Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2014] CSOH 11
P452/13	OPINION OF LORD JONES in Petition of YHY (CHINA) (AP) Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the Petitioner Permission to Appeal ________________

Petitioner: Caskie, advocate; Drummond Miller LLP

Respondent: Duthie, advocate; Office of the Advocate General for Scotland

29 January 2014

Introduction

[1] The petitioner is a Chinese national who arrived illegally in the United Kingdom in 2006. He was later convicted of being concerned in the supply of cannabis, money laundering offences and possession of false identity documents, with intent. He was sentenced to eight years' imprisonment and recommended for deportation. A further sentence of 25 months' imprisonment was imposed for failure to make payment of a little over £125,000 as required in terms of a confiscation order.

[2] In the foregoing circumstances, the petitioner is a "foreign criminal" within the meaning of section 32 of the UK Borders Act 2007. Section 32(5) requires the SSHD to make a deportation order in respect of a foreign criminal, subject to section 33. Section 33 provides, among other things, that section 32(5) does not apply where removal of the foreign criminal in pursuance of the deportation order would breach a person's convention rights.

[3] On 8 September 2010, while he was still in prison, the UK Border Agency wrote to the petitioner, inviting him to give reasons why he should not be deported from the United Kingdom. Under cover of letter, dated 1 August 2012, a Notice of Decision was served on him, advising him of, among other things, the agency's view that he did not fall within the section 33 convention exception and that he was, therefore, to be deported. (Number 7/1 of process) The petitioner appealed that decision to the First-tier Tribunal ("FTT"). His appeal was dismissed and his application to the FTT for permission to appeal further was refused, as was his later such application to the Upper Tribunal ("UT"). Each of these tribunals was established under the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). It is the decision of the UT that the petitioner asks this court to review.

[4] The petitioner sought to resist removal on article 8 grounds. The FTT was asked to find that the petitioner had "a powerful family life with his wife and children", about whom I shall say more later in this opinion, and that "the extent of that was sufficient to outweigh the right of the state to deport him, as a foreign criminal". (Petition, as adjusted, statement 8)

[5] The rejection of the petitioner's appeal to the FTT was promulgated on 24 December 2012, following a hearing in which oral and documentary evidence was led on behalf of the petitioner, and documentary evidence was led on behalf of the SSHD. During that hearing, it was submitted on the petitioner's behalf that, since 2006 and despite his imprisonment, he had had a family life with HJC (his now wife) and with their sons, LZY, who was born on 17th July 2006, and AZY, who was born on 21 April 2008. In its determination, the FTT rejected that submission for the following reasons:

"15. The Appellant is now married to HJC. He married her whilst he was in prison, on 19th September 2011 ... They did not commence living together until the Appellant was released on bail on 19th October 2012 ... that is just seven weeks prior to the date of hearing.

16. It is not disputed that prior to his release seven weeks ago, the Appellant has been in prison since 21st September 2007. Although the Respondent accepts that prison records show that HJC and L and A visited the Appellant regularly whilst he was in prison ... the period during which it is accepted that this took place has not been stated. We have examined the prison records provided, and we find that regular visits by all three only commenced on 16th January 2010. Prior to that, L visited with his mother frequently in the period of almost three months from 3rd October 2007 until the end of 2007. He then visited only once in the first nine months of 2008, and HJC only visited four times in that period Although the Appellant states that HJC was living in Glasgow and he was incarcerated in England for some of this time and this explained less frequent visits, we do not find that a credible reason to explain the absence of any evidence that A, who is stated to be the biological child of the Appellant, visited him until 16th January 2010 by which time he was nearly two years old.

17. In his witness statement, the Appellant claimed to have known HJC since September 2005. He claims to have fathered L whilst he and HJC were being kept in the same place in Paris by an agent who was arranging their separate travel to the UK. He claimed not to have known that L had been born until he 'caught up' with HJC again in Glasgow in August 2006 (the month after he was born). He claimed to have, thereafter, visited them every weekend (although he lived in Manchester) until he was arrested in September 2007. We found that these assertions were not supported by credible evidence. At the hearing, he claimed to have known HJC since November 2005, not September, and in her witness statement HJC claimed that whilst she met the Appellant in September 2005 in Indonesia, L was conceived when they were staying in Paris in November 2005 for two months. At her previous asylum appeal hearing she claimed that (...) LY (the Appellant's alias) was an agent and the father of her child and that he had forced her to have sexual intercourse with him in Indonesia. But she also claimed that she was pregnant when she left China in October 2005, that is prior to being in Indonesia. The Immigration Judge who dismissed her appeal found that she had lied to the court. She stated in evidence before me that she had, indeed, lied in court. If the Appellant is the biological father of L, as both maintain, it has not been explained why the Appellant has never been registered as his father. Whilst HJC supports the Appellant's claim to have been in a relationship with him since August 2006 and to have been visited by him every weekend, there was no external, credible evidence to support this ... (My emphasis)

18. For all of these reasons we do not accept Mr Templeton's submission that the Appellant and HJC have been in a "long term relationship since 2006". Whilst it was stated by the court in R v SSHD ex party Mellor 2001 EWCA Civ 472 that family life was not necessarily lost as a result of incarceration, in this case there was no credible evidence of family life prior to incarceration. The Appellant and HJC were not married until 19th September 2011 and although family life may include relationships between unmarried adults, there requires to be shown that the couple have made a sufficient commitment (Kroon v Netherlands 1994 ECHR 35) to one another and the question of the existence or non-existence of family life for the purposes of Article 8, is "essentially a question of fact depending upon the real existence in practice of close personal ties" (K v K (1986) 50 DR199 at 207). In assessing whether such unmarried relationships constitute family life the court will look at the length and stability of the relationship, whether commitment to each other has been demonstrated, for example, by the having of children together, the parties' intentions and cohabitation. Prior to the Appellant's incarceration there was no evidence (other than their own assertions) that they were in a relationship or that L was the child of them both, nor was there evidence of cohabitation. (My emphasis)

19. Prior to their marriage on 19th September 2011 there was evidence that they had a child together, namely A who was born on 21st April 2008 but there was no evidence that A visited the Appellant until 16th January 2010 and no evidence of contact or commitment between the Appellant and HJC such as could reasonably be construed as family life. When they married on 19th September 2011, their marriage created, in law, an inference of family life between them. This, together with evidence of regular visits by HJC and A, his biological son (a presumption borne out by his registration as the son of the Appellant and the assertions of both parents that the Appellant is the father) and L, his wife's child, could, just, in our view, be maintained, tenuously as family life. It has also to be borne in mind, however, that, although it has been maintained that the Appellant, HJC and one or both of her children constituted a family for a number of years it was only after HJC had been naturalised as a British citizen on 24th August 2011, that he married her (19th September 2011). There was no explanation as to why the marriage had not taken place before this, if the strength of the relationship was as had been maintained. It also has to be borne in mind that until 19th October 2012, seven weeks ago, there was no credible evidence that either of the children had ever lived with the Appellant. (My emphasis)

20. Our conclusion, therefore, is that we accept that since 19th October 2012 the Appellant, his wife, L and A have enjoyed a family life together, there is little evidence that a family life existed before then, except in the most tenuous sense and certainly not since 2006 as was maintained."

[6] It is accepted by the respondent in these proceedings that the FTT was in error in asserting that the petitioner "has never been registered as (L's) father".

[7] In seeking permission to appeal to the UT, the petitioner's solicitors contended that the FTT "erred in law by not accepting that the family life existed from August 2006 until the date of the Hearing." It is unnecessary, for the purposes of this opinion, to rehearse the details of the submissions advanced in support of that contention, other than to say that they included the following:

"The Immigration Judge at paragraphs 16, 17 and 30 appears to challenge whether the Appellant is L's father and at paragraphs 17 and 30 states that it has not been explained why the Appellant was never registered as his father and that there is no evidence in this regard. This error is fatal to the Immigration Judge's assessment of what family life falls to be considered in this case and also in her general assessment of the credibility of the Appellant and his wife that the Appellant is the biological father of L. Firstly, it was never disputed by the Secretary of State that the Appellant was the father of L. Secondly, (neither) the Immigration Judge nor the Panel Member at any time in the Hearing raised as an issue that they questioned that the Appellant was the father and clearly had they done so he would have had an opportunity to address them on this matter. Thirdly, in the Appellant's bundle containing nine items identified as A3 by the Immigration Judge, at item 6 the Appellant has provided an extract of an entry in the Register of Births dated 12th November 2012 and which shows the Appellant has now been registered as L's father. It is the case therefore that the very evidence which the Immigration Judge declares to be absent was in fact available. The Immigration Judge's finding on this issue fundamentally affects her whole assessment of the Appellant's case." (Number 6/4 of process)

[8] The reasons given by the UT for refusing permission to appeal to it are as follows:

"The grounds are a repetition of the grounds which were properly considered by the First-tier Judge who earlier refused permission. The grounds in part repeat the evidence that was before the panel and properly considered by the panel and in part amount to no more than a disagreement with the findings reached by the panel.

The grounds disclose no arguable error of law in the panel's decision." (Number 6/1 of process)

Under the 2007 Act, there is no right of appeal from that decision.

The Eba test

[9] In Eba v Advocate General [2011] UKSC 29, 2012 SC (UKSC) 1, the issue for determination by the Supreme Court was the scope of the remedy of judicial review in the Court of Session, of decisions of the UT. Ms Eba's claim for disability living allowance had been refused by the Department of Work and Pensions. Her appeal to the First-tier Social Entitlement Chamber against that decision was dismissed. A judge of the UT refused her permission to bring a further appeal to the UT. There being no right of appeal from that decision under the 2007 Act, Ms Eba brought proceedings for judicial review. Her petition was dismissed by the Lord Ordinary. The First Division allowed a reclaiming motion, holding that the decision of the UT was amenable to judicial review under the supervisory jurisdiction of the Court of Session and that the grounds on which it would be reviewed were not subject to any limitation, on policy or discretionary grounds. The Advocate General appealed to the Supreme Court. The appeal was heard together with appeals in two English cases raising the same issue, R (Cart) v Upper Tribunal and MR (Pakistan) v Upper Tribunal.

[10] In delivering the judgment of the court in the Eba case, Lord Hope DPSC noticed that section 13(6) of the 2007 Act provides that the Lord Chancellor may, as respects an application for permission or leave to appeal to the Court of Appeal in England and Wales or Northern Ireland from any decision of the UT on an appeal under section 11 from a decision of the FTT, make provision by order for permission or leave not to be granted on the application unless the UT or the relevant court considers (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal ("the second-tier appeals criterion") . An order to that effect, which came into force on 3 November 2008, had been made by the Lord Chancellor. (Paragraph [22]) Lord Hope observed that, although the 2007 Act did not confer an equivalent power on the Lord President in relation to Scotland, a provision broadly to the same effect as section 13(6) was made by Act of Sederunt (Rules of the Court of Session Amendment No 5) (Miscellaneous) 2008 (SSI 2008/349) by inserting a new rule 41.59 into the Rules of the Court of Session 1994, with effect from 3 November 2008, in the following terms:

"(1) This rule applies where an application is made to the court under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal a decision of the Upper Tribunal which falls within section 13(7) of that Act and for which the relevant appellate court is the Court of Session.

(2) Permission shall not be granted on the application unless the court considers that-

(a) the proposed appeal would raise some important point of principle or practice, or

(b) there is some other compelling reason for the court to hear the appeal." (Paragraph [23])

[11] Later in the judgment, Lord Hope narrated that, in determining the scope of the remedy in the English cases, the Supreme Court had adopted the second-tier appeals criterion. That, his Lordship said:

"... would be a rational and proportionate restriction upon the availability of judicial review. It would recognise that the new tribunal structure deserves a more restrained approach to judicial review than had previously been the case (para 57). But, as Lord Phillips said in his judgment (para 92), some overall judicial supervision was needed in order to guard against the risk that errors of law of real significance may slip through the system." (Paragraph [37])

[12] Turning his attention to how the scope of the supervisory jurisdiction of the Court of Session in relation to unappealable decisions of the UT in Scotland should be tailored "according to the nature and the expertise of the Upper Tribunal and the subject-matter of the decisions that have been entrusted to it by Parliament" (paragraph [44]), his Lordship expressed this view:

"[46] The fact that, as was stressed repeatedly in West (see pp 403, 405, 413), there is no substantial difference between English and Scots law as to the grounds on which the process of decision-making may be open to review provides further support for the argument that there should be no difference between them as to the scope for the judicial review of unappealable decisions of the Upper Tribunal on either side of the Border. This is why Scots law has been able to follow the developments in the English approach to judicial review since Anisminic Ltd v Foreign Compensation Commission in preference to the approach indicated in Watt v Lord Advocate (p 131). Lord Fraser's observations in Brown v Hamilton District Council (p 42) show that there is no obstacle to its doing this. It would not, therefore, be a very large step for the Scots approach to unappealable decisions of the Upper Tribunal to align itself with that which has now been decided should be taken in England and Wales.

[47] As to whether it should now do so, I would unhesitatingly answer that question in the affirmative. I would do so for reasons that have at least as much to do with the restraint that the Court of Session has already recognised it should take to decisions of that kind as with the need for it to find common ground with the position in English law. Two factors seem to me to carry particular weight. One is the familiar point that the court should be slow to interfere with decisions that lie within the expertise of specialist tribunals. As Dyson LJ said in R (Wiles) v Social Security Commissioner and anr (para 54), the reviewing court should not be astute to detect some error in their decision to refuse leave to appeal. That is already well established, as a matter of practice, in Scots law. The other is the fact that the limitation on the scope for second appeals in sec 13(6) of the 2007 Act has been reproduced in r 41.59 of the Rules of the Court of Session (see paras 22, 23, above). That rule gives effect to a particular intention about when questions of law should be subject to further scrutiny by a higher court. It would not be consistent with that intention, to which the amendment to the Rules has given effect, for the court to provide a wider opportunity for the decisions of the Upper Tribunal to refuse permission to appeal to itself to be reconsidered by way of judicial review.

[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, per Dyson LJ, paras 17, 24; Cramp v Hastings Borough Council, per Brooke LJ, para 68). 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."

[13] It was left to the Court of Session "to give such further guidance as may be needed as to how the analogy with the second appeals criterion should be applied in practice". (Paragraph [49]) That was done in A v Secretary of State for the Home Department 2013 SLT 1132, ("A v SSHD"), a decision of the Second Division, in the following terms:

"[42] Eba suggested that this court should give further guidance on how the second appeals criterion should be applied in practice. That does not so much involve adding to the many glosses upon the criterion evident in the decisions from England, some of which appear to differ from others. Rather, the real guidance required is how the court should, as Eba states, actually apply the test in practice.

[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) Lady Hale at pp.679 and 680, paras 29 and 31) in order to ensure that no ''compelling injustice'' occurs (PR (Sri Lanka) (supra), Carnwarth 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. In so far as an oral hearing may be required, it should be relatively short and certainly last no more than an hour. The court's decision should be capable of succinct expression, at not much greater length than is currently employed by the UT itself, if refusing leave."

Procedural History

[14] First orders were granted in this case on 9 May 2013. That was after the decision in Eba was reported, but before either A v SSHD or Practice Note No. 2 of 2013 was published. A procedural first hearing was fixed for 20 June 2013, but that was discharged on 13 June, and the cause was sisted for eight weeks to await the Inner House decision in A v SSHD. Thereafter, the sist was recalled, and the procedural first hearing took place on 29 August 2013. There is nothing in the papers to suggest that the Lord Ordinary was invited to apply the S v SSHD guidance at that stage. The case came before me for a first hearing on 6 December 2013.

Submissions - petitioner

[15] In accordance with the terms of the interlocutor of the Lord Ordinary of 29 August 2013, counsel for the petitioner had lodged a note of argument, which he adopted, in which he noted that the petition had been drafted before the decision in A v SSHD was published. Rather than incur the expense of amending the petition, he sought to follow the guidance given in that case in his written submissions. The statement of the errors on the part of the UT of which he complains, and the reason why he contends that an appeal should be allowed to proceed are enunciated as follows:

"1. The UT in refusing permission to appeal failed to have regard to the error of fact by the Immigration Judge in respect of the Petitioner being registered as the father of L that was material (but not necessarily decisive) evidence in respect of the proportionality of the Petitioner's removal.

2. The UT in refusing permission to appeal failed to have regard to the inadequacy of reasons provided by the Immigration Judge and themselves failed to provide adequate reasons."

The petitioner's single plea-in-law is in these terms:

"The decision by the Upper Tribunal refusing to grant the Petitioner Permission to Appeal against a decision of the First-tier Tribunal should be reduced as that decision is unlawful."

In his written submissions, the petitioner argues:

"This Court should sustain the Petitioner's plea in law as there has been a collapse of fair procedure in the present case."

[16] Under the heading "Error of Fact amounting to an Error in Law", the petitioner's submissions continue in these terms:

"In E v SSHD [2004] QB 1044 [E v SSHD], Carnwarth LJ delivering the judgment of the Court of Appeal said:

66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."

[17] Later in his submissions, the petitioner takes the point: "neither the Immigration Judge nor the Secretary of State raised the issue of the Petitioner's paternity of L at any stage until the Immigration Judge's determination was issued."

Submissions - respondent

[18] In reply, counsel for the respondent argued that the failure by the UT to have regard to the error of fact by the FTT in respect of the petitioner's having been registered as the father of L does not satisfy the Eba test. In his written contentions, he elaborates as follows:

"18. ... the petitioner's case falls outwith the supervisory jurisdiction of the Court of Session. What is required is more than merely a material error: as noted above, the Eba test expressly contemplates that some UT decisions, even though erroneous, will go uncorrected; and that review should be allowed only in rare and exceptional cases. The instant case is utterly unexceptional. The prospects of success for such an appeal, standing the FTT's findings anent A's paternity, can hardly be described as being very high or even better than even. Further, no legally compelling point arises. At best for the petitioner, there was a simple misunderstanding of the evidence.

19. In any event, any error was not an error of law and was not a material error. Had the Tribunal Judge found that L was the petitioner's son, it would have made no difference to the outcome of the appeal. Such error therefore fails to meet the fourth leg of the test in E v SSHD [2004] EWCA Civ 49 relied upon by the petitioner. The FTT accepted that A was the Petitioner's son, but nonetheless concluded that the Petitioner, his wife, L and A have enjoyed a family life together only since 19 October 2012; that there is little evidence that a family life existed before then, except in the most tenuous sense (Paragraph 21); and further, that the public interest in deportation of the Petitioner is not outweighed by any fact or factors in cumulo (paragraph 31). The question of whether L is the Petitioner's son was not material to that decision. A finding that the Petitioner is the father of L as well as of A would not have led to a different decision being made: the interests of a young child (A) who was accepted by the Tribunal Judge as being the son of the petitioner were engaged regardless of the findings anent L.

20. On the basis that there was no material error of fact, the UT did not fail to note any such material error."

Discussion

[19] The question to be determined in this application is whether or not, in the exercise of this court's supervisory jurisdiction, there is some compelling reason to review the UT's decision to refuse the petitioner permission to appeal to it. Having regard to the terms of its Notice of Decision, as I have recorded them in paragraph [8] of this opinion, the UT decided, in effect, that the grounds advanced on behalf of the petitioner did no more than repeat evidence that was before the FTT and express disagreement with its findings. Consequently, concluded the UT, the grounds disclosed no arguable error in law. In these circumstances, it is necessary to have regard to the determination of the FTT.

[20] As I have noted in paragraph [6], the FTT was wrong to find that the petitioner was not registered as the father of L. In my judgment, it is clear that that finding tainted the reasoning which led to its conclusion that the petitioner and L were unrelated to each other. (It is to be noted that, in holding that A is the petitioner's biological son, the FTT referred to "a presumption (of paternity) borne out by his registration as the son of the Appellant". (Paragraph [5] above)) That, in turn, caused the FTT to hold that "there was no external, credible evidence to support" the assertion that the petitioner and his now wife had been in a relationship since August 2006. It was against that background that the tribunal was able to hold that the petitioner, his wife, L and A had enjoyed a family life together only since 19 October 2012, some seven weeks before the hearing "and certainly not since 2006 as was maintained". That finding inevitably weighed against the petitioner in the FTT's consideration of the proportionality of his removal.

[21] It might be said that the FTT simply made a mistake of fact, and that that is no proper basis on which to review the UT's decision. Indeed, the respondent argues in terms that "at best for the petitioner, there was a simple misunderstanding of the evidence". If that argument were well-founded, the respondent might well be correct in submitting that there is no compelling reason for this court to review the UT's decision. I am of opinion, however, that Mr Caskie is well founded in his challenge to the FTT's determination, on the ground that there was such procedural irregularity that he did not have a fair hearing before that tribunal. The question of L's paternity was not a live issue. In the SSHD's Decision Notice, issued in August 2012, the decision maker proceeded on the basis that the petitioner had a relationship with his wife "and two sons, L ... and A ..." (Number 7/1 of process, page 16) I do not understand the respondent to dispute the petitioner's assertion that the matter of L's paternity was not raised at any time during the hearing before the FTT. Nonetheless, the FTT reconsidered the decision maker's determination on that issue, without giving the petitioner an opportunity to make representations on the matter. It impugned the credibility of both the petitioner and his wife on the basis that it was not explained why the petitioner had never been registered as L's father, when, so far as the petitioner was concerned, the matter of his paternity was not contentious, and without asking him for an explanation. As Lord Glennie puts it in Oke Petr [2012] CSOH 50:

"When he appeals to the FTT, the appellant has had a decision and knows what points have been taken against him. He therefore ought to be in a position to present his appeal in confidence that it is those points that he has to meet. If further points are to be taken, he should have notice of them. That is only fair."

(In Oke, as in this case, the immigration judge had made findings in fact on an important matter that was not in issue at the appeal, and without having given the appellant an opportunity to address her on it. Although Lord Glennie refers to the immigration judge as "he", Mr Caskie demonstrated to me that the immigration judge in that case was the same person, a lady, who presided in the FTT in this case.) I shall come to the impact on the UT's decision of the procedural irregularity in the FTT proceedings presently but, before doing so, it is necessary to re-visit the Eba judgment.

[22] It will be recalled that the Supreme Court considered that a "compelling reason", which would provide a benchmark for the court to use in the exercise of its supervisory jurisdiction, would include circumstances where, due to some procedural irregularity, "the petitioner had not had a fair hearing at all". Having regard to the use of the words which I have emphasised, the question that arises is whether the Supreme Court intended to draw a qualitative distinction between a procedural irregularity which has that effect, and one which simply results in some lesser measure of unfairness. Having regard to the terms of the decisions that the Supreme Court had in contemplation when the phrase was used, I am of the view that such distinction was intended.

[23] As I have noted, in determining the extent of the remedy of judicial review in Scotland in cases of this type, the Supreme Court had regard to its approach in the Cart appeal. In that case, Baroness Hale of Richmond carried out a detailed analysis of the constitutional status of each of the UT and the High Court and of the relationship between them, in seeking to delineate the extent of the supervisory jurisdiction of the latter in respect of the former. In the course of that analysis, her Ladyship said this:

"31 ... Laws LJ (in the Divisional Court) accepted the argument (that judicial review is only exercisable in rare and exceptional cases) on the basis that the newly constituted Upper Tribunal was the alter ego of the High Court within the areas covered by the tribunal system: it constituted an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory tests. The rule of law did not require that it be subject to review for error of law within its jurisdiction: it had the final power to interpret for itself the law it must apply: see p 155, para 94. But in 'the grossly improbable event that (the) [Upper Tribunal] were to embark upon a case which was frankly beyond the four corners of its statutory remit' there was no reason why the High Court should not correct it. With more caution, he accepted that it might also intervene 'where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal': see p 157, para 99.

32 Laws LJ recognised that if the Upper Tribunal were in truth the alter ego of the High Court the logical consequence would be that it was wholly immune from the supervision of the High Court. The Government therefore pursued that argument before the Court of Appeal. Sedley LJ, giving the judgment of the court, rejected it [2011] QB120, 167, para 19:

'the [Upper Tribunal] is not an avatar of the High Court at all: far from standing in the High Court's shoes ... the shoes the [Upper Tribunal] stands in are those of the tribunals it has replaced'

But he agreed that

'the supervisory jurisdiction of the High Court, well known to Parliament as one of the great historic artefacts of the common law, runs to statutory tribunals both in their old and in their new incarnation unless ousted by the plainest possible statutory language. There is no such language in the 2007 Act': p 167, para 20.

33 Nevertheless, it did not follow that judicial review should be available on the full panoply of grounds which had been developed over the last half century. Judicial review had always been a remedy of last resort. As the Court of Appeal had recognised in R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, permission would not be granted where satisfactory alternative recourse existed, whether or not it had been exhausted. The scope of judicial review was a matter of principle, not discretion. But it could be changed to keep pace with other changes. The complete reordering of administrative justice was such a change:

'The tribunal system is designed to be so far as possible a self-sufficient structure, dealing internally with errors of law made at first instance and resorting to higher appellate authority only where a legal issue of difficulty or of principle requires it. By this means serious questions of law are channelled into the legal system without the need of post-Anisminic judicial review' [2011] QB120, 169, para 30.

Two principles needed to be reconciled: one was the relative autonomy which Parliament had invested the tribunals as a whole and the Upper Tribunal in particular; the other was the constitutional role of the High Court as guardian of the standard of legality and due process from which the Upper Tribunal was not exempt: see p 170, para 35. There was

'a true jurisprudential difference between an error of law made in the course of an adjudication which a tribunal is authorised to conduct and the conducting of an adjudication without lawful authority'.

For the former, no system of law can guarantee to be infallible. But

'Outright excess of jurisdiction by the [Upper Tribunal] and or denial by it of fundamental justice, should they ever occur, are in a different class: they represent the doing by the [Upper Tribunal] of something that Parliament cannot possibly have authorised it do.' See p 170, para 36."

[24] In the Court of Appeal, Sedley LJ went on to give examples of what he had in mind in that last passage, as follows:

"37. Thus if for some reason the UT made an order giving a money judgment which it had no power to give, with the possibility of enforcement under its section 25 powers, it would be inimical to the rule of law if the High Court could not step in, should the appellate system for some reason not do so. Similarly if a member of the UT were to sit when ineligible or disqualified by a pecuniary interest, or if the UT conducted a hearing so unfairly as to render its decision a nullity, the High Court ought to be able to quash the determination. We do not mean this list to be exhaustive but to be illustrative of the kind of error, rare as it will be, which would take the UT outside the range of its decision-making authority. Such a division is, we consider, one of legal principle which can properly form the basis of judicial policy. It applies only to the UT, since it is the role of the UT itself to correct errors of every kind, including outright excesses of jurisdiction and fundamental denials of justice, in the FTT."

[25] In the Divisional Court, Laws LJ, to a similar effect, said this:

"99. In the grossly improbable event that UT were to embark upon a case that was frankly beyond the four corners of its statutory remit, the first sense of excess of jurisdiction, I see no reason why the High Court should not correct it. As for denial of the applicant's right to a fair hearing (Sivasubramaniam, at para 56) I would be very much more cautious. Complaints of unfairness in the course of a hearing are legion, and very various. The rule of law would be frustrated, not advanced, if litigants were allowed to test in the High Court the merits of any and every such complaint. I would, with diffidence, repeat what I said in R (Strickson) v Preston County Court [2007] EWCA Civ 1132 at [32]:

'How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error ... It would include substantial denial of the right to a fair hearing ...'

I hope it is clear from the context that the reference there to a 'substantial denial of the right to a fair hearing' was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal."

[26] For the reasons that I have given in paragraph [20], it is clear, in my opinion, that the FTT reached its conclusions on the paternity of L, the nature and duration of the petitioner's family life, and the proportionality of the petitioner's deportation, without giving the petitioner a fair hearing on any of these important matters. In paragraph 17 of its determination, the FTT itself recognised their fundamental importance in the passage that I have emphasised in paragraph [5] of this opinion and which, for convenience, I repeat here:

"In assessing whether such unmarried relationships constitute family life the court will look at the length and stability of the relationship, whether commitment to each other has been demonstrated, for example, by the having of children together, the parties' intentions and cohabitation. Prior to the Appellant's incarceration there was no evidence (other than their own assertions) that they were in a relationship or that L was the child of them both, nor was there evidence of cohabitation."

[27] At paragraph [7], I have set out the petitioner's solicitors' submissions to the UT in support of their contention that the FTT had erred in law by not accepting that the family life existed from August 2006 until the date of the hearing. In essence, these were that: (i) the SSHD's official had determined the petitioner's application on the basis that the petitioner was L's natural father; (ii) the issue of L's paternity was not raised during the FTT hearing; and (iii) the petitioner had provided an extract of an entry in the register of births which showed that the petitioner has been registered as L's father. I take issue with the solicitors' identification of the error of law. In my view, the FTT's error lay in conducting the petitioner's appeal in breach of the rules of natural justice. In consequence of that, it made a mistake of fact, i.e. the mistake as to the registration of the petitioner as L's father. That fact was uncontentious and objectively verifiable. Neither the petitioner nor his advisers were responsible for the mistake. I have no doubt that the mistake played a material part in the FTT's reasoning. (E v SSHD) In any event, it is implicit in the Eba decision that, where a tribunal has been guilty of procedural irregularity such as to deny a fair hearing, it has erred in law. In my view, it cannot be said that the UT was misled or disadvantaged by the solicitors' misidentification of the point of law, because, in their three submissions which are set out earlier in this paragraph, the solicitors described the manner in which the FTT was said to have erred.

[28] As can be seen from the UT's reasons for refusing permission to appeal, which I have set out in paragraph [8], the solicitors' grounds are characterised as, in part, a repeat of "the evidence that was before the panel and properly considered by the panel and in part amount to no more than a disagreement with the findings reached by the panel". The UT made no attempt to address the points (i) that the FTT had reached its decision on an erroneous belief that there had been an unexplained failure by the petitioner to register himself as L's father, without having put the point to the petitioner, and (ii) that the FTT had determined the matter of L's paternity in a way that was adverse to the petitioner, when it was not an issue in the appeal and without giving the petitioner an opportunity to be heard on the matter. In my opinion, the UT was wrong in asserting both that these grounds were in part evidence that was before the panel and properly considered by the panel and, in part, no more than a disagreement with the FTT's findings. It erred in holding that the grounds disclosed no arguable error in the FTT's decision.

[29] In summary, in my opinion the FTT denied the petitioner the right to a fair hearing. The UT, whose role it was "to correct errors of every kind, including ... fundamental denials of justice" by granting permission to appeal, failed to do so, for unsustainable reasons. Having regard to the whole proceedings, the petitioner did not have a fair hearing at all.

[30] Having regard to my decision on the procedural irregularity issue, I have not found it necessary to determine the question whether the UT's decision should be reduced on the argument that the FTT failed to provide adequate reasons for its decision and that the court is entitled to and should find that element of fair procedure to have collapsed.

Decision

[31] For the foregoing reasons, I shall repel the pleas-in-law for the respondent, sustain the petitioner's plea-in-law, and reduce the decision of the UT. I shall reserve all questions of expenses.