M.u.b. For Judicial Review Of The Decision Of The Upper Tribunal (immigration And Asylum Chamber) To Refuse To Grant The Petitioner Permission To Appe
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2013] CSOH 91 |
| Docket Number | P325/13 |
| Published date | 06 June 2013 |
| Year | 2013 |
| Court | Court of Session |
| Date | 06 June 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 91 | |
| P325/13 | OPINION OF LORD BOYD OF DUNCANSBY in Petition of M U B Petitioner; For judicial review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal ________________ |
Petitioner: Caskie; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
6th June 2013
[1] This is an application for judicial review seeking reduction of a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing the petitioner leave to appeal against a decision of the First Tier Tribunal. Such a decision is an excluded decision in terms of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) section 13(8)(c). Accordingly, a petition for judicial review to this court is subject to the test contained in R (Cart) v The Upper Tribunal [2012] 1 AC 663 and Eba v The Advocate General [2012] SC (SC) 1 (the Eba test).
[2] This case raises the issue of the procedure to be adopted by this court when dealing with a petition for judicial review which is subject to the Eba test. This is the first time that the respondent has argued that the court should dismiss the petition at the procedural first hearing. I am informed that on one previous occasion parties agreed at the procedural first hearing that there should be a first hearing restricted to the issue of whether the Eba test is met. As I heard substantive argument on procedure I thought it right that I should set out my views informed by parties' submissions.
[3] Practice Note 1 of 2012 deals with immigration and asylum judicial reviews. Paragraph 8 states that at first order the court will ordinarily (a) order service of the petition on the Advocate General for and on behalf of the Secretary of State for the Home Department within seven days, (b) order the respondent to lodge answers and any documents on which he or she founds within four weeks of that service, and (c) fix a date for a procedural first hearing. Paragraph 10 provides that each party who is to be represented at the procedural first hearing is to exchange and lodge in process not later than two days before the hearing (a) a short statement of issues and of the legal authorities on which he or she relies, (b) any further documents to which he or she intends to refer and (c) an estimate of the duration of the substantive hearing. Counsel are expected to discuss these matters and the future progress of the case before the procedural first hearing with a view to identifying the matters in dispute and the most efficient means of their resolution. Paragraph 11 states that at the procedural first hearing the Lord Ordinary will consider the pleadings and the statement of issues, ascertain the parties state of preparation, the likely duration of the hearing and identify whether the case can be heard along with other similar cases. The Lord Ordinary will exercise any of the powers set out in rule of court 58.9 as may be appropriate, for example to require the lodging of notes of arguments and authorities, and, after consulting the Keeper of the Rolls, allocate the case to a substantive hearing.
[4] Both parties complied with the terms of the practice note. The respondent lodged answers. Statements of issues were lodged by both parties along with lists of authorities. It is apparent that there is agreement as to what the main issues are in this case. However parties disagreed on procedure. The respondent's first plea in law is to the effect that the petition should be dismissed as the Upper Tribunal decision falls outside the scope of the court's supervisory jurisdiction. In other words it fails the Eba test.. In the statement of issues the respondent argued that the court should determine that plea in law at the procedural hearing. As a fall back, it was argued that I should order a hearing restricted to the question as to whether or not the Eba test is met.
[5] For the petitioner Mr Caskie argued that I should order a substantive hearing on all matters. He submitted that it was not possible to...
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