SA (Nigeria) v Secretary of State for the Home Department

JurisdictionScotland
CourtCourt of Session (Inner House)
Judgment Date06 June 2013
Neutral Citation[2013] CSIH 62
Docket NumberP238/12

Court of Session Inner House Second Division

Lord Justice-Clerk (Carloway), Lord Brodie, Lord Drummond Young

No 1
SA
and
Secretary of State for the Home Department

Administrative law - Judicial review - Judicial review of unappealable refusal of leave to appeal - What is correct test

Process - Judicial review - Whether judicial review petitions to be determined at procedural first hearings - Effect of proposed reforms under the Courts Reform (Scotland) Bill

On 20 August 2011, the reclaimer's claim for asylum was rejected by the respondent. On 14 October 2011, a First-tier Tribunal ('FTT') refused her appeal against that decision. A differently constituted FTT refused her application for permission to appeal to the Upper Tribunal ('UT') on the basis that the grounds advanced disclosed no arguable error of law. She then applied to the UT for leave to appeal on the basis that the FTT had erred in law by failing to take into account certain relevant factors and by taking into account an irrelevant one. On 12 December 2011, the UT refused leave to appeal on the basis that no arguable error of law had been identified. The reclaimer then presented a petition for judicial review seeking reduction of the UT's refusal to grant leave to appeal. The averments in the petition failed to identify an error in law on the part of the UT as it focused on the decision of the FTT. On 28 June 2012, the petition was refused. The reclaiming motion was abandoned, but parties were invited to address the court in relation to points of practice and procedure.

It was argued for the reclaimer that the test in Eba v Advocate General (per Lord Hope DPSC, para 48), while emphasising the need for judicial restraint, did not restrict the grounds available for judicial review. The test should be applied prior to the stage of substantive review. The application of the test should not be applied with undue expedition as there would be a risk that complex or legal points, which were not readily obvious, would be wrongfully excluded.

It was argued for the respondent that the Eba test ought to be considered at the procedural first hearing. In order to meet the test, the grounds for review ought to leap off the page.

Held that: (1) at present judicial review petitions were not normally to be determined at procedural first hearings and it may be that the court should consider whether the existing Practice Note be amended so it is clear whether (or not) the Eba test can be considered as a preliminary issue at a procedural first hearing (paras 32, 34); (2) Eba altered the test to be applied in respect of judicial review of unappealable refusals of leave to appeal and the court required to be satisfied that the error fits in one or other of the two Eba categories (ie (i) "some important point of principle or practice" being "an issue of general importance and not one confined to the petitioner's own facts and circumstances" or (ii) "some other compelling reason") (paras 35, 41); (3) the court's role was a gatekeeping or sifting one and its decision should proceed upon a petition which clearly avers not only a specific error but also one or other of the Eba grounds, and the court should be able quickly and without difficulty to identify from the averments the point or reason advanced (para 43); (4) the test was a stringent one (para 44); (5) the oral hearing should be reasonably short and certainly no more than an hour and the court's decision should be capable of succinct expression (para 45).

Eba v Advocate General 2012 SC (UKSC) 1 commented upon.

B, Petr 2013 SLT 90 approved.

A v Secretary of State for the Home Department 2012 SLT 1075 approved.

BM, Petr 2012 GWD 30-617 disapproved.

SA presented a claim for asylum which was rejected by the respondent on 20 August 2011. Her appeal against that decision was refused by the First-tier Tribunal on 14 October 2011. Her application for permission to appeal to the Upper Tribunal was also refused by the FTT. She applied to the UT for leave to appeal. That application was refused, on 12 December 2011. The petition called before the Lord Ordinary (Pentland) for a first hearing. On 28 June 2012 the Lord Ordinary refused the petition ([2012] CSOH 118). The petitioner reclaimed.

Cases referred to:

A v Secretary of State for the Home Department sub nom AKA, PetrUNK [2012] CSOH 86; 2012 SLT 1075; 2012 SCLR 673

B, Petr [2013] CSOH 91; 2013 SLT 90; 2013 GWD 20-391

BM, Petr [2012] CSOH 142; 2012 GWD 30-617

Brown v Hamilton District CouncilSC 1983 SC (HL) 1; 1983 SLT 397

Butt v Secretary of State for the Home Department 15 March 1995, unreported

Cooke v Secretary of State for Social SecurityUNKUNK [2001] EWCA Civ 734; [2002] 3 All ER 279

EY v Secretary of State for the Home DepartmentSCUNK [2011] CSIH 3; 2011 SC 388; 2011 SLT 508; 2011 SCLR 202

Eba v Advocate GeneralSCUNKUNK [2010] CSIH 78; 2011 SC 70; 2010 SLT 1047; 2010 SCLR 759; [2010] STI 2617; [2010] STC 2689

Eba v Advocate GeneralELRWLRUNK [2011] UKSC 29; 2012 SC (UKSC) 1; 2011 SLT 768; [2012] 1 AC 710; [2011] 3 WLR 149; [2011] PTSR 1095; [2011] STC 1705; [2011] Imm AR 745

JD (Congo) v Secretary of State for the Home DepartmentUNKWLR [2012] EWCA Civ 327; [2012] 1 WLR 3273; [2012] Imm AR 719; [2012] INLR 412

K, Petr [2012] CSOH 17; 2012 GWD 7-127

P v Secretary of State for the Home Department [2012] CSIH 38; 2012 GWD 14-293

PR (Sri Lanka) v Secretary of State for the Home DepartmentUNKWLR [2011] EWCA Civ 988; [2012] 1 WLR 73; [2011] CP Rep 47; [2011] Imm AR 904; [2012] INLR 92

R v Secretary of State for the Home Department, ex p RobinsonELRWLRUNK [1998] QB 929; [1997] 3 WLR 1162; [1997] 4 All ER 210; [1997] Imm AR 568; [1997] INLR 182

R (on the application of Cart) v Upper TribunalELRWLRUNKUNKFLRMHLRUNK [2011] UKSC 28; [2012] 1 AC 663; [2011] 3 WLR 107; [2011] 4 All ER 127; [2011] PTSR 1053; [2011] STC 1659; [2012] 1 FLR 997; [2011] Imm AR 704; [2011] MHLR 196; [2012] Fam Law 398

R (on the application of Razgar) v Secretary of State for the Home Department (No 2)UNKELRWLRUNKMHLR [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] HRLR 32; [2004] Imm AR 381; [2004] INLR 349; [2004] MHLR 218

R (on the application of Wiles) v Social Security CommissionerUNK [2010] EWCA Civ 258

Uphill v BRB (Residuary) LtdUNKWLRUNK [2005] EWCA Civ 60; [2005] 1 WLR 2070; [2005] 3 All ER 264; [2005] CP Rep 20

ZH (Tanzania) v Secretary of State for the Home DepartmentELRWLRUNKFLRUNKUNK [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] 1 FLR 2170; [2011] 1 FCR 221; [2011] HRLR 15; [2011] UKHRR 371; [2011] Imm AR 395; [2011] INLR 369; [2011] Fam Law 468

Textbooks etc. referred to:

Gill (Lord), Report of the Scottish Civil Courts Review ('the Gill report') (B60185) (Scottish Court Service, Edinburgh, 2009), vol 2, Ch 12, paras 40-54 (Online: http://www.scotcourts.gov.uk/about-the-scottish-court-service/the-scottish-civil-courts-reform (25 October 2013))

Maclaren, JA, Bill Chamber Practice (W Hodge, Edinburgh, 1915), p 11

The case called before the Second Division, comprising the Lord Justice-Clerk (Carloway), Lord Brodie and Lord Drummond Young, for a hearing.

At advising, on 6 June 2013, the opinion of the Court was delivered by the Lord Justice-Clerk (Carloway)-

Opinion of the Court-

Background

[1] The reclaimer (appellant) has an immigration history which is best described as protracted. She maintains that she arrived in the United Kingdom clandestinely in or about December 2004 via Ghana. She came by boat and found herself in London, where she boarded a bus to Aberdeen; all of this accompanied by her daughter, who is now aged nine. She also has a son aged five. The respondent does not accept this version of events for a variety of reasons and considers that the reclaimer is in fact SOA, who arrived with her daughter directly from Nigeria on a visitor's visa, granted on 23 November 2005.

[2] The reclaimer's troubles in the United Kingdom began in March 2007, when she was arrested for possession of a forged Nigerian passport. In October 2007, the sheriff put her on probation for three years. Very soon after that, on 2 November 2007, the reclaimer claimed asylum. This was refused on 2 February 2009. On 31 March 2009, her appeal against that refusal was dismissed by an Asylum and Immigration Tribunal and, on 1 May 2009, her application for that decision to be reconsidered failed.

[3] In both June and September 2009 the reclaimer produced new information, which she maintained satisfied the terms of para 353 of the Immigration Rules regarding 'fresh' claims. The rule requires the information to contain facts which are significantly different from those before the original tribunal; meaning that the new grounds must create a realistic prospect of success (ie a reversal of the original decision) upon a reassessment of the situation. On 15 and 24 September 2009, the reclaimer's new claims were rejected but, following an interview with the reclaimer and her instigation of judicial review proceedings, it was decided that her position should be revisited. Mental health reports were obtained relative to the new material. However, on 20 August 2011, her claim was again rejected by the respondent. This was on the same basis that the new information did not create a realistic prospect of success. In the body of this decision were significant adverse findings concerning the credibility of the reclaimer.

[4] On 14 October 2011, a First-tier Tribunal ('FTT') refused the reclaimer's appeal against the respondent's decision. The issue at the hearing of the appeal was whether the reclaimer and/or her two children were entitled to humanitarian protection in terms of Arts 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms. It was noted by the FTT that, during the course of her previous asylum claim, the designated immigration judge had considered the reclaimer's account to...

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