Indian ‘overstayer’ fails in human rights challenge against removal from UK

A judge in the Court of Session refused a challenge to a ruling that even if the petitioner was in such a relationship his right to a private and family life under article 8 of theEuropean Convention on Human Rights would not be breached by his removal.

Lord Bannatyne (pictured) heard that the petitioner, Indian national Vishal Suri, 43, sought judicial review of a decision of the Secretary of State for the Home Department to certify his human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002.

The petitioner, who arrived in the UK in the summer of 2008 having been granted a six months visitor visa, was arrested in May 2010 on suspicion of being an overstayer after being found in a restaurant in Stirling during a visit by the Glasgow Immigration Enforcement Unit.

After being granted temporary release, the petitioner failed to report to the immigration authorities and in March 2014 he was detained by the police and transferred to Dungavel detention centre, following which removal directions were set to remove him to India.

However, following his detention the petitioner instructed solicitors to lodge representations on his behalf based on article 8 ECHR.

The petitioner stated that he was engaged to a British national, JT, with whom he had been in a “genuine and subsisting” relationship with since May 2012.

They began living together in June 2012 and they “intended to marry in the near future”, he claimed.

The representations also stated that the petitioner’s British fiancée had lived all of her life in the UK, could not speak Hindi or Punjabi, and had no ties with India as all her family were in the UK.

It was argued that in these circumstances it would not be proportionate to remove the petitioner from the country.

But the Home Secretary held that the claim was “clearly unfounded” in terms of section 94(2) of the 2002 Act.

In a decision letter dated 21 April 2014, the Secretary of State concluded that it had not been demonstrated that the petitioner was in a genuine and subsisting relationship with JT, and that even if he were in such a relationship his removal from the UK would not breach his article 8 rights.

However, the petitioner sought judicial review of that decision.

On the issue of the proper approach of the court when considering a judicial review arising out of section 94(2) of the 2002 Act, the petitioner’s position was that where the courts had the same material as that put before the Secretary of State, they were in as good a position to determine as she was.

It was submitted that if the court concluded that a claim could not be bound to fail in circumstances where the Secretary of State had reached a contrary view, the court would necessarily conclude that the Secretary of State’s view was “irrational”.

Reference was made to the 2009 case of ZT (Kosovo) v The Secretary of State for the Home Department, in which it was held that in such matters the court’s own view was “decisive” of whether a claim was clearly unfounded or not.

It was argued that there was no dispute of primary fact and therefore whether the claim was clearly unfounded was only susceptible to one rational answer, namely, in the petitioner’s favour.

The Secretary of State’s position in reply was that the role of the court when determining the legality of a certificate under section 94 of the 2002 Act was one of “review” and therefore there could be circumstances where the court and the Secretary of State could reasonably hold different views as to whether a claim was clearly unfounded.

It was submitted that the Secretary of State was “better placed” to assess the merits of any such claim and the role of the court was to determine whether decision was “rational”.

The judge agreed with the submissions made on behalf of the Secretary of State that the court’s task in such circumstances was to apply the “normal principles of judicial review”.

In a written opinion, Lord Bannatyne said: “I am satisfied that on a proper reading of ZT (Kosovo) there is a practical consequence in the answer to the question of what is the role of the court. I am persuaded that on a proper reading of this decision the majority view of the House of Lords was that, even in circumstances where the primary facts were not in dispute, there may be situations where the court might hold a claim not clearly unfounded but nevertheless hold that the Secretary of State could properly hold that the claim was clearly unfounded.

“In addition it appears to me to be correct that the Secretary of State is better placed than a generalist court to forecast what the possible outcomes might be before a specialist tribunal. This again tends to support the view that what the court’s function must be is to judicially review on a conventional basis the decision of the Secretary of State and that there could be circumstances in which they could reasonably hold differing views on this issue.”