H.h. Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Drummond Young,Lord Bracadale |
| Judgment Date | 05 May 2015 |
| Neutral Citation | [2015] CSIH 33 |
| Date | 05 May 2015 |
| Docket Number | P281/13 |
| Court | Court of Session |
| Published date | 05 May 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 33
P281/13
Lord Brodie
Lord Bracadale
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRODIE
in the cause
H H
Petitioner and Reclaimer;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Bovey, QC, Winter; Drummond Miller LLP (for Livingstone Browne, Solicitors, Glasgow)
Alt: McKendrick; Office of the Solicitor to the Advocate General
5 May 2015
Introduction
[1] The petitioner and reclaimer is a Nigerian national. She was born in 1989. She married her husband in 2005. On 14 November 2005 she entered the UK with a six-month visitor’s visa issued on 28 October 2005. The petitioner’s husband had arrived in the UK in 2003 on a student visa and thereafter obtained a MBA in marketing. He was granted a further visa which expired on 20 March 2008. As a dependent of her husband, the petitioner had been granted an extension to her visa, also until 20 March 2008.
[2] The petitioner and her husband have three children who were born in the UK in, respectively, 2006, 2007 and 2009. Their daughter N, born in 2007, is significantly physically disabled by reason of neonatal ischaemic encephalopathy. Her condition is one of quadriplegic cerebral palsy.
[3] Notwithstanding expiry of her visa, the petitioner has continued to live in the United Kingdom, with her husband and children. The two elder children attend primary school in Glasgow. The school attended by N is a specialist school for disabled children. She is in receipt of a variety of treatments in order to ameliorate her condition.
Procedural history
[4] On 1 July 2010 the petitioner’s husband made a claim for asylum which was rejected by the respondent on 22 July 2010. His appeal against that decision was rejected by the First-tier Tribunal (constituted by Immigration Judge Forbes) on 13 September 2010. His appeal rights became exhausted on 29 September 2010.
[5] On 9 March 2011 the petitioner claimed asylum in her own right, her husband and children therefore being dependants on her claim. The petitioner claimed that she would be at risk of mistreatment by being forced into marriage or killed by relatives should she have to return to Nigeria. She also claimed that the best interests of her children and their rights as guaranteed by article 8 of ECHR provided a lawful basis for her to remain in the United Kingdom. The respondent refused the petitioner’s claim, certifying it under section 96 of the Nationality, Immigration and Asylum Act 2002 and thereby removing what would otherwise have been a right of appeal under section 82(1) of the 2002 Act. The petitioner thereupon sought judicial review of the respondent’s decision to certify her claim. That application was successful and the certification was reduced. The petitioner accordingly appealed the refusal of her claim by the respondent. That appeal was refused by the First-tier Tribunal (constituted by Judge of the First-tier Tribunal Bradshaw) on 10 September 2012. The First-tier Tribunal (“FTT”) refused the petitioner’s appeal in relation to her fear of being at risk from relatives. It also found that it would be proportionate to return the petitioner, her husband and children to Nigeria, having regard to the best interests of the children. It is that finding which the petitioner has sought to challenge in subsequent proceedings.
[6] The petitioner submitted grounds to the FTT for permission to appeal the determination of 10 September 2012 to the Upper Tribunal (“UT”), in terms of section 11(4)(a) of the Tribunals Courts and Enforcement Act 2007. The FTT refused permission to appeal in a decision dated 4 October 2012. The petitioner then submitted grounds for permission to appeal directly to the UT, in terms of section 11(4)(b) of the 2007 Act. That application was refused by the UT in a decision dated 22 October 2012.
[7] The petitioner then applied for judicial review of the decision of the UT refusing permission to appeal. First orders in her petition were granted on 27 March 2013 with a procedural first hearing being assigned for 15 May 2013. On 15 May 2013 the petition called before Lord Burns when the diet was continued until 23 May 2013 for the purpose of discussion of preliminary pleas with an estimated duration of one full day. On 23 May 2013 the petition called before Lord Armstrong when it was continued. On 18 June 2013 the petition was sisted “to await the comments of the Inner House” in the opinion which was reported as A v Secretary of State for the Home Department 2014 SC 1. The sist having been recalled, on 3 December 2013, Lord Armstrong heard parties on the petition and answers. He made avizandum. On 14 February 2014 Lord Armstrong dismissed the petition.
[8] The petitioner now reclaims against the interlocutor of 14 February 2014.
The statement of issues
[9] As at the date of the procedural hearing in the present case on 15 May 2013 , Practice Note 1 of 2012 was in force. That practice note provided that each party who was to be represented at a procedural first hearing was to exchange and lodge in process not later than two days before that hearing a short statement of issues and of the legal authorities on which he or she relied. The purpose of the statement of issues is to allow the matters in dispute and the most efficient means of their resolution to be identified. Put short, a statement of issues is a party’s explanation of what his or her case is about. It defines the parameters of any subsequent discussion.
[10] A statement of issues was duly lodged on behalf of the petitioner. It was set out in five paragraphs. In paragraph 1 of the statement the central issue was stated as being whether the grounds in the petition identify a material error of law in the UT decision to refuse permission to appeal and whether that error constitutes a compelling reason in terms of Eba v Secretary of State for the Home Department 2012 SC (UKSC) 1 at paras 44 to 57.
[11] In paragraphs 2 to 5 of the petitioner’s statement of issues there are set out four further issues as follows:
“2. The first issue identified at paragraph 16 of the petition is whether the UT erred, by acting irrationally and perversely, in failing to sustain the ground that the FTT had erred in allowing the assessment of the petitioner’s daughter’s medical needs under Article 3 ECHR, (at paragraphs 309-314) to taint the assessment of the best interests of the child at paragraphs 348 onwards. In particular whether there is a different question to be asked in relation to Article 8, ECHR cases concerning the best interests of the child where the child is suffering from a medical condition from that in relation to medical cases under Article 3, ECHR (see case law identified in paragraph 16 of the petition).
3. The second issue at paragraph 17 is whether the UT has operated on a misapprehension as the FTT makes reference to the previous Immigration Judge’s (Immigration Judge Forbes who heard the petitioner’s husband’s claim) decision at paragraphs 348-358 in relation to [N]. In particular whether the UT and FTT have erred in relying on the previous Immigration Judge’s decision when country information is relevant in assessing the best interests of the child and the previous Immigration Judge did not have the advantage of having sight of the up-to-date case law on the best interests of the child (see case law referred to in paragraph 17; also see LD v Secretary of State for the Home Department (Article 8 – best interests of child) Zimbabwe [2011] Imm AR 99 for relevance of country conditions).
4. The third issue at paragraph 18 is whether the UT has taken proper account of the country information on the situation the petitioner’s child would face on return, if so, whether adequate reasons have been given for finding it would still be in the best interests of the child to be returned to Nigeria, and if adequate reasons had been given, whether the decision to return the child to Nigeria is unreasonable in the light of the country information.
5. A fourth issue at paragraph 19 divided into separate points is whether the correct approach has been taken in assessing the best interests of the child in relation to the points raised in this paragraph. Reference is also made to the case law referred to in paragraph 19 of the petition”.
[12] The separate points making up the fourth issue, as set out in statement 19 of the petition are contentions that the FTT made errors of law as follows:
(a) By failing to take into account that weighty reasons are required to justify separating a child from a community in which he or she had grown up and lived for most of his or her life.
(b) By failing to bear in mind that it is important when considering a child’s education to have regard not just to the evidence relating to any short-term disruption of current schooling that will be caused by any removal but also to that relating to the impact on a child’s educational development, progress and opportunities in the broader sense. The finding of the UT is perverse and irrational in failing to grant permission to appeal in light of the country information on the educational facilities in Nigeria.
(c) By erring in law and failing to bear in mind that the interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and their educational welfare as part of the UK education system points strongly to a continued residence here as necessary to promote these interests. The UT has not dealt with this point.
(d) By failing to bear in mind the factors pointing for and against the best interests of the child either staying or going must not be overlooked. The FTT has overlooked factors in favour of the children remaining in the UK. The FTT has failed to keep in mind the “overall” factors in assessing the best interests of the appellant’s children.
The grounds of appeal
[13] The...
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