Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 64
P84/14	OPINION OF LORD GLENNIE in the cause PW 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; Drummond Miller LLP (for Latta & Co, Glasgow)

Respondent: Komorowski; OAG

4 April 2014

Introduction

[1] This is a petition for judicial review of a decision by the Upper Tribunal (hereafter "UT") to refuse leave to appeal from the determination of the First-tier Tribunal ("FTT") dated 19 April 2013. The First-tier Tribunal refused the petitioner's asylum appeal and her claim based on article 8 ECHR.

[2] The case called before me for a procedural first hearing: see Practice Note No.2 of 2013 paras 8-12. In cases relating to an unappealable decision of the UT, which this is, it is anticipated that there will be a discussion at that hearing about whether the test in Eba v Advocate General 2012 SC (UKSC) 1 (the "Eba test") is met: see para 11. At the procedural first hearing the court may exercise any of the powers set out in Rule of Court 58.9: ibid para 12. These powers include the power to determine the petition or, alternatively, to make such further order for procedure as may be appropriate.

[3] Mr Caskie appeared for the petitioner and Mr Komorowski for the respondent. In the course of discussion, there was agreement that we should "park" my decision in Mdluli v Secretary of State for the Home Department [2014] CSOH 28 which, so I was told, is being reclaimed, Mr Komorowski reserving his position as to its correctness. But further points of principle were raised which merit consideration. It was principally for that reason that I said I would write on the matter rather than give an ex tempore judgment.

[4] To put the discussion into some sort of context, it is necessary briefly to traverse some well-trodden ground.

Right of appeal to the UT

[5] In terms of s.11(1) of the Tribunals, Courts and Enforcement Act 2007 there is a right to appeal to the UT on any point of law arising from a decision made by the FTT, other than an excluded decision (which this is not). However, the right to appeal to the UT "may be exercised only with permission" of the FTT or the UT. That confers on the FTT and the UT a discretion as to whether or not to grant permission. The width of that discretion has not been the subject of judicial determination in the higher courts. It was common ground before me that permission could be refused if the point of law arising from the decision of the FTT was not reasonably arguable or would not affect the outcome of the case even if decided in favour of the applicant. There may be other relevant factors. Guidance has been issued by the President of the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC"): see Guidance Note 2011 No.1: Permission to Appeal to UTIAC (amended September 2013). The basic principle laid down in s.11(1), as thus interpreted, is clear: the party who has lost before the FTT has the right to appeal to the UT on any reasonably arguable point of law arising from that decision which is potentially relevant to the outcome of the case.

Refusal of leave by the FTT and the UT

[6] The decision of the FTT was dated 19 April 2013. The petitioner applied for permission to appeal to the UT. On 19 May 2013 a judge of the FTT refused permission to appeal. The application for permission was renewed before the UT.

[7] Detailed grounds of appeal accompanied the renewed application for permission to appeal before the UT. These "re-framed but overlapping grounds", as they were described by the UT judge in his decision, raised seven distinct grounds of appeal.

[8] On 11 June 2013 the UT judge refused the petitioner's renewed application for permission to appeal. He dealt with each of the grounds of appeal. His decision to refuse permission to appeal is final and unappealable. But it is subject to judicial review: Eba v Advocate General (supra).

Eba v Advocate General

[9] The effect of Eba was to restrict by reference to the "second appeals test" the scope for a successful challenge by way of judicial review to the decision of the UT refusing permission to appeal to itself from the FTT. Lord Hope held that the phrases "some important point of principle or practice" and "some other compelling reason", which restricted the scope for a second appeal (i.e. an appeal to the courts from a substantive decision of the UT), provided a "benchmark" for the court to use in the exercise of its supervisory jurisdiction in relation to decisions of the UT refusing permission to appeal: see para [48]. (At the time of the decision in Eba, and the related decision in Cart (R (Cart) v Upper Tribunal [2012] 1 AC 663, the second appeals test applied to the grant of permission to appeal from the UT to the Court of Appeal in England and Wales (s.13(6) of the 2007 Act, reflecting an identical test contained in s.55(1) of the Access to Justice Act 1999 which applied to appeals in the courts in England and Wales); but it did not apply to the grant of permission to appeal from the UT to the Court of Session. However, after a false start (see KP v Secretary of State for the Home Department [2012] CSIH 38), this has now changed, and the second appeals test now applies to appeals from the UT to the Court of Session: see s.13(6A) of the 2007 Act and Rule of Court 41.57.)

[10] The second appeals or Eba test has sometimes been described as having two limbs. The first limb is where the point of law sought to be raised on the appeal to the UT raises "some important point of principle or practice" (referred to in argument as "IPPP" or, phonetically, "I triple P"), in other words where the issue is one of general importance and not confined to the petitioner's own facts and circumstances. The second limb is where there is "some other compelling reason" for reducing the decision to refuse permission to appeal. This includes circumstances where it is clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner has not had a fair hearing at all. Such procedural irregularity or absence of a fair hearing will usually reflect some failure in the substantive hearing before the FTT. That was the type of case with which Eba was concerned. But, as I have said before, I see no reason why it should not also cover a collapse of fair procedure in the permission to appeal process itself: see S v Secretary of State for the Home Department [2013] CSOH 43.

[11] It is trite that words or expressions used in a judgment, however eminent, are not to be treated as though they were written in a statute. This is as true of the pronouncements in Eba as it is of other judicial pronouncements. It is important to note that in Eba the second appeals test was applied by analogy. The analogy is not exact. In the case of a court or tribunal determining an application for permission to appeal, the decision will result in permission to appeal either being granted or refused. By contrast, judicial review of a decision of the UT refusing permission to appeal to itself will, if the decision is reduced, simply result in the application for permission to appeal being reconsidered. It may then be granted or refused, but this will be a decision taken by the UT and not by the court. This statement of principle must, of course, be qualified. In some cases it is impossible for the court to avoid going into the merits and giving clear guidance as to how that decision should be made. For example, in circumstances where the court holds that the UT has erred in law in the manner in which it has determined the application for leave, and the first limb of Eba (important point of principle or practice) is satisfied, it may go without saying that next time around the UT will grant permission. So too in cases under the second limb in Eba (other compelling reason) the other compelling reasons, if related to the conduct of the hearing before the FTT itself, may well be expected to result in permission being granted when the matter goes back to the UT. However, that is not necessarily the case where the "other compelling reasons" relate not to the substantive hearing before, or the decision of, the FTT but rather to the manner in which the application for permission to appeal was dealt with. In those circumstances, if the decision refusing permission to appeal is reduced, the matter will go back to the UT and the UT will simply be required to consider the application afresh, avoiding the error for which the decision refusing permission was reduced. In such a case the matter will go back to the UT without any "steer" from the court, and it will be open to the UT to refuse or grant permission as is appropriate.

[12] An example of that type of case is S v Secretary of State for the Home Department (supra), where I formed the view that the judge of the UT considering the application for permission to appeal had failed to address the statutory test. Rather than identifying whether there was an arguable issue of law arising from the decision of the FTT which was or might be relevant to the outcome of the appeal, applying and building upon the test laid down by Parliament in s.11 of the 2007 Act, he addressed the merits of the proposed appeal and refused permission because he considered that the decision reached by the FTT was correct: see paras [9]-[13]. That, at any rate, was my interpretation of his decision. If that was what he did, then the applicant would have been deprived of the opportunity, which Parliament said he should have, of having a second opportunity of persuading a judge that his proposed appeal raised an arguable point of law and should be allowed to proceed: para [13]. That, so it seemed to me, amounted to a compelling reason to reduce the decision refusing permission to appeal and sending it back to the UT, not so that it would necessarily grant permission to appeal but so that it would at least apply the correct test in considering the application. The applicant was entitled to have his application for permission considered by the UT properly.

[13] It has, I think, been suggested that this is an unwarranted extension of the principles laid down in Eba. I do not consider that it is. The judgments in Eba and Cart proceed on the basis that by the time the matter comes to be considered by the court on an application for judicial review of the refusal to grant permission to appeal, the question of whether permission to appeal should be granted will have been considered by two separate tribunals, the FTT and the UT. That is the justification for restricting the scope of judicial review in such cases by means of the second appeals test. But where there has not in reality been a second consideration of the application for permission to appeal, because the UT has asked itself of the wrong question, the force of that point is reduced. It is, to my mind, right that in those (no doubt rare) circumstances the refusal of permission should be reduced simply so that the applicant can have what Parliament intended him to have, namely a second bite of the cherry, a second opportunity of seeking to persuade a tribunal that permission should be granted. But, as I have said, this does not mean that permission will necessarily be granted when the matter comes back before the UT.

Judicial review of the UT's decision

[14] In light of submissions made to me I should say something briefly about the focus of the judicial review application.

[15] Both Eba and Cart were concerned to emphasise the high hurdle to be overcome before an application for judicial review of the decision of the UT to refuse permission to appeal could succeed. It is tempting to regard this as the only question to be decided. But, as the Second Division pointed out in SA v Secretary of State for the Home Department [2013] CSIH 62 at para [15], it is necessary first to consider whether there are grounds for judicial review of the decision of the UT refusing permission, before it becomes relevant to consider whether the case passes the Eba test. They are separate questions.

[16] The principal grounds of judicial review are well established. They are discussed in well-known cases such as Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223, 233-4, Wordie Property Co. Ltd. v Secretary of State for Scotland 1984 SLT 345, 347, Anisminic v Foreign Compensation Commission [1969] 2 AC 147, 171 (per Lord Reid) and 195 (per Lord Pearce) and Council for Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 410-411, per Lord Diplock, categorising the grounds as illegality, irrationality (or Wednesbury unreasonableness) and procedural impropriety. It is not necessary here to go over old ground. In SA v Secretary of State for the Home Department (supra), at para [15], the court referred to the need to identify an error of law on the part of the UT. I take this to be shorthand for the need to identify a sound basis for judicial review of the UT's refusal of permission to appeal. That will include error of law; but I do not think that the court can have intended to limit the grounds of review to error of law and exclude other established grounds such as Wednesbury unreasonableness and procedural impropriety.

[17] In the course of argument, I suggested to Mr Komorowski that for a tribunal to mischaracterise an error of law as an error of fact was itself an error of law. So also it was an error of law, not fact, to err in the assessment of whether a point of law was or was not reasonably arguable. I did not understand him to disagree with this proposition. But he was concerned that this approach, if taken to extremes, would open the floodgates to a successful application for judicial review in very many cases.

[18] While I understand his concern, I consider that it is unjustified for two main reasons. First, while it is now established that in considering an application for judicial review the court is not restricted to pre-Anisminic errors of law - i.e. no relevant distinction is now to be drawn between intra vires and ultra vires errors (see Eba at para [34]) - that does not mean that the court will reduce a decision for any material error of law of any kind in all cases. In deciding which errors of law are and are not amenable to judicial review, the court will have in mind the remarks of Lord Reid 's in Anisminic at p.171, cited with approval by Lord Hope in Eba at paras [32] and [49](a). It is helpful to set out the whole passage:

"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. ... If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law."

I have italicised the sentence quoted by Lord Hope. It is an important point to have in mind. Not every error of law will justify judicial review. But the qualifications preceding that sentence are equally important. Lord Pearce said something to the same effect, and with the same qualifications, at p.195. The effect of that is that by no means all errors of law committed by the UT in considering the application for permission to appeal will render its decision open to judicial review. An error in failing to appreciate that a point raised by the applicant raises a question of law rather than one of fact, or an error in failing to recognise that a point of law raised by the applicant is arguable or relevant, while in each case being an error of law, will not usually lead to reduction of the decision of the UT in a petition for judicial review at the instance of the applicant; but it may do so if, for example, the UT has asked itself the wrong question or has reached a decision that no reasonable tribunal properly instructing itself as to the law could have reached.

[19] The second reason why the floodgates concern is unjustified is that, whatever might be the position about the type of error of law that will ordinarily permit judicial intervention, the petitioner will also have to satisfy the Eba test. This is likely in most places to be by far the greater obstacle in the way of a successful application for judicial review.

The grounds of appeal

[20] Seven grounds of appeal were advanced before the UT. The UT grouped them under three heads. I shall do the same. I shall deal with each briefly in turn, bearing in mind that it is not the function of this court at this stage to attempt to resolve substantive issues of law or fact pertaining to the merits of the appeal - that was for the FTT and may possibly be for the UT, but only if the UT's decision to refuse permission to appeal is reduced and if the UT, upon reconsidering the matter, grants permission.

Ground 1

[21] The first ground sought to raise a contention that there had been a collapse of fair procedure. This was based upon a comment in the decision of the FTT to the effect that "while the appellant is not fluent in English it was clear at the hearing that she did understand most of what was going on ..." (emphasis added). It was to be inferred that the FTT considered that she did not understand some of what was going on. If so, in allowing the hearing to proceed when the appellant did not understand all that was going on, the immigration judge erred in law. The judge of the UT rejected this ground on the basis that it misrepresented and took out of context those comments in the decision of the FTT. In my opinion no fault can be found with this decision; the petitioner's argument does indeed found upon words taken out of context and the inference which Mr Caskie, for the petitioner, seeks to draw, to the effect that she did not understand everything that was going on, is unjustified. I should add that the argument was not supported by any averment in the petition to the effect that the petitioner had not in fact understood any part of the proceedings. It rested solely upon an inference from a passage in the FTT's decision taken, as I say, out of context.

Grounds 2 - 6

[22] The second to sixth grounds of appeal all raise a similar complaint and were dealt with together by the UT judge in considering the application for permission to appeal. They amount, in essence, to this. The Immigration Judge made a number of findings as to the petitioner's credibility. He found parts of her story inherently improbable. The complaint raised in these grounds of appeal was that the Immigration Judge had not given any coherent reasons for that finding. He had approached the petitioner's evidence "through Western eyes". Reference was made to HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 at paras 28 and 29. That had "coloured" his approach to other issues: see Hamden v Secretary of State for the Home Department [2006] CSIH 57. This undermined his credibility findings generally.

[23] This complaint clearly raises an issue of law. But the UT judge considering the application for permission to appeal took a different view. He regarded these grounds as

"... disagreement, dressed up in the language of legal error, with conclusions which were reached for adequate reasons. It is, for example, far from 'simply perverse' to find it incredible that the appellant did not know how to write to her Embassy or to the Home Office about her missing passport."

Reading this part of the decision sensibly, and without undue emphasis on particular phraseology, I understand the UT judge to be saying two things: (a) that the point sought to be raised on the appeal is not a point of law arising from the decision of the FTT but a point or dispute of fact, in respect of which no appeal lies; and (b) that in any event the argument sought to be raised on the appeal is wrong and will fail.

[24] Mr Caskie submitted that the approach of the immigration judge was arguably perverse and the UT ought to have recognised that there was an arguable point. Rather than focus on whether the point was arguable, the UT judge appeared to have attempted to resolve the issue. He decided that the immigration judge had had "adequate reasons" for reaching his conclusions. That was not his function at the stage of deciding whether to grant permission to appeal.

[25] In response, Mr Komorowski argued that the UT Judge had asked himself the right question. He had asked himself whether these grounds of appeal raised an arguable point of law. That involved two questions: first, was it a point of law at all? and, second, was it arguable? He had answered the first point by holding that it did not raise a point of law at all; it raised a factual dispute, "dressed up in the language of legal error". He pointed to a remark by Baroness Hale in Cart at para 47 that it is "not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon the factual conclusions of the first instance judge". I accept that. But that does not mean one should lurch the other way and characterise a genuine point of law as being no more than a disagreement on the facts, dressed up in the language of legal error. The Baroness Hale's warning is salutary, but it simply highlights the importance of considering each case carefully, being neither too ready to accept the applicant's characterisation of his point as a point of law nor too ready to reject it as a dressed up dispute on the facts.

[26] Mr Caskie's principal complaint was that the UT had focused on the likely outcome of the appeal rather than its arguability. I have come to the view that before that complaint can succeed, he must show that the UT's characterisation of the point as a dressed up factual dispute was not only wrong as a matter of law but was Wednesbury unreasonable, so as to justify this court intervening by way of judicial review. There is no indication that the UT asked itself the wrong question. Can that characterisation be described as Wednesbury unreasonable? I do not think so. It is not always easy to differentiate between a point of law and a dressed up dispute on fact. Different tribunals, indeed different judges, may come to different views on the matter in any particular case. It seems to me that this is not one of those cases where the decision of the UT was so unreasonable, so obviously wrong, that the court can and should intervene.

Ground 7

[27] Ground 7 raises a rather different issue. The immigration judge in this case was called upon, as part of his overall assessment, to assess what was in the best interests of the petitioner's child. He dealt with this issue at paras 39-41 of the FTT decision. The child in question is only six months old and, as the immigration judge noted in para 41, totally dependent on his mother. The immigration judge identified the argument for the petitioner in this way: the only factors which could be put forward "in relation to it not being in [L's] best interests to remain with his mother" were that, if he were to be returned to China since (a) the family might face difficulties over payment of any fine for breaching the One Child Policy and (b) if returned to China he might not have the same educational opportunities as a child with Hukko. Observing that that argument, which I take to be a reference to sanctions and other disadvantages of breaching the One Child Policy, did not accord with what was stated by the Tribunal in AX [Family Planning Scheme] China CG [2012] UK UT 00097, the immigration judge concluded that "in a case where the child is as young as [L] then his best interests can only lie in remaining with his mother whether that be in the United Kingdom or China".

[28] Mr Caskie submitted that the immigration judge failed to assess the best interests of the child as a distinct enquiry, separate from any question relating to the public interest in maintaining effective immigration control. He referred me to the decision of Lord Tyre in IE (Petitioner) [2013] CSOH 142 at paras [14] and [15]. The FTT was not entitled to proceed upon a factual assumption that the petitioner would be removed when assessing what was in the best interests of the child. The immigration judge here appeared to compare the position of the child if he was returned to China with his mother with his position if he remained in the UK separated from his mother who was returned to China. In other words, the assumption was made that the mother would be removed, and that was a given when assessing the best interests of the child. That was the wrong approach in law. Lord Tyre's approach was to be contrasted with that of the UT in Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UK UT00197 (IAC), which suggested that the starting point was that it was in the best interests of children to be with their parents and, if their parents were being removed from the UK, then so should dependent children unless there were reasons to the contrary. The point was one of importance deserving of clarification in the UT and, if necessary, on appeal to the Court of Session.

[29] Mr Komorowski advanced two somewhat contradictory arguments. First, he submitted that the decision of Lord Tyre was contrary to that of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690. In the course of discussion, I understood Mr Komorowski no longer to insist on that line. He reverted to his second argument, which was that in light of the decision in Zoumbas, whether or not that was consistent with IE, the law on this matter was now clear and therefore did not amount to an important point of principle or practice upon which clarification was needed.

[30] It seems to me that ground 7 does raise an important point of principle or practice. The law does not appear to be clear, as evidenced by the fact that Mr Komorowski initially took Zoumbas to be contrary to IE before, so it appeared to me, accepting that it was not. In para 39 of the FTT decision, the immigration judge appears to accept that the best interests of the child "is a matter which has to be addressed first as a distinct enquiry" and that factors relating to the public interest and the maintenance of effective immigration control must not form part of that consideration. But that is not the same as recognising that the best interests the child should not be assessed on the basis that the parent will necessarily leave the UK. If, as it seems to me there may be standing the apparent difference between IE and Azimi-Moayed, there is uncertainty on this point, or a difference of view, then it is something which must be clarified.

[31] It is still necessary to consider whether the decision of the UT judge refusing permission to appeal is itself susceptible of judicial review. His reason for refusing leave was that ground 7 "disagrees with the conclusion centred on the best interests of the appellant's child" but goes on to say that he can see no arguable legal error in the conclusion that it was in the best interests of the child to remain with his mother. It is not clear to me whether the UT judge has actually addressed the question of whether ground 7 raises a point of law arising from the decision of the FTT. On one reading he is simply saying that the immigration judge is clearly right. Looking at the matter more broadly, it seems to me that even if he has addressed the question of whether the point raised was a point of law or a point of fact, and if it was a point of law whether it was arguable, his decision that there was "no arguable legal error" is manifestly bad. Whether the argument sought to be raised by the petitioner will eventually succeed or not, it certainly gives rise to an arguable point of law. Any decision to the contrary is Wednesbury unreasonable.

Further procedure?

[32] Mr Caskie submitted that if I was in his favour on one or more of his points I should grant the petition. There was no need to appoint it to a substantive first hearing. There was nothing further to discuss. Mr Komorowski opposed this. However, when I asked him what would be the content of a substantive first hearing, what would be discussed at it, he could think of nothing new - it would be the same points, perhaps in more detail.

[33] I see no purpose in a further hearing in a case such as this. It would serve only to delay. If anything, it would be likely to result in a fuller investigation into the merits of the FTT decision. That is not the proper function of the court on a petition for judicial review, as opposed to its role on an appeal to the Inner House from the UT should the case get that far.

Decision

[34] For those reasons, centring on ground 7 and the manner in which it was dealt with by the UT judge considering the application for permission to appeal, I shall reduce the decision of the UT refusing permission.