EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 30
Lady Smith Lord Drummond Young Lord McGhie	P227/13   OPINION OF THE COURT   delivered by LADY SMITH   in the reclaiming motion   of   E.P. Petitioner and Reclaimer;   Against   THE SECRETARY OF STATE FOR THE HOME DEPARTMENT   Respondent :   For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________

 

Dewar QC and Winter; Drummond Miller LLP (for Katani & Co, Glasgow)

Webster; Office of the Advocate General

 

4 April 2014

 

BACKGROUND

[1] The reclaimer (appellant) is a Zimbabwean national who claims to have arrived in the UK on 8 February 1999. He was granted 6 months leave to enter the country. He was subsequently granted leave to remain, as a student, until 31 October 2001 but he overstayed and made no further attempts to secure leave to remain.

[2] On 20 April 2007, he was convicted, in England, of driving with excess alcohol, driving whilst disqualified and of two counts of resisting arrest. On 14 May 2007, he was sentenced to 3 months and 20 days imprisonment and the court recommended that he be deported. He also had prior convictions; he has eight convictions in respect of nineteen offences. On 16 July 2007, the reclaimer claimed asylum. His claim was refused and, after an unsuccessful appeal, he was served with an order for deportation on 28 February 2008.

[3] On 13 December 2010, the reclaimer's daughter was born in the UK. On 10 June 2011, he married the mother of his daughter ("PM"), a woman who had been granted refugee status in the UK. She already had one older child of whom the reclaimer is not the father; that child had been living in Zimbabwe but was reunited with PM in April 2010. He made a fresh but unsuccessful claim under reference to the fact of his marriage and that he now had a child.

 

First Tier Tribunal "FTT")

[4] The reclaimer appealed to the FTT and his appeal was heard on 23 January 2012. He relied, at that stage, on various grounds but now only seeks to rely on article 8 ECHR.

[5] The FTT did not believe the reclaimer's account of his domestic circumstances. In particular, the panel did not believe that he was living in family with PM and the two children. The FTT considered that, rather, he was seeking to advance, not for the first time, any pretext that he could to remain in the country and to tell whatever story he thought might tide him over any difficulties confronting him. The FTT considered that his claim was opportunistic. It is not necessary, for present purposes, to rehearse in detail their reasons for so concluding. Suffice it to say that they did give detailed reasons for their conclusions which included that the reclaimer was a "pretty well wholly unconvincing" witness (paragraph 87), that although he said he was living in family with PM, he had deliberately represented to NASS that he was continuing to live alone so as to secure continuing financial support, that he had previously claimed that he was married to a different woman, that he had worked illegally and that his marriage certificate stated that he was a nursing home assistant when he was not.

[6] The FTT also heard evidence from PM but found her to be "less than convincing" (paragraph 87). Overall, they concluded that the relationship between the reclaimer and PM, "whatever it might be, was very considerably less than claimed" (paragraph 87) and they did not believe that he fulfilled the family role and family duties that he claimed he did.

[7] Once the FTT had drawn their conclusions as to the facts, their next step was, as set out in paragraph 88:

"88......to apply the authorities to us (sic). Although not cited before us, the recent case of MK(Best Interests of Child) India [2010] UKUT 00475 (IAC) was to the forefront of our consideration. We considered that as a first element we had to look at what the best interests of the two children might be, and then, having reached a conclusion on that, ought to proceed to the balancing exercise of Article 8. The purpose of this procedure, as explained by the Upper Tribunal, would be to avoid contamination of the interests of the child with other factors such as the immigration history of any of its parents."

 

[8] The FTT concluded that, given their assessment of the evidence, "the greater part of the best interests of the children before us focused on their mother", that the reclaimer was "a minor element in their lives", that "the benefit that flowed from his presence was of limited significance" (paragraph 89) and that the best interests of the children lay in remaining with their mother and "to a greatly reduced element to having some contact with the appellant such as was not deleterious to them" (paragraph 90). That last comment arose from the FTT reminding themselves that this was a man who had been in prison and who, on their findings, had a casual attitude to honesty. The FTT then turned to the balancing exercise:

" 91. Against that background, we progressed to the balancing exercise. The appellant's immigration history, as noted, is very bad. He has served imprisonment for serious offences. He has been recommended for deportation. His contribution to this country has at best been very limited. His defiance of UK immigration law is marked. The maintenance of a fair and effective immigration system is an important priority. The protection of the public from repeated drunk drivers who are "foreign criminals" is an important factor. The prevention of abuse of limited funds made available to those seeking asylum in Britain is a factor to be borne in mind. The appellant's stay in this country has been pretty well in defiance of our immigration laws. Taking all of these factors and balancing them against the limited private and family life considerations above discussed, we concluded that the removal of the appellant would engage Article 8 to a material extent but would be legal, necessary for an approved purpose in terms of Article 8(2) and proportionate to that aim."

 

Permission to Appeal ("PTA")

[9] The reclaimer sought but was refused PTA by the FTT after his application having been considered by another judge of the FTT. He then sought PTA from the UT. There was a single ground upon which that PTA was sought, namely that the FTT had adopted the wrong approach when assessing the best interests of the children; it was expanded upon under reference to the need to apply anxious scrutiny, to treat the children's best interests as the first and a distinct stage, to avoid fixing children with the actions of adults, to assess the appellant's private life, to apply a low standard when assessing whether or not family life was established, to treat as a starting point that it is in the best interests of a child to be brought up by its parents and to assess whether it was reasonable to expect PM and the children to relocate but it was, essentially, that the FTT should have adopted a different approach to the assessment of the best interests of the children and, having failed to do so, their decision to refuse the reclaimer's appeal was undermined. That application was also refused, by notice dated 27 April 2012. That was a decision of UT Judge R Kekic who gave, as his reasons :

"1. The appellant is a Zimbabwean citizen who appeals against the refusal to revoke a deportation order.

 

2. The grounds argue that the First-tier Tribunal erred in adopting the wrong approach in respect of the best interests of the children. It is argued that the immigration history of the appellant and his wife are irrelevant considerations when assessing the children's interests. The grounds also argue that the findings on family and private life are unclear and that no consideration was given to whether it would be reasonable to expect the appellant's wife and step child to accompany him to Zimbabwe.

 

3. The First-tier Tribunal set out its approach at paragraph 83. It proposed to follow EO Turkey. It set out the respondent's case which included the appellant's eight criminal convictions for nineteen offences and his immigration history as the background for finding that he was liable to deportation. It then considered the asylum claim after which it came to Article 8. Full consideration was given to the appellant's family and private life. The serious difficulties with the appellant's evidence are noted. It considered MK India even though no attempt to argue the case was made by the appellant's representatives (paragraph 88). The Tribunal reminded itself that the best interests of the children were at the forefront of its mind. It was entitled to find that the older child had lived in Zimbabwe independently of her mother until recently and that her best interest was to remain with her. The same applied to the appellant's child, who was under a year old. The Tribunal found that the appellant was a minor element in their lives and rejected the picture painted by the appellant and his wife (whom he only recently married) of their domestic circumstances. Given the conduct and behaviour of the appellant, it found that it had not been shown that the best interests of either child were to have continued contact with the appellant. A full and thorough balancing exercise was carried out and no error is apparent."

 

[10] Accordingly, by 27 April 2012, the reclaimer's present claim had been considered within the tribunal system, on three separate occasions and had become the subject of three separate judicial decisions. It had also, of course, prior thereto, been determined within the administrative process, by the respondent who had provided detailed reasons for refusing the application.

 

Judicial Review

[11] The reclaimer presented a petition for judicial review, seeking reduction of the UT's refusal to grant PTA. The petition appears to seek to conform with the guidance set out in Eba v Advocate General for Scotland 2012 SC (UKSC) 1; whilst there are no averments that "some important point of principle or practice" arises for determination (Eba paragraph 48) , statement 11 concludes with the averment:

"There are thus compelling reasons for the Court to reduce the refusal of the UT to grant permission to (sic) the UT."

 

[12] What prefaces that averment are a series of averments (a) to the effect that the UT had failed to "properly engage with" the ground of appeal on which the application for PTA was based and, (b) earlier, in statement 8, that:

"..the UT in refusing permission to appeal has erred by failing to ask the correct question, namely rather than asking whether there was an arguable error of law, the UT has asked whether there was an error of law."

 

[13] As became apparent at the debate before the Lord Ordinary, the reclaimer sought to proceed on the basis that he could satisfy the "some other compelling reason" part of the Eba guidance by pointing to any misdirection in law on the part of the UT. That was not a submission which found favour with the Lord Ordinary; he firmly rejected it. Further, having considered the UT's reasons, reading them sensibly, he concluded that any ground that the UT lost sight of the correct question - namely whether there were arguable grounds of appeal - did not have very high prospects of success. To the contrary, he considered that the FTT had directed itself appropriately. Accordingly, even if it might be enough, for a compelling reason, to point to a misdirection of law, whatever its nature, it did not follow that the present application for judicial review could be entertained.

[14] Regarding the ground of appeal which was before the UT, the Lord Ordinary, put shortly, could not find that there was any room for criticism of the FTT; he discussed the various aspects of the ground of appeal and it is plain from his reasons that he was not satisfied that it was arguable that the FTT had fallen into error. Moreover, at paragraph 59, the Lord Ordinary states:

"59. Even if, contrary to my decision, I had found that the prospects of success of appeal to the UT were very good, I would not have considered that to be an adequately compelling reason. I would regard errors of the type alleged in this petition as ones of the character considered by Lord Brown in Cart, at paragraph 99, to be those which the second- tier appeals criteria were designed to exclude from further consideration."

 

[15] He, accordingly, held that the case that there were compelling reasons was not made out and that to allow the petition to proceed would offend against "the necessary restrained approach to judicial review of such refusal decisions." (paragraph 60)

 

Submissions

Petitioner and Reclaimer

[16] Senior counsel invited us to conclude that the Lord Ordinary was wrong to have concluded that the issues raised in the petition for judicial review did not fall within the supervisory jurisdiction of this court. He made two principal submissions.

[17] First, he submitted that the UT had fallen into error by applying the wrong test; instead of asking whether or not there were arguable grounds that the FTT had erred in law, it had addressed the merits of the proposed appeal. That was evident from the written reasons. It was enough if this court was in substantial doubt as to whether or not the UT had applied the correct test. There was no need to go as far as being satisfied that there was in fact a failure to do so. In these circumstances alone, there was, he submitted, a compelling reason for entertaining the petition for judicial review of the decision to refuse PTA.

[18] Secondly, he submitted that the FTT's approach to determining the best interests of the child was flawed in the respects set out in the averments, as noted above, and the UT's failure to grant PTA was, given those flaws, perverse and was a decision which cried out for consideration by this court. On that basis also, there was a compelling reason for entertaining the petition.

[19] Senior counsel for the reclaimer concentrated on the first of these propositions. He accepted that the guidance provided in the case of Eba was relevant. However, there had been decisions since then which, in his submission, demonstrated that a more flexible approach was required when considering whether or not there was a compelling reason, namely PR(Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, AHC v Secretary of State for the Home Department [2012] CSOH 147, and S v Secretary of State for the Home Department [2013] CSOH 43. That approach applied, he said, in cases where, as here, there had only been one substantive hearing of the petitioner's appeal; in such cases, a more flexible approach to "compelling reason" was called for. The circumstances were that, in reality, the petitioner had not been heard because the UT had determined the merits of his appeal without there having been a hearing. As a matter of justice, the decision of the UT could not be allowed to stand.

[20] Senior counsel did, however, accept that the "compelling reasons" test was a high one and that the context was the making of decisions by a specialist judiciary.

 

Submissions for the Respondent

[21] Counsel for the respondent submitted that it was important to understand the essence of the guidance given in Eba. Ordinarily, there was no right to judicial review where the tribunal system set up under the TCEA had been applied. Insofar as the Lord Ordinary (Stewart) in the case of AHC and the Lord Ordinary (Glennie) in the case of S, had suggested that there may be a lesser threshold, they had erred. They had misconstrued the decision in PR (Sri Lanka) where the UT had heard the case de novo, sitting as, in effect, a first instance tribunal, and they had failed to recognise that the circumstances in Eba involved, as in the present case, only one decision following a substantive hearing and two refusals of PTA applications. He also referred to passages in the cases of NYK v Secretary of State for the Home Department [2013] CSOH 84 and DKR v Secretary of State for the Home Department [2013] CSOH 171 where each Lord Ordinary (Lord Doherty and Lord Burns) rejected the submission that notwithstanding what was said in Eba and R (Cart) v Upper Tribunal [2012] 1 AC 663, PR (Sri Lanka) was authority for it being appropriate to apply a less stringent test where there has only been one substantive hearing. Rather it was clear that it had been determined in Eba and Cart that the rule of law was adequately protected so long as there was judicial consideration of whether or not the appeal ought to go further at the higher, UT, level in addition to the FTT appeal considerations. Then the "second appeals" test applied notwithstanding that there had been only one substantive hearing at FTT level. It was quite wrong to regard the present case as one which was not a "second appeals" case; it was, rather, on all fours with the circumstances in both Eba and Cart.

[22] Accordingly, as per Eba, it required to be recognised that where there was a challenge to an unappealable decision of the UT, the court's role was that of gatekeeper. The Eba test was a stringent one; whilst there required to be error of law on the part of the UT, it was not just a question of whether there was error of law on the part of the FTT. The error of law by the UT would require to cry out for consideration before it could potentially amount to a compelling reason and the prospects of success required to be very high. Error of law - even material error of law - was not of itself enough as explained by Lord Brown in Cart and by the Lord Justice Clerk in A v Secretary of State for the Home Department [2013] CSIH 62; 2013 SLT 1132 . The Lord Ordinary had, manifestly, not erred in concluding that the petitioner's case of error on the part of the UT in the question it asked itself could not amount to a compelling reason.

[23] Turning to the second ground of appeal, it was nothing more than a disagreement with the merits of the FTT decision. It did not amount to a "compelling reasons" case. In any event, the FTT's approach to assessment of the best interests of the children and the petitioner's private and family life was not open to criticism, as the Lord Ordinary had correctly observed.

 

Discussion

[24] In Eba, as in Cart, the court was concerned to identify the circumstances in which it was appropriate to limit access to the court's supervisory jurisdiction following the implementation of the Tribunals, Courts and Enforcement Act 2007 ("TCEA") that being legislation which, as Lord Dyson said in Cart, at paragraph 115, had "made a major change to the order of things". The establishment of that new tribunals system meant that the fact that, prior to TCEA, there was unrestricted availability of judicial review of refusals of permission to appeal by appeal tribunals was "not of itself a good reason for holding that that situation should survive the enactment of the TCEA." (Lord Dyson in Cart at paragraph 121). Indeed, it is intrinsic to the TCEA system that there is no automatic right to appeal from the FTT to the UT, that PTA is required, that it may be sought twice but that decisions to refuse PTA are not appealable.

[25] At paragraph 48 of Eba, Lord Hope set out what is now often referred to as "the Eba test" or "the Eba guidance" or the "second appeals test". There, he said:

"48. So I would hold that the phrases 'some other 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 that are unappealable........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."

 

[26] Eba made it quite clear that the court's role is as a gate keeper and that that gate is a high and formidable barrier which is not easy to surmount. It has been constructed that way deliberately, after careful and thoughtful consideration by the UKSC, so as to restrict resort to judicial review to those rare cases where there is an important point of principle or practice that needs to be determined or there is a reason that can properly be classed as a compelling one. Even then, the court may consider that, absent good prospects of success, the judicial review jurisdiction ought not to be open to the applicant. The reasons for this disciplined and restrictive approach are not hard to find and they lie in the need to balance the rule of law against the public interest in finality and, importantly, to recognise , in cases which arise in relation to the exercise of the tribunals jurisdiction provided for by the TCEA, that, within that system, appellants are already afforded first and second tier appellate review and reconsideration of administrative decisions by judges who are wholly independent of the executive. At UT level, decisions are taken by senior judges and at both levels, PTA decisions are taken by judges not involved in the FTT decision. All these judges are specialist tribunal judges. It is wholly appropriate and accords with legal principle that it will only be in the rare and exceptional case that an applicant ought properly to be allowed to have resort to the supervisory jurisdiction of this court.

[27] Counsel for the reclaimer referred to the first instance decisions in AHC and S but any reference to the opinion of the court, delivered by the Lord Justice Clerk, in the case of A, which post-dated AHC and S, was surprisingly conspicuous by its absence from both written and oral submission. Any doubts as to whether or not the "second appeals" test, approved in Eba as the appropriate benchmark for use by this court, applies in circumstances such as the present, where there has been one substantive hearing before the FTT and two determinations of PTA, in chambers, were laid to rest in A.

[28] In A, as here, there had been a substantive hearing of the appeal before the FTT and two refusals, in chambers, of applications for PTA, one by the FTT and one by the UT. The Eba test applied. The decision in the case of M Petr [2012] CSOH 142, where the Lord Ordinary (Lady Clark) had applied the pre TCEA and pre Eba approach, was expressly disapproved. The Lord Justice Clerk said:

"[43] In disapproving of the approach in M, Petr (supra), the court stresses that, as Lord Brodie stated in A (supra), the court's role should be seen as a gate keeping or sifting one. The decision should proceed upon a petition which clearly and unequivocally avers not only a specific error on the part of the UT in refusing leave, but also either the important point of principle/ practice not yet established (Uphill (supra), Dyson LJ at pp.2074 -2075, para.18) or the other compelling reason why an appeal should be allowed to proceed. Before the petition progresses, the court should be able, quickly and without difficulty, to identify from the averments the point or reason advanced.

 

[44] As was said in JD (Congo) v Secretary of State for the Home Department (Sullivan LJ at p.3283 para.23), no doubt the test must be sufficiently flexible to take into account the circumstances of the particular case. Nevertheless, as was stated in the same passage, the test is a "stringent one". It is designed to allow review only in rare and exceptional cases (see Cart (supra), Carnwath LJ at p.77, para 6). The error normally requires to be one which "cries out for consideration" (PR (Sri Lanka) (supra), Carnwath LJ at p.85, para. 35), and not just potentially arguable, upon a reading of the petition."

 

[29] Neither of the approaches adopted in AHC or S accord with A. In AHC, there was a failure to appreciate that the circumstances of PR (Sri Lanka), where Carnwath LJ observed that a "slightly less demanding standard" than the second appeals test "may be appropriate where there has been only one level of judicial consideration" (at para 53), were that the decision of the UT which was under scrutiny was not a decision to refuse PTA from a decision of the FTT but was a substantive decision, where the UT had heard the appeal de novo and, appeal to the UT was, accordingly, automatically excluded. That is not to say that in every case where the UT has heard an appeal in that manner, it will be appropriate to exercise the supervisory jurisdiction; in PR (Sri Lanka) itself the court concluded that there was no compelling reason for permitting a further appeal. We note that, in the case of NYK, the Lord Ordinary (Lord Doherty) correctly, in our view, rejected a submission that was based on Lord Stewart's approach in AHC and underlined the need to recognise the context of the observations about the possible room for flexibility in paragraph 53 of PR (Sri Lanka). In common with Lord Doherty, we would refer to a passage in JD(Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273 at paragraph 32, where Sullivan LJ - now the Senior President of Tribunals - said:

"In those cases where an asylum - seeker has 'failed twice in the tribunal system' because the UT has either agreed with the FTT on appeal, or has refused permission to appeal against the FTT's decision upon the basis that it contains no arguable error of law, it is likely to be much more difficult to persuade this court on an application for permission to appeal, or the Administrative Court on an application for permission to apply for judicial review, that the legal basis for challenging the UT's decision is sufficiently strong and the consequences for the applicant are so extreme as to amount to a compelling reason for giving permission to appeal, or apply for judicial review respectively."

 

[30] In S, Lord Glennie appears to have been persuaded that it was enough for the compelling reason requirement if he considered that the UT had not asked itself whether the proposed appeal against the decision of the FTT raised an arguable point of law whilst it is plain from Eba and from the observations in A, that that is far from being, of itself, sufficient. Apparent error of law by the UT will not, of itself, enable a petitioner to surmount the high and formidable barrier which the Eba test, for all the reasons discussed there, in Cart and in the other authorities such as those referred to by this court in A, imposes.

[31] Turning to the present case, it follows from the above that we reject the first ground of appeal. The Eba or "second appeals" test plainly applies. There is no room for a more flexible approach being adopted. The Lord Ordinary was correct in concluding that the petitioner's submission to the effect that any misdirection in law must necessarily render a case appropriate for further review was clearly inconsistent with the thinking underlying Eba and Cart. The reclaimer's submission amounted to nothing more than saying that the UT had erred in respect that it posed itself the wrong question - "is this a good appeal" rather than "are there arguable grounds of appeal" - and that, therefore, there was a compelling reason. That approach fails, however, to recognise that the Eba and Cart approach expressly contemplated that there would be cases where there was error of law on the part of the UT, even a material error of law, but an application to the supervisory jurisdiction would be refused because no important point of principle or practice was raised and there was no other compelling reason to hear the case (see, for instance, Lord Brown at paragraph 99 of Cart). The presence of error of law, even material error of law, cannot, of itself, be elevated to the status of "some other compelling reason." This is an important point which requires to be considered carefully by counsel whenever the possible proceedings for judicial review or an onward appeal to this court are being contemplated.

[32] Further, having considered the terms of the UT's written reasons, we agree with the Lord Ordinary, for the reasons he gives, that the assertion that it failed to ask itself the right question would not have very high prospects of success (see: paragraph 50 of the Lord Ordinary's opinion). We should add, further, that we do not accept that it is simply a matter of this court asking itself whether it is left in material or substantial doubt as to whether or not the UT asked itself the correct question. That may be appropriate when assessing, in a case which can properly be brought within the supervisory jurisdiction, whether it in fact erred in law. But one does not even reach that question until the Eba hurdle has been overcome.

[33] Turning to the second ground of appeal, we agree with the respondent that the Lord Ordinary was correct to reject the submission that the FTT had erred in its approach to the assessment of the best interests of the children and the petitioner's private life in a manner which amounted to a compelling reason. As the respondent submitted, this aspect of the petition amounted to a disagreement with the FTT's decision on the merits. The reclaimer would evidently wish to reargue his case with a view seeing whether a different view might be taken of the evidence but nothing has been raised which could, on any view, amount to a compelling reason in terms of the Eba test.

[34] In these circumstances, the reclaiming motion is refused and the interlocutor of the Lord Ordinary is adhered to.