Pet; O.b. For Judicial Review
Jurisdiction | Scotland |
Judge | Morag Wise, Q.C. |
Neutral Citation | [2012] CSOH 129 |
Date | 08 August 2012 |
Published date | 08 August 2012 |
Year | 2012 |
Court | Court of Session |
Docket Number | P494/12 |
OUTER HOUSE, COURT OF SESSION [2012] CSOH 129 | |
P494/12 | OPINION OF MORAG WISE QC (Sitting as a Temporary Judge) in the cause OGB (AP) Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum chamber) dated 24 January 2012 to refuse the petitioner's application for permission to appeal Respondent: ________________ |
Petitioner: Gibson, advocate; Drummond Miller LLP
Respondent: Olson, advocate; Office of the Advocate General
8 August 2012
Introduction
[1] The petitioner is a citizen of Nigeria, born on 29 October 1980. Her counsel accepted that she has a poor immigration history. She entered the United Kingdom via Turkey on 17 December 2007 using a false passport and entry clearance visa in the name of OAO. On 7 July 2008 she gave birth to a son, FB, who lives with her. On 29 April 2010 she claimed asylum under her own name and identity. Her claim for asylum was refused by letter of 20 May 2010. The petitioner appealed that decision to the First-tier Tribunal (Immigration and Asylum Chamber). Her appeal was refused by determination dated 27 July 2010. She sought permission to appeal that decision but was unsuccessful. The petitioner became appeal rights exhausted on 16 September 2010.
[2] On 26 November 2010 the petitioner submitted fresh representations, which were rejected by the respondent who refused to recognise them as a fresh claim for asylum, by letter of 10 December 2010. On 7 January 2011 the petitioner submitted further representations. The respondent rejected these further representations and refused to recognise them as a fresh claim for asylum by letter dated 17 January 2011.
[3] On 6 June 2011 the petitioner lodged a fresh application for leave to remain. That application was refused by the respondent by letter dated 21 June 2011. The petitioner appealed and her appeal was refused by determination of the First-tier Tribunal (Immigration and Asylum Chamber) on 2 September 2011. The petitioner then applied (on 28 October 2011) to the Upper Tribunal for permission to appeal to that Tribunal. The Upper Tribunal refused the petitioner permission to appeal by decision dated 24 January 2012. It is that decision that is the subject of challenge in these proceedings.
Scope of the petitioner's challenge
[4] As the decision of the Upper Tribunal refusing leave to appeal from a decision of the First-tier Tribunal is an " excluded decision" in terms of section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, a petition for judicial review is the only remedy open to the petitioner. Such decisions are only amenable to judicial review in cases where there is an important point of principle or practice or some other compelling reason - Eba v The Attorney General for Scotland [2011] 3 WLR 149 at para 48. Counsel for the petitioner acknowledged that this is not a case raising any important point of principle or practice. He restricted his argument to there being "some other compelling reason". Further, it was accepted that the petitioner required to show both (i) that there was an arguable error of law on the part of the First-tier Tribunal, resulting in an error by the Upper Tribunal in refusing to grant leave to appeal and (ii) that there was a compelling reason for reducing the decision of the Upper Tribunal. It was submitted that both requirements were satisfied. It was also contended that as part of the exercise of reviewing the decision being challenged, the court should pronounce on the merits of the proposed appeal.
Decision of the First tier Tribunal
[5] The petitioner's more recent appeal to the First-tier Tribunal was brought solely under articles 3 and 8 of the European Convention on Human Rights ("ECHR"). The relevant parts of the decision (No 6/1 of process) relate to the article 8 considerations that are the subject of the present petition. The petitioner claimed that it would cause a disproportionate breach of her and her son's right to respect for family and private life in the United Kingdom should they be removed. Her son suffers from asthma and a skin condition and she claimed that she would not be able to afford to buy any medicine for him in Nigeria. The immigration judge addressed the article 8 claim in the following passages from the decision:
"55. The appellant states ... that she will not be able to afford to buy any medicine for her son in Nigeria. However, I note from the letter from Gregor Donaldson, Social Worker ... that there are no significant concerns in relation to [F's] global development and that his health issues related to asthma and his skin condition appeared to be appropriately managed.
56. Reference is made at paragraph 55 of the appellant's written submissions to the case of ZH (Tanzania) v SSHD [2011] UKSC 4 and the consideration of the best interests of the child. It is submitted that the Respondent has not considered the best interests of the child to be paramount in this case as stated in ZH.
57. However, it is clear from paragraph 33 of ZH that, although he best interests of the child must be a primary consideration and must be considered first, they can be outweighed by the cumulative effect of other considerations. In the case of ZH, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created.
58. In the present case, the appellant left Nigeria in December 2007, using a passport in another name. She overstayed her visa and worked illegally in the United Kingdom. It was only when she claimed asylum on 29 April 2010 did she reveal her real name. Her immigration status was indeed precarious when she discovered that she was pregnant with her son in December 2007... Most importantly, the appellant's son, [F], is not a British citizen as in the case of ZH.
59. The written submissions for the appellant state that her removal from the United Kingdom would constitute a severe disproportionate breach to both the rights of the appellant and her child under Article 8. Various matters are mentioned such as the young boy's asthma and skin condition and the fact that he would be thrust into an environment and culture which is alien to him were he removed to Nigeria. However, I note that the previous Immigration Judge did consider the best interests of the child at paragraphs 55-57 of her Determination. She found that the child's asthma could be treated in Nigeria and she found that the appellant's family life could continue in Nigeria ... I note also that the Country of Origin Information Request reply dated 8 April 2010 indicates that medication is available locally for treatment of asthma and eczema in Nigeria. In particular, Beclamethasone (via a spacer device), Ventolin, Montelukast and Hydromol cream are all available.
60. Accordingly, I find that removal from the United Kingdom would not constitute a severe disproportionate breach to the rights of the appellant and her child under Article 8.
61 ... I do not accept that the appellant and her son would not be in a position to build private lives in Nigeria. I do not accept that they would suffer extreme hardship in the effects of their deteriorating health ...
62. ... it is argued that, if the appellant and her son are returned to Nigeria, they would not be able to develop private lives that bear any resemblance to those they presently have. However, the question which I require to decide is whether the interference with the exercise of the private lives of the appellant and her son would be proportionate to the legitimate public end sought to be achieved. I find, as did the previous Immigration Judge, that it would not be disproportionate to return the appellant and her son to Nigeria ... .as recently as 16 February 2011, the appellant told Ms Ross that she was making attempts to re-establish communication with her family in Nigeria."
Refusal of Permission to Appeal to the Upper Tribunal
[6] In seeking permission to appeal to the Upper Tribunal, the petitioner sought to argue that the immigration judge had erred in her approach to the "best interests of the child issue". Relative statement of reasons for appealing is lodged at no 6/2 of process. In particular it was contended (i) that the immigration judge had treated the availability of medical treatment in Nigeria as decisive, (ii) that she had failed to state what she considered to be in the child's best interests and (iii) that she had not carried out the correct balancing exercise by failing to consider the "alternative lives" faced by the child in the United Kingdom and Nigeria.
[7] In refusing permission to appeal the upper tribunal judge gave the following reasons:
"Plainly the FTIJ considered s55 and ZH Tanzania principles: see paras 56-7. Contrary to what these grounds assert, the FTIJ did not treat the availability of medical treatment as decisive. It was properly treated as part of the overall assessment the FTIJ made of the best interests of the child (born in 2008) in the context of the wider proportionality assessment. The FTIJ was plainly right to find that the child's best interests lay with continuing to be cared for by her mother who in turn was found to have a family network she could turn to in Nigeria. On AL (India) principles the FTIJ was not required to consider that the child's best interests in this case lay anywhere other than being with her mother (someone who had properly been found to be returnable to Nigeria without violation of her human rights) unless there were separate factors that made it best for her to be in the UK. Such separate factors were not demonstrated."
The petitioner's argument
[8] Two main arguments were presented in support of the requirement to show that there was an arguable error of law on the part of the First-tier Tribunal. First, it was contended that the immigration judge did not...
To continue reading
Request your trial