M.l. V. Secretary Of State For The Home Department For Judicial Review Of A Decision Of The Upper Tribunal
| Jurisdiction | Scotland |
| Judge | Sheriff N.M.P. Morrison QC |
| Neutral Citation | [2014] CSOH 54 |
| Court | Court of Session |
| Docket Number | P17/14 |
| Published date | 20 March 2014 |
| Date | 20 March 2014 |
| Year | 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 54 | |
| P17/14 | OPINION OF SHERIFF NMP MORRISON QC Sitting as a Temporary Judge in the Petition of M L Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 28 August 2013 ________________ |
Petitioner: Forrest; McGill & Co, Edinburgh
Respondent: Gill; Office of the Advocate General
20 March 2014
The issue
[1] The petitioner seeks judicial review of a refusal by the Upper Tribunal to give permission to appeal a decision of the First-tier Tribunal. The error of law which the petitioner alleges, as mentioned in paragraph 9.2 of the petition, is that the Upper Tribunal erred in holding that the First-tier Tribunal could not have reached any other conclusion than it did because the case of Qiu Yun Chen v Holder, 715 F.3d 207 (7th Cir. 2013) was not placed before it and because the system of country guidance requires that decision makers in the immigration appellate system follow decisions in country guidance cases.
[2] The issue which the petitioner seeks to have this court consider is whether an inferior court is not bound by a decision of persuasive authority in circumstances where it is bound under a factually based precedent system by a decision which pre-dates that authority. That issue is stated in paragraph 3.1 of the petitioner's note of argument for the hearing before me and was confirmed by counsel for the petitioner as that which he wished to be considered at the first hearing.
[3] The question for me, at the procedural first hearing, was whether that issue passed the first limb of the test in Eba v Advocate General, 2012 SC(UKSC) 1, namely, that an important point of principle or practice is raised. That is because the Upper Tribunal's refusal of permission to appeal is an unappealable decision by virtue of section 13(1) and (8)(c) of the Tribunals, Courts and Enforcement Act 2007 and Eba decided the test to be applied in deciding whether such a decision is amenable to judicial review.
[4] In A v Secretary of State for the Home Department, 2013 SLT 11, the Second Division gave guidance about how to apply that test. In the case before me, counsel for the petitioner agreed with the following propositions that counsel for the respondent derived from that decision (the paragraph references are to the paragraphs in the opinion of the court). These were:-
(1) In a challenge to an unappealable decision of the Upper Tribunal, the court's role is a gate keeping or sifting role (para. [43]).
(2) The Eba test is a stringent one which is designed to allow review only in rare and exceptional cases in order to ensure that no compelling injustice occurs (para. [44]).
(3) The challenge must identify an error of law on the part of the Upper Tribunal in refusing leave to appeal and not an error of law on the part of the First-tier Tribunal in the original decision against which leave to appeal was sought (para. [15]).
(4) A petition seeking judicial review of an unappealable decision of the Upper Tribunal must clearly and unequivocally aver the specific error on the part of the Upper Tribunal (para. [43]).
(5) Such a specific error normally requires to be one which cries out for consideration, and is not just potentially arguable, upon a reading of the petition (para. [44]).
(6) The petition must also clearly and unequivocally aver either (i) the important point of principle or practice or (ii) the other compelling reason why the challenge should be allowed to proceed (para. [43]).
[5] I accept the submission of counsel for the respondent that there could be added the following propositions. For there to be an important point of principle or practice -
(1) The issue raised must "be one of general importance, not one confined to the petitioner's own facts and circumstances" (Eba, para. 48).
(2) The issue must be a point that has not yet been established (A, above, para. [43] following Uphill v BRB (Residuary) Ltd, [2005] 1WLR 2070, 2075, para. 18).
(3) Whether an established point of principle or practice has been properly applied in an individual case does not itself raise an important point of principle or practice (Uphill, para. 18).
Background
[6] The petitioner, born on 21 June 1985, is a citizen of China from Fujian Province where she lived until 2008. She came to the United Kingdom and found that she was pregnant following an alleged rape by a man...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2016-01-29, AA/14934/2010
...determination records a submission for the appellant based on Mohammed v Gonzales but does not explicitly answer it. He referred to ML [2014] CSOH 54 and DL [2014] CSOH 147 to show that the opinion of a foreign court is at best persuasive, and to AX [2012] UKUT 97 as an example of the Upper......
-
D.l. For Judicial Review Of A Decision Of The Upper Tribunal
...guidance case did not require to be followed. [11] Mr Forrest drew my attention to ML v Secretary of State for the Home Department [2014] CSOH 54. He recognised that it did not assist him. He informed me that it was being reclaimed. The respondent’s submissions [12] Mr Gill submitted that t......
- Dl, Petitioner