Petition Of Chennan Fei (ap) For Judicial Review Of A Decision By The Upper Tribunal (immigration And Asylum Chamber) To Refuse To Grant The Petitioner Permission To Appeal
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2016] CSOH 28 |
| Date | 16 February 2016 |
| Docket Number | P1376/15 |
| Court | Court of Session |
| Published date | 16 February 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 28
P1376/15
OPINION OF LORD BOYD OF DUNCANSBY
In the petition of
CHENNAN FEI (AP)
Petitioner;
for
Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the Petitioner Permission to Appeal
Act: Caskie; Drummond Miller LLP
Alt: Massro; Office of the Advocate General
16 February 2016
[1] This is the first of a series of permission hearings arising out of the presentation of some 62 petitions before the deadline of 22 December 2015 imposed by the transitional provisions following the coming into force of section 89 of the Courts Reform (Scotland) Act 2014. This amended the Court of Session Act 1988 by introducing new sections 27A –27D. The effect of these new sections is to bring in a time limit within which judicial review of administrative decisions may be brought before the court and provides that the petitioner must obtain the permission of the court to proceed.
[2] The court may only grant permission if it is satisfied that the petitioner has a sufficient interest in the subject matter and it has a real prospect of success. Where, as here, the decision under review is one of the UT refusing leave to appeal from the FTT there is a further condition. The court must be satisfied that the petition raises an important point of principle or practice or that there is some other compelling reason for allowing the application to proceed; the Eba or second appeals test section 27B(3).
The petition
[3] The petitioner is a citizen of China. She arrived in the UK as a dependant of her father on 7 March 2002 when aged 13. She was granted leave to remain in a number of capacities until 30 November 2003 when she became an overstayer. She made a further application for leave to remain in 2003 but that was refused on 14 December 2004. It is apparent that she was unaware of her immigration status until she became an adult and applied for university. She then applied for asylum on human rights grounds. Her application was refused. She appealed to the FTT but her appeal was dismissed. The FTT refused her leave to appeal to the UT. She sought leave from the UT to appeal but that was refused on 20 July 2015. The petitioner seeks the permission of this court to judicially review that decision.
[4] The evidence before the FTT showed that the petitioner had formed a close friendship with an older woman whom she referred to as her godmother. She now lived in the same house and they depended on each other. She had not been back to China since she left. Although she spoke Chinese she could not read or write the language. Her home life was established in this country.
[5] It was accepted that the petitioner could not satisfy the Immigration Rules but she argued that she ought to be given leave to remain outside the rules on human rights grounds. The FTT rejected the argument.
[6] The petitioner argues that the FTT made an error of law. Having considered the issue of her private life established with the woman she called her godmother, the FTT referred to section 117B(4) of the Nationality, Immigration and Asylum Act 2002, and noted that little weight should be given to a private life established when the status is precarious. At paragraph 71 the FTT accepted that little weight does not mean no weight. The FTT judges then said this:
“However the wording of paragraph 117B is, in our view decisive in assessing whether or not removal of the Appellant is proportionate to the legitimate aim being pursued namely the economic well-being of the country through the enforcement of immigration control.”
[7] The argument for the petitioner is to the effect that the FTT failed to read section 117B properly and chose one element, the precariousness of the petitioner’s status at a time when the relationship with the godmother was formed, as the decisive element. That was an error. Section 117A directed the decision maker, in considering the public interest to have regard in particular to the public interest considerations listed in section 117B. This was a not a new consideration. It was one factor to be taken into account but it could never be the decisive factor.
[8] When faced with this ground of challenge to the FTT’s decision the UT had said that this amounted to no more than a disagreement. The UT said that the FTT panel had given full and careful consideration to the article 8 claim and concluded that although the petitioner had established a private life the significance was outweighed by the public interest factors on the other side.
[9] The petitioner challenges the decision of the UT as being in itself an error of law essentially as I read it because it came to wrong decision on the ground of appeal. She argues that it raises an important point of principle. Although the case of Dube (sections 117 A – 117D) [2015] UKUT 00090 (IAC) indicated that sections 117 A – 117D are not a radical departure from prior jurisprudence they say that in the context of the procedure that a tribunal should follow and not the substance of the assessment. Accordingly the Eba test was met.
[10] Having considered the petition, the supporting documents and the answers for the respondent I ordered an oral hearing and issued a note in the following terms:
“I am minded to refuse permission. There is no error of law. The FTTJ was duty bound to have regard to all of the factors enumerated in s.117B including that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. Even if there was an...
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