Scottish Court of Session Decisions

 

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 112
	OPINION OF LORD DOHERTY   in the Petition of   M.H (A.P.)   Petitioner;   For   Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal   ________________

 

Petitioner:  Caskie; Drummond Miller LLP, Solicitors

Respondent:  Pirie; Office of the Advocate General for Scotland

 

8 July 2014

 

Introduction

[1]        The petitioner seeks judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) dated 7 August 2013 in terms of which Upper Tribunal Judge McKee refused the petitioner’s application for permission to appeal to the UT from a decision of the First-tier Tribunal (“FTT”) dated 4 June 2013.  The matter came before me for a procedural first hearing.

 

Decision of the FTT

[2]        The petitioner is a citizen of China.  She arrived in the UK on 1 June 2006 and claimed asylum on 19 June 2006.  On 17 August 2012 her application for asylum was refused.  On 5 March 2013 she submitted further representations which the Secretary of State for the Home Department (“the respondent”) treated as a fresh claim.  On 22 April 2013 the respondent refused the petitioner’s asylum claim and decided to issue directions for her removal.  The petitioner appealed against that decision.

[3]        Before the FTT the petitioner claimed to be a refugee within The Refugee or Person in Need of International Protection (Qualification) Regulations 2006.  Alternatively she claimed humanitarian protection pursuant to paragraph 339C of the Immigration Rules.  She also claimed that returning her to China would breach her article 3 and 8 ECHR rights. 

[4]        The petitioner claimed to have a well-founded fear of persecution because of a combination of her religion and her membership of a particular social group.  She claimed to be a member of Huhan Pai, a Christian group sometimes called “The Shouters”.  The particular social group she was a member of was those who had breached family planning regulations - she was an unmarried mother who had had a second child.

[5]        The FTT was satisfied that the petitioner was a Christian, but not that she was a member of the Huhan Pai sect.  In relation to the latter matter it concluded “that there is not enough evidence to be able to make a finding in fact that the appellant is a member of the Huhan Pai sect.”  It approached matters on the basis that if she returned to China it would be as a Christian who was not a member of one of the five registered churches and who would not have a prominent profile;  and it concluded that she would be able to practise her religion without real risk of persecution by the state.  The FTT found that there was no risk to the petitioner of persecution as a result of her being an unmarried mother who had had two children.  Even if it had been established that there was a risk of persecution of the petitioner on this score in her hukou area (as to which the FTT was not satisfied) it had not been demonstrated that the petitioner would be unable to live in a more liberal province.  The FTT went on to consider and dismiss the petitioner’s claims that her return would give rise to breaches of articles 3 and 8 of ECHR.  In that context it considered the best interests of the petitioner’s second child.

 

The FTT’s refusal of permission to appeal

[6]        On 4 July 2013 Judge Grant refused permission to appeal.  He described the grounds of appeal as “no more than a disagreement with the well-reasoned findings of the First-tier Tribunal judge which were open to him on the basis of the evidence put before him”.  He went on to observe:

“Having given full and careful consideration to her claim that she was at risk on return as the mother of 2 illegitimate children he then went on to give equally full and careful consideration to each and every aspect of her Article 8 claim both within the Rules and under the ECHR, concluding with findings in respect of the best interests of her children and the requisite Article 8 balancing exercise.”

 

The UT’s refusal of permission to appeal

[7]        In her application to the UT the petitioner contended (1) that the FTT had failed to give sufficient reasons for accepting that the petitioner was a Christian but not accepting that she was a Shouter;  (2) that, while at several points in his decision Judge Doyle had identified the correct test in respect of the asylum claim (whether there was a real risk of serious harm were she to be returned) at one point in the decision (para 15(f)) reference had been made to “what is likely to happen”;  (3) that he had failed to take into account evidence of the petitioner hosting prayer meetings at her home;   (6) and (7) that he left out of account the fact that if the petitioner was imprisoned her second child would be imprisoned with her or separated from her, with consequent effects for mother and child.

[8]        On 7 August 2013 UT Judge McKee refused permission to appeal.  He gave the following reasons:

“The initial application for leave to appeal to the Upper Tribunal was refused by Judge Warren Grant for reasons with which I wholly concur. The application has now been renewed with a different set of grounds, but these do not evince a material error of law either. Judge Doyle was entitled to infer from the appellant’s ignorance of the fundamentals of her alleged faith that her account of religious persecution was concocted. Nit-picking about the accidental omission of “reasonably” to qualify “likely” does not undermine the judge’s reasoning on this aspect of the appeal. The possibilities of what might otherwise happen, in terms of the one-child policy, prosecution for illegal exit, and separation of the appellant from the father of her child, have been very thoroughly explored by Judge Doyle, and I cannot see that his application of the background material to the circumstances of this particular appellant have resulted in a material error of law.”

 

Counsel for the petitioner’s submissions

[9]        Mr Caskie recognised that for the decision of the UT to be amenable to judicial review he required to show that at least one of the criteria identified in Eba v Advocate General 2012 SC (UKSC) 1 was satisfied, viz (i) the challenge raises an important point of principle or practice, or (ii) there is some other compelling reason for the court to hear the case.

[10]      Mr Caskie submitted that the FTT had given insufficient reasons for not accepting that the petitioner is a Shouter.  Given that Judge Doyle had accepted she is a Christian it was incumbent upon him to say more.  The hosting of prayer meetings at the petitioner’s home might be a relevant factor in that regard.  Judge Doyle had also erred in considering (at para 15(f)) “what is likely” to happen to the appellant.  What he had required to consider was whether there was a real risk of persecution of the appellant were she to be returned.  Finally, he had erred in law in failing to take account of the consequences which imprisonment would have on the appellant’s second child - either separation from her mother or living with her in prison conditions.

[11]      The UT ought to have accepted that it was arguable that the FTT had erred in law in one or more of these respects.  If that was correct then the UT had itself erred in law.  It had set the bar too high.  The relevant question for the UT ought to have been whether there was an arguable error of law on the part of the FTT - not whether there was a material error of law.  It was not for the UT to decide upon the merits of the grounds of appeal.  The UT’s failure to apply the correct test amounted to a compelling reason for its decision being amenable to judicial review.  There had been a total collapse of fair procedure (S v Secretary of State for the Home Department [2013] CSOH 43, Lord Glennie at para 16).

 

Counsel for the respondent’s submissions

[12]      Mr Pirie submitted that the Eba test was not satisfied.  The grounds advanced did not disclose any important point of principle or practice, nor was there any other compelling reason for judicial review.

[13]      It was wrong to assume from the absence of the word “arguable” and the use of the word “material” that the UT had not had in mind (and applied) the correct test.  Read fairly, that is what it had done.  However, even if it had not, the grounds of appeal against the UT’s decision were unarguable.  The criticism of the FTT’s reasons for not being satisfied that the petitioner was a Shouter was ill-founded.  The FTT’s decision left the informed reader in no doubt as to what its reasons were.  The criticism that the FTT considered what was likely to happen rather than whether there was a real risk of persecution (and what was reasonably likely to happen) was also without merit on a fair reading of the decision as a whole.  The FTT had properly considered the best interests of the petitioner’s children - the suggestion that it had not was incorrect.  If any of the grounds were indeed arguable, they had very poor prospects of success.  If the UT had erred in law it did not give rise to a compelling reason for judicial review. It was fanciful to suggest that in those circumstances there would have been a total collapse of fair procedure.  The approach taken by Lord Glennie in S v Secretary of State for the Home Department was erroneous and ought not to be followed.

[14]      Reference was also made to R(Cart) v Upper Tribunal (Public Law Project and another interveneing) [2012] 1 AC 663; Uphill v BRB Residuary Ltd [2005] 1 WLR 2070;  SA v Secretary of State for the Home Department 2013 SLT 1132;  PR(Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73;  EP Petitioner[2013] CSOH 99;  AR v Secretary of State for the Home Department [2013] CSOH 195;  YHY(China) [2014] CSOH 11.

 

Discussion

[15]      There are now two recent Inner House decisions providing guidance on the application of the Eba test.  The first is SA v Secretary of State for the Home Department, supra.  The second is E.P. v Secretary of State for the Home Department [2014] CSIH 30.  I have sought to follow that guidance in applying the Eba test.  (E.P. was advised after I made avizandum.  Neither party intimated that they wished to make further submissions in light of that decision).

[16]      I turn first to the decision of the UT which is impugned.  Had the references to “a material error of law” been to “an arguable error of law which is material” I do not think it could have been suggested that the UT had erred in law.  As matters stand the language used does suggest error on the UT’s part.  However, in my opinion, in the circumstances of this case, that error is of no moment.  The petitioner has failed to demonstrate that the Eba test is satisfied.

[17]      I agree with Mr Pirie that the grounds of appeal against the FTT’s decision are unarguable. The “reasons” criticism appears to me to be wholly without merit.  The decision left the parties in no doubt as to why the FTT did not accept that the petitioner was a Shouter.  The evidence emanating from the petitioner was unsatisfactory on the point, and the evidence from other witnesses did not assist her.  Only by employing tunnel vision (focussing only on para 15(f) and ignoring the rest of the decision) could the conclusion be reached that the wrong test was applied by the FTT.  It is plain on a fair reading of the decision that the FTT identified and applied the correct test (see e.g. para 15(g)).  The contention that the FTT failed to have regard to the best interests of the petitioner’s younger child is unjustified.  It found in fact (para 24(e)) that there was no likelihood of the appellant and her child being separated in China.  The context was that for the majority of returnees punishment would be a fine, and that if there was a period of imprisonment it would be relatively short (para 22, under reference to XH (Illegal Departure-Risk-Return) China CG [2002] UKIAT 01478).  If, contrary to my view, any of the grounds are arguable, the prospects of success appear to me to be poor.

[18]      I am not persuaded that any important point of principle or practice arises in this case.  There was a half-hearted attempt (stat 16 of the petition) to suggest that “It is an important point of principle or practice that in a mixed refugee/Article 8 claim the Immigration Judge carries forward all relevant findings in the refugee claim into the Article 8 assessment.”:  but this was not a matter which was advanced in oral submissions by Mr Caskie.  In any event, in my opinion the point has no substance.  It is well established that a decision maker ought to take account of all relevant considerations.  The suggested principle is not in doubt.  The complaint really concerns the application of the principle in the petitioner’s case.

[19]      I am also clear that there is no other compelling reason for judicial review.  I reject the suggestion that the error of law on the part of the UT resulted in a total collapse of fair procedure, or that it cries out for the court to intervene (cf. Lord Glennie in S v Secretary of State for the Home Department, supra, para 10-16, disapproved by the Inner House in E.P. v Secretary of State for the Home Department, supra, para 30).

 

Disposal

[20]      I shall sustain the respondent’s first plea in law and dismiss the petition.  I shall reserve meantime all questions of expenses.