Secretary Of State For The Home Department Against Thabo Jones Mdluli
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Clark,Lord Philip |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] CSIH 68 |
| Court | Court of Session |
| Date | 23 July 2014 |
| Published date | 23 July 2014 |
| Docket Number | P550/13 |
[2014] CSIH 68
Extra Division
Lord Glennie
Process — Judicial review — Immigration — Role of court at substantive first hearing where test in Eba v Advocate General met at procedural first hearing
A citizen of Swaziland applied to the respondent for leave to remain in the United Kingdom. This application was refused. He appealed to the First-tier Tribunal (“FTT”), who dismissed the appeal. The petitioner sought permission to appeal to the Upper Tribunal (“UT”). This permission was refused by both the FTT and UT. The petitioner then presented a petition for judicial review seeking reduction of the UT's refusal to grant permission to appeal. The petition called for a procedural first hearing to determine, inter alia, whether the test in Eba v Advocate General was met, namely whether the petition disclosed an error of law that raises an important point of principle or practice or some other compelling reason for hearing the case. The Lord Ordinary deleted certain averments from the petition on the basis that the Eba test was not met but continued the remainder of the petition to a first hearing. The petition and answers called for a first hearing before a second Lord Ordinary who granted the prayer of the petition and reduced the decision of the UT. The Lord Ordinary did so on the basis that, the Eba test having been satisfied at the procedural first hearing, there was nothing further for him to decide in the petition.
The Secretary of State argued that (1) the second Lord Ordinary had erred in his interpretation of the first Lord Ordinary's interlocutor and wrongly reformulated the Eba test and (2) this was an appropriate case for the court to give guidance on the application of the Eba test and the role of the court at the substantive first hearing in circumstances where the court has decided that the threshold Eba test had been met at a procedural first hearing. The petitioner argued that (1) the Eba test was irrelevant and (2) the merits of the case had been determined by the second Lord Ordinary.
Held that: (1) the first Lord Ordinary did not purport to decide the merits of the judicial review, which was the task of the second Lord Ordinary (para 20);
(2) the second Lord Ordinary did not do so (para 26); (3) this was not an appropriate case to give guidance about Eba v Advocate General (para 27); and reclaiming motion allowed and case remitted to first Lord Ordinary to proceed as accords.
Thabo Jones Mdluli, a citizen of Swaziland, brought a petition under the judicial review procedure in the Court of Session in which he sought reduction of a decision of the Upper Tribunal to refuse the petitioner permission to appeal from a decision of the First-tier Tribunal.
The petition and answers called before the Lord Ordinary (Stewart) for a procedural first hearing, on 29 November 2013. At advising on the same date, the Lord Ordinary upheld the respondent's second plea in law that the judicial review did not raise an important point of principle or practice or other compelling reason for the court to hear the case to the extent of deleting certain averments from the petition but continued the remainder of the petition for a first hearing.
The petition and answers called before the Lord Ordinary (Glennie) for a first hearing, on 7 February 2014. At advising, on 18 February 2014, the Lord Ordinary granted the prayer of the petition and reduced the decision of the UT ([2014] CSOH 28). The respondent reclaimed.
A v Secretary of State for the Home Department [2012] CSOH 86; 2012 SLT 1075; 2012 SCLR 673
Eba v Advocate General [2011] UKSC 29; 2012 SC (UKSC) 1; 2011 SLT 768; [2011] 3 WLR 149
R (Cart) v Upper Tribunal; R (MR) (Pakistan) v Upper Tribunal and Secretary of State for the Home Department[2011] UKSC 28; [2012] 1 AC 663; [2011] 3 WLR 107; [2011] 4 All ER 127; [2012] 1 FLR 997; [2011] Imm AR 704; [2011] STC 1659
SA v Secretary of State for the Home Department [2013] CSIH 62; 2014 SC 1; 2013 SLT 1132
The cause called before an Extra Division, comprising Lady Paton, Lady Clark of Calton and Lord Philip, for a hearing on the summar roll.
At advising, on 23 July 2014, the opinion of the Court was delivered by Lady Clark of Calton—
[1] This is a reclaiming motion on behalf of the Secretary of State for the Home Department directed at a decision of Lord Glennie, dated 7 February 2014, which followed his consideration of submissions on behalf of the parties at a first hearing of a petition for judicial review. Lord Glennie found in favour of the petitioner, granted the prayer of petition and reduced the decision of the Upper Tribunal (Immigration and Asylum Chamber) which refused to grant to the petitioner permission to appeal from a decision of the First-tier Tribunal.
[2] In order to understand the issues raised in the reclaiming motion, it is necessary to explain the history and context of the various proceedings both in the tribunal system and in the judicial review proceedings.
[3] Under and in terms of Pt 1 of the Tribunals, Courts and Enforcement Act 2007 (cap 15), there was established a new unified tribunal structure which includes the First-tier Tribunal and an Upper Tribunal, organised into chambers, dealing with specialist subjects including immigration. One of the important changes was to give a new right of appeal from the lower tribunal to the Upper Tribunal in defined circumstances. In the present case, there was no dispute that the petitioner had a right of appeal from the First-tier Tribunal “on any point of law” arising from a decision made by the First-tier Tribunal but that right of appeal may only be exercised with the permission of the First-tier Tribunal or permission of the Upper Tribunal. The petitioner sought such permission both from the First-tier Tribunal and the Upper Tribunal. Both tribunals refused to grant permission to appeal.
[4] In the aforesaid circumstances the parties did not dispute that, as a matter of law, the decision of the Upper Tribunal to refuse leave to appeal was not appealable to this court and that any remedy by way of judicial review seeking to reduce the decision of the Upper Tribunal to refuse leave to appeal was also limited. The limitations and reasons for the limitations of the judicial review remedy are discussed at length in R (Cart) v Upper Tribunal and Eba v Advocate General. In Eba it was held that the approach in Scottish courts to unappealable decisions of the Upper Tribunal should be to align with the approach of the court in Cart. The UK Supreme Court in Eba, in relation to such cases approved a restriction in the scope of judicial review. The practice recommended was that the Lord Ordinary to whom a petition is presented for a first order should be encouraged to consider whether there is an error of law that raises an important issue of principle or some other compelling reason for hearing the case before deciding whether or not a first order should be granted. The phrases “some important point of principle or practice” and “some other compelling reason”, which restrict the scope for a second appeal in England, provide a standard for the court to use in the exercise of a supervisory jurisdiction in relation to decisions in immigration cases that are unappealable to this court. This restrictive approach approved in Eba...
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