A.a. For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chambers)

JurisdictionScotland
CourtCourt of Session (Outer House),Court of Session
JudgeLord Brodie
Neutral Citation[2012] CSOH 86
Publication Date18 May 2012
Date18 May 2012
Docket NumberP7/11

OUTER HOUSE, COURT OF SESSION

[2012] CSOH 86

P7/11

OPINION OF LORD BRODIE

in the cause

AKA

Pursuer;

for

Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 September 2010 to refuse the petitioner's application for permission to appeal.

________________

Petitioner: Drummond QC, McGuire; Drummond Miller LLP, Solicitors

Respondent: Webster; Office of the Advocate General

18 May 2012

Introduction
[1] The petitioner is AKA.
She is national of Nigeria. She is 38 years old. She seeks judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 September 2010 to refuse her application for permission to appeal a determination of the First‑tier Tribunal promulgated on 20 July 2010 dismissing her appeal against refusal of asylum and humanitarian protection and her claim that removal from the United Kingdom would contravene the rights of her and her family as guaranteed by Article 8 of the European Convention on Human Rights. The respondent is the Secretary of State for the Home Department.

[2] The petitioner arrived in the United Kingdom on or about 27 April 2004. She was accompanied by her two elder daughters E, born on 4 June 2001 and M, born on 26 February 2003. She and her children then travelled to Dublin where she made an application for asylum on or about 20 May 2004. She remained in Dublin for approximately a month before returning to the United Kingdom without receiving a decision on the asylum claim. The petitioner's husband arrived in the United Kingdom on or about 27 May 2004. The petitioner, her husband and their two elder children held United Kingdom visitor visas valid from 3 February 2004 to 3 February 2006.

[3] The petitioner, her husband and two elder children have remained in the United Kingdom subsequent to 2004. Latterly they have been resident in Scotland. While in the United Kingdom the petitioner and her husband have had another two daughters O, born on 20 August 2004 and D, born on 30 November 2008. The petitioner's daughter, O, has learning difficulties and consequent special educational needs.

[4] In April 2010 the petitioner's husband came to the attention of the police and his immigration status became apparent to the relevant authorities. On 23 April 2010 the petitioner made an application for asylum. The application was refused by the respondent in a decision made on 4 June 2010. The petitioner appealed against the refusal of her claim for asylum to the First‑tier Tribunal and a hearing of that appeal took place before Immigration Judge Phillips on 5 July 2010. The petitioner's appeal was refused and a decision promulgated in terms of Determination and Reasons dated 20 July 2010 ("the Determination"). As appears from the Determination, the Immigration Judge accepted that the petitioner and her family had established private life in the United Kingdom but she concluded that their removal to Nigeria would be proportionate.

[5] The petitioner made an application to the First‑tier Tribunal for permission to appeal to the Upper Tribunal against the decision of the Immigration Judge. That application was refused in a decision dated 11 August 2010 made by Senior Immigration Judge King. The petitioner thereafter made a further application for permission to appeal, this time the application being made to the Upper Tribunal. That application was refused in terms of a decision dated 7 September 2010 made by Senior Immigration Judge Warr. The petitioner has no right of appeal against the decision of the Upper Tribunal to refuse her application for permission to appeal: Tribunals Courts and Enforcement Act 2007 Section 13(8)(c).

[6] The petition for judicial review came before me for a first hearing on 18 January 2012. The pursuer was represented by Miss Drummond QC and Mr McGuire, advocate. Mr Webster appeared for the respondent. Oral argument was presented under reference to detailed Notes of Argument which had been lodged by the parties, respectively numbered 14 and 15 of process, to which I refer. The hearing not having been completed on 18 January 2012, it was continued to a further diet which extended over 6, 7 and 8 March 2012.

Issues
[7] At the beginning of his submissions on behalf of the respondent, Mr Webster advised me that I had found myself in the "perfect storm" constituted by the convergence of the "two hot topics" in judicial review of refusals by the Upper Tribunal to grant permission to appeal in Immigration and Asylum cases: best interests of the child and the Eba test.
Mixed and overwrought as Mr Webster's metaphors may have been, he accurately identified the issues which had been focused by Miss Drummond in the course of her submissions.

[8] Seeking to resist removal from the United Kingdom, on 23 April 2010 the petitioner had made a claim for asylum founding on fears for herself and her daughters by reason of her experience of having been raped during a robbery and fears that her daughters might be made subject to female genital mutilation by members of her husband's family. The Immigration Judge who constituted the First-tier Tribunal refused the petitioner's appeal against the respondent's rejection of her claims for asylum and humanitarian protection in terms of Immigration Rule 339C on the grounds that the petitioner had not demonstrated a well founded fear of persecution or a real risk of serious harm should she be required to return to Nigeria. In her applications for permission to appeal made to the First‑tier Tribunal and then to the Upper Tribunal the petitioner did not seek to revisit these findings by the Immigration Judge. Rather, permission was sought to argue that the Immigration Judge had erred in law in failing to have regard to the best interests of the petitioner's children, as a primary consideration, in the assessment of whether the removal of the petitioner from the United Kingdom with her children would contravene their rights to respect for private and family life as guaranteed by Article 8 of the European Convention on Human Rights. Miss Drummond encapsulated the point in this way in her Note of Argument:

"In a nutshell, the challenge is based on the failure of the Immigration Judge to properly consider the petitioner's claim in relation to her (and her children's) Article 8 ECHR rights to private life in the UK. The petitioner submits that the Immigration Judge failed to consider the best interests of the children as a primary consideration and to provide adequate reasons for her decision, and that the Upper Tribunal failed to recognise these errors."

[9] Miss Drummond accepted, however, that having regard to the decisions of the Supreme Court in Eba v Advocate General for Scotland [2011] WLR149 and R (Cart) v Upper Tribunal [2011] WLR107, to succeed in her application for judicial review it might not be enough for the petitioner to satisfy the court that the Immigration Judge constituting the First-tier Tribunal had made a material error of law in rejecting the petitioner's Article 8 claim and that therefore the Upper Tribunal had made an error of law in failing to recognise that the point the petitioner wished to advance on appeal to the Upper Tribunal was at least arguable. Miss Drummond's position was that in this case the Upper Tribunal had been plainly wrong and that whatever precisely was the restriction to be imposed on judicial review of unappealable decisions to refuse permission following Eba, it had never been the intention of the Supreme Court to exclude cases where there was a material error of law, far less where the Upper Tribunal's decision was plainly wrong.

[10] Miss Drummond's approach was first to develop her attack on the lawfulness of the First‑tier Tribunal's determination under reference to a full exposition of the relevant authority and then, having demonstrated, as she would submit, the strength of the petitioner's position, to argue that the First‑tier Tribunal was plainly wrong in relation to a material matter. The plainness and materiality of the error made for a compelling reason in terms of the second limb of the Eba Test and therefore, so the argument went, good grounds for the court concluding that the matter came within the scope of judicial review. Such an approach is, of course, good advocacy: first attempt to win over the court to the justice of the cause, and only once that has been done address any procedural or other technical hurdles which appear to stand in the way of justice being done. It is also, and in making this observation I mean no criticism whatsoever of Miss Drummond's excellent presentation under reference to a well drafted Note of Argument, lengthy advocacy. The court did not sit until noon of the first day of the hearing due to prior business, but it took the whole of the second day and an hour and a half of the third day before Miss Drummond completed what she wished to say. Mr Webster's submissions took a little over a day. Miss Drummond requested that she be allowed to respond in a second (and, as it proved, very short) speech. This is of course only to mention the time taken in argument once the first hearing had commenced. The petition was lodged with the Court of Session on 5 January 2011. Fifteen months had therefore passed from the date of commencement of proceedings until the conclusion of the first hearing. Thereafter time has been taken in preparing this opinion. In a case such as this, where the length of the family's residence in the United Kingdom is an obviously very relevant matter, such a significant passage of time is less than satisfactory. This takes me to the question asked rhetorically by Mr Webster at the outset of his submissions: the issues may well be (1) whether there was there a material error of law on the part of the First‑tier Tribunal; and (2) whether the petitioner passes the Eba Test, but is taking them in that order the correct approach? He suggested that it...

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