Post
by johnjohn2000 » Tue Jan 13, 2015 2:41 pm
I need help with Judicial review sent the home office pre action protocol letter and they still maintain their decision can any one advice on my case if my grounds are strong to win my case through the judicial review. below is my letter before claim and circumstances thanks
LETTER BEFORE CLAIM
This matter may give rise to Judicial Review proceedings. Accordingly, we are writing to you to provide an opportunity to respond to the relevant issues in the hope that litigation may be avoided. Please accept this letter as a formal letter before claim as required by the Judicial Review pre-action protocol.
This Letter Before Claim has been drafted by Barrister ….., a Public Access accredited Barrister-at-law practicing from Chambers of ….. and instructed directly by the proposed Applicant for judicial review on his behalf. A letter of authority is attached to the back of this letter. However, the potential Claimant is a litigant in person and all
correspondence should be directed to his home address rather than to Chambers (copies to Chambers would however be appreciated).
Proposed claim for judicial review
1. The proposed defendant is the Secretary of State for the Home Department (Home Office - UK Visas and Immigration Department).
Proposed Applicant for Judicial Review
2. The Proposed Applicant is……..
Reference details
3. This matter has been previously dealt with by Immigration Enforcement, Criminal Casework, The Capital, New Hall Place, Old Hall Street, Liverpool
The details of the matter being challenged
4. The proposed Applicant is proposing to challenge the decision of the Secretary of State dated 20th November 2014 refusing to treat his and his solicitors representations and fresh evidence, as a fresh human rights’ claim, pursuant to Article 8 ECHR. He also proposes to challenge paragraph 76 in that letter, by which the Secretary of State refuses to revoke a deportation order.
Chronology leading to the current decision and relevant issues
5. The Proposed Applicant [‘KO’] entered the UK as a student on 10th September 2005. He was granted extensions of that leave until 31st October 2009. Prior to the expiry the leave, KO formed a relationship with Miss SH (Mother), a British Citizen. The applicant has a child by that relationship, LMF, born on 9th September 2007. The relationship with his son’s mother broke down but the Applicant has continued to maintain contact with his child from birth and there is a court order in his favour giving him access rights to his son (see below).
6. Prior to his leave as a student ending, KO formed a new relationship with a British Citizen called Miss H K who he married on 12 May 2008. An application to remain as her spouse was successful and following an in time application prior to the expiry of extant student leave, KO was granted an extension of stay as a spouse until 28th October 2010. His spousal relationship however ended in commencement of divorce proceedings in August 2010 which are on-going.
7.1 On 22nd January 2009 KO was attested on suspicion of fraud. On 17 October 2009 KO was detained in relation to a criminal charge against him. On 11th January 2010 KO was convicted, after guilty plea, of for dishonestly obtaining money by fraud and on 5 March 2010 was sentenced to 4 years imprisonment. Prior to his leave expiring, on 15th October 2010 KO made a human rights’ application relying on his right to family life under Article 8 ECHR.
7.2 By letter dated 26th July 2013, Robinsons Solicitors confirmed that they were first approached to pursue contact proceedings in December 2010.
8. The Secretary of State wrote to KO on 21 January 2011, whilst in detention, indicating the possibility of deportation action being taken and against him and requested reasons why he should not be deported. On 12th August 2011 a decision was made that Section 32(5) UK Borders Act 2007 applied and that KO was exempted from automatic deportation under Section 33 thereof; his claim based on Article 8 ECHR was refused. A deportation order was signed pursuant to Section 32(5) of the UK Borders Act 2007 on that same date.
9. KO appealed that decision. His appeal was dismissed by the First Tier Tribunal by decision dated 28th September 2011 but that decision was set aside by the Upper Tribunal after finding it vitiated by material error of law. KO was released on immigration bail on 15th March 2012 after completing his custodial sentence. The Upper Tribunal (UTJ Coker) went on to re-hear the appeal, but in re-making it, dismissed it by determination dated 9th October 2012.
10. KO had been imprisoned from 17 October 2009 until 19th March 2012 when he was released on immigration bail after serving the custodial part of his sentence. KO last had direct contact with his son LMF (son) , prior to detention in October 2009 but had no direct contact with whilst incarcerated since he did not want his son to be disturbed by visiting a prison.
UT’s decision
11. The UT made the following findings upon which its decision was premissed:-
i) it noted that there was evidence from the Family Court - an order dated 16th July 2012 in which it had ordered indirect contact between KO and his son, LMF (son); facilitating the writing of letters to reignite their relationship;
ii) it did not accept that KO had any direct contact with LMF (son) from his release on bail in 2012 and prior to the UT hearing;
iii) it also did not accept that KO had had any significant role in his son’s upbringing prior to his incarceration (findings that KO does not accept) and had no contact with him save for the ‘chance encounter’.
iv) that KO had not financially supported LMF (son) to any extent other than very occasional financial support which increased during his imprisonment;
v) it had some limited evidence before it of LMF (son) behavioural problems but this was limited to a psychological report dated 30 November 2011 noting son aggressive behaviour “towards adults and children” and that KO did not in 2011 play an active role ( he was in prison at that time);
vi) that it was not in LMF (son) best interests to have contact with KO by him remaining in the UK (para 39) as it did not consider that KO would provide consistent, reliable or regular support. At paragraph 50, it is clear that the UT’s findings on LMF (son) best interests, played an important and integral role in its decision that deportation was not disproportionate under Article 8 ECHR
“Bearing in mind my findings with regard to the best interests of LMF (son), I am satisfied that it would be proportionate to deport the appellant.”
12. KO challenged the decision of the UT by way of paper and oral applications for permission to appeal to the Court of Appeal. The Court finally refused permission after oral hearing on 9th July 2013 noting that the 2nd appeals’ test was not satisfied.
13.1 Contact proceedings in the Family Court were on-going between July 2012 and concluded on 26th August 2014. By Order dated 19th May 2014 the Family Court ordered that it was in the best interests of LMF (son) to have direct unsupervised contact with KO on two Saturdays and one Sunday per month from 24th May 2014 onwards. By final order dated 26th August 2014, the Court found (in total contradistinction to the findings made in 2012 by the Upper Tribunal), that it was in the best interests of LMF (son) to have continuing direct contact with KO. The Court ordered that the following flexible Child Arrangement Order:-
i) that LMF (son) shall reside with his mother;
ii) that LMF (son) shall spend time with KO being two Saturdays and one Sunday each month for between 4-6 hours i.e. direct contact;
iii) that contact can be extended to overnight contact by agreement,
13.2 In light of the continuing family proceedings, several applications have been made by KO to have his deportation order revoked; applications to revoke the deportation order have been made on 9th August 2013 and 22nd September 2014 ( the latter application also containing an application under FLR(FP). The application to revoke the deportation order, under cover of A ….Solicitors letter of 22nd September 2014 put before the Secretary of State a catalogue of evidence, consisting of 183 items (which are repeated as if contained herein), which evidenced:-
i) that there had been a significant and material change in circumstances since the UT hearing on 23rd July 2012 in terms of the development of the relationship between KO and his son LMF (son) , whether it was in LMF (son) ’s best interests to have continuing on going direct contact with KO, as to the extent of LMF (son) ’s behavioural problems and mental health diagnosis, and as to the extent to which LMF (son) ’s mother could care for LMF (son) without support from KO; and
ii) a significant catalogue of evidence, showing that the Upper Tribunal in making its factual findings had premised those on mistakes of fact which were sufficient to vitiate its decision.
14. By decision dated 20th November 2014, the Secretary of State, at paragraph 76 refuses to revoke the deportation order in the following terms:-
“It has been considered whether it is appropriate to revoke the Deportation Order signed against your client on 12th August 2011. For the reasons stated above, it is considered that your client’s deportation from the UK remains appropriate and proportionate.”
15. The SoS’s letter also refuses to treat the representations and evidence submitted as a “fresh claim” under paragraph 353 of HC 395 (as amended).
Action
16. We request that the Secretary of State takes the following action:-
i) that the SoS revokes the outstanding deportation order and grants the proposed Applicant leave pursuant to Article 8 ECHR;
ii) further or alternatively, that the SoS withdraw the decision dated 20th November 2014 and remake the decision under paragraph 353 on a lawful and rational basis;
ii) further or alternatively, if not minded to do so, that the SoS properly serve a formal notice refusing to revoke the proposed Applicant’s deportation order along with appeal papers pursuant to the Notices Regulations, recognizing the proposed Applicant’s in country right of appeal to the First Tier Tribunal (IAC) under the saved Section 82(2)(k) NIAA 2002.
Proposal to settle Judicial Review by Consent
17. We propose that the SoS, if not minded to revoke the deportation order and to grant leave to remain, settle this application for Judicial Review by consent, and in a common-sense and economically effective manner, by agreeing to issue a formal immigration decision within the meaning of Section 82(2)(k) of the Nationality Immigration and Asylum Act 2002 within one month of this letter attracting an in country right of appeal . Should the SoS agree to do so, then the proposed Claimant will agree to either refrain from issuing Judicial Review proceedings on such an undertaking being given, or, if proceedings have by that time already been lodged, to withdraw the same on a consent order being agreed to this effect.
The Claimant’s case and summary grounds challenging the letter of 20th November
GROUND 1 - Unlawful failure to recognize right to in country appeal against refusal to revoke
18. Explicit applications to revoke the deportation order were made by letters from KO’s representatives dated 9th August 2013 and 22nd September 2014. At paragraph 76 of the letter of 20th November 2014, the Secretary of State explicitly considers whether to revoke the deportation order and decides to refuse to do so:
“It has been considered whether it is appropriate to revoke the Deportation Order signed against your client on 12th August 2011. For the reasons stated above, it is considered that your client’s deportation from the UK remains appropriate and proportionate.”
An interpretation which denies that this constitutes in terms a refusal to revoke the deportation order would be semantic nonsense.
19. It follows that in substance, paragraph 76 of the letter of 20th November 2014 constitutes in law, a refusal to revoke the deportation order. It further follows, that the appellant has an in country right of appeal against such refusal pursuant to Section 82(2)(k) NIAA 2002 and Section 92(4) NIAA 2002 as these are saved by Articles 9-11 of the Articles 9 and 10 of the Immigration Act 2014 (Commencement No. 3 Transitional Provisions and Savings) Order 2014/2771. Further, the fact that the SoS has refused to accept the representations as fresh claim is irrelevant to the question as to whether an in country right of appeal arises; in R. (on the application of PE (Cameroon)) v Secretary of State for the Home Department; R. (on the application of BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7, the Supreme Court held that where an asylum or human rights claim had been rejected but not certified as clearly unfounded or excluded under the Nationality, Immigration and Asylum Act 2002 s.96, further representations gave rise to an in-country appeal under s.82 and s.92 whether or not they had been accepted by the secretary of state as a fresh claim under paragraph 353.
20. Whilst the Court of Appeal in ZA (Nigeria) and SM (Congo) v. SSHD [2010] EWCA Civ 926, qualified the effect of PE (Cameroon) and BA (Nigeria) to instances where an actual decision had been made, it can be immediately seen that this case is distinguishable from ZA on the basis that paragraph 76 of the letter of 20th November 2014 clearly constitutes a decision refusing to revoke the deportation order: In ZA the Court was considering only cases in which the Secretary of State was refusing to make any decision at all on the application constituted by the fresh representations whereas in this case, at paragraph 76 the SoS has plainly considered, addressed her mind to the issue of whether to revoke the deportation order and makes a decision refusing to revoke the deportation order.
21. It follows that the Applicant will be seeking from the Court a declaration that an in country right of appeal arises from paragraph 76 of the letter of 20th November 2014 and a mandatory order that the Secretary of State carry out the procedural obligations flowing from that under the Immigration (Notices) Regulations 2003, including the issuing of a notice specifying the right of appeal and providing a notice of appeal.
Decision not to treat the representations and fresh evidence as a fresh claim under paragraph 353 is unlawful, irrational (in the Wednesbury sense) and insufficiently reasoned
22. Further or in the alternative to ground 1, it is submitted that the decision dated 20th November 2014, refusing to accept the representations as a fresh claim under paragraph 353 is in material error of law as it is:-
i) Wednesbury unreasonable (Ground 2) and/or
ii) fails to take relevant evidence into account (Ground 3); and/or
iii) insufficiently reasoned (Ground 4).
PARTICULARS
Ground 2 - irrationality and Section 55 duty
23. It is irrational in the Wednesbury sense, for the Secretary of State to conclude at paragraph 46 of the letter of 20th November 2014, that whilst there is a change of circumstances, the change is not “significantly different from the material that was previously considered”. The evidence before the Secretary of State with the representations of 9th August 2013 and 22nd September 2014 showed that each premiss as noted in paragraph 10 above, and upon which the UT had premised its decision, was now false:
i) the UT noted that the SoS had not shown that KO had propensity to re-offend, the risk of so doing was low. However, a key factor underpinning the UT’s decision, was its finding that it was not in LMF (son) ’s best interests to have contact with KO (para 39). At paragraph 50 the UT concluded that his was an important and integral part of its decision. Over two years later however, and after the evidence showed a considerable development in the relationship between KO and his son over that time, the Family Court, in complete contradistinction to the UT, and based on a catalogue of detailed social services and expert evidence on the issue, ordered that it was in LMF (son) ’s best interests to have unsupervised and regular thrice monthly direct contact with KO, with the flexibility, for additional overnight stays by consent with his son’s mother. The situation at the time of the representations in September 2014 was wholly different from the factual premise underpinning the UT decision and which formed a primary consideration in it;
ii) similarly, the letter of 20th November 2014 ignores expert evidence which confirms that it is in LMF (son) ’s best interests to have on-going direct contact with the KO; see, for example only, the witness statement of TP of 20th January 2014 (Senior Practitioner and LMF (son) ’s Social Worker), who notes “the Local Authority is of the view that LMF (son) would benefit from maintaining contact with his father. There is a need for a gradual increase and to move to unsupervised contact…”. A catalogue of similar evidence contained with the application to revoke of 22nd September 2014 is also not considered in this regard.
iii) Thus the evidence before, and conclusion of, the Family Court is wholly inconsistent with the key finding of the Upper Tribunal in 2012 - they cannot be reconciled. It is clear that the UT at paragraph 50 took into account its view of LMF (son) ’s best interests as a primary consideration in its decision; that view is now shown to be wrong as of 2014. The SoS’s letter is also in error of law as it fails to consider its duty under Section 55 of the Borders Citizenship and Immigration Act 2009 - there is simply no reference to Section 55 in the letter; there is no consideration at all of the best interests of LMF (son) and the impact that this might have on whether an immigration judge in 2014 might realistically come to a different decision from the UT in 2012. The failure to take account of Section 55, makes the decision not in accordance with Article 8(2) following Baroness Hale’s decision at paragraph 24 in ZH (Tanzania):-
“24. Miss Carss-Frisk acknowledges that this duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8(2). Both the Secretary of State and the tribunal will therefore have to address this in their decisions.”
iv) It is submitted that it is thus irrational, for the decision maker at paragraph 56 to state that KO’s relationship with his son, had already been “fully considered” by the UT in 2012; Article 8 ECHR covers the right to develop one’s relationship over time and the nature of relationships, as common sense dictates, are not fixed in time. In over two years’ since the UT heard the case, it was manifest, as recognized in the Family Court order that the nature of the relationship was significantly different warranting an order for regular direct unsupervised contact and further, for the overnight stays with consent.
Wrong Legal test
v) It is thus irrational for the SoS at paragraph 56 to conclude, on the evidence submitted, that the family court’s final order “would not change the decision of an Immigration Judge”; but further, the SoS applies the wrong legal test here - the legal test is not whether the final order would “change the decision of an immigration judge” but whether there was a “realistic prospect” of that. See Paragraph 353 (ii). Following WM (DRC) v SSHD [2006] EWHC Civ 1495 at [11], the SoS was required to ask not whether a notional immigration judge ‘would’ necessarily change the decision, but whether there was a “realistic prospect” of that.
Ground 3 - Irrationality concerning LMF (son) ’s mental health and the failure to take into account relevant evidence and factors
24.1 The applications to revoke the deportation order dated 22nd September 2014 contained with it a catalogue of evidence showing a clear deterioration in the mental health of LMF (son) and a serious development of his condition over the last two years; what in 2012 was viewed as merely signs of aggressive behaviour in a 5 year old, two years later was confirmed as resulting from a serious and complex mental health condition. The application to revoke dated 22nd September 2014 contains a final diagnosis from Consultant Paediatrician, Dr S, previously unavailable to the Upper Tribunal in 2012 (who had but a report by an educational psychologist when the child was two years younger). By letter dated 11th August 2014, which was put before the Family Court prior to making its final order, Dr S states:-
“Diagnsosis: Complex attachment disorder
Unspecified communication disorder - some significant features suggestive of Asperger Syndrome
Complex social dynamics on Child Protection Register
Challenging behaviours including significant aggression”
From that letter it was clear from the nature of LMF (son) ’s mental health, that consistency of parenting, was an important factor” “We all felt that it is important that there is consistent parenting and also the contact issues particularly with the father that are becoming more regular.”
24.2 At paragraphs 63 and 64 the letter of 20th November 2014 states irrationally, “As shown above [ a reference to paragraph 23 of the UT decision] your client’s son’s undiagnosed behaviour problems have been fully considered and dismissed by the Immigration Judge. Even though your client’s son has now been assessed as having a possible diagnosis of Asperger Syndrome with very co-morbid aggression and oppositional defiance, it is not considered that the recent assessment from the medical practitioner will alter the decision of the Immigration Judge.” This conclusion is in error because:-
i) the evidence before the decision maker as to LMF (son) ’s mental health was manifestly wholly different from that presented in 2012 in both seriousness, complexity and in terms of the development and nature of his presentation over time since 2012; see for example, the deterioration in LMF (son) ’s condition when he had to be referred on an emergency basis to a CALMS and a Consultant Psychiatrist (Dr S) after lashing out at police in November 2013 and was taken out of the care of his mother at that time; see also the request by Dr S for a multi agency meeting in June 2014 “to plan care for LMF (son) as his concerns about his behaviour have increased…………04/02/2014……….LMF (son) has informed S F MOTHER that he is hearing voices in his head. He has talked of killing himself and the voices telling him to kill K [his half brother]…..Dr S informed R J Health Visitor that he is extremely concerned by LMF (son) ’s behaviour and that he felt he had the potential to kill someone in the future”.
ii) it fails to take into account the evidence of a final diagnosis of, inter alia, a complex attachment disorder, and the Consultant Psychiatrist’s view that consistent parenting was an important factor to be considered in LMF (son) ’s medical interests, was something which persuaded the Family Court to order regular and consistent direct contact with KO; the decision maker at paragraph 64 fails to take into account at all the final diagnosis of a complex attachment disorder and the nature of that condition and the need for consistent parenting and contact with LMF (son) ’s father, KO, when considering whether there is a reasonable prospect of a notional immigration judge coming to a different conclusion. ( Here again, at paragraph 64, the decision maker also fails to apply the “reasonable prospect” test and also fails to ask whether there was a reasonable prospect of a “notional” immigration judge taking a different view - appearing to think that the same immigration judge would have to decide the issue).
Conduct since release
iii) The decision maker also errs in law by failing to take into account the fact that KO was assessed in 2012 to be a low risk of re-offending, and since release in March 2012, and the UT decision in July 2012, had not committed any further offences in over two and half years. This was a factor to be taken into account in the Article 8(2) proportionality balance as noted by Maslov v. Austria (application no. 1638/03), 26th June 2008 at paragraph 68 approving paragraph 57 in Üner v. the Netherlands ([GC], no. 46410/99, §§ 57-58, ECHR-2006. In this regard, the SoS also errs in failing to take into account paragraph 391A which states that “The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.” This must also be considered in the context of the nature of the crime which was fraud; it was neither a crime involving drugs, sexual assault or violence.
Evidence of inability of mother to cope without KO’s support in caring for LMF (son) and medical need for KO to provide care to LMF (son)
iv) At paragraphs 64 and 65 the decision maker also irrationally concludes that notwithstanding LMF (son) ’s complex mental health condition, his mother, S F MOTHER would be supported to be able to continue providing “a stable upbringing” to LMF (son) , “supported by family members”…….This conclusion is legally vitiated as it fails to take into account the evidence, including that contained in the child protection conference report of 19th August 2014,:-
a) that LMF (son) ’s condition significantly deteriorated since 2012 as evidenced above;
b) that S F MOTHER did not have much support from family members (“S F MOTHER has limited support from extended family members. S F MOTHER’s family have several health issues which make it hard for them to give physical support…..S F MOTHER has become isolated due to LMF (son) ’s’ additional needs and her resignation from work……in the time since the last conference S F MOTHER’s mental health deteriorated significantly; to a point where both boys were cared for by family members due to her being suicidal………”
c) that S F MOTHER Franklin was in urgent need of respite care ( “S F MOTHER requests some sort of respite to help her cope with LMF (son) ’s behaviour…….S F MOTHER reports to be struggling to cope with LMF (son) ……Letter to GP requesting mental health assessment for S F MOTHER ……11.04.2014….Concerns raised about S F MOTHER’s emotional well being and ability to cope…as mental health appears to be deteriorating……14/4/2014…….R Y [S F MOTHER’s ex-partner] to care for boys {LMF (son) and his half brother] until further notice….LMF (son) attending contact with dad [KO]…S F MOTHER attends GP via emergency appointment……30/4/2014…..LMF (son) ’s placement with RY ex-partner has broken down….)
d) that S F MOTHER had herself significant mental health problems which impacted on her ability to care for LMF (son) (see above); and where
e) that social Services had previously proposed that LMF (son) be taken into care but for the fact that his father was pursuing contact; he was put on the Child Protection Register after his mother bit him on the cheek;
f) that LMF (son) ’s behaviour caused such problems that he had to live temporarily with S F MOTHER’s mother whilst she had only supervised contact with him and during which time LMF (son) had an emergency referral to CALMS and Consultant Psychiatrist Dr S as he lashed out at police;
g) that social services, (with the consent of both parents), had proposed that both parents attend a training course to give them both strategies to cope with LMF (son) ’s aggressive behaviour - showing that KO was seen as an important and integral part of LMF (son) ’s care going into the future; that KO successfully attended that course in 2014 and proceeded to use such strategies to care for LMF (son) whilst having direct and unsupervised regular contact - this is manifestly important for a child suffering from a complex attachment disorder as the disorder itself is best addressed by input from parents who have the skills to deal with the challenging behaviour that presents;
h) a failure to consider the following evidence as quoted below:-
“14.04.14 Joint visit undertaken by S D Social Worker and R J Health Visitor. S F MOTHER’s having thoughts of harming herself and had obtained medication and alcohol to care this out.
“20.04.14 Mr R Y ex-partner struggling to Care for LMF (son) due to his demanding behaviour.
“28.04.14 Duty call with concern for S F MOTHER’s. Visit undertaken as S F MOTHER’s had stated that she was having suicidal thoughts. Ibuprofen removed from S F MOTHER’s home and GP appointment made for same day. S F MOTHER’s Transported to the Crisis team at …..
“11.04.14
Dated 11/04/14…. Concern regarding S F MOTHER’s mental health and ablility to provide safe care for the children raised at core group. Safe care arrangement put in place for both boys to be cared for by RY ex-partner temporarily
“30.04.14 S F MOTHER’s raised concern regarding the care afforded to LMF (son) at RY ex-partner home. Issues regarding contact and relationship between adult. Foster placement requested by RY ex-partner for LMF (son) as they are Unable to continue to care for LMF (son) .
“02.05.14. PLO threshold meeting held and 19.05.14 Mr KO family court hearing (social worker Ms TP attended without the direction of the family court Judge to inform the court that LMF (son) met the PLO threshold to be taking into Care, but the Court increase Mr KO contact to support LMF (son) inorder for LMF (son) not be taken into care)”
Ground 4 - Insufficiently reasoned decision
25. From the above analysis, it is submitted that the conclusion that the fresh material would not created a realistic prospect of success before a notional immigration judge is insufficiently reasoned. This ground also relies on the grounds below, of a failure to engage with the current legislative framework under Section 117C NIAA 2002.
Ground 5 - irrationality/ irrelevant factor considered
26. At paragraph 54 and 55 the letter of 20th November 2014 relies on findings of the First Tier Tribunal made in the determination promulgated on 28th September 2011. That decision was however set aside as being in error of law by the Upper Tribunal. It is therefore unlawful to rely on findings which were set aside as being unlawful; the SoS thus takes into account an irrelevant factor.
Ground 6 - Failure to consider shift in legal framework since 2012
27.1 The letter of 20th November 2014 is also unlawful on account of a failure to apply the policy questions underpinning Section 117C of the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014 and in force from 28th July 2014. By that section, since the Applicant had been sentenced to 4 years imprisonment, the material legal questions to ask, in deciding whether a decision a decision was proportionate under Article 8 ECHR, are:-
i) whether, exception 2 applied pursuant to Section 117C(5), i.e. whether in 2014 KO had a genuine and subsisting relationship with his son, and whether the effect on LMF (son) would be unduly hard; and
ii) if so, whether there were very compelling circumstances over and above those in exception 2?
27.2 These legal questions were not addressed by the UT in 2012 as the Act had not come into existence. Thus the SoS ought, in 2014, to have addressed how an immigration judge in 2014 might answer those questions on the basis of the fresh evidence presented under cover of the letter of September 2014. The SoS errs in law by failing to do so and in failing to appreciate the difference in the legal framework between 2012 and 2014. This is material as the evidence manifestly showed, that exception 2 of Section 117C applied on account of the fact that deportation would have an unduly harsh impact on LMF (son) ; but further, given the medical need for KO to provide regular and consistent parenting to LMF (son) to address his complex attachment disorder, there was clear evidence of “very compelling circumstances” over and above the undue harshness of separating a son from his father; the evidence shows that without consistent parenting from both KO and his mother, his condition (Complex Attachment Disorder) was at greater risk of causing the loss of life to either himself or to others as consistent parenting from both of them is important to medically addressing the issue.
Ground 7 - Misdirection as to whether legal authorities on Article 8 ECHR have to be considered in addition to the immigration rules
28.1 At paragraph 67 the decision maker states “Finally, you have quoted various pieces of case law regarding your client’s family life in the UK. However, all case law has been incorporated into the Immigration Rules and no separate consideration is required.” Whilst following MF (Nigeria) [2013] EWCA Civ 1192, the “very compelling circumstances” test built within Paragraph 398 constitutes a “complete code” to the extent that it must be applied to be wholly consistent with Strasbourg principles, a correct application of the rule will require those principles to be adequately addressed - as the Court of Appeal held in MF, whether consideration is given to those principles within or without the rule, they must be considered. See paragraph 44-45 where the Court holds:-
“44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not “mandated or directed” to take all the relevant article 8 criteria into account (para 38).
45. Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply.”
28.2 It follows, that the decision maker unlawfully holds at paragraph 67 that the “various pieces of case law regarding your client’s family life in the UK” do not have to be considered. This is also contrary to Section 2 of the Human Rights’ Act 1998 which provides that authorities from Strasbourg must be taken into account ( not least as human rights’ laws are not fixed in stone but develop over time):-
“S. 2 Interpretation of Convention rights.
(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention,
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
Thus the Secretary of State’s position at paragraph 67, that authorities relied on from Strasbourg are irrelevant and do not require consideration in addition to the immigration rules is contrary to Section 2 of the HRA 1998.
Ground 8 - Failure to engage with the evidence showing the UT erred in mistake of act vitiating its decision in 2012
29.1 Further or alternatively, it is submitted that the decision maker has erred in law by failing to consider the submission contained in the letters of 22nd September 2014 and August 2013, that the findings of fact as to KO’s contact, financial commitment, and role played in the care of his son, LMF (son) , prior to his incarceration in October 2009 were unsafe as they were based on a number of material mistakes of fact based
i) on the material that was before the UT in 2012; and/or
ii) based on fresh evidence coming into existence since 2012.
29.2 Contained with the application for revocation dated 22nd September 2014, was contained a summary of mistakes of fact that the UT had made in 2012; these were set out in the Advocates Statement to the Court of Appeal dated 4th June 2013 at item 140 in the letter. For example only, the UT proceeded on the basis that the Claimant did not provide any significant financial support for his son prior to incarceration. However, bank statements from S F MOTHER Franklin, which were ordered to be disclosed by the Family Court ( the UT having no power to order such disclosure from a 3rd party) showed that KO had provided significant financial support prior to incarceration. Additionally, the UT’s reasons for doubting KO’s commitment to his son prior to incarceration proceeded on a number of material errors of fact; these are set out in the Advocate’s Statement at item 140 in the letter of 22nd September, at paragraphs 19 to 22 and paragraph 6 thereof, and are incorporated as if contained herein.
29.3 The UT’s conclusion as to KO’s commitment to his son are premised on its finding that he only pursued contact proceedings following the instigation of deportation. This premiss is shown to be false by the letter from R… solicitors dated 23rd July 2013 which was not before the UT; they evidence therein that KO contacted them in December 2010 in order to institute proceedings and prior to any indication being given as to deportation.
29.3 However, the Secretary of State does not engage in any way, with the submission that the factual findings of the UT in 2012 are unsafe and wrong in fact based on material mistake of fact, or based on fresh evidence showing that they were wrong in fact. In this way the SoS thus errs in law in relation to the application of Devaseelan at paragraph 71.
Conclusion
30. In conclusion, we request that the decision of 20th November 2014 be withdrawn and that the matter be settled in accordance with the alternative proposals noted above.
Address for reply and service of documents
31. Please respond to the proposed Applicant’s address (who will act as litigant in person) at:-
Counsel would be grateful however if an additional copy of any response could be faxed, emailed or sent to his Chambers - the details of which are noted in the header of this letter - to facilitate early action.
Proposed reply date
32. This letter is sent on Friday 12th December 2014. We request that you make a reply within 14 days of the date of this email/fax, namely by close of business on Tuesday 30th December 2014. A failure to provide a lawful and rational response by this date will result in the proposed applicant lodging judicial review proceedings in relation to your decision of 20th November 2014 without further
