Home Secretary wins appeal against Lord Ordinary’s decision on application for leave to remain

The Home Secretary has successfully challenged a Scottish judge’s decision that her refusal of a Pakistani national’s application for leave to remain in the UK was unlawful.

The Lord Ordinary held that a rejection letter by the Secretary of State failed to consider whether refusal of leave to remain would amount to a “disproportionate interference” of the applicant’s family life with his wife, with whom he lived in Glasgow.

However, judges in the Inner House of the Court of Session held that the Lord Ordinary erred in concluding that the Secretary of State’s rejection of the application should be set aside.

Lord Menzies, Lady Smith and Lord McGhie heard that the petitioner Asif Ali Ashiq arrived in the UK illegally and had been here for up to a decade but had not been granted leave to enter or leave to remain.

He sought asylum when he was arrested for a road traffic offence in 2010, but his claim was rejected by the Secretary of State for the Home Department on four occasions and on appeal by two separate First–tier Tribunal judges.

The petitioner’s appeal to the First Tier Tribunal was refused after the Immigration Judge considered that although family life existed as between the petitioner and his wife – also a Pakistani national but not a British citizen, who was granted indefinite leave to remain in the UK in 2007 – it would not be breached if the petitioner were to be removed because, on the evidence before him, his wife would choose to accompany him.

The petitioner subsequently presented a fresh application to the Secretary of State which was, principally, another asylum claim but it included some fresh information in support of his article 8 claim.

Home Secretary Theresa May responded to the fresh application by letter dated 30 July 2012, rejecting the claim. This “first letter” expressly applied the relevant sections of the new Immigration Rules and, on that basis, concluded that removal of the petitioner would not be a disproportionate interference with his right to family life.

However, the letter did not include separate or express consideration of article 8 outwith the rules nor does the letter say, for instance, that that issue was addressed but it was concluded that all aspects of the family life claim had already been fully and properly assessed and the decision maker had, looking at matters without reference to the rules, still reached the same conclusion.

The Secretary of State’s “second letter”, dated 18 March 2013, provided a “further explanation” of why the fresh application had “no realistic prospects of success”.

The Lord Ordinary held that the Secretary of State, in her first letter, failed to consider the petitioner’s application outwith the rules; on any reading of the letter, it could not be said that she had considered, separately from the rules, whether refusal of leave to remain would be a disproportionate breach of article 8.

Counsel for the Secretary of State submitted to the Lord Ordinary that even if she had erred in that respect, it did not matter because it was “not a material error”, but the Lord Ordinary’s opinion was silent on that point.

The Lord Ordinary was also persuaded that the second letter did not cure the problem, as it could not be read as explanatory of what was in the mind of the decision maker at the time of the original decision letter and it also failed to represent a proper fresh consideration of the family life claim outside the rules.

The question for appeal court in the reclaiming motion was whether the Lord Ordinary erred when deciding that the Secretary of State’s rejection of the application should be set aside.

Delivering the opinion of the court, Lady Smith said: “We agree that the first letter does not provide the necessary assurance that the Secretary of State considered whether or not leave to remain should be granted outside the rules. She, accordingly, erred; she required to consider it because the two statements that accompanied the letter containing the fresh application did set out, albeit briefly, a family life claim that would not be covered by the rules.

“We do not, however, agree that the Lord Ordinary’s opinion shows that she went on to consider whether the error was a material one. She appears to have overlooked the need to do so.

“The Lord Ordinary ought, however, to have determined counsel for the Secretary of State’s submission that any failure in respect of the first letter was, in all the circumstances, immaterial. Had she done so, she would, we consider, have been bound to find that the failure alleged was immaterial, for the reasons explained below and, accordingly, also bound to dismiss the petition.”

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