+mbr V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Menzies,Lord Justice Clerk |
| Neutral Citation | [2013] CSIH 66 |
| Court | Court of Session |
| Published date | 03 July 2013 |
| Year | 2013 |
| Date | 17 May 2013 |
| Docket Number | XA114/12 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Menzies Lord Wheatley | [2013] CSIH 66 XA114/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the motion by the applicant MBR Applicant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Act: Bovey QC, McGuire; Drummond Miller LLP
Alt: Drummond QC, JNM MacGregor; Office of the Advocate General
17 May 2013
Background
[1] This is an application in the following terms:
"... to hold [the procedural judge's] interlocutor of 12 February 2013 pro non scripto and, in any event, for determination of the application for leave by a quorum of three judges of the Inner House".
[2] The background is that the applicant is an Iranian national, who originally claimed asylum on or about 1 September 2008. The respondent rejected his claim on the basis that it was not credible. An appeal against that determination was refused by an Immigration Judge (Hamilton) on 19 November 2008. The reasoning in the appeal was also that the applicant was not considered credible, especially in relation to his account of being involved in a protest as an employee at a tyre factory. The applicant attempted to make "fresh" claims in both 2009 and 2010. These were both unsuccessful, but a judicial review by the Court of Session resulted in a remit to the respondent for reconsideration.
[3] On 19 February 2011, the applicant's claim was once again rejected on credibility grounds. An appeal against that decision was heard by a different Immigration Judge (Forbes) in June 2011. The contention for the applicant was essentially that he had been entitled to have his original asylum interview by the respondent's officials audio recorded (Dirshe v Secretary of State for the Home Department [2005] 1 WLR 2685). The failure to do so had resulted in procedural unfairness and, by analogy with certain criminal precedent concerning the need for legal advice prior to police interviews (Cadder v HM Advocate 2011 SC (UKSC) 13), evidence of the interview ought to have been excluded from consideration. This argument was rejected, partly because the Immigration Judge took the view that applications for international protection required to be treated in an "holistic" fashion (Determination, para 28). In order for the application for asylum to be considered by the respondent in the first place, the applicant required to assist in establishing facts to support his claim. Even if the evidence of the interview would have been excluded as unfairly obtained in a criminal court, the Judge held that the provisions of paragraph 51(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 permitted its admission in the tribunal setting.
[4] The applicant appealed that decision to an Upper Tribunal. At that stage however, counsel for the applicant did not advance any of the grounds of appeal based upon the absence of an audio recording or analogy with criminal precedent. Rather, two new submissions were advanced. The first was that, contrary to the Immigration Judge's view, rule 51(1) of the 2005 Rules actually assisted the applicant, albeit that it seemed permissive rather than exclusionary in nature. The submission was that the rule entitled a tribunal to discount evidence altogether, on the grounds of unfairness. The Upper Tribunal held that the tribunal had no jurisdiction to do this. A second submission, which was advanced as a refinement of that based on the criminal law analogy, was that no reasonable immigration judge could have placed any weight on the content of the interview, standing the absence of an audio recording and, in addition, the references in the interview to the applicant feeling unwell. The appeal was refused. The Upper Tribunal held that there had been no unfairness as would have justified excluding consideration of the interview.
[5] The applicant applied to the Upper Tribunal for leave to appeal to the Court of Session. This was refused on 29 May 2012, with the Tribunal noting that the grounds of appeal all related to the absence of an audio recording, which had been the subject of the appeal to the Immigration Judge (Forbes), rather than any issue arising out of the fresh claims. The Tribunal considered that the grounds of appeal were misconceived, in so far as they suggested that evidence of the interview ought to have been excluded. The applicant had not said that the interview had been unfair or even that the evidence of the interview had been in any way inaccurate.
[6] The applicant applied to the Court of Session for leave to appeal, essentially on the same grounds as had been presented to the Upper Tribunal. It is with the competency of the decision on that application by a procedural judge of the Inner House that this application is concerned.
The Rules of Court
[7] The power of the Court of Session to regulate its own procedure is consolidated by section 5 of the Court of Session Act 1988. The section provides that the Court has 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 ... whether originating in the said court or brought there by way of appeal ...".
There is a specific power, which was introduced into section 5 by the Judiciary and Courts (Scotland) Act 2008 (section 46(3)), as follows:
"(ba) to make provision as to the quorum for a Division of the Inner House considering solely procedural matters ...".
Otherwise, section 2(4) of the 1988 Act prescribes that "the quorum for a Division of the Inner House shall be three judges".
[8] The background to the 2008 amendment, quantum valeat, was a concern amongst the judiciary that "procedural matters including the question of the competency of an appellate cause" required a full quorum of three (Policy Memorandum to the 2008 Bill, para 105). This had flowed from Lord Penrose's first Review of Inner House Business in 2006. The Bill, as originally framed, had permitted the court to fix the quorum generally for all categories of Inner House business. However, it was thought by Parliament's Justice Committee that this was going too far and that the power should be limited to "solely procedural matters" (amendment 46). In the debates, it is tolerably clear that Parliament had in mind that an application for leave to appeal, which it noted was a particular concern of the judiciary, fell into the category of "procedural matters" (see eg Pauline McNeill MSP, Justice Committee, 10 June 2008).
[9] In his second Review in 2009, Lord Penrose recommended (para 6.7) that the new power in section 5(ba) be applied to reduce the quorum required at all of the stages in the appellate process up to (and including) the point at which a final hearing was appointed to dispose of the merits of an appeal. His proposed rules, which were duly subjected to consultation through the Rules Council, resulted in Chapter 37A of the Rules of Court being introduced in 2010, whereby:
"37A.1.(1) In relation to such procedural business of the Inner House as is specified in paragraph (2), the quorum of a Division of the Inner House shall be one judge.
(2) The procedural business mentioned in paragraph (1) is such business as arises under -
...
(d) an appeal to the court under Chapter 41 (appeals under statute);
...
(ii) in the case of an appeal under Part III of that Chapter (appeals in Form 41.25), up to and including the procedural steps mentioned in rule 41.32(2)".
Rule 37.A.2 created the rôle of "procedural judge" of the Inner House. The procedural steps mentioned in RCS 41.32(2) are those taken at a procedural hearing, prior to the appointment of the appeal to a hearing on the Summar Roll or Single Bills.
[10] The current form of RCS 41.3, which was introduced in 2011, is headed "Determination of applications for leave to appeal". It provides that any such application shall be brought before a procedural judge on the first available day after it is lodged so that appropriate orders for service on interested parties may be made. The rule allows such parties to lodge answers. Thereafter it continues as follows:
"(6) ... the applicant may apply by motion to a procedural judge for the application to be granted".
The rule goes on to stipulate the procedure which is to follow in the event of leave being granted or refused.
The procedure followed
[11] In terms of RCS 41.3, the applicant's application for leave to appeal was brought before a procedural judge, who made the appropriate order for service, on 24 July 2012. There then followed a significant delay before the applicant enrolled to appoint the application, and the answers thereto, to a hearing on the Single Bills. By interlocutor dated 4 January 2013, the court appointed the application and answers to be heard "before a procedural judge" on 12 February. This procedure was in line with the terms of RCS 41.3(6) (supra) and no objection was proffered by the applicant to the terms of the interlocutor. On 12 February 2013, the hearing, which lasted in the region of two hours, took place following upon the previous lodging of written submissions. At no time prior to or during the hearing before the procedural judge was any point taken about the competency of a single judge determining the application. At the conclusion of the hearing, the procedural judge refused the application for leave to appeal. In so doing, he applied the well-known test in Hoseini v Secretary of State for the Home Department 2005 SLT 550 of whether the grounds of appeal had any real prospects of success or there was some other compelling reason why the appeal should be heard. The procedural judge did not consider that the grounds of appeal, which had been advanced, were competent given the terms of section 13(1) of the Tribunals, Courts and Enforcement Act 2007, which restricts appeals from the Upper Tribunal to the court to those raising "any...
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