KP (Pakistan) v Secretary of State for the Home Department

CourtCourt of Session (Inner House)
Neutral Citation[2012] CSIH 38


Lord Eassie Lord Clarke Lord Mackay of Drumadoon [2012] CSIH 38



delivered by LORD EASSIE

in the Application for Leave to Appeal


KP and MRK






Applicants: Wolffe, QC, Byrne; Drummond Miller LLP (for Peter G Farrell, Glasgow)

Respondent: Lindsay, Q.C., MacGregor; Office of the Solicitor to the Advocate General

amicus curiae; Crawford, Q.C.

11 April 2012

[1] This is an application under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 - "TCEA" - by KP, the first named applicant, and her son MRK, the second applicant, for leave to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal. At this stage in the hearing of the application for leave to appeal the sole issue arising for decision concerns the validity of Rule 41.59 of the Rules of the Court of Session - "RCS 41.59" - as the Rules stood at the time when the application was lodged. By reason of later amendment to the Rules of the Court of Session, the text of RCS 41.59 now appears, unaltered as to its wording, as Rule of Court 41.57. Since the pleadings, and parties in their written notes and oral argument, refer to RCS 41.59 it is convenient to maintain that usage.

[2] It is appropriate to mention some background to the application for leave to appeal. The applicants are citizens of Pakistan. They left Pakistan in early 2007 and arrived in the United Kingdom on or around 9 December 2007. They claimed asylum. Put very shortly, the basis of the first applicant's claim was that she had been the subject of prolonged domestic, particularly physical, abuse in respect of which she had received no assistance from the police on complaint to them. The second applicant's claim was associated with that of his mother in respect that he had sought to support and protect her, in consequence of which he had been seriously assaulted by his father.

[3] The respondent - the Secretary of State for the Home Department - refused the applications for asylum, although acknowledging that the first applicant had indeed been the victim of serious domestic violence in Pakistan. It was maintained that relocation within Pakistan would be a course open to the applicants. On appeal to the First-tier Tribunal (Immigration and Asylum Chamber) the immigration judge on 8 April 2010 allowed the applicants' appeal against the decision of the Secretary of State on both asylum and human rights grounds. Against that decision the Secretary of State sought and obtained leave to appeal to the Upper Tribunal. That appeal was heard by a senior immigration judge who, on 6 December 2010, allowed the appeal, set aside the decision of the First-tier Tribunal and substituted therefor a dismissal of the appeal by the applicants against the refusal of their asylum claims.

[4] The applicants thereupon sought permission under section 13(4)(a) TCEA to appeal to this Court (being the "relevant appellate court" specified by the Upper Tribunal in terms of section 13(11) TCEA). That permission was refused by a judge of the Upper Tribunal on 26 January 2011; accordingly, the applicants now invoke section 13(4)(b) TCEA and seek leave from this Court to pursue their appeal.

[5] In seeking permission from this Court to pursue that appeal, the applicants encounter the provisions of RCS 41.59, which was inserted into the rules of the Court of Session as one of a number of amendments to those rules by paragraph 7(6) of the Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008[1]. The terms of RCS 41.59 are as follows:

"41.59.- (1) This rule applies where an application is made to the court under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal a decision of the Upper Tribunal which falls within section 13(7) of that Act and for which the relevant appellate court is the Court of Session.

(2) Permission shall not be granted on the application unless the court considers that -

(a) the proposed appeal would raise some important point of principle or practice; or

(b) there is some other compelling reason for the court to hear the appeal."

[6] As part of their application for leave to appeal, the applicants question the validity of RCS 41.59. They contend that the making of such a rule is ultra vires in that it goes beyond the powers enjoyed by the Court of Session to make rules of procedure by way of Act of Sederunt.

[7] The nature and extent of the historical powers of the Court of Session to make rules of procedure was largely distilled in section 5 of the Court of Session Act 1988 - "CSA" - and it is convenient to set out at this point the terms of that section (as amended), the paragraphs in the section to which particular reference was made in the hearing being paragraphs (a) and (l):

"5. Power to regulate procedure etc. by act of sederunt.

The Court shall have power by act of sederunt-

(a) to regulate and prescribe the procedure and practice to be followed in various categories of causes in the Court or in execution or diligence following on such causes, whether originating in the said Court or brought there by way of appeal, removal, remit, stated case, or other like process, and any matters incidental or relating to any such procedure or practice including (but without prejudice to the foregoing generality) the manner in which, the time within which, and the conditions on which any interlocutor of a Lord Ordinary may be submitted to the review of the Inner House, or any application to the Court, or any thing required or authorised to be done in relation to any such causes as aforesaid shall or may be made or done;

(b) to prescribe the form of any summons, defence, petition, answer, writ, pleading, extract of a decree or other document whatsoever to be used in, or for the purposes of, any such causes as aforesaid, or in, or for the purposes of, execution or diligence following on such causes and the manner in which, and the person by whom, any such summons, petition, writ, pleading, extract of a decree or document shall be signed or authenticated;

(ba) to make provision as to the quorum for a Division of the Inner House considering solely procedural matters, and, in the case of an extra Division, to make provision as to which judge is to preside and to sign any judgment or interlocutor pronounced by the extra Division;

(c) to prescribe the manner in which, the time within which, and the conditions on which any verdict of a jury may be submitted to the review of the Inner House on any ground set out in section 29 of this Act;

(d) to regulate the production and recovery of documents;

(da) to regulate the procedure to be followed in proceedings in the Court in connection with the making of orders under sections 12(1) and (6) and 13(2) of the Vulnerable Witnesses (Scotland) Act 2004 (asp 3) ("the 2004 Act");

(db) to regulate, so far as not regulated by the 2004 Act, the use in any proceedings in the Court of any special measures authorised by virtue of that Act to be used;

(e) to provide in any category of causes before the Court, for written statements (including affidavits) and reports, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988, to be received in evidence, on such conditions as may be prescribed, without being spoken to by a witness;

(ee) to permit a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the Court for the purposes of any enactment which makes provision (however expressed) for the Court to have regard to those views;

(ef) to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the Court on the party's behalf;

(f) to provide for the payment into Court and the investment or application of sums of money awarded in any action of damages in the Court to a pupil or a minor;

(h) to regulate the expenses which may be awarded to parties in causes before the Court;

(i) to regulate the summoning, remuneration, and duties of assessors;

(j) to fix the ordinary sessions of the Court and to regulate the days on which and times at which the Court shall sit;

(k) to prescribe the matters with which the vacation judge may deal;

(l) to make such regulations as may be necessary to carry out the provisions of this Act or of any Act conferring powers or imposing duties on the Court or relating to proceedings therein; and

(m) to modify, amend or repeal any provision of any enactment including this Act relating to matters with respect to which an act of sederunt may be made under this Act."

[8] In her response to the application for permission to appeal the Secretary of State for the Home Department also contends, for reasons largely similar to those advanced by the applicants, that in promulgating RCS 41.59 in the amending Act of Sederunt the Court of Session acted ultra vires. If RCS 41.59 is set aside, the Secretary of State accepts that leave to appeal should be granted, the decision of the Upper Tribunal being vitiated by material error of law. There is then an issue between the appellants and the respondent as to the appropriate disposal were the appeal to be granted but that is not a matter with which the Court is currently concerned.

[9] Given the unity of view among the applicants and the respondent that RCS 41.59 is ultra vires, the Court appointed Miss Crawford QC as amicus curiae to assist the Court with the presentation of any countervailing argument. The Court is appreciative of Miss Crawford's willingness to undertake that office and of the care and diligence with which she has discharged its duties.

[10] The principal statutory provision governing appeals from the Upper Tribunal to the...

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