Petition Of H H (ap) For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chamber)
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2014] CSOH 26 |
| Year | 2014 |
| Published date | 14 February 2014 |
| Date | 14 February 2014 |
| Court | Court of Session |
| Docket Number | P281/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 26 | |
| P281/13 | OPINION OF LORD ARMSTRONG in the Petition of H H (AP) Petitioner; for Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 22nd October 2012 ________________ |
Petitioner: Winter; Drummond Miller LLP
Respondent: McKendrick; Office of the Advocate General
14 February 2014
Introduction
[1] The petitioner is a Nigerian national who was born on 21 September 1988. She entered the United Kingdom, on 14 November 2005, on a six month visitor's visa and was granted a visa extension, to 20 March 2007, on the basis of the dependency of her husband who was already in the United Kingdom. The petitioner's husband made a claim for asylum in July 2010 which was rejected. His appeal to the First Tier Tribunal (Immigration and Asylum Chamber) ("the FTT") was refused by decision dated 13 September 2010. The petitioner claimed asylum on 9 March 2011. Her husband and her three children were dependents on her claim. Her three children were born in the UK but do not have British citizenship. One of her children, N, now aged 6 years, was born with neonatal hypoxic-ischemic encephalopathy and suffers from cerebral palsy. She receives care and therapy from a number of specialists and attends a school for disabled children. The petitioner's claim for asylum was made on the basis that she was at risk of being forced into marriage or killed by her uncle in Nigeria. She also claimed on the basis of the best interests of the children and under article 8, ECHR.
[2] The petitioner's claim for asylum was refused. After sundry procedure, she appealed to the FTT. Her appeal was refused by decision dated 10 September 2012. She applied to the FTT for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) ("the UT"). That application was refused by decision dated 4 October 2012. She then applied to the UT for permission to appeal. By a decision dated 22 October 2012, the UT refused permission to appeal. The petitioner now seeks to judicial review of that decision.
[3] The matter initially came before me at a continued procedural hearing at which the parties were agreed that the respondent's preliminary plea, to the effect that the issues raised in the petition fell outwith the supervisory jurisdiction of the court, should be determined at that stage. At that hearing, the case was conjoined with another (EP [2013] CSOH 99) in the decision of which I set out the nature of the test which is derived from the cases of Eba v Advocate General [2012] SC (UKSC) 1, R(Cart) v Upper Tribunal [2012] 1 AC 663, Uphill v BRB (Residuary) Ltd [2005] 1WLR 2070, and PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1WLR 73. The present case was continued for submissions on the content of the petition in the light of the case law as it then stood.
The test
[4] Since then, guidance as to the correct approach to the issue has been set out by the court in SA v Secretary of State for the Home Department [2013] CSIH 62, at paragraphs 41-44. In order for a petition of this type to proceed further, it must aver a specific error in the refusal of permission to appeal and either an important point of principle or practice not yet established or other compelling reason why the appeal should be allowed to proceed. The test is a stringent one, designed to allow review only in rare and exceptional cases in order to ensure that no compelling injustice occurs, the relevant error on the part of the UT normally requiring to be one which "cries out for consideration", rather than being merely potentially arguable.
The submissions for the petitioner
[5] It was averred in the petition that the UT had erred in law in the following ways:
(1) By failing to find that the FTT had erred by allowing an assessment of N's medical needs under article 3, ECHR, to "taint" the assessment of what was in her best interests;
(2) by operating under a misapprehension arising from the reference by the FTT to findings in relation to medical care which would be available for N in Nigeria, made by the immigration judge who determined the appeal to the FTT by the petitioner's husband; and
(3) by failing to find that the FTT had erred in assessing the best interests of the petitioner's children by:
(i) failing to find the weighty reasons required to separate a child from a community in which he or she has grown up;
(ii) failing to take into account the likely impact on the children's educational development, progress and opportunities in the broader sense, in particular in circumstances where discrimination is common and the standard of education is compromised;
(iii) failing to recognise the interests of the minor children as a primary consideration in the balance of competing considerations; and
(iv) failing to recognise that factors both for and against it being in the best interests of a child to remain or leave must not be overlooked.
[6] With particular regard to the position of N, it was contended that there was a compelling reason in this case. In the context of what is in the best interests of a child, under reference to the seven principles set out in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, at paragraph 10, it was submitted that the fifth and sixth were apt to the petitioner's case:
"[5] It was important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
[6] To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment."
Further, amongst the multifarious factors to be taken into account was continuity of care and educational development, opportunities and progress assessed in a broad sense and not just in the short term (MK (best interests of child) India [2012] Imm AR 325, 326 and at paragraphs 15, 21, 23, 24 and 41). Weighty reasons were required to justify separating a child from a community in which he or she had grown up for most of his or her life (LD [2011] Imm AR 99, at paragraph 26).
[7] It was submitted that, in circumstances where lack of medical treatment would have an effect on a child's development, the assessment required to fulfil the statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009, ("the 2009 Act"), to have regard to the need to safeguard and promote the welfare of the child was not the same exercise as that required to address the question of whether the nature of the child's medical condition was so compelling as to justify a departure from the usual practice of removal (TS v Secretary of State for the Home Department [2011] Imm AR 164 at paragraphs 28 and 45).
[8] Counsel for the petitioner reviewed the documentation available to the FTT. In the decision, dated 13 September 2010, by which the appeal of the petitioner's husband was refused, the immigration judge had found, at paragraphs 43-45, that there undoubtedly was discrimination against disabled citizens in Nigeria but, in circumstances where training facilities and self-help non-governmental organisations were being set up, relevant legislation was being progressed and N would have the support of her family, he considered that, in her case, the situation was not so difficult as to surmount the high threshold required for successful engagement of article 3. In considering whether article 8 was relevantly engaged, he made reference to evidence that the level of treatment available was supportive and rehabilitative rather than curative, and that physiotherapy, speech therapy and occupational therapy services were available. He considered that the facts that facilities in Nigeria might not be as sophisticated as those in the UK, and that it would be necessary to pay for medicine were, in that context, irrelevant considerations.
[9] In her statement, the petitioner had confirmed that she would require to pay for a school education for her children and for medicine. She confirmed the importance of physiotherapy to N's continuing mobility. The FTT had before it letters from N's treating consultant paediatrician...
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H.h. Against The Secretary Of State For The Home Department
...and answers called before the Lord Ordinary (Armstrong) for a first hearing. On 14 February 2014, the Lord Ordinary refused the petition ([2014] CSOH 26). The petitioner reclaimed. Cases referred to: Bensaid v UKHRC (2001) 33 EHRR 10; 11 BHRC 297; [2001] INLR 325; [2001] MHLR 287 Beoku-Bett......