E.p. For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chamber) Dated 27 April 2012
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2013] CSOH 99 |
| Date | 21 June 2013 |
| Year | 2013 |
| Published date | 21 June 2013 |
| Court | Court of Session |
| Docket Number | P227/13 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 99 | |
| P227/13 | OPINION OF LORD ARMSTRONG in Petition of E P Petitioner; For judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 27 April 2012 ________________ |
Petitioner: Winter; Drummond Miller LLP, Edinburgh
Respondent: Pirie; Office of the Advocate General
21 June 2013
Introduction
[1] The pursuer is a Zimbabwean national who was born on 12 February 1972. He arrived in the UK on 8 February 1999 and was granted 6 months leave to enter. He was subsequently granted leave to remain as a student until 31 October 2001, but then outstayed his leave. On 20 April 2007, at Crawley Magistrates Court, he was convicted of driving with excess alcohol, driving while disqualified and two counts of resisting arrest. On 14 May 2007, he was sentenced to a period of imprisonment of 3 months and 20 days and deportation was recommended. On 16 July 2007 he claimed asylum. His claim was refused and, after an unsuccessful appeal, he was served with a deportation order on 28 February 2008. Following further submissions on his behalf, the UK Borders Agency, by letter dated 16 November 2011, refused to revoke the deportation order. The further submissions made on his behalf were to the effect that inter alia if removed to Zimbabwe he would be unable to demonstrate support and loyalty to the ZANU-PF regime, that he had been in the UK for over 10 years, that he was married in Glasgow on 10 June 2011 and that he had a daughter who was born in the UK on 13 December 2010.
[2] The petitioner appealed to the First Tier Tribunal (Immigration and Asylum Chamber) ("the FTT"). By decision, dated 10 February 2012, his appeal was refused. The pursuer sought permission from the FTT to appeal to the Upper Tribunal (Immigration and Asylum Chamber) ("the UT"). By decision, dated 29 February 2012, permission was refused. The petitioner then sought permission from the UT, directly, to appeal against the decision of the FTT dated 10 February 2012. By decision dated 27 April 2012, the UT refused permission to appeal. Because such a decision is an excluded decision in terms of the Tribunals, Courts and Enforcement Act 2007, section 13, there is no right of appeal against it. The petitioner now seeks judicial review of that decision.
[3] The matter came before me at a continued procedural hearing at which I was urged on behalf of the respondent to sustain his first plea in law to the effect that, as a matter of relevancy, the issues raised in the petition fell outwith the supervisory jurisdiction of this court and that the petition should therefore be dismissed. The parties were agreed that the issues to be raised before me should be determined at this preliminary stage. The matter had been continued on the basis that a full day would be required for the hearing. In the event, a further half day was required in addition.
The test
[4] In Eba v Advocate General 2012 SC (UKSC) 1, the Supreme Court held that, consistent with the decision in R (Cart) v Upper Tribunal [2012] 1 AC 663, the second‑tier appeals criteria provide the benchmark to be applied in the exercise of this court's supervisory jurisdiction in relation to unappealable decisions of the UT. The exceptional nature of the criteria is encapsulated in the tests described in the phrases "some important point of principle and practice" and "some other compelling reason". As it was put by Lord Hope DPSC in Eba:
"[48] Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural regulatory, the petitioner had not had a fair hearing at all."
Further authoritative judicial guidance requires to be noted:
Per Baroness Hale JSC in Cart, at paragraph 57:
"57. ...the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case..."
Per Lord Hope DPSC in Eba, at paragraph [49]:
"(b) The court must ... distinguish between errors of law that raise an important issue of principle or practice, or reasons that are compelling, and those that do not answer to this description. The question whether the application meets this test must depend on the facts of each case. It ought to be capable of being applied at the earliest possible stage, and certainly at the stage of the first hearing, as a matter of relevancy."
Per Lord Brown, in Cart at paragraphs 99, 100:
"99. ...The second-tier appeals approach expressly contemplates that some Upper Tribunal decisions, even though erroneous in point of law, will be refused leave to appeal on the basis that they raise no important point of principle or practice and that there is no other compelling reason to hear them.
100. If, then, the rule of law allows certain errors of law in substantive decisions of the Upper Tribunal on appeal from the First-Tier Tribunal to go uncorrected, why as a matter of principle should it not similarly allow this in respect of decisions of the Upper Tribunal refusing leave to appeal to itself from the First-tier Tribunal? True it is, of course, that the refusal of leave to appeal will have deprived the party refused of a second substantive hearing. Realistically, however, the very fact that he was refused leave to appeal to the Upper Tribunal (by both tribunals) tends to indicate the unlikelihood of there having been a genuinely arguable error of law in the first place. And certainly this situation calls no less for a proportionate answer to the question arising as to the required scope of the court's supervisory jurisdiction to safeguard the rule of law. The rule of law is weakened, not strengthened, if a disproportionate part of the courts' resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff."
Per Lord Dyson JCS in Cart at paragraph 131:
"131. ...the second limb of the test ('some other compelling reason') would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principal or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered... 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences."
Per Carnwath LJ in PR (Sri Lanka) v Home Secretary [2012] 1 WLR 73, at paragraphs 33, 35:
"33. .... The alternative 'compelling reasons' test, the wording proposed by senior judges, was to be an 'exceptional' remedy, a 'safety valve'. ...
35. Judicial guidance in the leading case of Uphill (Uphill v BRB (Residuary) Ltd [2005] 3 All ER 264, CA) emphasised the narrowness of the exception. The prospects of success should normally be 'very high', or (as it was put in the Cart case...) the case should be one which should be one which 'cries out' for consideration by the court."
Per Dyson LJ in Uphill, at paragraphs 19 and 20:
"19. ... 'Compelling' is a very strong word. It emphasises the truly exceptional nature of the jurisdiction...
24. (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice...
(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to the appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose for example that the judge did not allow the appellant to present his or...
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