L.m. For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2012] CSOH 68 |
| Year | 2012 |
| Published date | 25 April 2012 |
| Date | 25 April 2012 |
| Court | Court of Session |
| Docket Number | P542/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 68 | |
| P542/11 | OPINION OF LORD BRODIE in the Petition of LM Petitioner for Judicial Review of a decision dated 16 August 2010 by the Upper Tribunal (Immigration and Asylum Chamber) to refuse the Petitioner permission to appeal ________________ |
Petitioner: Winter; Drummond Miller LLP
Respondent: Lindsay QC; Office of the Solicitor to the Advocate General
25 April 2012
Introduction
[1] The petitioner is a 65 year old widow. She is a citizen of Zimbabwe. She avers that she is HIV positive. She has recently suffered from cholera. Her home was deliberately destroyed by the Zimbabwean government as part of a policy directed against those they view as their opponents. The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland
[2] The petitioner has four daughters. Two live in Botswana. One lives in South Africa. The petitioner does not know the present whereabouts of any of these three. The petitioner also has a daughter who lives in Coatbridge ("the sponsor") together with the petitioner's grand-daughter. The sponsor has been granted asylum in the United Kingdom as a refugee from Zimbabwe. The sponsor has not lived in family with the petitioner since 1998. She has not visited her since 2001. At least between January 2009 and April 2010, she has, however, provided the petitioner with some financial support. The petitioner cared for her grand-daughter between 1999 and 2002. The petitioner has not lived with her grand-daughter since 2002.
[3] On 7 October 2009 the petitioner applied for entry clearance to settle in the United Kingdom with the sponsor. Entry clearance operates as advance leave to enter. The Entry Clearance Officer ("ECO"), acting on behalf of the respondent, refused the application on 9 October 2009. In refusing the application the ECO had concluded that the requirements of the Immigration Rules could not be complied with in the petitioner's case (the refugee family reunion provisions of the Rules not applying to the petitioner because she is not the spouse or child of the sponsor). He also considered and rejected representations on the appellant's behalf that the appellant's circumstances were so compelling and compassionate that she should in any event be granted leave exceptionally to settle in the United Kingdom.
[4] The petitioner appealed refusal of entry clearance in terms of section 82 (1) of the Nationality Immigration and Asylum Act 2002. Her position was that the decision of the ECO was unlawful in that it breached her rights under Article 8 of the European Convention on Human Rights; and that the ECO should have found there to be compelling and compassionate circumstances justifying allowance of entry clearance, as provided by Home Office policy. The appeal was heard by an Immigration Judge of the First-tier Tribunal (Immigration and Asylum Chamber) on 9 April 2010 and refused in terms of Determination and Reasons promulgated on 20 April 2010. The petitioner applied for permission to appeal the decision of the First-tier Tribunal on point of law to the Upper Tribunal, pursuant to section 11 of the Tribunals Courts and Enforcement Act 2007. Permission to appeal was refused by an Immigration Judge of the First-tier Tribunal in terms of Reasons for Decision dated 30 June 2010. A renewed application for permission was refused by a Senior Immigration Judge of the Upper Tribunal in terms of Notice of Decision dated 16 August 2010. The petitioner seeks judicial review of that Decision.
[5] The petition called before me for a first hearing on 15 December 2011. Answers had been lodged on behalf of the respondent. Mr Winter, Advocate, appeared on behalf of the petitioner. Mr Lindsay QC appeared on behalf of the respondent. Mr Winter's motion was for reduction of the Decision of the Upper Tribunal of 16 August 2010 and for a remit of the application for permission. It was his position that there had been material errors of law by the First-tier Tribunal in refusing the appeal against the ECO's decision not to grant entry clearance and that therefore the Upper Tribunal must be taken to have made an error in law in failing to grant permission to appeal. It was his submission that the Upper Tribunal's decision was amenable to judicial review. However, he accepted that, on the authority of the opinion of the Supreme Court in Eba v Advocate-General for Scotland 2011 SLT 768, the petitioner had to satisfy the "second-tier appeal test" of showing an important point of principle or practice or other compelling reason before this court should interfere. As his primary position Mr Lindsay invited me to sustain the respondent's third plea-in-law by finding that the decision of the First-tier tribunal was lawful and reasonable and that the orders sought in the petition should be refused. As a secondary position, in the event that I was not persuaded that the First-tier tribunal had made no error of law, he invited me to sustain the respondent's second plea-in-law which was that no important issue of principle or practice being raised in the position and there being no compelling reason, the orders sought should be refused.
Leave to enter and entry clearance: legal framework
Relevant rights and obligations
[6] As is provided by section 3 (1) of the Immigration Act 1971, where a person is not a British citizen (or a citizen of a member state of the European Union) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act. Section 3 (2) of the 1971 requires the Secretary of State to lay before Parliament from time to time statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter. These are the Immigration Rules. In MO (Nigeria) v Home Secretary, otherwise Odelola v Secretary of State for the Home Department, [2009] 1 WLR 1230, Lord Brown of Eaton-Under-Heywood (with whom Lord Hope expressly agreed) described the Immigration Rules in this way, at para 35 (supra 1340C):
"The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33 (5) of the 1971 Act provides that: 'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.' The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."
The Immigration Rules are not finally determinative of how the respondent will exercise the prerogative power of immigration control. Exceptionally, an applicant may be granted leave to enter on a basis which is outwith the policy articulated in the Rules. Not every relevant policy is to be found in the Rules. Some policies on asylum are expressed in Asylum Policy Instructions ("APIs") but relevant policies may be published other than by means of written policy statements, as was acknowledged on behalf of the respondent in the present case. On 17 March 1995, the then Minister, Nicholas Baker, said this in the House of Commons (Hansard 17.3.1995, col 1215):
"People recognised as refugees immediately become eligible to be joined by their spouse and minor children, provided that they have lived together as a family before the sponsor travelled to seek asylum. Families of refugees are not required to satisfy the maintenance and accommodation requirements that normally apply when families seek admission to join a sponsor here. Other dependent relatives may be admitted if there are compelling compassionate circumstances."
As is noted in paragraph 6 of the petition, the ministerial statement is set out in Macdonald's Immigration Law & Practice (8th edition) para 12.197 fn 1, as is the information that the substance of the final sentence of the statement with its reference to the admission of dependent relatives other than spouses and children, where there are compelling compassionate circumstances, was formerly contained in the API on Family Reunion but that this API is no longer to be found on the Home Office website. The view is expressed that the continuing failure to publish the policy on family reunion is probably unlawful. That view is adopted in paragraph 11 of the petition. However, that is not something upon which I require to express an opinion. On behalf of the respondent, Mr Lindsay accepted that the ministerial statement of 17 March 1995 was part of the policy framework to which the ECO had had to have regard when called upon to exercise discretion on behalf of the respondent (it being Mr Lindsay's position that the ECO had done so). Thus, while not part of the Immigration Rules in a formal sense, the policy enunciated by way of the ministerial statement would appear to be accepted by the respondent as having much the same effect as if it were. As to the meaning of the expression "compelling compassionate circumstances" where it appears in the policy statement, Mr Winter accepted that it means, as explained by Sedley LJ in Miao v Secretary of State for the Home Department [2006] Imm AR 379 at 384, "reasons which would compel, not merely invite, an objective decision-maker to feel compassion".
[7] Mr Lindsay further accepted that irrespective of where he was located when he exercised his functions (here or in Zimbabwe), section 6 of the Human Rights Act 1998 required the ECO to act in a way which was not incompatible with the European Convention on Human Rights and, in particular, article 8.
Appeal on refusal
[8] An applicant who is refused entry clearance by not being granted leave to enter has a right of appeal in terms of section 82 of...
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