Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 179
P325/13	OPINION OF P A ARTHURSON, QC (Sitting as a Temporary Judge) in the cause M U B Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Act: Caskie; Drummond Miller LLP

Respondent: Pirie; Office of the Advocate General

21 November 2013

Background

[1] On 13 November 2013 this petition for judicial review called for a first hearing restricted to consideration of the respondent's first plea in law. The petition seeks reduction of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 22 November 2012 refusing the petitioner leave to appeal against a decision of the First Tier Tribunal dated 19 September 2012 which in turn dismissed an appeal against the decision of the respondent dated 8 June 2012 refusing the petitioner's claim for asylum.

[2] The parties joined issue on the "threshold" question of whether the petition falls within the supervisory jurisdiction of the Court, applying the test set by the Supreme Court in Eba v Advocate General 2012 SC (UKSC) 1. There was agreement that the correct approach to this matter is set out by the Court in SA v Secretary of State for the Home Department [2013] CSIH 62 at paragraphs 41 - 44. In short, in order to be deemed relevant and thereby appointable to a full hearing, a petition must clearly and unequivocally aver a specific error on the part of the Upper Tribunal in refusing leave, and further aver upon either an important point of principle or practice not yet established (Uphill v BRB (Residuary) [2005] 1 WLR 2070, Dyson LJ at para 18) or other compelling reason why an appeal should be allowed to proceed. The test is a stringent one, designed to allow review only in rare and exceptional cases, the error normally requiring to be one which "cries out for consideration" rather than just being potentially arguable (SA, para 44; PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, Carnwath LJ, at para 35).

Submissions for the Petitioner

[3] Mr Caskie, for the petitioner, sought to identify two errors of law which he characterised as important points of principle in support of his motion to the court to remit the petition for a full hearing on its merits.

[4] Firstly, founding on the opinion of Lord Tyre in IE v Secretary of State for the Home Department 2013 CSOH 142 at paras 14 and 15, and the speech of Lord Kerr in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at para 46, counsel advanced the proposition that, in regard to the assessment to be made by a fact finder in respect of the best interests of children in such a context, a separate and prior calculation requires to be undertaken in assessing the best interests of any children (absent any consideration of the immigration position of their parents), which assessment requires subsequently to be factored in to an overall assessment of proportionality, at which stage the immigration position of the parents is to be taken into account. Counsel proceeded to attack the error which he said lay in paragraphs 150 and 151 of the FTT decision of 19 September 2012, that point of criticism having been crystallised in the petitioner's undated application for permission to appeal to the Upper Tribunal, paragraph 3, first sentence which stated:

"The FTT concluded that the children would return with their parents and that provided a substantial answer to the best interest question, removal not involving any family separation."

Counsel prayed in aid at paragraphs 94 and 101 of the respondent's decision letter of 8 June 2012, which in terms made it clear, counsel submitted, that it was not considered to be contrary to the best interests of the petitioner's children to return to Pakistan with him. On this first point of principle, counsel's submission came to this: the respondent's decision letter and the FTT determination operated by application of a test which was, in counsel's words, a "logical fallacy", namely that if (i) it was in the best interests of children to remain with their parents, and (ii) their parents were to be removed from the UK, then accordingly (iii) it was in the best interests of the children to be removed. Counsel submitted that this was precisely the approach which Lord Tyre deemed to be flawed in IE, and which was contrary to the dictum of Lord Kerr in ZH (Tanzania), supra. The respondent had elected, unusually, to reclaim Lord Tyre's decision in IE. The matter was clearly a point of principle in the eyes of the respondent, counsel observed.

[5] Secondly, counsel submitted forcefully that the petitioner having failed to establish a well-founded fear of persecution in Pakistan due to his religious activities, nevertheless treatment short of that could be considered to be relevant and powerful evidence in respect of consideration of the best interests of children affected by non-persecutory harm. Counsel founded on paragraphs 4 and 5 of the petitioner's application for permission to appeal document and to the terms of the country of origin information report referred to therein, submitting that this information was before the FTT decision maker and that he should have had regard to it as a consideration of harm germane to the issue of the best interests of the petitioner's children. Counsel characterised this harm as widespread, endemic discrimination against Christian children. On this point, counsel's submission was in sum that such considerations were not addressed at all in the FTT determination or in relevant passages in the respondent's decision letter. In the Upper Tribunal decision of 22 November 2012 (in respect of which reduction was sought in the petition), the reference in the penultimate paragraph therein to paragraph 119 of the FTT determination must necessarily, counsel contended, refer back to the newspaper article referred to in para 7 of the application for permission to appeal, from which counsel sought to draw the inference that the country of origin information report had been left out of account. The Upper Tribunal had accordingly failed to address this highly significant material, it was submitted by counsel, and this was the foundation for his second challenge.

[6] Counsel advanced a single "compelling reason" under an umbrella reference to statements 11 to 18 of the petition. He submitted, under reference to these averments, that there were such significant errors of approach taken on behalf of the respondent that there was in effect no fair hearing before the FTT. Counsel summarised each of the statements in the petition by way of what he described as a brief "headline" phrase. He did not draw the attention of the court to any substantive paragraphs upon which he could detail his criticism in either the respondent's decision letter, the FTT determination or the Upper Tribunal decision. His position was that there was sufficient cumulative criticism of alleged errors set out in averment and that this could be said to amount to a compelling reason.

Submissions for the respondent

[7] Counsel for the respondent submitted that the petition fell outside the supervisory jurisdiction of the court as set out in Eba. He referred to SA, para 15, in making a preliminary point to the effect that it is essential for a petition in cases such as these to identify an error of law on the part of the Upper Tribunal in order to succeed, before the guidance in Eba can come into play. The purported error of law actually set out in the petition about the children's best interests in the last two sentences of statement 9 did not address the "logical fallacy" point founded upon by counsel for the petitioner under reference to Lord Tyre's decision in IE and Lord Kerr in ZH (Tanzania). The application for permission to appeal being itself silent on the matter, the petition must fail, the respondent's counsel submitted.

[8] Counsel for the respondent further argued that it was clear from the FTT decision paragraphs 144 and 145 that the respondent's decision letter had in terms been adopted, and that it was of note that in the decision letter the country of origin information report was referred to (paragraphs 90 and 99). Further, the alleged IE error could not be read into the analysis of children's best interests in the respondent's decision letter at paras 101 and 102. From these paragraphs it was clear that the respondent had considered the educational experience of the children in the UK compared to Pakistan; their medical care; where the majority of their lives had been spent; their church activities in the UK; their extended family in Pakistan; their cultural identity; and the financial ability of their family to cope in Pakistan. Counsel submitted that this approach was indeed in accordance with the approach to consideration of the best interests of children set out by Lady Hale at para 29 of her speech in ZH (Tanzania), and the "overall assessment" approach set out by the Upper Tribunal in MK (best interests of child) India [2011] UKUT 00475 (IAC). In any event, counsel submitted that on any analysis or approach to matter of the best interests of the children in this case, on assessment of proportionality, it was inevitable that the decision on removal of the petitioner would be concluded to be proportionate. Standing that the whole family would return to Pakistan together, and the "clear and constant jurisprudence of the ECHR" (Sales J in Nagre v The Secretary of State for the Home Department [2013] EWCH 720 (Admin) at para 40), the petitioner's case could not be said to be in the category of "most exceptional circumstances" pertaining to removal of a family member in an assessment under article 8. Counsel referred also to the dictum of Dyson, MR, at para 42 in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. In circumstances where the petitioner and his family had arrived in the UK on 21 April 2012, and the FTT had heard the appeal on 31 August 2012, having regard generally to the findings in fact about the petitioner and his family set out at para 153 of the FTT determination, only one conclusion could be drawn in terms of the argument on proportionality under article 8. While it was accepted that the respondent had reclaimed Lord Tyre's decision in IE, there was nothing particularly significant about the importance of the point advanced for the petitioner thereon. As the law stands, IE had established a particular point on behalf of the petitioner in that case, and in the event of there being any change in that position, that will occur at a hearing before the Inner House in IE, counsel observed.

[9] Turning to the petitioner's second argument, counsel for the respondent again submitted that no important point of principle was raised. The correct approach to assessment of the children's best interests having been taken by the respondent and the FTT, the correct inference to be drawn from the decision documents was that discriminatory factors were indeed taken into account. The country of origin information report was referred to in paras 90 and 99 of the respondent's decision letter. It was clear from paragraph 100 of the FTT decision that careful consideration had been given to all of the evidence before the FTT, the extensive nature of which was listed in paras 2 - 6 of that decision. The petition had no prospect of success under this head of challenge, which did not pass the Eba test, counsel submitted.

[10] Counsel for the respondent, in addressing the compelling reason point (statements 11 to 18 of the petition), submitted under reference to the dictum of Dyson LJ in Uphill, supra, at para 24, referred to by Carnwath LJ in PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 74 at para 8, that a combination of ordinary errors in law (as averred by the petitioner) fell short of a "compelling reason" as envisaged in these judicial dicta. None of the criticism set out by counsel for the petitioner under this head of challenge amounted to an error of law, and in any event there was no prospect of success in terms of Eba even if individual errors were legitimately demonstrated.

Discussion and decision

[11] I am not satisfied that this petition meets the criteria set in Eba, supra. I do not consider that any error of law has been identified on the part of the Upper Tribunal, either in the petition or as developed by counsel in submissions before me. I am further not satisfied that the challenges advanced by counsel for the petitioner under the heads of points of principle or compelling reason are well founded. The purpose and effect of Eba is that in cases such as the instant, for a petitioner to establish a material error of law is no longer a sufficient condition for a successful challenge. Further, a petitioner must as a starting point bring home error to the decision, as here, of the Upper Tribunal, rather than to its antecedents . Applying these tests, this petition fails and falls to be dismissed.

[12] The point advanced in respect of Lord Tyre's decision in IE, supra, is, in my view, a point about circularity of reasoning. In the decision making exercises analysed before this court I observed instead a holistic analysis taken by fact finders in assessing the best interests of the children, in line with ZH (Tanzania) per Lady Hale at para 29 and the approach commended in MK (best interests of child) India, supra. It is worth repeating Lady Hale's dictum at this stage:

"Applying, therefore, the approach in Wan to the assessment of proportionality under article 8(2), together with the factors identified in Strasbourg, what is encompassed in the "best interests of the child"? As the UNHCR says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other counry; and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away."

This is the approach I read into the respondent's decision letter of 8 June 2012, paras 94 and 101 - 102, as adopted in the FTT determination (this adoption was not disputed by Mr Caskie). Although not essential to the decision in this case, having considered the material founded on by counsel, I share Mr Pirie's view about the inevitability of the conclusion of fact finders carrying out any assessment in terms of article 8. As put in MF (Nigeria) per Dyson, MR, at para 42:

"In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal. "

[13] Turning to the petitioner's second challenge, I do not consider there to have been a failure on the part of the Upper Tribunal, or indeed the FTT or respondent, to take into account discriminatory treatment falling short of persecution as affecting the petitioner's children. The issue of potential discrimination in respect of the petitioner and/or his family is addressed expressly in the FTT determination at paras 26, 48, 70, 119 and 121. Once more, it was clear from para 100 of the FTT determination that the decision maker gave "careful consideration" to all of the evidence and specifically considered the petitioner's account and fear of being returned to Pakistan. The September 2011 COI report for Pakistan is referred to at paras 90 and 99 of the respondent's decision letter of 8 June 2012, and discrimination is referred to again at para 92 thereof. On any view, the respondent and the FTT duly considered questions of discrimination and came to a particular conclusion. I find that the application for permission to appeal has been duly addressed in brief but adequate reasons by the Upper Tribunal in the decision document of 22 November 2012 which specifically, and in my view accurately, notes that the FTT "went into matters very thoroughly". This ground of challenge also falls accordingly to be repelled.

[14] Finally, with regard to the contention advanced by Mr Caskie in respect of "compelling reason", namely an effective collapse of procedure due to errors of law, I have concluded without difficulty that even in combination as set out on behalf of the petitioner at statements 11 - 18 of the petition, and advanced as they were by counsel with the briefest of phrases or "headlines" attached to each statement, these cannot be said to amount to a compelling reason as envisaged in the authorities canvassed, supra, and are insufficient to meet the prospects threshold required under such a head of challenge.

Disposal

[15] For these reasons I repel the plea in law for the petitioner, sustain the first plea in law for the respondent and dismiss the petition. I will reserve meantime all questions of expenses.