Article 8 rights and continuity of residency in the UK
FA v Secretary of State for the Home Department [2010] ScotCS CSOH_159 (30 November 2010)
A citizen of Afghanistan has been successful in having a decision of the Secretary of State for the Home Department reduced. The Home Department had certified that the petitioner's claim that removal from the UK would constitute a breach of his Article 8 rights was clearly unfounded.
The petitioner had arrived in the UK in 2001 aged 13 and was granted leave to remain for four years. He lived with a cousin in Scotland and studied at a college there. In 2005 he applied for indefinite leave to remain but claims he received no decision on this application. During this time his sister, who has two children, came to live lawfully in the UK as a spouse.
In 2008 the petitioner returned to Afghanistan by lorry. He stayed for around 10 months and was then discovered attempting to return to the UK in 2009. He had already been stopped by police in the Netherlands and had claimed asylum there. On arrival in the UK he was issued with illegal entry papers and interviewed. In his interview he lied about his identity, claimed he had never lived in the UK and that he had no family here. The falsity of these statements was discovered upon checking his fingerprints, discovering the claim for asylum in the Netherlands and his previous claim for asylum in the UK in 2001.
Under the "Dublin 11 Regulations" provision is made for a hierarchy of responsibility should more than one EU state have responsibility for determining an asylum application. The respondent asked the Dutch authorities to take responsibility and they agreed that they were responsible for determining this claim. Therefore, the petitioner was due to be removed to the Netherlands on May 6 2009 for his claim to be determined.
Solicitors for the petitioner invited the Home Department to determine his claim to stay in the UK, claiming that removal would be a breach of his Article 8 rights under the ECHR. The petitioner raised judicial review proceedings against his removal and therefore the proposed removal to the Netherlands was cancelled. On 5 May 2009 the respondent gave the decision that the petitioner's claim was to be refused as it was regarded as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
The petitioner argued against the assertion that the claim was clearly unfounded. Attention was drawn to the length of time the petitioner had spent in the UK from 2001 to 2008, the close family ties he had in the UK and the fact that he returned within a year after leaving for Afghanistan in 2008. The petitioner argued that the respondent had failed to give due weight to these factors when balancing the rights of the petitioner against the rights of the State.
The respondent used the fact that the petitioner had returned to Afghanistan in 2008 to argue that there had been no continuity of residence. The respondent relied upon the case of (W J) (China) v Secretary of State for the Home Department 2010 where it had been decided that all ties with the UK were ruptured when the petitioner left. It was also argued that the Article 8 claim was unfounded because of gaps in the narrative that the petitioner had failed to answer where the onus was on him to provide explanations.
The judge did not accept the argument by the respondent that the case should be judged from the date of the return to the UK in 2009. Instead he chose to look at the whole picture including the petitioner's life in the UK from 2001. The judge identified the correct legal test as Z T (Kosovo) v Secretary of State for the Home Department [2009]- if there is reasonable doubt that the claim may succeed it is not clearly unfounded. The judge considered that on the facts there was reasonable doubt and therefore the decision of the Home Department that the claim was unfounded was irrational.
A citizen of Afghanistan has been successful in having a decision of the Secretary of State for the Home Department reduced. The Home Department had certified that the petitioner's claim that removal from the UK would constitute a breach of his Article 8 rights was clearly unfounded.
The petitioner had arrived in the UK in 2001 aged 13 and was granted leave to remain for four years. He lived with a cousin in Scotland and studied at a college there. In 2005 he applied for indefinite leave to remain but claims he received no decision on this application. During this time his sister, who has two children, came to live lawfully in the UK as a spouse.
In 2008 the petitioner returned to Afghanistan by lorry. He stayed for around 10 months and was then discovered attempting to return to the UK in 2009. He had already been stopped by police in the Netherlands and had claimed asylum there. On arrival in the UK he was issued with illegal entry papers and interviewed. In his interview he lied about his identity, claimed he had never lived in the UK and that he had no family here. The falsity of these statements was discovered upon checking his fingerprints, discovering the claim for asylum in the Netherlands and his previous claim for asylum in the UK in 2001.
Under the "Dublin 11 Regulations" provision is made for a hierarchy of responsibility should more than one EU state have responsibility for determining an asylum application. The respondent asked the Dutch authorities to take responsibility and they agreed that they were responsible for determining this claim. Therefore, the petitioner was due to be removed to the Netherlands on May 6 2009 for his claim to be determined.
Solicitors for the petitioner invited the Home Department to determine his claim to stay in the UK, claiming that removal would be a breach of his Article 8 rights under the ECHR. The petitioner raised judicial review proceedings against his removal and therefore the proposed removal to the Netherlands was cancelled. On 5 May 2009 the respondent gave the decision that the petitioner's claim was to be refused as it was regarded as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
The petitioner argued against the assertion that the claim was clearly unfounded. Attention was drawn to the length of time the petitioner had spent in the UK from 2001 to 2008, the close family ties he had in the UK and the fact that he returned within a year after leaving for Afghanistan in 2008. The petitioner argued that the respondent had failed to give due weight to these factors when balancing the rights of the petitioner against the rights of the State.
The respondent used the fact that the petitioner had returned to Afghanistan in 2008 to argue that there had been no continuity of residence. The respondent relied upon the case of (W J) (China) v Secretary of State for the Home Department 2010 where it had been decided that all ties with the UK were ruptured when the petitioner left. It was also argued that the Article 8 claim was unfounded because of gaps in the narrative that the petitioner had failed to answer where the onus was on him to provide explanations.
The judge did not accept the argument by the respondent that the case should be judged from the date of the return to the UK in 2009. Instead he chose to look at the whole picture including the petitioner's life in the UK from 2001. The judge identified the correct legal test as Z T (Kosovo) v Secretary of State for the Home Department [2009]- if there is reasonable doubt that the claim may succeed it is not clearly unfounded. The judge considered that on the facts there was reasonable doubt and therefore the decision of the Home Department that the claim was unfounded was irrational.
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