Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 88
P778/11	OPINION OF J BECKETT QC (Sitting as a Temporary Judge) in Petition of WO Petitioner (AP) for Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 21 December 2010 to refuse the petitioner permission to appeal : ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest, Drummond Miller LLP

Respondent: Campbell QC, Office of the Solicitor to the Advocate General

24 May 2012

Introduction

[1] The petitioner seeks reduction of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 21 December 2010 to refuse permission to appeal against a decision of the First-tier Tribunal which had refused the petitioner's appeal against a decision of the Secretary of State for the Home Department dated 27 July 2010 to refuse her claim for asylum, Humanitarian Protection and Discretionary Leave to remain. The effect of the Tribunals Courts and Enforcement Act 2007 Section 13(8)(c) is that the petitioner cannot appeal against the decision of the Upper Tribunal to refuse her application for permission to appeal. She seeks to invoke the supervisory jurisdiction. Mr Forrest, Advocate, appeared for the petitioner and Mr Campbell QC for the respondent at the first hearing.

[2] In answers to the petition, the respondent contends that the petitioner is barred by mora, taciturnity and acquiescence from insisting on her petition. Mr Forrest made an unopposed motion to adjust the petition by answering that contention with further averments in paragraph 25 of the petition, and to add items of correspondence relating to the petitioner's applications for legal aid to his inventory of productions as no. 6/6 of process which I allowed him to do. In the course of the hearing, the Secretary of State's decision letter of 27 July 2010 was added as no. 6/7 of process, again without objection.

The facts of the case

[3] The petitioner is a citizen of Nigeria who was born there in 1966. She has three children who are living with her in the United Kingdom, all of whom were born in Nigeria; a daughter W (born 18.1.1997), a daughter O (born 27.11.99) and a son F (born 12.9.2001). The petitioner has a degree in biochemistry from the University of Lagos. She worked in Nigeria for Afrikbank Nigeria PLC for fourteen years, latterly holding the position of manager.

[4] The petitioner first came to the United Kingdom on 11 April 2005 and travelled back and forward to Nigeria until 25 July 2006 when she travelled to the United Kingdom with her husband and children. She entered on a visit visa and did not have a work permit. She did not dispute when she gave evidence before Immigration Judge Morrison in the First-tier tribunal that she had come to the United Kingdom to work. She worked from 10 November 2006 until 2 May 2008, using a forged document in order to do so. She returned to Nigeria on two occasions and re-entered on valid visit visas in 2007 and again on 13 June 2008. On that occasion her husband claimed asylum with the petitioner and her children listed as dependents. He was refused all forms of international protection on 7 July 2008 and his appeal was dismissed by the Asylum and Immigration Tribunal on 9 February 2009. He did not appeal and became appeal rights exhausted on 23 February 2009. The petitioner separated from her husband on 17 June 2010 and she and her children have had no contact with him since then. He was removed to Nigeria on 15 July 2010.

[5] The petitioner claimed asylum on 21 May 2010 and her claim was refused by letter dated 27 July 2010, no 6/7 of process, which outlined the Secretary of State's reasons for refusal of her claim.

[6] The petitioner's appeal against that decision was refused by IJ Morrison of the First-tier Tribunal in a determination dated 9 September 2010, no 6/4 of process. An application to the First-tier Tribunal for permission to appeal was refused on 28 September 2010.

[7] Permission to appeal to the Upper Tribunal against the decisions of 9 and 28 September was sought and refused by Senior Immigration Judge Warr of the Upper Tribunal in a decision dated 14 December 2010 which was promulgated on 21 December 2010, no. 6/3 of process.

The December 2010 decision

[8] SIJ Warr, gave the following reasons for refusing permission to appeal.

"I refer to the decision of Senior Immigration Judge Perkins in relation to the initial grounds of appeal. In the renewed grounds, the criticism is limited to article 8. It is accepted that the removal of the family as a unit is not irrelevant and it is not easy to discern without recitation of authority how the argument would proceed very far if at all down the Razgar steps.

It is true that the judge focuses on private life but I do not find that this was an arguable flaw, indeed I find that the judge dealt with the matter correctly.

I find that the judge had in mind all relevant considerations affecting the appellant and her children, she did not neglect to take into account the impact on the children as is apparent from paragraph 55.

Overall the determination is satisfactorily reasoned and neither set of grounds reveals any arguable legal flaws."

Submissions for the petitioner

[9] Mr Forrest began by indicating that he was not insisting on paragraphs 14-17 of the petition.

[10] He explained that he sought to demonstrate that the decision by SIJ Warr to refuse permission to appeal had involved an error in law. The error lay in holding that IJ Morrison had taken into account all relevant considerations affecting the petitioner and her children when reaching the decision that her removal would be proportionate and would not contravene her right to private and family life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Mr Forrest sought to demonstrate this by examining the First-tier Tribunal decision of 9 September 2010.

[11] Mr Forrest referred me to the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2AC 166 and particularly part of what was said, by Baroness Hale of Richmond at paragraph 26 of her opinion and Lord Kerr of Tonaghmore at paragraph 46 of his opinion, as to the effect of applying the requirement under Article 3.1 of the United Nations Convention on the Rights of the Child to treat the best interests of a child as a primary consideration:

Lady Hale

"[26] ...This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first..."

Lord Kerr

"[46] ...This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them..."

Mr Forrest conceded that Lord Kerr went further than Lady Hale and that the other members of the court had expressed their agreement with Lady Hale's opinion.

[12] Mr Forrest took me through paragraphs 33-36 and 48-55 of the determination by IJ Morrison where the article 8 aspect of the petitioner's appeal was considered. The five stage test set out in R (Razgar) v Secretary of State for the Home Department [2004] 2AC 368 was applied and the judge had accepted that the petitioner and her children enjoyed private life and family life in the United Kingdom. IJ Morrison did not regard removal as an interference with family life as the children would be removed with the petitioner, but accepted that removal would interfere with private life. The conclusion reached was set out in paragraph 55:

"I have considered all the factors put forward by Ms Weir in her skeleton argument. I acknowledge that the children are at school in the UK but as the Respondent makes clear in the refusal letter there are educational facilities available in Nigeria and there are no health issues in this case. The children have all spent most of their lives in Nigeria and there is no reason to think that they will not be able to re-adapt to live in Nigeria on return. On her own account the Appellant is a university graduate who worked in senior position with a bank in Lagos for many years before coming to the UK and she will therefore be much better placed tha[n] many other returnees to find employment and accommodation on return and until she does so she and her children can take advantage of the facilities in one of the shelters. It is also appropriate to record that the Appellant's poor immigration history weights against her and the fact that she has shown a willingness to deceive the UK authorities from the outset and to plan in advance to return to the UK to work in contravention of her visa and thereafter to obtain false documents to allow her to work and to enrol the children at school strongly suggests that her motive has from the outset been for economic betterment. For these reasons I have concluded on the basis of all the evidence before me that the removal of the Appellant and her children would be proportionate and the Article 8 appeal will be dismissed."

[13] Mr Forrest submitted that IJ Morrison ought first to have decided what was in the best interests of the children in 2010 when the appeal was heard. Reliance should not have been placed on findings in the appeal by the petitioner's husband in February 2009. IJ Morrison should have made distinct findings about what was in the best interest of the children.

[14] IJ Morrison ought to have given the question of the children's education in this country greater consideration. They had been in this country for four years and were settled into their education at schools in Scotland. Education was generally inferior in Nigeria as could be vouched by considering the respondent's Country of Origin Information Report dated 9 July 2010 at paragraphs 25.01, 25.02, 25.10, 25.30-25.34. The judge had not given adequate consideration to such material. Mr Forrest had to accept that it had not been drawn to the judge's attention in submissions. All that IJ Morrison had done was to identify that there was a system of education in Nigeria. The judge ought to have considered at this point the good progress that the child W was making and to compare it with how she would fare in Nigeria. Since that was not done, it could not be said that W's best interests were treated as a primary consideration. The decision as a whole focussed substantially on the position of the mother and the best interests of the children had not been treated as a primary consideration. Although the decision had been made before ZH (Tanzania) was decided, all that that case had done was to draw together principles which were already established.

[15] Recognising the effect of the decision of the Supreme Court in Eba v Advocate General for Scotland 2011 SLT 768, encapsulated in paragraph 48 of the opinion of Lord Hope of Craighead, Mr Forrest submitted that there was a compelling reason why the decision to refuse permission to appeal should be reduced. The compelling reason was that the decision relates to the welfare and upbringing of three children. Mr Forrest conceded that he did not feel able to argue that there was an important point of principle or practice.

[16] In support of there being a compelling reason in the petitioner's case, Mr Forrest referred to PR (Sri Lanka) v Secretary of State for the Home Department 2011 Imm AR 904 and GB v RJB [2009] EWCA Civ 545. He submitted that in the light of those decisions, there is room for the view that the welfare of children could constitute a compelling reason of the kind contemplated by the court in Eba.

Submissions for the respondent

[17] Mr Campbell responded in three chapters. The first related to his argument that the petitioner was barred by mora, taciturnity and acquiescence; in his second chapter he argued that no material error of law had been made in the present case and so the Eba question did not arise; and thirdly, if it did arise, there was no compelling reason to entertain the petition which should be refused. He and Mr Forrest had agreed that it was appropriate that Mr Forrest should be allowed to respond to the mora argument after Mr Campbell had presented it. In the event, Mr Forrest presented further factual information which bears on the mora argument and it is convenient to deal with that argument last.

The best interests of the children

[18] Mr Campbell accepted that treating the best interests of children as a primary consideration formed a necessary part of the article 8 assessment.

[19] Mr Forrest had been right to concede that Lord Kerr had gone further than the majority in paragraph 46 of his opinion in ZH (Tanzania). This had been explained very clearly by Lord Drummond Young in paragraph 21 of his opinion in ME v Secretary of State for the Home Department [2012] CSOH 20.

[20] The views expressed by Lady Hale in ZH (Tanzania) were those to be followed, and seen in that context, there was no error of law in the present case. With reference to paragraph 25 of Lady Hale's opinion, Mr Campbell submitted that it is clear that 'a primary consideration' is not a synonym for 'the paramount consideration'. Further, with reference to paragraph 33, Mr Campbell pointed out that the children involved in ZH (Tanzania) had British nationality and their father, who also had British nationality, would not be leaving with their mother. These were material points of distinction from the present case where no father was involved with the family, the children would be returning to Nigeria where they had spent most of their lives, and as a family unit with their mother.

[21] Mr Campbell understood Mr Forrest's argument to be that IJ Morrison had erred by not examining the best interests of the children first and because the consideration given to the relative strength of the systems of education in the two countries was inadequate. In order to rebut that argument, Mr Campbell also went through IJ Morrison's decision in some detail. Whilst matters may not have been set out as they would be following the issuing of the decision in ZH (Tanzania), on 1 February 2011, it was nevertheless apparent that the best interests of the children were considered as a primary consideration. It was clear from Lady Hale's opinion that the best interests of children did not automatically determine the outcome of a claim and that there were other considerations to be assessed which might outweigh them.

[22] No detailed submission had been put before IJ Morrison about education in Nigeria, as Mr Forrest had confirmed, and in any event, the fact that the quality of education generally available in Nigeria may be poorer than that in the United Kingdom, was not determinative. It had been noted that the children had spent most of their lives in Nigeria and that there were no health reasons which required them to remain in the United Kingdom. IJ Morrison could not be said to have erred in determining, as was implicit, that it was in the best interests of the children to return to Nigeria with their mother. Even if the contrary view had been reached, the claim was bound to fail when the proportionality decision came to be made, in the circumstances of this case. IJ Morrison's decision ought to be read in the light of the Reasons for Refusal Letter of 27 July 2010, which had been considered.

[23] Mr Campbell examined paragraphs 149 to 167 of that letter, no 6/7 of process, and submitted that having balanced the relevant considerations, including education, the Secretary of State had concluded that it was not contrary to the best interests of the children to return to Nigeria with their mother. Article 8(2) justifications had been considered and a proportionality assessment made thereafter. That was the decision which was being appealed against to IJ Morrison whose decision to refuse permission to appeal was sound. SIJ Warr's decision to refuse permission to appeal was also sound.

Eba and the second appeal test

[24] Mr Campbell then turned to consider the decision in Eba and submitted that the petitioner did not meet the 'second appeal test' which had been adopted in that case. Whilst Mr Forrest had examined paragraph 48 of Lord Hope's opinion, it was useful also to consider the further points which he made at paragraph 49.

[25] Mr Campbell submitted that in the case of PR, Carnwath LJ as he then was, gave the opinion of a very strong bench of the Court of Appeal which had considered the history of the provisions which led to the Tribunals, Courts and Enforcement Act 2007 establishing a unified structure; the introduction of the 'second appeal test'; and the consequences of the decisions in Eba and R ( On the application of Cart ), R (MR Pakistan) v Upper Tribunal [2011] 3 WLR 107. Mr Campbell founded particularly on paragraphs 22 and 23 where the Court of Appeal distilled the effect of those decisions. Conclusions in relation to the 'compelling reasons' test were reached at paragraphs 35 and 36 of PR which were relevant to the present case:

"35 Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be "very high", or (as it was put in the Cart case [2011] 3 WLR 107 , para 131) the case should be one which "cries out" for consideration by the court. The exception might apply where the first decision was "perverse or otherwise plainly wrong", for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it "plainly unjust" to refuse a party a further appeal, since that might, in effect, "deny him a right of appeal altogether". In the Cart case Lord Dyson JSC, following Laws LJ, characterised such a case as involving "a wholly exceptional collapse of fair procedure": para 131. Similarly, Lord Hope DPSC in the Eba case [2011] 3 WLR 149 , para 48 referred to cases where it was "clear that the decision was perverse or plainly wrong" or where, "due to some procedural irregularity, the petitioner had not had a fair hearing at all."

36 It is true that Baroness Hale and Lord Dyson JJSC in the Cart case acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words "compelling" means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

At paragraph 40, the Court of Appeal had rejected the suggestion that there might be an exception in cases in which it was argued that there was a risk of international obligations being breached.

[26] Mr Campbell also commended the approach taken, post-Eba, by Lord Hodge in AB, Petitioner [2011] CSOH 205 at paragraph 20 and by Lady Smith in DMK, Petitioner [2012] CSOH 25 at paragraphs 27-28 and 32-33.

[27] Against this legal background, it could not be argued that there was any error in the decision of 14 December 2010 which would meet the compelling reason criterion, if there was any error at all.

[28] Mr Forrest had sought to argue that because this case concerned the welfare of children, and because there was no authority that said in terms that it does not, the welfare of the children does constitute a compelling reason to review the decision of the judge of the Upper Tribunal to refuse permission to appeal. Mr Campbell submitted that the reasoning in the cases of Cart, Eba and PR plainly pointed in the opposite direction. The decision to refuse permission to appeal was one that could reasonably be reached, it was not perverse and it involved no denial of natural justice. The petition should be refused for this reason also.

Mora, taciturnity and acquiescence

[29] In support of his argument in support of a plea of mora, taciturnity and acquiescence, Mr Campbell set out a chronology of events gleaned, in part, from paragraph 25 of the petition which responded to the argument on mora.

·       The decision complained of had been made on 14 December and promulgated on 21 December 2010. Mr Campbell could not dispute that it was only received by the petitioner on 20 January 2011.

·       On 22 and 24 January 2011 agents for the petitioner were in correspondence with the Scottish Legal Aid Board.

·       The decision in ZH (Tanzania) was issued on 1 February 2011.

·       'Special Urgency' legal aid was granted on 24 January and withdrawn on 22 February 2011.

·       This decision was appealed on 9 March, in connection with which SLAB requested an opinion from counsel on 28 April 2011.

·       Legal aid was granted on 7 June 2011. Until that point, no representations had been received by the respondent.

·       The petitioner had attended meetings forming part of the 'Family Returns' process on 22 June and 6 July 2011.

·       The meeting on 6 July was a 'Required Return' meeting at which the petitioner was served with self check-in removal directions for a flight on 20 July 2011.

·       On 15 July 2011 first orders were granted on the petition.

·       The petition was not served until 26 November 2011. As a consequence, a first hearing which had been fixed for 7 December was discharged.

[30] Mr Campbell referred me to paragraphs 13.20-21 of Clyde and Edwards, Judicial Review, 2000, and a case cited there, Kwik Save Stores Ltd v Secretary of State for Scotland 1999 SLT 193, and in particular the following passage taken from the opinion of Lord Johnston at page 196 G-J:

"For reasons which will become apparent a determination of the issue of mora is not essential to my view of this case since I consider the petition fails on the merits. However before giving my reasons for that view, it is appropriate that I express an opinion on this question lest the matter go further.

I am in no doubt that a challenge to a ministerial decision by way of judicial review is susceptible to the plea of mora being successfully sustained in appropriate circumstances where there is both material delay and ascertainable prejudice. Beyond that position, however, to define the matter as one of principle is extremely difficult since it seems to me that each case must turn on its own facts and it becomes to some extent a question of fact and degree. What may be a reasonable delay as a matter of time in one case may be wholly inappropriate in another but I do not consider that ministerial decisions should be susceptible to challenge at any point in time after they have been made. Since the right to seek a review cannot prescribe, save perhaps under the 20 year rule, there must be some limit to the extent to which a minister remains liable to attack in respect of a decision which he has issued which is otherwise susceptible to judicial review. I also recognise that despite the fact that the House of Lords in Caswell was dealing with a statutorily imposed time limit of three months for the bringing of a judicial review and as to whether in terms of the Supreme Court Rules that should be extended, I do not consider that the principles that Lord Goff, particularly, was applying differ from the Scots common law position where no statutory time limit is imposed. I do consider that certainty in government is an important ingredient of good government, or at least the good administration of same. I also consider it relevant that no reason was advanced even at the bar why the period of time had elapsed save some vague reference to the need to obtain opinions from lawyers and experts, an explanation I find wholly unconvincing."

[31] Mr Campbell founded on paragraphs 22-24 of the opinion of Lord Eassie in Devine v McPherson 2002 SLT 213 in which there was a delay of more than seven months before an attempt was made to challenge a planning decision by judicial review by which time the respondents had proceeded on the basis that there was acquiescence and had materially altered their position and would be prejudiced if the grant of planning permission were annulled. In paragraph 22, Lord Eassie said:

"22... The need for prompt action may be greater in one context than another. The context of the present proceedings is, of course, the grant of a planning consent by the local planning authority. A planning consent takes immediate effect. It enables the owner of the land to do what he would otherwise have been entitled to do, but for the planning legislation. While there is provision for a statutory appeal against refusal of planning consent there is no provision for any such appeal against its grant. Thus a recipient of a grant of planning consent may well be likely to proceed, with relative despatch, to organise his affairs on the basis of having such a consent. The existence of a planning permission for a development on a particular site may also have consequences or implications for other third parties and, as was observed by Lord Bonomy in Uprichard (2000 SCLR, p 958B), the "public interest in good administration includes the administration of the general planning system in relation to other applications which might be affected by the decision made in this one..."

[32] Recognising that different considerations might apply in planning cases as opposed to challenges to immigration decisions, Mr Campbell observed that given what was at stake in immigration cases, it might be expected that proceedings would be raised quickly, and if they were not then that may suggest acquiescence. Whilst it was difficult in the immigration context to identify prejudice to the Secretary of State comparable to the type of prejudice which might arise in planning cases, she was charged with the administration of the system which dealt with immigration and was obliged to discharge her functions efficiently.

[33] In this case, given the steps taken by the petitioner of engaging with officials in departure conferences, and the delay in presenting her petition, acquiescence could be inferred. Failure to notify the Secretary of State that she would not be checking in as had been proposed, and failure to notify of her intention to challenge the decision sooner, had given rise to at least an element of prejudice to the Secretary of State.

Further submissions for the petitioner

[34] Mr Forrest submitted that the considerations in planning cases were very different to immigration cases. Mr Campbell had not been able to put before the court a report of any decided case in which such a plea had been upheld in an immigration case. In any event, the petitioner's conduct from her receipt of the decision on 20 January 2011 was such as to demonstrate an intention to challenge it. She had applied for legal aid almost immediately and the delays in that process were not atypical of those experienced in this field and were not attributable to the petitioner. Given that there was a view that it may not be competent to challenge a decision by the Upper Tribunal by judicial review, the petitioner could not really be blamed for not having presented her petition before the decision in Eba was issued on 20 June 2011. The respondent had not been able to produce any record or even suggestion of what was said by the petitioner at her meetings on 22 June and 6 July 2011. There was a substantial delay between the granting of first orders and service of the petition but that was due to a mistake being made by her agents and it was not the fault of the petitioner.

[35] Mr Forrest's instructions were that the decisions of SLAB would have been intimated to the Office of the Advocate General or the UK Border Agency or the Secretary of State. Indeed his agents understood that SLAB would alert the respondent on the receipt of a legal aid application. Mr Campbell intervened to say that the Office of the Solicitor to the Advocate General had no record of receiving any such intimation, but he did not challenge what was being asserted and he offered the suggestion that intimation may have been made to the Secretary of State.

[36] Mr Forrest submitted that there had been no material delay and no ascertainable prejudice and that the plea based on mora should be rejected.

Discussion

The best interests of the children

[37] I reject the submission which I have noted at paragraph [13] above to the effect that IJ Morrison relied on previous findings by another judge in the petitioner's husband's appeal and failed to consider the up to date position. Paragraphs 35 and 36 contain IJ Morrison's own findings in fact in respect of private and family life based on the evidence heard which included reports and letters dated January, February and May 2010 as was narrated in paragraph 36 (ii) of the decision. IJ Morrison then carried out an article 8 assessment in paragraphs 48-55.

[38] At first sight, the argument based on ZH (Tanzania) appears to have more substance. It should be noted however, that when the Secretary of State gave her reasons for refusal on 17 July 2010, when IJ Morrison considered the petitioner's appeal against that decision, and when SIJ Warr refused permission to appeal in December 2010, the Supreme Court had not yet issued its decision in ZH (Tanzania). Whilst the Secretary of State might have expressed her decision in different terms had it been made later, in essence it appears that she complied with the duty to treat the best interests of the children as a primary consideration and having done so she concluded that it was not contrary to the best interests of the children to return with their mother to their homeland. In any event, she thereafter concluded that because of the petitioner's immigration history, it was legitimate and proportionate in article 8 terms, and for article 8(2) reasons, that the petitioner and her children should be removed.

[39] IJ Morrison's decision must be seen in the context of an appeal against that decision. The Secretary of State had accepted that education in Nigeria was generally inferior to that which is widely available in the United Kingdom. IJ Morrison might have expressed the decision in different terms had it been known what the Supreme Court would say some months later. However, when the decision is read in full, with regard given both to the findings in fact and the article 8 assessment, and in the context of the decision being appealed, it is plain that IJ Morrison considered the best interests of the children as a primary consideration, considered relevant factors in evaluating them, identified factors which justified removal and came to a conclusion on proportionality.

[40] When denying permission to appeal, SIJ Warr concluded that, "the judge had in mind all relevant considerations affecting the appellant and her children, she did not neglect to take into account the impact on the children."

[41] Having considered the series of decisions which led to permission to appeal being refused, I was not persuaded that there was any material error made in this case by the various decision makers in their treatment of the best interests of the children and their education such as to render the decision by SIJ Warr unlawful.

[42] That was the view I came to on the argument presented in this case. Since hearing submissions, I have had cause to consider case law decided subsequently to ZH (Tanzania) and which I find to be consistent with the view I have taken in the petitioner's case. In AJ (India) and others v Secretary of State for the Home Department [2011] EWCA Civ 1191, [2012] Imm AR 10, Pill LJ, giving the leading opinion, with which his colleagues agreed, in the Court of Appeal, had examined the decision in ZH (Tanzania). He concluded, in paragraph 31 of his opinion, that it did not necessarily matter whether the best interests of the children were determined before any countervailing considerations or whether the countervailing considerations were determined first, so long as children's best interests were considered in the context of their particular family circumstances and that the best interests of children were kept in mind throughout the overall assessment as a primary consideration.

Eba and the second appeal test

[43] Paragraph 48 of Lord Hope's opinion in Eba, on which Mr Forrest had founded, states:

"48. So I would hold that the phrases 'some important point of principle or practice' and "some other compelling reason", which restrict the scope for a

second appeal, provide a benchmark for the court to use in the exercise of its

supervisory jurisdiction in relation to decisions that are unappealable that is in

harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, paras 17 and 24 per Dyson L J and Cramp v Hastings Borough Council [2005] EWCA Civ 1005 para 68 per Brooke L J. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all."

Even if there had been an error, Mr Forrest conceded that he did not feel able to suggest that in this case it raised 'an important point of principle or practice.'

[44] I reject Mr Forrest's contention that in any case where the best interests of children may be affected there is necessarily a 'compelling reason'. That was not decided in GB in a case in which the best interests of the child in question would have been the paramount consideration. Where the best interests of a child must be given primary, as opposed to paramount, consideration, and where it is recognised that they can be outweighed by countervailing public interest considerations, it is difficult to envisage that the mere fact that children may be affected by an immigration decision offers a compelling reason to allow judicial review of a decision of the Upper Tribunal where it would otherwise be excluded.

[45] I do not find support for Mr Forrest's contention in the decision in PR. Reading paragraphs 35 and 36 of PR together, it appears to me that the court was saying that even extreme consequences for an individual will not of themselves amount to a compelling reason. Whilst Mr Forrest referred me to some limited parts of the discussion in that case, the opinion as a whole, and indeed the court's treatment, between paragraphs 56 and 64 of TC (Zimbabwe), one of the cases before it in which children were affected by the decision, runs counter to his contention. I recognise that the facts are different. TC had committed a serious offence and fell to be deported on that basis. Nevertheless the decision, and the way in which it was expressed, is of some relevance to the issue before me. Paragraph 64 is in these terms:

"64. As to the other points, they are points of detail not principle. Overall, the SIJ placed weight on the interests of the children, but greater weight on the seriousness of the crime...Such points, even if realistically arguable, do not amount to "compelling" reasons justifying the exceptional course of a second appeal to the Court of Appeal."

[46] I have not accepted that any material error was made and I do not regard the decision as plainly wrong or perverse. Even if there had been an error in the way in which the decision was reached and expressed, I do not consider that it could be said that there was a procedural irregularity such that the petitioner has not had a fair hearing at all. It appears to me that, on the hypothesis that there was an error, even having regard to the whole circumstances which include that this was a decision which affected children, it would not constitute a compelling reason.

Mora, taciturnity and acquiescence

[47] Having reached the decision that there was no compelling reason to reduce the decision in the present case, and indeed no material error at all, it is not necessary to decide the argument based on mora, taciturnity and acquiescence. The special human context which has persuaded courts that anxious scrutiny must be exercised in making certain immigration decisions may have a bearing on the court's approach in a case where a plea of mora, taciturnity and acquiescence would be determinative. The nature of any prejudice to the Secretary of State caused by delay in a petition being brought to challenge an immigration decision is much less direct and immediate than it might be to a respondent in a planning case, albeit that prejudice to good administration could be relevant. Given the imbalance of power between an immigrant facing removal and the Secretary of State, it may be that the court should be careful before treating attendance at departure meetings instigated by the Secretary of State as an indication of acquiescence.

[48] It would also be relevant, both in assessing the weight to be attached to any prejudice to the Secretary of State and the extent to which acquiescence could be inferred from attendance at a 'Required Return' meeting, to have in mind the guidance provided by the Secretary of State. In the course of his submissions, Mr Campbell referred me to no.7/1 of process, extracts from Chapter 45 of the UK Border Agency Enforcement Manual. At page 5 of chapter 45, it is explained in relation to the two-week notice given at a 'Required Return' meeting that:

" This extended notification period - up from72 hours - will ensure that the family can prepare properly for their return and give them time to raise any further issues or seek further legal redress.

[the emphasis is mine.]

[49] I did not find Mr Forrest's argument that the lapse of time should only be considered from the point when Eba was decided to be persuasive in the circumstances of this case. The petitioner was seeking legal aid with a view to challenging the decision of the Upper Tribunal almost immediately on her receiving notice of it and that does not suggest that she and her advisers felt that the decision could not be subject of the court's supervisory jurisdiction. On the other hand, even if unknown to the respondent, the steps which the petitioner was taking are hardly indicative of acquiescence in the decision. It seemed to be accepted that the grant of legal aid on 7 June would have been communicated to at least one of the relevant government departments by SLAB and there may have been earlier intimation. That of course is not the same as the presentation or intimation of the petition, but it is of some relevance in considering if the position of the Secretary of State truly was prejudiced, and if so to what extent.

[50] It is an unsatisfactory feature of this case that first orders having been granted on 15 July, there was no service of the petition until November 2011. Mr Forrest accepted that the fault lay with agents, but he could offer no explanation for the delay. Whilst a litigant is normally held responsible for the actions of her lawyers, in an immigration case, and where there is an acceptance from those representing the petitioner that the fault lay with them and not with the petitioner, I would require to consider the position very carefully before upholding the respondent's plea for that reason.

[51] In a case where the question of mora, taciturnity and acquiescence was likely to be determinative, it would be helpful to have a fuller argument with a fuller citation of authority. Singh, Petitioner 2000 SCLR 655, might be a useful starting point. Determining the question of mora, taciturnity and acquiescence would only have been necessary if I had found that there was a material error constituting a compelling reason in the Eba sense. Had it been necessary to determine the question, on the argument I heard against the background of the concessions as to fact which were made, I would not have upheld the respondent's plea of mora, taciturnity and acquiescence in the particular circumstances of this case.

Decision

[52] For the foregoing reasons, I am not persuaded that there is any basis for the court to intervene. I shall repel the plea in law for the petitioner, sustain the second and third pleas in law for the respondent and refuse the petition.

[53] I shall reserve all questions of expenses in the meantime.