Reclaiming Motion By Sa And Others Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Menzies,Lord President |
| Neutral Citation | [2018] CSIH 71 |
| Date | 16 November 2018 |
| Docket Number | P138/17 |
| Court | Court of Session |
| Published date | 16 November 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 71
P138/17
Lord President
Lord Menzies
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion by
SA and others
Petitioners and Reclaimers
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioners: Byrne; Drummond Miller LLP
Respondent: Webster; Office of the Solicitor to the Advocate General
16 November 2018
Introduction
[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary, dated
6 September 2017 (2017 SLT 1245), to refuse the prayer of a petition for judicial review of a
decision of the Upper Tribunal, dated 11 November 2016. The UT had refused to grant
permission to appeal from a decision of the First-tier Tribunal, dated 24 May 2016. The FTT
had in turn refused an appeal from the respondent’s decision of 1 June 2015 refusing the
petitioners’ applications for leave to remain in the United Kingdom. There are two issues.
2
The first is whether the Lord Ordinary erred in his approach to the substantial merits of the
case; specifically in relation to his interpretation of paragraph 276ADE(1) of the Immigration
Rules and section 117B of the Nationality, Immigration and Asylum Act 2002. The court
decided to await the outcome of the appeal from IT (Jamaica) v Secretary of State for the Home
Department [2017] 1 WLR 240, which had been heard before the United Kingdom Supreme
Court on 17 and 18 April 2018 and which had the potential to resolve this issue; being
similar to that in MA (Pakistan) v Upper Tribunal [2016] 1 WLR 5093 (infra). The UK Supreme
Court issued its judgment on 24 October 2018 (KO (Nigeria) v Secretary of State for the Home
Department [2018] UKSC 53) refusing the appeal in IT (Jamaica). The second issue is
procedural, and is raised in a cross-appeal by the respondent. It is whether the Lord
Ordinary erred in concluding that the second appeals test, as set out in Eba v Advocate
General for Scotland 2012 SC (UKSC) 1, only applies at the stage of granting permission to
proceed, under section 27B(3) of the Court of Session Act 1988.
Legislation and Rules
[2] The Immigration Rules provide:
“276ADE(1) The requirements to be met by an applicant for leave to remain on the
grounds of private life in the UK are that at the date of the application, the applicant
(i) does not fall for refusal under any of the grounds [relating to
deportation, conviction of offences, or presence not conducive to the public
good]; and
...
(iv) is under the age of 18 years and has lived continuously in the UK for
at least 7 years ... and it would not be reasonable to expect the applicant to
leave the UK; or
...
(vi) ... is aged 18 or above, has lived continuously in the UK for less than
20 years ... but there would be very significant obstacles to the applicant’s
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2 cases
-
Upper Tribunal (Immigration and asylum chamber), 2019-11-11, HU/18036/2018 & Ors.
...opinion of the Lord President of the Inner House of the Court of Session in SA and others v Secretary of State for the Home Department [2018] CSIH 71, a case which post-dated KO, as authority for this proposition. SA was a case with similar facts to the present matter: a family of four Bang......
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Upper Tribunal (Immigration and asylum chamber), 2019-11-19, HU/18848/2018 & Ors.
...Inner House, Court of Session decision given by the Lord President, the most senior Scottish judge, in the case of SA and others v SSHD [2018] CSIH 71. In that case, the minor appellants’ personal circumstances were far more difficult than the third appellant in this case and yet the Court ......