Oluwasegun Olalekan Oke For Judicial Review Of A Decision By The Upper Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2012] CSOH 50 |
| Year | 2012 |
| Published date | 20 March 2012 |
| Date | 20 March 2012 |
| Court | Court of Session |
| Docket Number | P643/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 50 | |
| P643/11 | OPINION OF LORD GLENNIE in the Petition of OLUWASEGUN OLALEKAN OKE Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration & Asylum Chamber) dated 19 April 2011 to refuse the Petitioner permission to appeal ________________ |
Petitioner: Caskie; Morton Fraser LLP
Respondent: Webster; The Office of the Advocate General
20 March 2012
[1] The petitioner is a citizen of Nigeria. He applied for leave to remain in the United Kingdom in the category "Tier 1 (General) Migrant". That is a category designed to lead to settlement in the United Kingdom. Relevant provisions are made in the Immigration Rules. Rule 245A describes the Tier 1 (General) Migrant route as being a route "for highly skilled migrants who wish to work, or become self-employed in the UK".
[2] The Tier 1 (General) Migrant category is dealt with as part of the Secretary of State's "Points Based System". In general terms, under that system, points are awarded for achievements in certain defined areas. If sufficient points are achieved, the applicant qualifies for leave to remain. The requirements for leave to remain in this category are set out in Rule 245C. To qualify for entry clearance as a Tier 1 (General) Migrant, an applicant has to meet the requirements listed in that Rule. If the applicant meets those requirements, entry clearance for leave to remain will be granted. If the applicant does not meet those requirements, the application will be refused. No discretion is involved.
[3] The requirements are set out under reference to various Appendices. It is not in dispute that the petitioner required to achieve 80 points under Appendix A (Attributes), 10 points under Appendix B (English Language) and 10 points under Appendix C (Maintenance (Funds)). The Secretary of State refused his application. The reasons for that refusal are set out in a letter of 9 December 2010 from the UK Border Agency ("the decision letter"). Although 10 points were awarded as claimed in each of Appendices B and C, he was awarded only 65 points under Appendix A rather than the 80 points required to succeed. Points claimed in respect of earnings from self-employment were disallowed.
[4] The petitioner appealed to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT"). I should mention that the appeal was also in the name of his wife, his son and his daughter, but it was accepted that the outcome of their appeals was entirely dependent upon the outcome of the petitioner's appeal. It is therefore unnecessary to consider their position further. The Immigration Judge (McGavin) dismissed the appeal. The petitioner applied for permission to appeal to the Upper Tribunal ("UT"). His application was refused both by the FTT (Immigration Judge Kopieczek) and by the UT (Senior Immigration Judge Gleeson). The refusal by the UT of permission to appeal is an unappealable decision. The only recourse open to the petitioner is by way of judicial review.
[5] By this petition for judicial review, the petitioner seeks reduction of the decision of the UT refusing him permission to appeal from the decision of the FTT. The issue relates to the disallowance of the points claimed in respect of earnings from self-employment. It is very fairly accepted on behalf of the Secretary of State that if the petitioner was entitled to the points claimed in respect of his earnings from self-employment, then he would have achieved the 80 points from Appendix A and, having already satisfied the points requirements in respect of Appendices B and C, would be entitled to be granted leave to remain.
The Eba test
[6] It is common ground that judicial review of a decision by the UT refusing permission to appeal to itself in such cases is, in principle, available. The test to be applied is what has become known as the "second appeal test". That test requires that judicial review should not be granted in such a case unless:
(a) The proposed appeal [to the UT] would raise some important point of principle or practice; or
(b) there is some other compelling reason for the [Upper Tribunal] to hear the appeal.
As was explained by Baroness Hale JSC in R (Cart) v Upper Tribunal [2011] 3 WLR 107 at para.27, that is the test laid down for the grant of permission for a second-tier appeal from the UT to the Court of Appeal: see the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008/2834), Article 2. Equivalent provision has been made for the grant of leave for a second-tier appeal from the UT to the Court of Session: see Rule 41.59 of the Rules of the Court of Session. That test was taken from the rules which have since 1999 applied to a second-tier appeal from a court in England and Wales to the Court of Appeal under section 55(1) of the Access to Justice Act 1999. The decision in Cart applied that test to applications in England and Wales for judicial review of a refusal by the UT of permission to appeal to itself. In Eba v Advocate General for Scotland [2011] 3 WLR 149, heard at the same time as Cart, the Supreme Court applied that same test to the grant of a petition for judicial review in Scotland against such a refusal by the UT.
[7] In delivering the judgment of the Supreme Court in Eba, Lord Hope DPSC said this (at para.48):
"So I would hold that the phrases 'some important point of principle or practice' and 'some other compelling reason', which restrict the scope for a second appeal, provide a benchmark for the Court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, paras.17 and 24, per Dyson LJ and Cramp v Hastings Borough Council (Note) [2005] 4 All ER 1014, para.68, per Brooke LJ. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all".
Lord Hope went on at para.49 to say that he would leave it to the Court of Session to give such further guidance as might be needed as to how the analogy with the second appeals criterion should be applied in practice. He mentioned a few points of his own. The first was to reiterate Lord Reid's observations in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 that if a statutory tribunal decides a question remitted to it for decision without committing an error of law as to what that question is, it is as much entitled to decide that question wrongly as it is to decide it rightly. The second was to emphasise the need for the court to distinguish between errors of law that raised an important issue of principle or practice, or reasons that were compelling, and those that did not answer to this description. The answer would depend on the facts of each case. The other two points raised by Lord Hope in that passage relate to matters of procedure with which I am not presently concerned.
[8] In his judgment in Cart, Lord Dyson JSC identified the advantages of the second-tier appeals approach (at paras.130-131):
"130. It seems to me that the second appeal criteria approach offers a number of advantages. First, and obviously, it does not suffer from the defects of the two alternatives that I have rejected. Secondly, and positively, it ensures that errors on important points of principle or practice do not become fossilised within the UT system. An individual who has been unsuccessful before the FTT will be able to raise an important point of law in the courts if the UT refuses to grant permission to appeal to itself. As explained by the Court of Appeal in Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, it is not enough to point to a litigant's private interest in the correction of error in order to obtain permission for a second appeal. Permission will only be given where there is an element of general interest, which justifies the use of the court's scarce resources: see also Zuckerman on Civil Procedure, 2nd ed. (2006), para.23.139. It follows that, if the law is clear and well established but arguably has not been properly applied in a particular case, it will be difficult to show that an important point of principle or practice would be raised by an appeal. The position might be different where it is arguable that, although the law is clear, the UT is systematically misapplying it: see, for example, Cramp v Hastings Borough Council [2005] 4 All ER 1014.
131. Thirdly, the second limb of the test ('some other compelling reason') would enable the court to examine an arguable error or law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para.99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences".
[9] Uphill v BRB, to which both Lord Hope in Eba and Lord Dyson in Cart referred in their judgments, was a decision on the second appeal test as it existed in England to regulate the grant of leave from courts of first instance to the Court of Appeal under section 55(1) of the Access to Justice Act 1999 and CPR r52.13(2). The judgment of the court, given by...
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