Dn Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Carmichael |
| Date | 24 November 2017 |
| Court | Court of Session |
| Published date | 24 November 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 144
P1090/16
OPINION OF LADY CARMICHAEL
In the Petition of
DN
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
for Judicial Review
Pursuer: Irvine; Drummond Miller LLP
Defender: Webster; Office of the Advocate General
24 November 2017
Background
[1] The petitioner is a national of Uganda. She is 19 years of age. Her mother, Mrs N, left Uganda and entered the United Kingdom at some point in 2007 with the petitioner’s younger brother, S, whose date of birth is 6 May 2006. The petitioner remained in Uganda, and the two remained in telephone contact. On 18 June 2012 Mrs N was given discretionary leave to remain in the United Kingdom (“DL”), and that grant has been renewed subsequently
[2] DL is a form of leave introduced alongside humanitarian protection in April 2003 to replace exceptional leave to remain. It was used initially to grant leave for Article 8 reasons, that is, where removal would breach the United Kingdom’s obligations under Article 8 ECHR. In July 2012, after the grant of DL to Mrs N, the position changed. Following the implementation of the family and private life rules on 9 July 2012, the respondent no longer grants DL where the requirements of those rules in Appendix FM or paragraphs 276ADE(1) to 276CE of the Immigration Rules (“the rules”) are met, or where leave outside the rules should be granted for Article 8 reasons: Asylum Policy Instruction: Discretionary Leave, (v 7.0, 18 August 2017), paragraph 1.2 (6/10). It follows that some grants of DL made before 9 July 2012 are grants of leave which would on or after that date fall to be grants of leave within the rules. DL continues to exist as a form of leave to be granted in exceptional and compassionate circumstances
[3] On 1 August 2014 the petitioner submitted an application for entry clearance to join her mother and brother in the United Kingdom. That application was unsuccessful, as was the petitioner’s appeal to the First-tier Tribunal (“FTT”). The FTT refused the petitioner’s application for leave to appeal to the Upper Tribunal (“UT”). The petitioner then applied to the UT for permission to appeal, and it too refused her application. She now seeks judicial review of that refusal of permission
[4] The petition raises issues about the construction of paragraph 301 of the rules, which is, so far as material, in the following terms:
“301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:
(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:
…
(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing; or
(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately without recourse to public funds, in accommodation which the parent or parents own or occupy exclusively; and
(iva) can, and will, be maintained adequately by the parent or parents without recourse to public funds; and
(ivb) does not qualify for limited leave to enter as a child of a parent or parents given limited leave to enter or remain as a refugee or beneficiary of humanitarian protection under paragraph 319R; and
(v) (where an application is made for limited leave to remain with a view to settlement) has limited leave to enter or remain in the United Kingdom; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.
[5] Before the FTT the petitioner contended that paragraph 301 of the Immigration Rules (“the rules”) applied to her application, and that, if that paragraph were properly construed, her application ought to be successful. The FTT judge decided that the claim based on paragraph 301 failed first because Mrs N was not settled, and in any event because Mrs N had not had sole responsibility for the petitioner’s upbringing, and there were no serious and compelling family or other considerations which made exclusion of the petitioner undesirable. He considered whether the petitioner should succeed under Article 8 outside the rules and concluded that she should not.
[6] In her application to the UT for permission to appeal, the petitioner submitted that the FTT judge had not taken into account the best interests of the children (the petitioner herself, and S), and that he should have done so both in considering the correct construction of paragraph 301 and in dealing with the Article 8 claim; that he had erred in requiring “compelling circumstances” in relation to the Article 8 case, particularly where issues affecting the interests of children were involved; and that the FTT judge had erred in his construction of paragraph 301. She introduced a further argument, not raised before the FTT judge, or in the application for permission to appeal made to the FTT, that to deny someone in the petitioner’s position the opportunity to benefit from paragraph 301 amounted to discrimination which was unlawful by virtue of Articles 8 and 14 ECHR.
[7] The UT considered that the application for permission was submitted out of time, and refused to extend the period for receipt of it. The UT judge indicated that she would in any event have refused permission. She recognised that the FTT judge had erred in law in requiring under paragraph 301 that Mrs N be settled, but regarded the error as immaterial, as she considered that he had been entitled to find that a person with DL was not a person given limited leave “with a view to settlement” and to find an absence of sole responsibility and serious and compelling family or other considerations. She considered that an analysis of the best interests of the children would have made no difference to the approach to the rules or to Article 8. The UT decision makes no mention of the ground of appeal based on discrimination.
Summary of Arguments
[8] There is a preliminary issue as to whether the application to the UT for permission to appeal was made in time.
[9] A number of issues arise in relation to the application of paragraph 301(i). The petitioner contends that the leave granted to Mrs N was leave to remain with a view to settlement. That construction of the paragraph is disputed by the respondent. There is also an issue as to the fact finding by the FTT as to whether Mrs N had sole responsibility for the petitioner’s upbringing and as to whether there were serious and compelling family or other considerations which made the exclusion of the petitioner undesirable. The FTT made a finding in fact that Mrs N did not have sole responsibility for the petitioner’s upbringing, and that there were no serious and compelling family or other considerations making the exclusion of the petitioner undesirable. Those findings are attacked by the petitioner in this process. The respondent argues, on the merits, that the findings are unexceptionable and not made in error of law. Those findings mean that the petitioner cannot succeed, because she cannot satisfy the condition in paragraph 301(1)(b) or (c).
[10] The respondent argues that DL of the type granted to Mrs N is not leave given with a view to settlement. It is, rather, a grant outwith the Immigration Rules having regard to exceptional and compassionate circumstances prevailing at the time of the grant. Although settlement may become open to the individual in due course, the grant is not made to facilitate settlement.
[11] The petitioner argues, further, that if the construction of paragraph 301 proposed by the respondent is correct, the rule discriminates unlawfully against the children of parents granted DL to remain when compared with the children of parents given another form of limited leave to enter or remain.
[12] The respondent argues that I should not entertain any of the arguments raised in the petition because none of them satisfies the second appeals test. The respondent says that I am not bound by the decision of the Lord Ordinary who granted permission for this petition to proceed. Even if I were to take the view that one or more of the arguments about Rule 301 satisfied the second appeals test and was well-founded, the petition should fail because there are other points raised in the petition regarding the fact finding by the tribunal, essential to the ultimate success of the petition, which would not satisfy the second appeals test.
[13] The respondent necessarily, therefore, argues that I am not bound by the interlocutor of the Lord Ordinary granting permission in determining whether the application satisfied the second appeals test.
Was the Application to the UT Made in Time?
[14] The UT judge wrote the following:
“The renewal grounds of appeal have been lodged late, albeit by a few days. There has been no clear explanation for the delay when the solicitors had 28 days to lodge the appeal and in all the circumstances I refused to extend time. Had I admitted the application I would have refused permission”
[15] The petitioner relies in the petition on the terms of Rules 12 and 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/298) and section 7 of the Interpretation Act.
[16] Rules 12(2) and 21(3) of the Tribunal...
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