Js For Judicial Review Of A Decision By The Upper Tribunal (immigration And Asylum Chamber) To Refuse To Grant The Petitioner Permission To Appeal

CourtCourt of Session
JudgeLord Glennie
Neutral Citation[2015] CSOH 52
Published date01 May 2015
Date24 April 2015
Docket NumberP203/15


[2015] CSOH 52



In the Petition



for judicial review of a decision by the Upper Tribunal (Immigration and

Asylum Chamber) to refuse to grant the petitioner permission to appeal

Petitioner: Jones; Drummond Miller LLP

Respondent: Komorowski; Office of the Advocate General

24 April 2015

[1] The petitioner is a national of Zimbabwe. His father, who is or has been active in Zimbabwean politics as a member of the opposition MDC, now lives in the UK, having been granted indefinite leave to remain in September 2010. The petitioner himself has been in the UK since 2000, when he was 12 years old. He has committed a number of offences while in the UK. Most recently, in July 2007 he was convicted of robbery and of having an imitation firearm with intent. He was sentenced to 4½ years imprisonment for that offence and was also required to serve an additional 51 weeks in custody in respect of a suspended sentence for analogous offences committed earlier.

[2] On 16 April 2009 the Secretary of State decided to deport the petitioner. After some delays, caused in part by his application having been lost, his application to have that deportation order revoked was refused. The petitioner appealed to the First-tier Tribunal (“FTT”) against that refusal but that appeal was dismissed. He then applied for permission to appeal to the Upper Tribunal (“UT”), but that application was refused by a judge of the FTT and again by a judge of the UT. There is no appeal against a refusal by a judge of the UT to grant permission to appeal. Accordingly, the petitioner brings this petition for judicial review of that refusal. If successful, this would result in that refusal being reduced (or set aside) and the matter would go back to a single judge of the UT for a fresh determination of the application for permission to appeal – it would not necessarily result in permission to appeal to the UT being granted, since that would be a matter for the judge hearing the application afresh.

[3] To be successful, an application for judicial review of the decision by a UT judge to refuse permission to appeal will not only have to show some error on the part of that judge making that refusal susceptible to judicial review on well-known principles; it will also have to pass what has become known as the Eba test (cf Eba v Advocate General [2012] SC (UKSC)) 29) by showing that the proposed appeal would raise some important point of principle or practice or that there is “some other compelling reason” to interfere with the decision refusing permission to appeal. This test was adopted by analogy with the “second appeals” test applicable to substantive appeals under section 13 of the 2007 Act from decisions of the UT to the Court of Appeal in England and Wales and in Northern Ireland (Eba at para [22]), a test now applicable also to appeals from the UT to the Court of Session in Scotland. The second limb of that test is that “there is some other compelling reason for the relevant appellate court to hear the appeal”. That test is laid down in section 13(6) in relation to the grant or refusal of leave to appeal from the UT to the appellate court, so in cases to which that section is directly applicable it is clear there that the compelling reason must be a reason for the appellate court to hear the appeal. The context here, where that test cannot be applied directly but (as is made clear in Eba) is applied by analogy is different. Since the result of a decision in the petitioner’s favour will be that the matter is remitted to a judge of the UT for him (not this court) to determine whether or not permission to appeal to the UT should be granted, the relevant question must be whether there is “some other compelling reason” to require the refusal of leave to appeal to be reconsidered. In many, perhaps most, cases that may involve a consideration of whether there is a compelling reason for the UT (as the relevant appellate court) to hear the appeal; but this will not necessarily be the only consideration.

Procedural first hearing
[4] In accordance with the recent Practice Note No 2 of 2013 the petition was appointed to a procedural first hearing at which the question of whether the Eba test was satisfied could be considered. The rationale behind this was discussed in SA v Secretary of State for the Home Department 2014 SC 1 at paras [32]-[34] and by Lord Brodie at paras 5]-[8] of his opinion in MUB v Secretary of State for the Home Department [2015] CSIH 9.

[5] At the procedural first hearing, Mr Jones for the petitioner sought to persuade me that the Eba test was satisfied and that I should appoint the case to a substantive first hearing for determination of the petition. Having listened carefully to his argument, I concluded that the Eba test was not satisfied. I therefore refused the petition. I was asked to give my reasons in writing – hence this Opinion.

The Eba test
[6] Mr Jones did not suggest that the appeal raised an important point of principle or practice; but he did argue that there were other compelling reasons why the application for permission to appeal should be sent back to the UT for reconsideration. He put his arguments under two separate heads which I shall call, for convenience, “collapse of fair procedure” and “drastic consequences”. Although the material relevant to these two heads of argument overlaps considerably, it is convenient to deal with them separately and in turn.

Collapse of fair procedure
[7] Mr Jones’ first argument was that the UT judge had applied the wrong test in considering the application. Instead of considering whether the decision of the FTT and the proposed appeal raised arguable points of law (the test for permission to appeal in terms of section 11 of the Tribunals, Courts and Enforcement Act 2007) the UT judge had, in many cases, simply decided the point in a manner adverse to the petitioner and thereby prevented the petitioner bringing these matters before the UT for a full hearing and determination. Parliament had laid down a procedure in terms of which a person seeking to challenge an adverse decision of the FTT was afforded two opportunities of seeking permission to appeal, first by seeking to persuade a single judge of the FTT that the proposed appeal raised an arguable issue of law and, secondly, if unsuccessful at that stage, by seeking to persuade a single judge of the UT that the proposed appeal raised an arguable issue of law. If the UT judge failed to ask himself the right question and, as a result, refused permission to appeal, that meant that the applicant have been deprived of one of his opportunities which Parliament had said that he should have. That amounted to a collapse of fair procedure.

[8] In support of that argument Mr Jones referred me to the decision of the UT judge. He acknowledged that in certain paragraphs of that decision the UT judge had purported to apply the “arguability” test, though he questioned whether he had in fact done so. However, in other paragraphs it was clear that , instead of deciding whether the proposed appeal raised an arguable point of law, he had in fact decided the point. Thus, in connection with the petitioner’s article 8 argument based on his relationship with his fiancée (and mother of his child) and his two...

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