M.u.b. Against Secretary Of State For The Home Department

CourtCourt of Session
JudgeLady Clark Of Calton,Lord Brodie,Lord McGhie
Judgment Date30 January 2015
Neutral Citation[2015] CSIH 9
Publication Date30 January 2015
Date30 January 2015
Docket NumberP325/13


[2015] CSIH 9


Lord Brodie

Lady Clark of Calton

Lord McGhie


in the reclaiming motion



Petitioner and reclaimer;




Act: Caskie; Drummond Miller LLP

Alt: Pirie; Office of the Advocate General

30 January 2015

[1] This is a reclaiming motion against the dismissal by the Temporary Lord Ordinary (Sheriff Arthurson QC) of a petition for judicial review of the refusal by the Upper Tribunal (Immigration and Asylum Chamber) of an application by the petitioner and reclaimer for permission to appeal a determination by the First‑tier Tribunal. It raises the issue of how what has become known as “the Eba test” (otherwise “the second appeals test”) should be applied.

[2] The petitioner and reclaimer is a citizen of Pakistan. He is a Christian. He entered the United Kingdom on 21 April 2012 on a visitor’s visa, together with his wife and children. He claimed asylum on 27 April 2012 founding on fear of persecution by reason of his religious beliefs. His claim was considered by the respondent, the Secretary of State for the Home Department, as comprehending a claim for humanitarian protection of himself, his wife and his children by reference to article 8 of the European Convention on Human Rights. The claim was refused by the respondent in terms of decision letter dated 8 June 2012. The reclaimer appealed this refusal. His appeal was heard by the First‑tier Tribunal on 31 August 2012. It was refused in terms of determination and reasons dated 19 September 2012. The reclaimer applied to the First‑tier Tribunal for permission to appeal to the Upper Tribunal. His application was refused by the First‑tier Tribunal in terms of decision dated 15 October 2012. He renewed his application for permission to appeal to the Upper Tribunal. His renewed application was refused by the Upper Tribunal in terms of decision dated 22 November 2012. It is in respect of that decision of 22 November 2012 that the reclaimer now seeks judicial review. The remedy sought is reduction of the decision of the Upper Tribunal refusing permission to appeal as unlawful. In the event of reduction being granted the reclaimer’s application for permission would require to be remitted to the Upper Tribunal for consideration and determination.

The nature of the decision under review
[3] The refusal of permission which the reclaimer seeks to challenge was made by the Upper Tribunal in exercise of a jurisdiction conferred by section 11 (4) (b) of the Tribunals, Courts and Enforcement Act 2007.

[4] Section 11 (2) of the 2007 Act grants any party to a case a right of appeal with the permission either of the First‑tier Tribunal or the Upper Tribunal. The right of appeal is on any point of law arising from a decision made by the First‑tier Tribunal other than an excluded decision: section 11 (1). Appeal is to the Upper Tribunal. Permission “may be given” by the First‑tier Tribunal or the Upper Tribunal: section 11 (4). No more specific statutory criterion applies. In the course of argument before this court, counsel described the test to be applied by the Upper Tribunal in determining whether to grant permission to appeal as arguable error of law. That is consistent with what appears in Guidance Note 2011 No. 1 Permission to appeal to UTIAC (amended September 2013 and July 2014) issued by the President of the Immigration and Asylum Chamber in terms of his powers under paragraph 7 of Schedule 4 to the 2007 Act, and in particular paragraph 12 of that Note. Consideration of the full terms of the Guidance Note indicates that exercise of the section 11 (4) jurisdiction with a view to the grant of permission only where it is appropriate to do so, is a more nuanced matter than concentration on arguability and arguability alone might suggest, but arguability is what was referred to by counsel before us and determining whether the proposed point is arguable provides an acceptable shorthand for the nature of the Upper Tribunal’s task when considering an application for permission to appeal.

Procedure in the application for judicial review
[5] The reclaimer’s application for judicial review has fallen to be determined in what can be regarded as a period of procedural transition.

[6] One of the transitional elements is how the second appeals’ test adopted in Eba v Advocate General 2012 SC (UKSC) 1 as a means of restricting the scope of judicial review of, for example, a refusal of permission by the Upper Tribunal, should be applied. A difference of view and consequential divergence of approach had emerged in the Outer House. That was only authoritatively resolved in the opinion of the court, delivered by the Lord Justice Clerk, in SA v Secretary of State for the Home Department 2014 SC 1, which was advised on 6 June 2013.

[7] Another element in transition has been the scope of the procedural first hearing which now requires to be held in terms of the relevant practice note in any case where the immigration or asylum status of an individual is in question. First orders in the reclaimer’s petition were granted on 2 April 2013. The practice note which governed the procedural hearing in this case was accordingly Court of Session Practice Note No. 1 of 2012 which had effect from 4 February 2013. When the present petition came before Lord Boyd of Duncansby for a first procedural hearing on 29 May 2014, the respondent moved the court to determine her first plea‑in‑law which was to the effect that (having regard to the Eba test) review of the Upper Tribunal’s decision fell outside the court’s supervisory jurisdiction and that the petition should therefore be dismissed. Lord Boyd refused that motion. He ordered that there should be a first hearing restricted to considering the respondent’s first plea‑in‑law (the matter which came before the Temporary Lord Ordinary on 13 November 2013 and which is the subject of this reclaiming motion). Lord Boyd expressed the opinion that the practice note did not contemplate substantive arguments on relevancy at the stage of a procedural hearing. Moreover, he observed that the divergence in approach in the Outer House, which had not then been resolved, made it difficult to apply the Eba test at what essentially was a procedural hearing. The reasoning in Lord Boyd’s opinion, now reported as B Petr 2013 SLT 990, was endorsed by the court in SA (supra at paragraph [32]). However, the court added, at paragraph [34], that it might be considered whether the practice note should be amended to make clear whether (or not) the Eba test can be considered as a preliminary issue at a procedural first hearing.

[8] The suggestion made in SA has been addressed. Practice Note No. 1 of 2012 has been replaced, as from 24 September 2013, by Practice Note No. 2 of 2013. Paragraph 11 of this practice note provides that in cases relating to an unappealable decision of the Upper Tribunal practitioners should be prepared, at a procedural first hearing, to address the Lord Ordinary on whether the Eba test is met.

The Eba test
[9] When the petition called before the Temporary Lord Ordinary for the first hearing ordered by Lord Boyd, parties were agreed that having regard to the decision in SA, the relevant test as to whether a relevant decision was amenable to judicial review could be expressed in the following proposition:

Judicial review of a refusal by the Upper Tribunal to grant permission to appeal to itself from a decision of the First–tier Tribunal should not be granted unless (a) the proposed appeal would raise some important point of principle or practice or (b) there is some other compelling reason justifying interference with that decision.

That remained the position before this court. Parties were also agreed that the respondent’s note of argument accurately set out a number of subsidiary propositions relating to the test.

[10] We pause to note that, for the reasons discussed in Eba and its companion case in the Supreme Court, R (Cart) v Upper Tribunal and Anor [2012] 1 AC 663, whereas the test to be applied by the Upper Tribunal in determining an application for permission to appeal is the relatively modest hurdle of arguability, once the Upper Tribunal, in exercise of its statutory jurisdiction, has refused permission, a party seeking reduction of that decision by way of judicial review must satisfy a different and altogether more stringent test if he is to succeed. While in either case there must be what is identified as a material error of law, at the stage of judicial review the supposed error will normally require to be one which “cries out for consideration”, rather than just potentially arguable, and that must be apparent simply upon a reading of the petition: SA supra at paragraph [44]. The effect of Eba was to remove certain decisions, of which a refusal by the Upper Tribunal of permission to appeal is an example, from the general category of decisions which are amenable to judicial review on the ground of error of law and nothing more (variously described as “simple” or “traditional” or “orthodox” error of law) and to place such decisions in a category where judicial review remains available but only for rare and exceptional cases where, in addition to an identified error of law, the petitioner can demonstrate some important general point of principle or practice which requires to be addressed by way of appeal or, in the absence of such a general point, some other reason for allowing an appeal to the Upper Tribunal, specific to him or his case, which can properly be described as compelling: SA supra at paragraph [35].

The error of law founded on by the reclaimer
[11] It is the reclaimer’s contention that the First‑tier Tribunal erred in law in its consideration of his appeal. Although the matter is not very well focused in the petition and was not presented precisely in

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