Thabo Jones Mdluli For Judicial Review Of A Decision By The Upper Tribunal (immigration And Asylum Chamber) To Refuse To Grant The Petitioner Permissi
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2014] CSOH 28 |
| Year | 2014 |
| Published date | 18 February 2014 |
| Date | 18 February 2014 |
| Court | Court of Session |
| Docket Number | P550/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 28 | |
| P550/13 | OPINION OF LORD GLENNIE in the Petition of THABO JONES MDLULI Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal ________________ |
Petitioner: Caskie; Drummond Miller LLP
Respondent: Komorowski; Office of the Advocate General
18 February 2014
Introduction
[1] On 7 February, at a "substantive" first hearing of a petition for judicial review of a refusal by the Upper Tribunal (hereafter "UT") to grant permission to appeal from a decision of the First-tier Tribunal ("FTT"), I granted the prayer of the petition and reduced that decision.
[2] As counsel acknowledged, the hearing before me raised issues of principle and practice, and involved some further consideration of what has become known in Scotland (though probably not in England) as the Eba test: Eba v Advocate General [2012] SC (UKSC) 1 ("Eba"), and see R (Cart) v Upper Tribunal (Public Law Project and another intervening) [2012] 1 AC 663 ("Cart"). I therefore indicated that I would write on the matter.
Background
[3] The petitioner's application for leave to remain in the UK was made both under the Immigration Rules and under article 8 ECHR (right to family life). It was based upon the fact that he lived as part of a family unit with his father and siblings, all of whom have immigration status in the UK and two of whom (his father and sister) are British citizens. As is often the case with petitioners whose cases come before these courts, the petitioner has what the respondent would describe as an immigration "history". He originally entered the UK as a working holidaymaker; but he remained in the UK as an "over-stayer" after the time when, in accordance with Immigration Rules then in force, his application to switch categories from working holidaymaker to student was refused. Some time then passed - during which he obtained a degree in quantity surveying in Scotland - before he made his application under article 8. But I refer to this only as background - it is not directly relevant to the disposal of this petition.
[4] The application for leave to remain was refused by the Secretary of State. She also issued removal directions. The petitioner appealed. An immigration judge of the FTT dismissed his appeal in a decision running to some 50 paragraphs.
Right of appeal to UT
[5] In terms of section 11(1) of the Act, there is a "right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision". This is not an excluded decision. The right to appeal to the UT, however, "may be exercised only with permission" of the FTT or the UT: section 11(3). Clearly that confers on the FTT and the UT a discretion as to whether or not to grant permission.
Exercise of discretion to grant or refuse permission to appeal
[6] The mere identification of a point of law arising from the decision of the FTT will not necessarily lead to permission to appeal being granted. It may not be granted, for example, if the point of law is not reasonably arguable or would not affect the outcome of the case even if decided in favour of the applicant. Other factors may also be relevant. The President of the UT Immigration and Asylum Chamber ("UTIAC") has issued helpful guidance under para 7 of Schedule 4 to the Act to judges of the FTT and UT considering whether to grant permission to appeal in such circumstances: Guidance Note 2011 No.1: Permission to appeal to UTIAC (amended September 2013). That guidance makes it clear that it is not intended to be binding. The relevant legal test remains that set out in section 11 of the Act. However, as is said in para 6 of the guidance, though there is a "right of appeal" on a point of law arising from the decision of the FTT, "the requirement to obtain permission enables the judiciary involved to grant permission only where it is appropriate to do so." It is made clear in the covering note that consideration of an application for permission is a judicial decision for the individual judge performing that function.
Reasons for grant or refusal of permission
[7] A judge granting or refusing permission to appeal must, of course, give reasons. The reasons need not be lengthy - indeed when permission is granted there is much to be said in some cases for keeping them short - but they must be adequate and intelligible. The giving of reasons is particularly important when permission is refused. The Guidance Note gives helpful guidance on this. It emphasises the need to "engage" with competently drafted grounds of appeal: para 29. The guidance goes on to say this (at paras 29 - 31):
"29. ... The maxim that an appellant is entitled to know why he or she has won or lost also has utility for PTA [permission to appeal] applications. There is a limit to what is required if grounds are overlengthy, rambling, incoherent and imprecise, but there should be some attempt to respond to the case as presented. What is called for is not description of the grounds, but evaluation.
30. If the grounds are the same as those made to the Judge dealing with the "first application" for PTA this can often be done by adopting that Judge's observations, but where the grounds are different or the submission is that the Judge dealing with the "first application" has failed to engage with the reasons for which permission is sought, something further is necessary ....
31. Resort to very generalised or formulaic reasons or conclusions for refusing PTA do not give an assurance that the point has been understood and engaged with. In an 11 February 2010 speech to the UTIAC judiciary the President highlighted the need when dealing with PTAs to respond to the grounds of appeal and to identify succinctly and clearly why PTA has been granted or refused."
I respectfully agree with all of that. The opening sentence of paragraph 31 of that guidance is important. The concern is not simply of a failure to give adequate reasons; it is that the failure to give adequate reasons may suggest a failure to give proper consideration to the application. Parliament has provided that the applicant who has failed in his initial appeal against the decision of the Secretary of State should have two separate opportunities of applying for permission to appeal to the UT. He can apply for permission to the FTT. If that is refused, he can apply for permission to the UT. It is axiomatic that each opportunity should be effective. On each occasion the application for permission to appeal should be properly considered or, as the guidance puts it, "understood and engaged with". Unless that is done, Parliament's intention will have been thwarted - the applicant will not in reality have had his two opportunities. A failure at the stage of the "first application" can to some extent be corrected by proper consideration being given to the "second application". However, if the UT does not understand or engage with the "second application", the applicant has no redress other than in the courts. A complaint that the reasons given for refusing permission to appeal are "generalised or formulaic" may in some cases legitimately be presented not simply as a "reasons" challenge but as a challenge based on a failure of due process: see, for example, S v Secretary of State for the Home Department [2013] CSOH 43 at para [13].
The petitioner's "first application" for permission to appeal to the UT
[8] The petitioner applied to the FTT for permission to appeal to the UT (the "first application"). I was told that the application was in the same terms as the subsequent renewed application before the UT. Assuming that to be so, the grounds advanced by the petitioner ran to some 10 paragraphs. Whatever might be the merits of the points raised, it is clear that all or almost all of those paragraphs raised issues of law. For reasons which I shall explain in due course, it is not for the court on this application to assess the strength of those arguments.
[9] That first application was refused. The judge considering the application (who was not the same as the judge hearing the appeal from the Secretary of State) gave the following reasons:
"2. The grounds [of appeal] ... contend at some length the judge was mistaken in her Article 8 ECHR findings, asserting that the judge adopted the wrong approach and reached contradictory findings about family life.
3. The length of the grounds fails to disguise their absence of merit. They misrepresent a careful, structured and comprehensive analysis of the facts properly found, extending from paragraph 18 to paragraph 47 of the determination. There are no contradictions: see paragraph 38 and 39 for the judge's summary of the family life found. The judge's proportionality conclusions were open to her. The grounds amount to no more than an elaborate disagreement with the judge's decision. No arguable error of law has been identified."
The petitioner's "second application" for permission to appeal to the UT
[10] The petitioner renewed his application for permission to the UT, as he was entitled to do: section 11 Tribunals, Courts and Enforcement Act 2007 ("the Act"). This was his "second application" for permission to appeal (to use the terminology in the Guidance Note). His grounds of appeal were the same as before.
[11] That second application was refused. The judge of the UT who considered the application gave these reasons:
"The grounds seeking permission to appeal take issue with the findings made by the First-tier Tribunal judge with regards to the proportionality of the decision to remove him. They seek to re-litigate matters that were aired before the First-tier Tribunal and upon which the First-tier Tribunal judge reached careful and considered findings taking account of the evidence as a whole in reaching his decision.
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