EY v Secretary of State for the Home Department [Court of Session Inner House Extra Division]

JurisdictionScotland
CourtCourt of Session (Inner House - Extra Division)
Judgment Date12 Jan 2011
Docket NumberNo 28

Court of Session Inner House Extra Division

Lord Clarke, Lord Hardie, Lord Mackay of Drumadoon

No 28
EY
and
Secretary of State for the Home Department

Process - Judicial review - First orders - Test for granting motion for first orders - Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)), r 58.7

Rule of Court 58.7, as amended, provides, "(1) On being lodged, the petition shall, without appearing on the Motion Roll, be presented forthwith to the Lord Ordinary in court or in chambers for- (a) an order specifying- (i) such intimation, service and advertisement as may be necessary; (ii) any documents to be served with the petition; (iii) any date for the first hearing, being a date not earlier than 7 days after the expiry of the period specified for intimation and service; or (b) any interim order. (2) The Lord Ordinary may grant, but may not refuse to grant, any order specified in paragraph (1) without having heard counsel or other person having a right of audience instructed by the petitioner."

The petitioner was a Turkish citizen who had claimed asylum. Her appeal rights had been exhausted in 2003 but no steps were taken by the authorities to have her removed from the United Kingdom. In 2004 she began cohabiting with a resident of the United Kingdom, in 2006 she was diagnosed with breast cancer for which she received surgery, and in 2007 she approached the respondent to seek to have her position regularised. She made further representations to the respondent, including a request to be granted indefinite leave to remain under the "Legacy Programme", and she contended that her return to Turkey would breach her rights under Art 8 of the European Convention on Human Rights and Fundamental Freedoms. In 2009 the respondent decided to refuse to accept that her representations constituted a fresh claim for asylum, and ordered her removal from the United Kingdom. The petitioner presented a petition for judicial review seeking to attack the decision on grounds of unreasonableness and irrationality. The Lord Ordinary did not regard the petitioner's case as arguable, and refused to grant first orders. The petitioner reclaimed with leave. She argued that the Lord Ordinary had applied the wrong test in refusing the motion for first orders, and that had the proper test been applied the motion for first orders should have been granted. The respondent argued that however the test should be formulated, the Lord Ordinary had reached the correct conclusion.

Held that: (1) an applicant for judicial review does not, by simply presenting a petition to the court, have a right to have a motion for first orders granted, but it would be quite wrong that a hearing of a motion for first orders should be regarded as anything like the equivalent of an application for leave to bring the petition, and the Lord Ordinary had erred (para 16); (2) the hurdle to be crossed was low, and only in very clear exceptional cases should a refusal to grant first orders be made (para 16); (3) first orders should have been granted since the questions which arose were questions of pure relevancy, which should be determined at a stage after the petition has been served on the respondent and answered by her (para 17); and reclaiming motion allowed.

EY brought a petition under the judicial review procedure in which she sought judicial review of a decision to refuse to accept that representations made on her behalf constituted a fresh claim for asylum. The Secretary of State for the Home Department was called as respondent. On 13 May 2009 the Lord Ordinary (Lady Smith) refused to grant first orders. On 19 May 2009 the Lord Ordinary granted leave to reclaim ([2009] CSOH 100). The petitioner reclaimed.

Cases referred to:

Butt v Secretary of State for the Home Department 15 March 1995, unreported

Eba v Advocate General for ScotlandSCUNKUNK [2010] CSIH 78; 2011 SC 70; 2010 SLT 1047; 2010 SCLR 759; [2010] STC 2689

Textbooks etc. referred to:

Clyde, JJ, and Edwards, DJ, Judicial Review (W Green/Scottish Universities Law Institute, Edinburgh, 2000), para 23.14

Macfadyen, DJD, Court of Session Practice (Bloomsbury Professional, Haywards Heath, 2005), p H21, paras 116, 117

Maclaren, JA, Bill Chamber Practice (W Hodge, Edinburgh, 1915), p 11

The cause called before an Extra Division, comprising Lord Clarke, Lord Hardie and Lord Mackay of Drumadoon, for a hearing on the summar roll, on 19 October 2010.

At advising, on 12 January 2011, the opinion of the Court was delivered by Lord Clarke-

Opinion of the Court- [1] This reclaiming motion raises the question as to the nature and extent of the power, if any, of the court to refuse to grant an application for first orders in a petition for judicial review. The question arises in the context of an immigration case but the issue is one of general significance in the context of judicial review.

[2] The petition was originally brought in the name of two petitioners EY and PST. The first petitioner is a citizen of Turkey. The second petitioner is a resident of the United Kingdom. Certain dates and events in the first petitioner's immigration history are set out in a letter from the respondent dated 18 March 2009. These are stated as follows:

'25/08/00 Arrived in the United Kingdom and began working as a prostitute soon after.

  • 01/08/01Claimed asylum.

    • 17/09/01Decision made to refuse asylum claim.

      • 05/11/01RFRL served together with IF151A.

        • 07/11/02Appeal hearing.

          • 20/11/02Determination promulgated, dismissed.

            • 07/01/03Permission to appeal rejected.

              • 07/01/03Appeal rights exhausted.

                • 18/02/09Further representations submitted, legacy programme and Article 8 of ECHR.'

[3] It will be noted that there is a gap of over six years in the immigration history of the first petitioner as set out in the foregoing chronology.

[4] The decision which the petitioners sought to have reviewed was made on the 18 March 2009 whereby the respondent decided to refuse to accept the representations made on behalf of the first petitioner constituted a fresh claim by her for asylum, which decision was confirmed in a letter dated 6 May 2009. On 7 May 2009 the respondent notified the first petitioner that it was intended to remove her to Turkey on 20 May 2009 at 07.00 hours. The decision letter of 18 March 2009 runs to seven closely typed pages. Reference was made in that letter not only to the representations which had been made on the first petitioner's behalf, but a long list of documents provided in support of those representations. The application on behalf of the first petitioner requested that she be granted indefinite leave to remain under the 'Legacy Programme'. It was, in addition, contended, on her behalf, that her return to Turkey would breach her rights under Art 8 of the ECHR.

[5] The present petition for judicial review seeks to attack the decision to refuse to accept that the representations on behalf of the first petitioner constituted a fresh...

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