Motion By The Applicant By K.y. No. 2 Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2014] CSIH 63 |
| Court | Court of Session |
| Published date | 09 July 2014 |
| Year | 2014 |
| Date | 09 July 2014 |
| Docket Number | XA169/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| |
|
| [2014] CSIH 63 |
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| XA169/12
OPINION OF LADY SMITH
in the motion by the applicant
by
K Y No. 2 Applicant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent:
_______________
|
Act: Bovey QC, Winter; Drummond Miller LLP (for Katani & Co)
Alt: Gill; Office of the Advocate General
9 July 2014
Background
[1] The applicant is a citizen of Nigeria who has been unsuccessful in resisting the respondent’s decision to order her removal. She failed in her asylum claim and failed in a claim based on article 8 ECHR under reference to the health of her child. She sought permission to appeal (“PTA”) to this court from the decision of the Upper Tribunal (“UT”), on 5 June 2013. Permission was refused by interlocutor of that date. This is an application by motion in the following terms:
“On behalf of the Applicant to grant leave to appeal to the UK Supreme Court against the Interlocutor dated 5 June 2013 and Opinion of Lady Smith issued on 31 October 2013.”
Opposition to the motion was marked for the following reasons:
“Leave should be refused. The proposed appeal (i) would raise no issue of law of general or public importance and (ii) in any event, would be incompetent because the Supreme Court has no power to grant permission to appeal against a decision of the Upper Tribunal when both the Upper Tribunal itself and this Court have (sic) refused such permission.”
[2] The background facts are as set out in the opinion of 5 June 2013 to which the applicant refers in the motion. PTA to this court from a decision of the UT was refused because it was considered that the application did not disclose grounds of appeal based on error of law which had a real prospect of success (Hoseini v Secretary of State for the Home Department 2005 SLT 550). It was not argued that there was some other compelling reason why permission should be granted. The reasons for the conclusion that there were no real prospects of the appeal succeeding are explained in that opinion and I do not propose to repeat them herein.
[3] On 10 October 2013, the applicant filed a notice of appeal in the Supreme Court, against the interlocutor of 5 June 2013 refusing PTA. In the appeal document filed in the Supreme Court, it was stated that:
“The central issue in this appeal is the approach to be taken to deciding the best interests of a child who is suffering from a serious medical condition when it is proposed to remove her from the United Kingdom with her parents.”
It is said that the UT was wrong to have reversed the decision of the First-tier Tribunal.
[4] The respondent filed a notice of objection to the appeal in which it was said (a) that the appeal was incompetent and (b) in any event, the appeal had no real prospects of success and it was, accordingly, correct to refuse permission to appeal. In support of (a), the respondent relied on section 13 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”) as demonstrating that, in a Scottish case, the only court empowered to grant leave to appeal from a decision of the UT was the Court of Session. Permission had been refused; that was final and not subject to review by the Supreme Court.
[5] By letter dated 12 November 2013, the Supreme Court advised:
“Dear Sirs
Y (Appellant) (AP) v
Secretary of State for the Home Department (Respondent) (Scotland)
As the parties are aware, this appeal was issued without prejudice to the question whether or not the Supreme Court had jurisdiction to entertain it.
The papers which the parties submitted have been referred to Lord Kerr,Lord Reed and Lord Hodge and they have decided that the Supreme Court does not have jurisdiction to hear the appeal as “it is an appeal against the Court of Session’s refusal to hear an appeal from the Upper Tribunal. That judgment was not dispositive of the merits of the appeal. Section 40(1)(b) of the Court of Session Act 1988 provides that it is competent to appeal against such an interlocutor only with the leave of the Inner House. That leave has not been granted.”
I am sending a copy of this letter to the solicitors for the Respondent.
Yours faithfully
Louise di Mambro
Registrar of the Supreme Court of the United Kingdom”.
Submissions for the applicant
[6] Senior counsel for the applicant, Mr Bovey QC, began by stating that it was appropriate to make observations about the composition of the court. That was a reference to his motion having been put out for a hearing before a single judge of the Inner House, sitting as a procedural judge. He referred to Rules of Court (“RCS”) 37A, 41.2, 41.3 and 41.6 for those provisions which created the role of “procedural judge” of the Inner House and provide for applications where leave to appeal is required in statutory appeals to be brought before and determined by a procedural judge. He said that there was nothing in the rules regarding the granting of leave to appeal to the Supreme Court and that different gatekeepers could apply in different contexts. The thrust of what remained an observation – he did not actually submit that it was incompetent for his motion to be determined by a single judge of the Inner House sitting as a procedural judge – seemed to be that an application for leave to appeal to the Supreme Court may fall outwith the above provisions notwithstanding that the context was a statutory appeal.
[7] Turning to the present motion for permission to appeal to the Supreme Court, Mr Bovey explained that, if it were granted, his motion to that court would be that the application for permission to appeal from the decision of the UT should be granted. He would be inviting the Supreme Court to grant PTA from the decision of the UT.
[8] Mr Bovey explained that the issue was whether or not the approach adopted in the case of Bensaid v UK 44599/98 (2001) 33 EHRR 10 applied to children who have serious ill health. The decisions taken in Bensaid and in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 required, he said, to be reconciled and meshed and that ought to be done by the Supreme Court. That, evidently, is what he would seek to have the Supreme Court do in the context of this appeal which the applicant seeks to take against the refusal of PTA. In explaining that this would be the issue, he submitted, at one point, that the effect of the interlocutor of 5 June 2013 refusing permission to appeal was, in substance, that of a final decision on the merits. He did not, however, address the apparent incompatibility between that approach and the Supreme Court having, in its letter of 12 November 2013, stated that it did not consider that that interlocutor was dispositive of the merits of the appeal.
[9] Regarding competency, Mr Bovey submitted that it could be inferred from the Supreme Court’s letter that it had determined that it was competent to grant leave to appeal to that court against the refusal of PTA by this court. Such an appeal was, he submitted, competent; an appeal lies unless excluded and there was no provision excluding such an appeal to the Supreme Court. An example of such an exclusion could be seen, he said, in section 32 of the Extradition Act 2003 which stated that the appeal provisions in that section – allowing for appeal to the Supreme Court – did not apply to Scotland. I do not consider that to be a helpful comparison. The thrust of his submission about section 32 was that a right of appeal to the Supreme Court was generally to be implied and it was to avoid implication that Scotland was expressly excluded. However, the problem that the drafter of section 32 had to address was a different one. Had the exclusion of Scotland not been stated, the right of appeal would not have been implied. It would, due to the definition of ‘High Court’ adopted by the drafter, have been express.
[10] Mr Bovey submitted that section 40 of the Court of Session Act 1988 could not be defeated by implication; he was seeking to appeal against an interlocutory judgment within the meaning of section 40(1)(b) and was entitled to do so provided he could show that the issue he would wish to bring before the court was of general and/or public importance. The present case met that requirement because it concerned the correct approach in cases of children who have serious ill health. It seems that the applicant would now submit that Bensaid does not apply to such cases although that was not, I would observe, the applicant’s approach at the time of the application for PTA on 5 June 2013. The complaint then, as borne out by the terms of the written application for leave, was that the Upper Tribunal had failed to apply Bensaid correctly, not that it did not apply to a case such as the present one.
Submissions for the respondent
[11] Counsel for the respondent, Mr Gill, submitted that the motion should be refused. First, the applicant’s proposed appeal failed to recognise that the Upper Tribunal had decided as it did not only because it applied Bensaid – which the First-tier Tribunal had failed to do – but also because it considered that the First-tier Tribunal had also applied ZH incorrectly. Further, the applicant’s submissions failed to recognise that the article 8 proportionality assessment was an evaluative judgment based on the individual facts and circumstances, as in the present case (EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159), the correct approach in the proportionality assessment to the welfare of a child was settled in the case of ZH , and the correct approach in the proportionality assessment of the impact of removal on a person with a serious medical condition was settled in the case of Bensaid. There was no point of law that was new or of general or public importance.
[12] Secondly, what the applicant’s submissions had disclosed was that the purpose of the motion was to seek to conduct a...
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