling review’ of evidence. The decision the subject of challenge is that which is challenged. In the absence of a secondary/subsidiary or supplemental decision which looks at any further evidence submitted whether direct to the respondent or within judicial review proceedings which the respondent chooses to consider, the respondent cannot be criticised for failing to take account of information of which she was not aware at the date of the decision under challenge. It may of course be that in some cases the respondent is under a duty to investigate or enquire prior to making a decision, but that is not the position in this application. In this application, it was submitted that the extensive evidence provided after the decision should be taken into account in determining the lawfulness of the certification.

I do not accept that proposition. As is said in Kiarie and Byndloss [33]

That post decision evidence is not at large in a judicial review of a decision to certify was made clear in the observations of Beatson LJ in R (FR & KL (Albania)) v SSHD [2016] EWCA Civ 605. At [56], discussing the decision of the House of Lords in ZT (Kosovo) v SSHD [2009] UKHL 6, he said:

In the absence of any reasoned arguments supported by authority that the Tribunal should consider evidence that was not before the respondent on the date she took her decision, I am not prepared to consider the evidence submitted either with the judicial review application or subsequently in determining the lawfulness of the s94B certificate.

The respondent submits that given the applicant seeks to rely upon further evidence then the proper course would be to withdraw this application, present the new material in the form of further submissions and this would be considered in accordance with paragraph 353 Immigration Rules. The applicant submits that such a course of action is not one they are seeking - they are not seeking a review of the Article 8 decision but of the s94B certificate and that paragraph 353 does not provide for consideration of a 94B certificate.

Although paragraph 353 does not refer in terms to certification, a s94B certificate is plainly a decision on a human rights claim albeit a claim regarding temporary removal as oppose to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.

The duty imposed upon the Tribunal by s6 HRA is not infringed by it not reviewing post decision evidence which is said to do what the pre-decision evidence failed to achieve, namely establishing that removal would bring about an impermissible infringement of rights protected by Article 8. That is because the nature of the task being performed by the Tribunal is the exercise of a supervisory jurisdiction in respect of an historic decision. If there is more to be said by an applicant, then the machinery of paragraph 353 provides for it to be considered by the respondent. If the applicant is correct that the post decision evidence demonstrates that temporary removal would infringe protected Article 8 rights, that infringement does not flow from the decision of the Tribunal that the decision under challenge in the proceedings before it was, at the time it was taken, a lawful one.

It therefore follows that paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings.

I have in any event considered the challenge to the s94B certificate made in this application.

The respondent, in her detailed grounds of defence, states:

The assessment of Article 8 undertaken by the respondent in the decision the subject of challenge is an assessment in accordance with established jurisprudence of the applicant’s human rights claim and the proportionality of the decision in the light of the public interest in deportation of the applicant who, it is acknowledged, has been convicted of very serious offences for which he has received significant and substantial prison sentences in excess of four years. In order to succeed in his appeal against the refusal of his Article 8 claim in the context of his deportation, he will, in summary, have to show that there are serious and compelling reasons over and above those in Exceptions 1 and 2 – see s117C Nationality, Immigration and Asylum Act 2002. The respondent has considered the applicant’s Article 8 claim in accordance with the Immigration Rules. That decision is not the subject of this application – and nor should it be. That is a matter for consideration by the First-tier Tribunal in the applicant’s statutory appeal which, because of the s94B certificate in this case, is exercisable by the applicant after he has left the UK.

The respondent is required to specifically address whether the conditions set out in s94B are met namely, would the applicant’s removal pending the outcome of an appeal result in a breach of s6 Human Rights Act 1998 and give consideration to whether there are compelling reasons to exercise discretion. Those reasons include (but not exclusively) that the applicant would not be at real risk of serious irreversible harm if removed from or required to leave the UK. The applicant submits it is not sufficient for the respondent simply to consider whether there is a real risk of serious irreversible harm; both elements have to be considered. The respondent submits that a failure to specifically address both elements does not, of itself, render a decision to certify under s94B unlawful.

The respondent drew attention to the fact that the certificate in Kiarie was upheld despite it being flawed for two legal errors: firstly that he had not been notified in advance that consideration was being given to the certification of his claim and secondly the decision focused erroneously on whether there was serious irreversible harm and failed to address whether removal would be in breach of Kiarie’s procedural or substantive rights under Article 8.

The respondent’s Guidance issued on 1 December 2016 explains to decision makers how to consider certifying a refused human rights claim under s94B. Of relevance in this application is the following:

The applicant relies on three additional authorities: R(X)v SSHD [2016] EWHC 1997 (Admin), MB’s Application (Judicial Review) [2016] NIQB 75 and R (Masalskas) v SSHD IRJ [2015] UKUT 677 (IAC). In Masalskas the Upper Tribunal specifically considered whether it should take the course the Court of Appeal took in Kiarie and Byndloss namely identifying that although the decision was legally flawed, the error was not material. In Masalskas there were four young children and the removal of the claimant in that case from them and their mother was considered to be significant. In Kiarie it was noted that there were no children involved. For that reason, the error was immaterial. The applicant, in the instant application, submits that in Kiarie only private life was engaged and that in Byndloss , although there were at least seven children Byndloss had no relationship with any of them whereby he provided a parental presence in their daily lives. The applicant submits that the facts of his case distinguish his claim from that of Kiarie and Byndloss.

Caroopen concerns a situation where the Secretary of State has issued a fresh decision. That is not the case here. The Secretary of State submits that it has no direct impact on this case whereas the applicant submits the Court of Appeal’s judgment is supportive of the approach they have advanced. Caroopen is not, in my view, directly relevant in this application given that it specifically concerns the legal relevance of “supplementary” letters in the context of an application for judicial review of an earlier decision. In [82] of Caroopen, Underhill LJ, having reviewed the authorities, concluded that he did not think there is now any doubt about the approach to be taken when a challenge is made by way of judicial review to the Home Secretary’s assessment of the proportionality of interfering with a claimant’s rights under Article 8. He referred to the position as being succinctly stated in Kiarie and Byndloss . He did go on to say that this does not mean that what the authorities say is entirely unproblematic. In so far as Caroopen is concerned Underhill LJ concluded that if it was clear that the judge would have reached the same conclusion if he had adopted the correct approach, then the appeal would not be allowed (see [87]). This reflects the position in Kiarie and Byndloss namely that even if a decision is legally flawed, there is an inherent discretion as to the remedy.

The factual conclusions drawn by the respondent are as follows:

The applicant is not married to Ms Digpal and they were not cohabiting prior to his imprisonment. He does not have a genuine and subsisting relationship with Ms Digpal although contact has been maintained.

The applicant’s daughter was cared for by her mother, Ms Digpal, during his imprisonment and continues to be cared for by her. The applicant’s absence will result in some negative emotional impact upon his daughter.

There was no evidence that the applicant’s deportation would result in him losing all contact with his daughter.

The applicant does not have any contact with his son or his son’s mother.

Those factual conclusions are made in the context of removal pursuant to the signing of a deportation order, not in consideration of the s94B certificate. The grounds relied upon by the applicant rely on fresh material submitted to the respondent in order to challenge those factual conclusions. The grounds do not challenge those conclusions made on the basis of the information and evidence that was before the Secretary of State on the date that she made her decision. For the reasons I have set out earlier, I have not taken account of the subsequent evidence. The factual conclusions in the decision letter which are not challenged therefore form the basis upon which I consider for myself the proportionality of the making of the s94B certificate and thus whether the decision of the respondent was rational.

It is accepted by the parties that the Secretary of State has not undertaken an assessment of the proportionality of temporary removal. On the face of it the making of the s94B certificate was legally flawed. Whether or not this falls within the parameters of Kiarie and Byndloss (and indeed Caroopen and Myrie ) depends on a consideration of all the applicant’s factual circumstances in the context of the Guidance issued by the Secretary of State which includes in particular the impact of removal on a partner, children and himself. This requires consideration of the nature and extent of the relationship between him and his partner/ children as well as, for example, potential difficulties that he may have in pursuing his appeal from out of the country. Bearing in mind that this is a challenge to a s94B certificate and not to the Article 8 claim against deportation and that the arena for consideration of that claim is the statutory appeal, it is inappropriate for the Upper Tribunal in determining the lawfulness of the s94B certificate to consider and reach conclusions on the issues to be resolved in the statutory appeal, should the applicant decide to pursue it. The question before me is a different one: whether, during that temporary period during which the applicant is removed and pursuing his statutory appeal there will be an infringement of his Convention rights. I cannot trespass on the statutory appeal because that is not the basis of the application. This is why addressing Article 8 generally is not the answer as to whether temporary removal would be disproportionate. For example, there may be circumstances when a removal of say three months may not be proportionate even though the merits of a case may justify a virtual permanent separation. The justification of removing for three months, say, may not be proportionate to the damage it causes to children.

I invited submissions from the parties whether the underlying merits of the applicant’s statutory appeal could or should be taken into account in any assessment of the proportionality of the temporary removal. Both parties indicated that this was not a matter that either had pleaded, one way or the other, and they did not have specific instructions but that their view was that the underlying merits of the statutory appeal play no part in the assessment of the proportionality of temporary removal given the Guidance states that when considering removal pending appeal, the question should be approached on the basis that the claimant’s appeal would succeed. For the reasons I have set out in paragraph 31 above, I have adopted the approach that the applicant is to be treated as a person whose appeal will succeed and his removal will be temporary.

The focus of consideration of a challenge to a s94B certificate is on the applicant’s protected rights but in the context, as per the Guidance, that his appeal will succeed to the extent that removal will be temporary. I am concerned with whether temporary removal during the appeal period is in itself a disproportionate interference with protected article 8 rights.

In this case this applicant is neither married to nor was he cohabiting with Ms Digpal prior to his imprisonment. Although they are in contact with each other they do not have a genuine and subsisting relationship. He has no contact with his son or his son’s mother. His daughter continues to be cared for by her mother, Ms Digpal. Although his absence from the UK would result in some “negative emotional impact” (as accepted by the respondent) there was, in fact, no evidence before the Secretary of State that his temporary removal from the UK would be any different or worse for her than when he was removed from society whilst he was in prison. There was no evidence before the Secretary of State which would enable a conclusion to be drawn that the applicant’s temporary removal would be a disproportionate interference with either his or his daughter’s Article 8 rights.

Insofar as the difficulties relating to pursuing an appeal out of country which, in the application grounds concerned transport difficulties and potential health problems this was not relied upon in the hearing before me. In any event the decision considered these matters and the challenge such as it is in the grounds is no more than a disagreement with those findings.

The question is, therefore, whether it would be a breach of s6 to remove the applicant temporarily. This was not answered in terms by the respondent but the facts upon which an answer could be reached are as referred to above. At most this applicant has a lawful private life in the UK extending to over 10 years and established from the age of 13. There was no evidence relied upon as to what that private life consisted of other than as set out above, which was formulated in terms of family life. Irrespective of whether it is characterised as private or family life or a combination of the two, it cannot be concluded that the temporary removal of the applicant from the UK during the currency of his appeal would be disproportionate and a breach of s6 Human Rights Act 1998. As this illustrates I have considered myself whether there would be any infringement of protected rights of any person during the appeal period but I conclude there would not.

The applicant does not assert there was evidence before the respondent such as would make her conclusion irrational. Despite this I have myself considered the evidence that was before the respondent and can find nothing in that evidence that could rationally suggest that either the applicant or his daughter would be at real risk of serious irreversible harm or that there were any other reasons why the respondent should not exercise her discretion to certify the claim under s94B. The evidence of the consequences of temporary removal are as referred to above and there is nothing in there that could lead to a different conclusion.

The applicant ought to have made further submissions for consideration in accordance with paragraph 353 Immigration Rules but in any event, although the respondent failed to approach the question of certification under s94B in accordance with the approach laid down in Kiarie and Byndloss , the evidence before the respondent at the date of the decision led rationally to the findings of fact made by her. Of those findings of fact, considered in the context of the proportionality of temporary removal, (absent those relevant to the applicant’s criminality and the consideration of the great public interest in his deportation), it is plain that, had the respondent taken a decision whether temporary removal would breach s6, she would have reached the rational conclusion that it would not.

For these reasons the claim must fail.

The applicant is to pay the respondent’s reasonable costs, to be assessed by a Cost Judge if not agreed.