Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
XA152/12	[2013] CSIH NO. 42 OPINION OF THE COURT delivered by LADY SMITH in the application by BSC Applicant; For leave to Appeal against a Decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________

Act: McGuire; Drummond Miller LLP

Alt: Smith; Office of the Advocate General

26 April 2013

[1] This is an application for leave to appeal against a decision of the Upper Tribunal the result of which was that the respondent's refusal of BSC's application for indefinite leave to remain in the United Kingdom was upheld.

[2] The application is presented under section 13 of the Tribunal Courts & Enforcement Act 2007 and is one to which rule 37A.1(2) of the Rules of the Court of Session applies.

[3] The vires of this procedure, whereby a single judge of the Inner House hears such applications, has been challenged in the note that accompanies a motion which has been enrolled in another case to which rule of court 37A.1(2) applies, the application of MBR for leave to appeal.

[4] The motion in MBR's case is to be heard before 3 judges in three weeks' time, on 17 May 2013. At the start of today's hearing, Mr McGuire moved me to sist this application to await the outcome of the hearing in MBR. He accepted that the court has a discretion but submitted that, in the circumstances, the discretion ought to be exercised in favour of a sist. The interests of justice supported the grant of a sist. He referred, in support of that submission, to the case of Shetland Norse Preserving Co Ltd &c v The Braer Corporation &c and The International Oil Pollution Compensation Fund, 21 May 1999 (071/9/95). He drew my attention to Lord Gill's reasons for granting a sist where the outcome of an issue raised in another case, at the instance of Landcatch Ltd, had the potential to have a significant effect on the case before him. Mr McGuire relied on Lord Gill having pointed to the possibility that there would be a considerable waste of time and money in going ahead with the proceedings in the meantime and, perhaps more importantly, there would also have been a considerable waste of the administrative resources of the court. The court had an interest in the matter which was separate from the interests of the parties.

[5] Mr McGuire indicated that if the outcome of MBR was that it was determined that applications for leave to appeal such as this one required to be heard before 3 judges of the Inner House then, if this application had, in the meantime, been refused, that refusal would be appealed and the appeal would have to be to the Supreme Court on the basis that it ought to have been heard before 3 judges. That would lead to a considerable waste of court resources. He also submitted that it would not be prejudicial to the Secretary of State for this matter to be sisted. He submitted that the legal challenge raised in MBR was fundamental. It was not simply a matter of a challenge to the substantive immigration law concerned. It was a challenge to the ability of a single judge to hear these types of cases. It should be recognised that the motion in MBR went as far as asking the court to hold the prior interlocutor refusing leave to appeal pro non scripto.

[6] For the Secretary of State, Miss Smith submitted that the motion should be refused. She accepted that I had a discretion on the matter but parties were entitled to seek to insist on the litigation continuing. It was for the party seeking the sist to satisfy the court that the interests of justice required it. She submitted that it was not necessary to grant a sist in this case. Put shortly, the Secretary of State's position was as follows. Cases should not, in general, be sisted pending a legal point being taken in another case. The Secretary of State sought to progress claims expeditiously. That was in the interests of the state and applicants. Sisting this case would interfere with those interests. It was not uncommon for a legal point to be taken in an immigration case that could affect a number of cases or, indeed, a whole category of cases. This was just one such example. She submitted that all cases cannot be halted as soon as a legal point is taken in another one. This case was no different. The applicants had to take the law as they found it on the day of their hearing.

[7] So far as practicalities were concerned, given the number of applications of this type that had been received by the Secretary of State so far this year, it was anticipated that there would be about 80 such applications during the year as a whole. Once Supreme Court appeals were allowed for, it could be June 2014 or thereabouts before a final outcome was known. It would, given that potential delay, be prejudicial to the Secretary of State to sist the action. That would interfere with her ability to deal with these cases expeditiously.

[8] Turning to my decision, I begin by observing that the position of the Secretary of State is entirely understandable. She has a duty to deal with immigration applications as expeditiously as possible. The courts are not slow to criticise her and/or her department if they delay matters. It is only natural that when her decisions become the subject of litigation, she expects the court to adopt the same approach to expedition as it expects of her. Further, she is right that, in principle, parties are entitled to have a litigation into which they have been brought, proceed continuously. However, I require to recognise that, equally, it is open to any party to seek a sist and if the motion is supported by good reasons then it may be granted. It is, as was recognised by both counsel, a matter in which the court has a discretion. I have reached the view that I ought to exercise that discretion by granting the motion. This is not a case where there is a possibility of a different view being taken on substantive law. In such an instance, as Miss Smith observed, the court is usually slow to put other cases on hold. However, an aspect of the challenges that are to be raised in MBR is, as I understand it, that the court cannot competently hear these applications in this manner - that is, with them calling before and being determined by a single judge of the Inner House - at all. To put it another way, a fundamental issue as to the way in which the court conducts itself in relation to these applications is being raised in another case. That issue is going to be determined very soon and I cannot close my eyes to that. In particular I cannot close my eyes to the possibility that it could, shortly, be decided that Inner House judges ought not to hear and decide these applications sitting alone. As Lord Gill said in the Braer case, albeit in a different context, the court has an interest in this matter that is separate from the interests of parties. In this case, that interest is particularly acute as it involves refraining from doing that which could appear to be inappropriate. I do not consider it appropriate that I determine the application for leave to appeal in this case, sitting alone, today, knowing as I do that a question mark hangs over the Inner House regarding the vires of the procedure within which I would be making my decision, particularly where I know that that issue is going to be fully debated and determined very soon.

[9] I would add:

(a) that my decision to sist this application should not be taken as in any way amounting to a determination that it would not be competent for me to hear it or, indeed, as indicating any view as to what ought to be the outcome in MBR; and

(b) that it will, of course, be open to the Secretary of State to enrol for recall of the sist once the outcome of the MBR motion is known.

[10] That is my decision.