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Zermani, R (On the Application Of) v SSHD
[This commentary courtesy of Bushra Ali, solicitor for Zermani] This matter was heard on 20.03.15 and Judgement handed down on 30.04.15. (decision quashed on the grounds that it has not taken into account all the relevant factors) [2015] EWHC 1226 (Admin) (30 April 2015) <http://www.bailii.org/ew/cases/EWHC/Admin/2015/1226.html> A huge thank you to Counsel for the Claimant, Mr Christopher Jacobs of Landmark Chambers who did a brilliant job in this JR. This is a fantastic Judgement in my client's JR that I would like to share with you all for a number of reasons. The sentence "decision quashed on the grounds that it has not taken into account all the relevant factors" does not really give a full picture of the issues:- My Client (The Claimant) The Claimant is a national of Algeria aged 43. He claims to have entered the UK in 2004. He was granted entry clearance as a visitor for 6 months in March 2006. He remained in the UK subsequent to his permission to do so, expiring. On 19 September 2009 he was arrested for using a forged French passport and subsequently sentenced to four months in prison. The Claimant asserts he obtained this passport to work so as to have a means of living. Whilst he was serving his sentence, he made a claim for asylum, which was refused on 10 June 2010. The Immigration Judge found the Claimant's account was a fabrication, however, it is noteworthy that the Judge may have been wrong with regards to the Claimant's brother serving in the US Army. This is because subsequent evidence persuaded the SSHD that this aspect of the Claimant's claim was credible.The other adverse findings with regards to the passport offence, timing of asylum claim and illegal stay in the UK remained beyond doubt. The basis of the FLR(O) application HHJ Worster stated:- "His solicitors wrote a detailed and well structured letter to the Respondent. It refers to his conviction and some of the other difficulties in his immigration history, but then seeks to demonstrate that his conduct has changed and that he has become a particularly valuable member of his community. 4. The whole thrust of the application is based upon that argument. There is no other basis for a grant of leave. Indeed towards the end of that letter, the point is made expressly by the solicitor writing the letter, who says this: The Secretary of State is requested to give due consideration to the vital role our client plays within the community in various respects. He would not only be dearly missed but his place would be hard to fill in terms of the value he has provided to the community The letter then refers to the "devastating impact" both for himself and the organisations he has assisted if he is removed. It submits that removal would be disproportionate. It ends by requesting that the Secretary of State applies her discretion and grants leave to remain outside the Rules. 5. The application relies upon a series of letters from responsible figures within his local community of Wrexham. The application describes them as "people .... of good character and professional standing". It is hard to argue with that description. It is an impressive list of people representing various groups including the local Council, Bangor University, the local Mosque, the Welsh Refugee Council, a refugee support group, and the Police. These are not his friends and relatives, but people who are from the community and can legitimately be regarded as speaking for it. 6. The first letter is from a Research Officer at Bangor University who has been undertaking work on a project relating to the barriers to Higher Education faced by refuges and asylum seekers. She met the Claimant in his work with the Wrexham Refugees and Asylum Seekers Support Group ("WRASSG"). She describes him as having a "key role" in the organisation. He acted as a mentor and consultant on a joint project between that group and the University. She knows him to be a "well respected figure in the town" and tells of the fact that he had been admitted onto a degree course at Glyndwr University and that the University had waived his fees until he was awarded refugee status. 7. The second letter is from a Special Health Visitor for Vulnerable Groups. She writes of his involvement in all aspects of the asylum/refugee community in Wrexham and of his invaluable help in the work she does, providing them with support, accompanying them to medical appointments and helping with translation. 8. The third letter is from the Community Cohesion Manager at Wrexham County Borough Council. It refers to his helping the Council organise Refugee Week in 2009, organising a community football tournament for young people, working closely with the Mosque when it opened, and working with the Mosque to provide visits for the wider community to tackle myths and rumours. There is help in consultation and development of the Council's Community Cohesion Strategy, and the letter describes him as a "community champion in Wrexham", recognised and respected by a wide and diverse range of communities and Public Sector organisations. 9. Fourthly, there is a character reference from one of his lecturers at Glyndyr University. It only stands out only because it is the one letter which does not speak of his role in the community. 10. Fifthly, a letter from a case worker at the Welsh Refugee Council. She speaks of his help as a volunteer for the Council, and of his assistance with interpreting and accompanying other refugees to appointments. 11. Sixthly, there is a letter from the Development Officer at the WRASSG. She speaks of him being a "real driving force ..." in the affairs of the local refugee forum, his involvement with Refugee week in 2010 and 2011, and his success in dealing with the more difficult clients. She describes him as an "integral part of the team at WRASSG", and a "valued and valuable member of the community in Wrexham...". 12. Seventhly, a letter from the chairman of the local Mosque,. He says that the Claimant is a trusted and highly valued member of "our community". He refers to his work with the Council when the Mosque was being established, and that he continues to be a point of contact with the Council. He is working to set up Arabic and Quran classes. 13. Eighth, a letter from PC Roberts, the local police diversity officer. He says this: "Within my role as Diversity Officer, there have been occasions when I have needed assistance and guidance whilst helping the Muslim Community. Mr Zermani has always assisted me with such guidance without question. Should he be unable to help then he has been able to refer me to others who can". The letter refers to their work encouraging the reporting of hate crime, and supporting victims of those crimes. The officer says that he "... is one of the persons for whom I feel trust in doing such a task". Again there is reference to his involvement in community events. 14. Finally, there are two letters from the Reverend JG Aylward, the Chair of WRASSG. He invited the Claimant to become a trustee of the organisation. He says the Claimant's understanding of the issues is "second to none", that he has been "of immense assistance to our Board of Trustees ... " and that "... his absence would have a great impact on our organisation"." The emphasis therefore in my representations was not so much the ties and connections of my client to the community in the routine sense that I would normally argue, but my client's "value" to the community and how the community has come to rely upon him over the years, and indeed the community would suffer were he to be removed from the UK. The refusal decision under challenge The decision dated 19 December 2012 approached the application solely on the basis of the test as set out in paragraph 276ADE of the Rules and did not go on to consider the application outside of the Rules. The SSHD found that the Claimant did not fall within the provisions of the relevant Rule. The SSHD found that the Claimant's presence in the UK was not conducive to the public good, and the application was refused. The Challenge An Extension of Time The Claimant felt he had had a history of bad or inadequate representation from a series of firms and had finally found someone who he believed would fight his corner. I had offered a free drop-in surgery in Wrexham, my connection there being my family and where I was brought up. At the time there was no legal aid representation there and thus I had picked up this case and originally assisted under public funding. The Claimant felt so strongly about continuing to instruct me that he decided to gather donations from friends and people he knew in the community so as to instruct me to continue with his vase and lodge a JR. I submitted witness statements on behalf of both the Claimant and I, addressing the out-of-time issue as part of the JR. Refusal of Permission on the Papers The Oral Renewal The Grounds We argued that when an applicant is of great value to the community, the weight to be given to the public interest in maintaining effective immigration control is reduced. Our case was that the SSHD had failed to engage with that issue. A Supplementary Refusal Decision/ Bullish Tactics The SSHD served a supplementary refusal decision dated 06 October 2014. It should be noted this was not part of a settlement process. It was not even the result of any request of further representations from the Claimant. It is fair to say this supplementary refusal was thrown upon us, then came a series of letters from the Tsols insisting the Claimant withdraw his JR as it had become academic and the SSHD had dealt with the one ground on which permission was granted and that was to give him a more detail reasoning for refusal. Our argument was that the very fact the SSHD served a supplementary refusal was an acceptance by the SSHD that the decision of 19 December 2012 was flawed and that the Court should quash it. Bearing in mind the Claimant was funding this matter privately, it was a very brave decision to continue with the JR and rightly argue the Defendant's position was unlawful and unacceptable. Our Arguments at the Full JR Hearing The Claimant argued that the supplementary decision itself was flawed and did not render the claim academic. The Claimant submitted that the Defendant failed to properly consider the application outside of the Rules and to make a fact sensitive Article 8 assessment, or that the supplementary letter fails to demonstrate that she has done so. The question for HHJ Worster was therefore whether the supplementary refusal decision rendered the claim academic. HHJ found that the Claimant did not need permission to amend his grounds as the Claimant's arguments arose in response to the supplementary refusal letter. It should be noted that HHJ Worster does say that had permission been required and requested at the hearing, he would have readily granted it. HHJ Worster stated:- The case then reduces to two issues: (1) Was the Claimant's application outside the Rules so hopeless that the decision would inevitably have been the same? (2) If not, does the supplementary decision letter render the claim academic? 23. UE (Nigeria) The issue in UE (Nigeria) was whether it was relevant for a decision maker carrying out the balancing exercise required to determine whether removal was proportionate in an article 8 case to have regard to the fact that the person in question was of value to the community, a value which the community would be deprived of if he were removed. The leading judgment in the Court of Appeal is from Sir David Keene. The first passage of particular relevance to this case is at paragraphs at [18]-[19] of his judgment. 18. The decision of this court in JO (Uganda) does indeed make the point that the matters of public interest to be taken into account should be ones which relate to the legitimate aim being pursued in immigration cases, namely that of maintaining effective immigration control. But that in itself raises the question of what matters are relevant to that aim. The House of Lords decisions to which I have just referred indicate that one should not seek to answer that question in too narrow or restrictive a fashion. For example, if the immigrant has a history of fathering illegitimate children in this country who then become a burden on the public purse, that would seem to me to be a consideration relevant to the need for effective immigration control. It is something which enhances the importance of immigration control being effectively exercised in that individual case. But by the same token a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less. 19. None of this means that the individual is being rewarded for good behaviour. It goes instead to the strength of the public interest in his removal and how much weight should be attached to the need to maintain effective immigration control in his particular case. 24. As a matter of principle Sir David Keene could see no reason why the fact that the community in this country or part of it would lose something of value were a claimant to be removed should be seen as irrelevant to an assessment of the extent of the public interest in removal. At paragraphs [35]-36] he says this: 35. For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under article 8 and as a matter of principle I do so find. That is where this aspect comes in to the proportionality exerciseS 36. I would, however, before concluding, emphasise that, while this factor of public value can be relevant in the way which I have described, I would expect it to make a difference to the outcome of immigration cases only in a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge of Harwich in Ex p Bakhtaur Singh <http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1986/11.html>[1986] 1 WLR 910. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that. It will be unusual for the loss of benefit to the community to tip the scales in an applicant's favour, but of course all will depend upon the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life. 25. He indicated that he would be surprised if the issues raised in UE would ultimately make a difference on proportionality, but they might, and so the appeal was allowed and the case remitted. Richards LJ also gave a judgment in UE in which there might have been a "difference of emphasis" (see the concurring judgment of Ward LJ). The relevant passage is at [41]-43]: 41. ... I consider that contribution to the community is not a freestanding or stand-alone factor to be put into the Article 8 balance as an independent consideration in its own right. It can affect the balance only in so far as it is relevant to the legitimate aim or the private life claim. 42. It is common ground that community activities may affect the strength of the private life claim, and this was something that the Immigration Judge had properly in mind in his determination. 43. As to the other side of the balance, in MA (Afghanistan) <http://www.bailii.org/ew/cases/EWCA/Civ/2006/1440.html>[2006] EWCA Civ 1440 at paragraph 28 Moses LJ suggested that "It may well be that the benefit of the community of the work performed by the applicant diminishes the weight to be given to the public interest in immigration control." ... Faced with the issue in the present case, however, I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations. But they do not have as obvious a bearing as, for example, delay by the Secretary of State in processing a claim or the applicability of a specific immigration policy favouring the applicant, and I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether. 26. The reference to ex p Bakhtaur Singh in Sir David Keene's judgment is of relevance. It is a decision on the effect of a previous immigration regime, but it assists in two respects. Firstly it gives an indication of the contribution which might be relevant to a decision. The passage referred to by Sir David Keene is at <http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1986/11.html>[1986] 1 WLR 910 @ 917 C-E: In the argument before Your Lordships it was not disputed that the effect of deporting a particular individual on third parties other than his family and persons intimately connected with him may well be a factor which is relevant to the discretionary decision whether he should be deported or not. A number of examples will make this clear. 1. A person liable to deportation has been carrying on business in partnership. His deportation will ruin the partnership business. 2. A person liable to deportation is an essential and irreplaceable worker for a company engaged in a successful export business. His deportation will seriously impair the business. 3. A person liable to deportation is a social worker upon whom a particular local community has come to depend. His deportation will deprive the local community of his services which will be difficult to replace. 4. A person liable to deportation is an indispensable member of a team engaged in scientific research of public importance. His deportation will put at risk the benefit which the public would enjoy if the research were successful. I have tried to choose the examples so as to illustrate the possibility of the third party interest in avoiding deportation extending to a progressively widening circle and ultimately to the public as a whole. 27. Mr Jacobs draws my attention to the third example, and likens the Claimant's position to the loss of someone doing social work. Mr Najib emphasises two matters. Firstly that the examples Lord Bridge gives are of people who are irreplaceable and whose loss will have serious consequences - the ruin of a business or the loss of the results of some scientific research. Secondly that they were lawfully present in the country. He referred me to a passage later in Lord Bridge's speech at 920 D-E: The question what weight is to be attributed to third party interests of the kind I have been discussing which would be adversely affected by a decision to deport is entirely a matter for the Secretary of State or the appellate authorities exercising discretion under the statute and must depend upon all the other relevant circumstances in the context of which the decision falls to be made. It may well be difficult to attach any considerable weight to the third party interest affected if the person liable to deportation has established his reputation and proved the value of his services from which the third party interest arises during a period when his presence in this country was in contravention of the immigration laws. However, that is not for Your Lordships to decide. 28. Whilst those words may be obiter and refer to the immigration regime in the 1980s, they represent an approach which the courts and the legislature have continued to take. They are reflected in the provisions of section 117B(4)(5) of the Nationality, Immigration and Asylum Act 2002 as amended by section 9 of the Immigration Act 2014 which came into force on 28 July 2014, after the decision in this case. Little weight is to be given to a private life established when a person is in the United Kingdom unlawfully or at a time when his immigration status is precarious. 29. Mr Najib's researches produced three cases decided by the Outer House in Scotland (where the law on this issue is the same). In SM v SSHD [2012] CSOH 172, Lord Stewart proceeded on the basis that UE was good law. The applicant was a recording and stage sound technician who relied upon the accumulation of a private life in Edinburgh, having entered the country in 2003 on a 6 month visa, and stayed unlawfully since then. His application was supported by letters from friends and 14 "letters of support" which described his contribution to the Edinburgh music scene in highly favourable terms; see paragraph [12] of the judgment. 30. At paragraph [17] Lord Stewart concludes in this way: As to the question of an appeal to an immigration judge - and this is about taking account of all relevant factors - there is in my view no prospect of success. Worthy and valuable to the community though the petitioner's enforced voluntary work may have been during his precarious and unlawful residence, it counts for nothing in the situation where the petitioner now seeks to remain lawfully with the opportunity to put his skills to remunerative use. There is no suggestion, and I do not think that I am bound to assume that the petitioner would be practically irreplaceable if he were to charge for his services. The examples given by Lord Bridge of Harwich in Bakhtaur Singh were about individuals who had been practically indispensible in lawful business or lawful employment and who would continue to be indispensible if their various lawful occupations if not deported. Lord Bridge doubted that "any considerable weight" could be attached to services provided during a period of unlawful residence. I conclude that though the decision maker has failed to take account of something which appears from the decision in UE to be a relevant, though not a weighty consideration, there is no chance that factoring in community benefit on the basis of past unlawful residence would change the outcome in the circumstances of this case. He decided that whilst there was an error of law, it was not material and there was no need for a redetermination. 31. In David Ndagijimana v SSHD [2014] CSOH 142 Lord Doherty dealt with a similar application by a sheltered housing manager who was an overstayer. He had a "small sheaf" of letters of support and commendation. He was a conscientious and hard working man, a valued employee and ready to contribute to the community. The approach in UE was adopted, but there was no suggestion that he would be difficult to replace, and his personal qualities were not matters deserving of significant weight in the assessment of proportionality. 32. The third case is MK v SSHD [2015] CSOH 13, a decision of Lord Kinclaven. The petitioner was an overstayer who had a "proactive involvement in the Labour Party and the "Better Together" campaign"". He had avoided immigration control between 2004 and 2009 and claimed some £30,000 in benefits and student loans to which he was not entitled. He was involved in charitable fund raising and representing others as their advocate in litigation. In reaching her decision the Respondent had had regard to the relevant material and argued that she had reached a view she was entitled to reach. (Perhaps unsurprisingly) the decision was that she had not misdirected herself. 33. Whilst these authorities do not develop the law, it was useful to consider them in argument. They confirm the nature of the approach, and the first two provide further examples of factual situations where the error of law was not material. So far as I can gather from the reports of the facts of those cases, there is more to say for the Claimant in this case in terms of his value to the community. In particular there is material from which it might be concluded that this Claimant is "practically irreplaceable". 34. The positive case the Claimant puts forward as to private life has to be seen in the context of his past misconduct and his immigration status since 2006. It all goes into the balance. Had there been a full consideration of the Article 8 material (good and bad) was it inevitable that the decision would have been the same? 35. There are two matters which lead me to conclude that it might not have been. The first is that the letters of support speak not only of his value to the community, but some of them also refer to how difficult it would be to replace him. The second is that the letters of support come from people whose views (potentially at least) must count for something. These are people with responsibilities in the community who, on the face of it, might be expected to write these sorts of letters only when they are moved to do so by their genuine concerns. These are not friends or relations or even employers, these are people who have seen this man do something quite out of the ordinary. It may very well be that a decision maker would have reached the same conclusion had this case been considered outside the Rules, but on the facts of this case I cannot say that it would be inevitable. The Supplementary Refusal Decision "Although your client may have friends in the UK he can reasonably maintain contact with them from Algeria and also continue with his community/voluntary work in Algeria... For these reasons it is considered your client's circumstances are not genuinely exceptional and his application is not distinguishable from those private life applications which would normally fall to be refused under the Immigration Rules." An Inadequate Consideration of `Value to the Community' Counsel for the Claimant argued that the supplementary refusal letter did not deal with the Claimant's value to the community, and that is a failure to consider a relevant matter and is sufficient to warrant quashing the decision. The Claimant's counsel recognised that it may be rare for consideration of community value and the like to lead to a grant of leave, but submitted that there should at least be an assessment which includes a consideration of that matter, for it goes to reduce the weight which would otherwise be given to the public interest in maintaining immigration control. HHJ Worster stated:- 47. I agree with Mr Jacobs. There is reference in the supplementary decision letter to the letters of support, and to the Claimant undertaking "voluntary work in the community". But there is no reference at all to the value of that work to the community or to how difficult it would be to replace the Claimant. The issue of value to the community is a major part of the application (which was always "outside the Rules"), and lies at the heart of the grounds. Given that the supplementary letter was written after the grounds were filed and in response to the order for permission, it is surprising that there is no reference to this issue. 48. There is support for Mr Jacobs' submissions in the way in which the supplementary decision letter does deal with the material relied upon in the application. It recognises that friendships may have been made and voluntary work undertaken, and goes on to conclude that those friendships can be maintained and the voluntary work continued in Algeria. There is nothing wrong with that so far as it goes, but it is the value of the friendships and voluntary work to the Claimant which appears to be in the mind of the decision maker, and not the value of the Claimant to the community. The letter refers to a number of other relevant considerations in some detail (the fabricated asylum claim for example) and it is hard to resist the conclusion that the absence of reference to the UE considerations is a reflection of the fact that the decision maker has not considered them. 49. In that context, the decision that there is "nothing remotely exceptional about your client's circumstances ..." seems to ignore the nature and content of the letters of support. They speak of something quite out of the ordinary. It is not for me to substitute my views for those of the decision maker, but to deal with the application in this way tends to confirm my conclusion that the decision maker has not properly considered all the relevant material. HHJ Worster Ordered that:- 50. The decision is to be quashed on the grounds that it has not taken into account all the relevant factors. Mr Jacobs asked me to order that upon reconsidering the decision the Respondent should be required to take account of the current position. That may be sensible, for it is 4 years since the application was made. But I cannot and do not fetter the Respondent's discretion in dealing with this application. 51. I will make an order in the terms of the draft minute of order agreed by the parties. For those interested, this consisted of an Order to the effect that both the original and supplementary decisions were quashed, the Defendant would reconsider the Claimant's claim for leave to remain and that the Defendant would pay the Claimant's costs in bringing the proceedings. Ends Bushra Ali - Former Head of Immigration at Thaliwal & Co Solicitors' Mobile: 078 5059 6663 |