De For Judicial Review Of A Decision Of The Upper Tribunal To Refuse Permission To Appeal To Itself Dated 24th March 2014
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2015] CSOH 88 |
| Published date | 07 July 2015 |
| Date | 07 July 2015 |
| Court | Court of Session |
| Docket Number | P6/15 |
| Year | 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 88
P6/15
OPINION OF LORD PENTLAND
In the Petition of
DE
Petitioner;
for
Judicial Review of a decision of the Upper Tribunal to refuse permission to appeal to itself, dated 24th March 2014.
Petitioner: Byrne: Drummond Miller LLP
Respondent: McIlvride QC: Office of the Advocate General
7 July 2015
[1] In this petition for judicial review the petitioner, a citizen of the Philippines, seeks reduction of a decision of the Upper Tribunal issued on 24 March 2014. By that decision the judge of the Upper Tribunal refused permission to appeal against a decision of the First‑tier Tribunal of 27 January 2014. The case came before me for determination at a first hearing.
[2] The factual and procedural background may be summarised as follows. The petitioner's daughter came from the Philippines to the United Kingdom in October 2006 on a work permit visa, leaving her two children in the care of their father and the petitioner. In 2012 the daughter was granted indefinite leave to remain; in January 2013 she was naturalised as a British citizen. The daughter's husband came to this country in July 2007; the parties' two children remained in the care of the petitioner in the Philippines.
[3] In August 2009 the petitioner entered the United Kingdom with a six month visitor's visa. She brought the children with her. The children were granted indefinite leave to remain as dependents of their mother.
[4] The children have now become British citizens, as has their father. The family lives together in Glasgow, another child having been born in this country.
[5] Between 2009 and 2010 the petitioner visited the family from the Philippines on a visitor's visa. In July 2011 she again visited the United Kingdom. At about that time she was diagnosed with cervical cancer for which she received treatment, including a hysterectomy.
[6] On 10 February 2012 the petitioner applied for indefinite leave to remain in the United Kingdom. She relied on her family circumstances and on the fact that she was extremely unwell, having been diagnosed with cancer. Her application stated that she depended on her family in the United Kingdom to take care of her physically and emotionally.
[7] On 24 July 2012 the Secretary of State refused the petitioner's application for indefinite leave to remain. The decision notice went on to say that it was, however, accepted that the petitioner was in a genuine relationship and, therefore, following certain changes to the Immigration Rules she had been granted leave to remain for a period of 12 months exceptionally outside the rules.
[8] The Secretary of State has power to grant leave to enter or remain in the United Kingdom outside the Immigration Rules and it is this power that was exercised in the case of the petitioner by way of the decision issued on 24 July 2012. In this context guidance has explained that ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. The definition of exceptional circumstances is designed to deal with cases where a hardship resulting from removal from the United Kingdom would be disproportionate to the objective of maintaining consistent control over immigration policy; in such a case removal would amount to a breach of article 8 (MS v Secretary of State for the Home Department [2013] CSIH 52).
[9] In anticipation of the expiry of the grant of leave to remain on 23 July 2013, the petitioner made a further application on 4 July 2013. She submitted that her article 8 rights had become stronger due to her increased integration into the family in Glasgow and she requested that she should be granted permission to remain for a period longer than 12 months. By the time of this application the petitioner's health had improved, the cancer treatment having been successful and the petitioner having been told to attend for annual check-ups. It was not submitted that she required to live with her daughter in Glasgow because of her diagnosis of cancer.
[10] On 24 September 2013 the petitioner's renewed application was refused under the Immigration Rules and article 8. On this occasion the decision notice stated that the Secretary of State did not consider that there were exceptional circumstances sufficient to justify granting leave to remain outside the requirements of the rules.
[11] The petitioner appealed against the decision to the First‑tier Tribunal. She submitted that, following the grant of leave to remain for 12 months, her article 8 rights had strengthened. It was said to be inconsistent to refuse her further leave to remain.
[12] The judge of the First‑tier Tribunal conducted a careful evaluation of the petitioner's case in the context of her article 8 rights. From the terms of his judgment it is clear that he understood the basis and grounds of the appeal. For example, he referred in paragraph 8 to the emphasis placed by the petitioner on the decision in July 2012 to grant her temporary leave to remain. With regard to the petitioner's article 8 claim, the immigration judge said this in paragraph 15:
“(b) Family life exists for the appellant in the UK because her only daughter, her son-in-law and her three grandchildren are in the UK; but the appellant is an independent adult. The appellant lived an independent life in the Philippines. She brought her daughter up there and she cared for her grandchildren there between 2007 and 2009. Between 2009 and 2011, the appellant lived an independent life in the Philippines and was able to travel between the UK and the Philippines, maintaining contact with her daughter, her son-in-law and her grandchildren by lengthy visits to the UK.
(c) All that has changed is that the appellant suffered from a serious illness in 2011. A copy of the appellant’s application for leave to remain in the UK is reproduced in the appellant’s first inventory of productions. It can be seen from that application that the appellant advanced arguments in terms of the then Immigration Rules and in terms of...
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