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Caselaw

Article 8: public considerations

Posted by Ruken Sahin on January 11, 2016

Zermani, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1226 (Admin)

This case was heard in the High Court of Justice on 30/04/2015.  The Claimant sought an order quashing the decision of the Respondent Secretary of State for the Home Department (‘SSHD),  to refuse his application for leave to remain in the UK based on his a private life claim under Article 8 of the European Convention of Human Rights and Fundamental Freedoms  1950 (ECHR)

Article 8: Public Interest Considerations

Brief facts

The Claimant is a national of Algeria aged 43 who claimed to have entered the UK in 2004 although he was only granted entry clearance to the UK in March 2006, as a visitor for a 6 month period. When his leave expired in September 2006, the Claimant remained in the UK unlawfully.

The Claimant destroyed his Algerian passport and was subsequently arrested for using a forged French passport. He was sentenced to 4 months in prison and made a claim for asylum during the course of his sentence.  The Claimant’s claim for asylum was refused on 10/06/10. His appeal was dismissed at first instance by an Immigration Judge. By September 2010, the Claimant had exhausted all his appeal rights.

In November 2011, the Claimant’s Solicitors made an application for him to remain in the UK on the basis of his private life under Article 8 ECHR. They sought to demonstrate that the Claimant’s conduct had changed positively and he had become such a valuable member within his community and that it would have a devastating impact for himself and the organisations he had been assisting if he was removed.  The application relied upon several supporting letters from responsible figures within his local community and suggested that the Claimant’s removal from the UK would be disproportionate.

The Claimants Solicitors requested the SSHD to use her discretion to grant him leave to remain outside the Immigration Rules.

In December 2012 the SSHD refused the application approaching it solely on the basis of the test as set out under paragraph 276ADE of the Rules, which the Claimant could not satisfy. The SSHD and did not go on to consider the application outside the Rules and simply stated that the Claimant’s presence in the UK is not conducive to the public good.

The Claim

As the Claimant had no leave to remain in the UK his only avenue of challenge was by way of a Judicial Review  permission for which was submitted on 26/07/13 raising two grounds:

  1. That the SSHD’s consideration of the application based on private life under the Rules alone was not be a sufficient Article 8 assessment.
  2. that the SSHD failed to engage with the issue of public interest i.e. following the principles in UE (Nigeria) v SSHD [2012] 1 WLR 127 establishing that where an applicant is of great value to the community the weight to be given to the public interest in maintaining effective immigration controls is reduced.

Following an oral hearing, the Claimant was granted permission to Judicially Review the refusal and the SSHD reconsidered her decision and issued a further refusal notice on 06/10/14.

SSHD accepted that there was an error in law because the application was not considered outside the rules, she maintained that the Claimant’s application was so weak that even if was considered outside the rules, the decision would have been the same.

Secondly, the SSHD indicated even if the error was material, the Claimant’s case had been rendered academic by the supplementary decision letter which properly considered the application outside the Rules.

Issues before the court

The court considered the following issues:

  1. Was the Claimants application outside the rules so weak that the decision would inevitable have been the same?
  2. If not, does the supplementary decision letter render the claim academic?

The Decision 

In respect of the first question the court noted that the letters of support for the Claimant went beyond indicating the Claimant’s value to the community but also referred to how difficult it would be to replace him. The letters were not from friends or relatives but from people with responsibilities in the community who, on the face of it, might be expected to write these sorts of letters only when they were moved to do so by their genuine concerns. The court concluded therefore that it was not inevitable that the balancing exercising would resulted in the same decision to refuse the Claimant’s application.

In respect of the second question the court found that although reference was made to the letters of support the SSHD had failed to consider the value of that work to the community or to how difficult it would be to replace the Claimant. The court decided that the issue of value to the community is a major part of the application outside the immigration rules.

Conclusion

The Claimant’s application was successful and the SSHD’s decision was quashed on the grounds that she has not taken into account all the relevant factors