Application For Leave To Appeal Under Section 13(4) Of The Tribunals, Courts And Enforcement Act 2007 Of Thomas Wambua Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2016] CSIH 42 |
| Published date | 10 June 2016 |
| Docket Number | XA2/16 |
| Date | 10 June 2016 |
| Court | Court of Session |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 42
XA2/16
OPINION OF LORD BRODIE
in the application for leave to appeal under section 13(4) of the Tribunals, Courts and Enforcement Act 2007
of
THOMAS WAMBUA
Applicant;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Applicant: J Mitchell QC, Irvine; McGill & Co
Respondent: Webster; Office of the Solicitor to the Advocate General
10 June 2016
Introduction
[1] This is an application under section 13(4)(b) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal (“the UT”) dated 15 and promulgated 29 October 2015. I have had the benefit of oral submissions made on 26 April and resumed on 24 May 2016 in addition to the notes of argument for the parties. Mr Mitchell QC, representing the applicant supplemented this by a note of key issues lodged on 24 May 2016.
[2] The applicant is Thomas Wambua. He is a citizen of Kenya. His date of birth is 22 December 1984. He entered the UK on 23 August 2007 and currently lives in Perth. He has a daughter, T, who was born in Scotland in 2011. The mother of T is Ms K who is a citizen of the Czech Republic. T is accordingly also a citizen of the Czech Republic. The applicant and Ms K lived together but then separated. Ms K has now married another man. T and Ms K live together with Ms K’s husband in Dundee. The applicant and Ms K remain on good terms. The applicant has contact with T.
[3] The applicant has been entitled to be resident in the United Kingdom by virtue of a series of leave to enter visas until 6 October 2014. On 29 September 2014 he applied for leave to remain. That application was refused by decision dated 14 January 2015. He appealed that refusal both under reference to the Immigration Rules (which are not now relied on) and on the basis that to require him to remove himself from the UK was a disproportionate interference with his private and family life and therefore a contravention of his rights under article 8 of the European Convention on Human Rights. The appeal was refused by the First Tier Tribunal (“the FTT”) in terms of decision dated and promulgated on 21 May 2015. On 4 August 2015 the FTT granted permission to appeal to the UT on the view that arguably insufficient consideration had been given to the best interests of T, bearing in mind that in the event of the applicant no longer being resident in the UK, his regular direct contact with T would not continue. The appeal to the UT was refused in terms of the decision of 15 October 2015. An application for permission to appeal the decision of the UT, made in terms of section 13(4)(a) of the 2007 Act was refused by the UT on 24 November 2015.
Proposed grounds of appeal
[4] In summary, what is proposed as the grounds of appeal are as follows:
1. The UT erred as to the citizen status of Ms K and T in finding their immigration statuses to be “precarious rather than assured” – cf art 21 Treaty on the Functioning of the European Union, Case 48/75 Royer v Belgium [1976] 2 CMLR 619, Directive 2004/38/EC of the European Parliament and of the Council (the Citizenship Directive)
2. The UT erred in its assessment of proportionality by –
1. Attaching a less than primary-EU-status to the applicant’s child and carrying out a balancing of proportionality by reference to the removal of the appellant , there being only one family life between him and T cf Beoku-Betts v SSHD [2009] 1 AC 115
2. Failing to have regard to T’s best interest in retaining direct contact when considering proportionality
3. Balancing the effects on the child against “the need to maintain the Rules” as opposed to the need to maintain effective immigration control (which may be consistent with the grant of leave to remain outwith the Immigration Rules)
4. Treating the “need to maintain the Rules” or in any event the need to maintain effective immigration control as inherently more significant than the best interests of the child
3. The UT erred in its assessment of the best interests of the child by treating the need to maintain the Rules (being the only other factor, given that the applicant was in the UK lawfully). Moreover, the UT erred in asking itself the negative question as to whether there would be any negative effect on the child if she saw less of her father rather than the positive question what is in the child’s best interests.
4. The UT has failed to take account of T’s right to regular direct contact with her father in terms of article 24 (3) of the Charter of Fundamental Rights of the European Union cf Case C-34/09 Ruis Zambrano v Office national d’emploi [2012] QB 265, Omotunde [2011] UKUT 00247. The mere fact that it was not included in the appeal is not of itself a basis on which to refuse permission.
The issue
[5] The right of appeal (with permission) conferred by section 13(1) of the 2007 Act is “on any point of law arising from a decision made by the Upper Tribunal”. What amounts to error of law can be understood by reference to the decision in HA v Secretary of State for the Home Department 2008 SC 58. However, by virtue of RCS 41.57 (2):
“Permission shall not be granted unless the court considers that -
(a) the proposed appeal would raise some important point of principle; or
(b) there is some other compelling reason for the court to hear the appeal.”
Thus, subject to the minor and for the purposes of this application the apparently immaterial difference that RCS 41.57 does not currently contain a reference to an important point of practice, when deciding whether to grant permission this court is required to apply what was described in Eba v Advocate General 2012 SC (UKSC) 1, SA (Nigeria) v Secretary of State for the Home Department 2014 SC 1 and elsewhere, as the second appeals test (encapsulated in the note of argument for the respondent as requiring the identification of an error which “cries out for correction” - see SA at para 44). Thus, demonstrating an arguable material error in law is not enough; the proposed appeal must also either raise an important point of principle (in the sense of a point of principle which is yet to be established: Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 at para 18) or there must be some other compelling reason for the court to hear the appeal. In this context, “compelling” means legally compelling (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 at para 36. As for other compelling reason extreme consequences for an individual are not enough unless in combination with strongly arguable error of law (PR at para 36, JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273 paras 22 and 26); where the second leg of the test is relied on the prospects of success must be very high (Uphill at para 24 (1)).
Rule 41.57 (2) criteria in the present case: the respective positions of parties
[6] As meeting the important point of principle criterion the applicant puts forward the effect on the assessment of proportionality of T’s article 24(3) Charter right to direct contact (see Abdul (section 55 – Article 24 (3) Charter) [2016] UKUT 106). As far as other compelling reason was concerned the applicant puts forward the submission that the best interests of T had not been correctly assessed at any stage of the applicant’s involvement with the immigration authorities (cf B (A Child) [2009] EWCA Civ 545 at para 14, and note section 55 of the Borders Citizenship and Immigration Act 2009 which imposes a duty on the respondent to ensure that immigration etc. functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom). Moreover, esto the effect of article 24(3) of the Charter is not to constitute an important point of principle, given that the decision in Abdul recognising that article 24(3) created a freestanding right to have contact post-dated the decision at issue in this appeal, the decision-maker and the FTT may be taken to have made a material error in law. That amounts to a further compelling reason to grant leave to appeal.
[7] In opposing the application under reference to the point of principle leg of the second appeals test, the respondent points to the fact that any appeal in terms of section13(4) must be on a point of law arising from a decision made by the UT: Application for leave by SB [2013] CSIH 89 at para 23, MBR v Secretary of State for the Home Department unreported 12 February 2013, as referred to in MBR (Iran) v Secretary of State for the Home Department 2013 SLT 1108. The applicant had not founded on the Charter of Fundamental Rights of the European Union before the...
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