Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 91
P325/13	OPINION OF LORD BOYD OF DUNCANSBY in Petition of M U B Petitioner; For judicial review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Pirie; Office of the Advocate General

6^th June 2013

[1] This is an application for judicial review seeking reduction of a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing the petitioner leave to appeal against a decision of the First Tier Tribunal. Such a decision is an excluded decision in terms of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) section 13(8)(c). Accordingly, a petition for judicial review to this court is subject to the test contained in R (Cart) v The Upper Tribunal [2012] 1 AC 663 and Eba v The Advocate General [2012] SC (SC) 1 (the Eba test).

[2] This case raises the issue of the procedure to be adopted by this court when dealing with a petition for judicial review which is subject to the Eba test. This is the first time that the respondent has argued that the court should dismiss the petition at the procedural first hearing. I am informed that on one previous occasion parties agreed at the procedural first hearing that there should be a first hearing restricted to the issue of whether the Eba test is met. As I heard substantive argument on procedure I thought it right that I should set out my views informed by parties' submissions.

[3] Practice Note 1 of 2012 deals with immigration and asylum judicial reviews. Paragraph 8 states that at first order the court will ordinarily (a) order service of the petition on the Advocate General for and on behalf of the Secretary of State for the Home Department within seven days, (b) order the respondent to lodge answers and any documents on which he or she founds within four weeks of that service, and (c) fix a date for a procedural first hearing. Paragraph 10 provides that each party who is to be represented at the procedural first hearing is to exchange and lodge in process not later than two days before the hearing (a) a short statement of issues and of the legal authorities on which he or she relies, (b) any further documents to which he or she intends to refer and (c) an estimate of the duration of the substantive hearing. Counsel are expected to discuss these matters and the future progress of the case before the procedural first hearing with a view to identifying the matters in dispute and the most efficient means of their resolution. Paragraph 11 states that at the procedural first hearing the Lord Ordinary will consider the pleadings and the statement of issues, ascertain the parties state of preparation, the likely duration of the hearing and identify whether the case can be heard along with other similar cases. The Lord Ordinary will exercise any of the powers set out in rule of court 58.9 as may be appropriate, for example to require the lodging of notes of arguments and authorities, and, after consulting the Keeper of the Rolls, allocate the case to a substantive hearing.

[4] Both parties complied with the terms of the practice note. The respondent lodged answers. Statements of issues were lodged by both parties along with lists of authorities. It is apparent that there is agreement as to what the main issues are in this case. However parties disagreed on procedure. The respondent's first plea in law is to the effect that the petition should be dismissed as the Upper Tribunal decision falls outside the scope of the court's supervisory jurisdiction. In other words it fails the Eba test.. In the statement of issues the respondent argued that the court should determine that plea in law at the procedural hearing. As a fall back, it was argued that I should order a hearing restricted to the question as to whether or not the Eba test is met.

[5] For the petitioner Mr Caskie argued that I should order a substantive hearing on all matters. He submitted that it was not possible to determine the Eba test until one had identified the error of law. In a discussion on the relevancy of the petition, he submitted, it is superficial to seek to identify whether the point of law meets the Eba test without a detailed analysis in the context of the nature, extent and significance of that error of law. The starting point had to be the identification of the error of law.

[6] For the respondent Mr Pirie submitted that a factor in the Cart and Eba cases before the Supreme Court was a proportionate use of court resources. He referred me to a number of passages in Cart but in particular to Lord Brown, paragraph 100, where he said:

"The rule of law is weakened, not strengthened if a disproportionate part of the courts resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff."

[7] He submitted that the approach in England to the determination of the test was to consider it as a preliminary issue to be focused in the grounds when lodged; see Ouseley J in Khan and another v The Secretary of State for the Home Department [2011] EWHC 2763 (Admin) at paragraph 6, 7 and 8 and P R (Sri Lanka) v The Secretary of State for the Home Department [2012] 1 WLR 73. The intention in Eba was to the effect that there should be no difference in the scope for judicial review of unappealable decisions of the Upper Tribunal on either side of the border; Lord Hope at paragraph 46. It was also clear that Lord Hope envisaged that there should be a procedure in the Court of Session where the Eba test could be decided at the earliest opportunity (paragraph 49).

Discussion

[8] It is clear that the decision in Cart to apply the second tier appeal test (here referred to as the Eba test) to unappealable decisions of the Upper Tribunal, was driven not simply by consideration of resources but also from an appraisal of the altered relationship between the courts and tribunals as a result of the passing of the 2007 Act as well as the opportunities of appeal to the Upper Tribunal (see Lord Dyson at paragraph 123). Thus in devising procedures to consider applications for judicial review of unappealable decisions of the Upper Tribunal the court should have regard not simply to the issue of resources, which is important, but also to the nature of that altered relationship and the role of the Upper Tribunal.

[9] I reject the submission that it is not possible to consider whether the Eba test is met without a full argument on the merits. That approach is not consistent with the procedure in England and Wales. Nor does it accord with what Lord Hope envisaged as a possible procedure in Eba. It seems to me that in the majority of cases it should be possible to readily identify whether there is an important point of principle or some other compelling reason for this court to consider the appeal. What then should be the procedure in such cases in Scotland?

[10] In Eba, Lord Hope suggested that the Lord Ordinary to whom a petition is presented under rule 58.7 for a first order for the review of an unappealable decision of the Upper Tribunal should be encouraged to consider the question whether there was an arguable case that the criterion had been met. In doing so he commended the approach of Lady Smith in the Outer House in E Y v The Secretary of State for the Home Department [2010] SLT 170. A first order has of course been granted so the issue does not arise in this case. However it should be noted that such a course of action is not open to the Lord Ordinary considering a motion for a first order. The Inner House made it clear in the reclaiming motion from the decision of the Lord Ordinary that questions of pure relevancy are to be determined at a stage after the petition has been served on the respondent and answered by her (E Y v The Secretary of State for the Home Department [2011] SC 388 per our Lord Clarke giving the decision of the court at paragraph 17).

[11] Nevertheless there is force in Lord Hope's observation that the question of whether or not the Eba test has been met ought to be capable of being applied at the earliest possible stage and certainly at the stage of the first hearing.

[12] In time it ought to be possible to do this at the procedural first hearing. There are, however, some obstacles to doing so in this case and at this point. In the first place, paragraph 11 of the practice note does not appear to contemplate anything other than a purely procedural hearing. It is true, as Mr Pirie pointed out, that paragraph 11 of the Practice Note makes it clear that the Lord Ordinary will exercise any of the powers set out in rule of court 58.9 as may be appropriate. That includes the power to dismiss the petition; rule of court 58.9(2)(a). However the example that is given is the power of the judge to order the lodging of notes of arguments and authorities prior to the first hearing. In my opinion, the Practice Note does not contemplate substantive arguments on relevancy at the procedural hearing.

[13] Secondly, an early disposal would be assisted if there was a clear and authoritative approach to the Eba test. There is however a divergence amongst the judges in the Outer House as to the correct approach to the Eba test in Scotland, see for example Lord Stewart in petition of A H C (2012) CSOH 147, at paragraph 57, and Lady Clark of Calton in B M (2012) CSOH 142, at paragraphs 19 and 20, on the one hand and, Lord Brodie in A v The Secretary of State for the Home Department [2012] SLT 1075, at paragraphs 19 to 30, and Lord Doherty in Nabeel Yusuf Khan [2013] CSOH 84, at paragraph 45, on the other hand. Until that divergence of approach is resolved one way or another it seems to me that there is considerable room for substantial argument on the issue of whether or not the Eba test is met. That makes it more difficult to resolve the Eba test at what is essentially a procedural hearing.

[14] I also observe that the conversion of the procedural first hearing into one on which issues of relevancy are discussed at length may have timetabling issues for the Keeper.

[15] As a practical matter in this case it was clear that Mr Caskie was unprepared to argue the point at the procedural hearing. As the procedure that the respondent was suggesting was novel I thought it would be unfair to the petitioner to hear argument at that hearing.

[16] Mr Caskie submitted that a hearing on the full merits of this case would only take one day if I ordered notes of argument to be exchanged and lodged with the court in advance. In his submission it would not take any longer than a hearing restricted to determination of the respondent's first plea in law. That may be so although the lengthier the arguments the more likely it may be to spill into a second day. However, as I indicated earlier it seems to me that the issue of court time and judicial resources is only one of the considerations in determining the Eba test at an early stage. I consider the question of whether or not the petition lies within or outside the jurisdiction of this court to be one which should logically be disposed of before moving on to looking at the substantive merits. It is, I consider, important that those who seek to invoke the supervisory jurisdiction of the court are able to satisfy the court that it has jurisdiction to consider the matter.

[17] Accordingly, I have decided that there should be a first hearing restricted to considering the respondent's first plea in law. The date 4 July 2013 has been identified. I have ordered that notes of argument should be exchanged 14 days in advance and lodged in court 7 days in advance of that hearing.