Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 131

 

P550/13

OPINION OF LORD STEWART

In the petition

THABO JONES MDLULI

Petitioner;

for

Judicial review of the permission to appeal decision by a judge of the Upper Tribunal (Asylum and Immigration Chamber) dated 10 April 2013

and Answers for

 

THE ADVOCATE GENERAL FOR SCOTLAND ON BEHALF OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Komorowski;  Solicitor for the Advocate General for Scotland

6 October 2015

[1]        This is a petition for judicial review of a decision of a judge of the Upper Tribunal (Immigration and Asylum Chamber).  Having heard submissions at a substantive first hearing, Lord Glennie granted the petition by interlocutor dated 7 February 2014 and quashed the decision.  Lord Glennie’s interlocutor was recalled by order of an Extra Division of the Inner House on 23 July 2014.  The Extra Division remitted the petition to me for a re‑hearing of the substantive first hearing.  The re‑hearing took place on 13 May 2015.  I then made avizandum and have now decided to refuse the petition.  Accordingly the decision of the judge of the Upper Tribunal (Immigration and Asylum Chamber) still stands.  In what follows I call Mr Mdluli “the petitioner” and the Secretary of State for the Home Department and her officials “the government”.  The same junior counsel have appeared throughout for the petitioner and the government.  When the case was in the Inner House each was led by senior counsel.

 

Background
[2]        The petitioner Thabo Jones Mdluli was born on 13 March 1985.  He is a citizen of the Kingdom of Swaziland.  He entered the United Kingdom on a working holiday visa.  This was on 2 July 2006.  He was then 21 years old.  The visa was valid for two years until 1 July 2008.  Shortly before the visa expired, on 27 June 2008, the petitioner applied for variation of leave to remain as a student.  The government refused the application on 23 July 2008.  Since then the petitioner’s presence in the United Kingdom has been unauthorised.  On 10 February 2010 the petitioner applied for leave to remain in terms of article 8 of the European Convention of Human Rights [ECHR] (right to respect for private and family life).  His father and sister reside in the United Kingdom and have British citizenship.  He also has two brothers resident in the United Kingdom.  Since coming to the United Kingdom the petitioner has lived with his father, his sister and his two brothers.

 

Tribunal proceedings
[3]        On 12 November 2012 the government refused the petitioner’s application on the basis that removing the petitioner from the United Kingdom to Swaziland would not breach the petitioner’s rights in respect of his private and family life in terms of the Immigration Rules HC 194 paragraph 276ADE and Appendix FM.  The petitioner appealed to the First‑tier Tribunal (Immigration and Asylum Chamber) [FTT].  By determination dated 13 February 2013 FTT judge Juliet Grant‑Hutchison dismissed the appeal.  The FTT judge concluded that the petitioner did not qualify for leave to remain in terms of the immigration rules and, separately, that it would not be disproportionate in terms of article 8 ECHR to remove him to Swaziland.  The petitioner applied to the FTT for permission to appeal to the Upper Tribunal [UT] on a point or points of law.  The grounds of appeal bore to identify a number of errors of law in the FTT judge’s determination.  (The grounds of appeal, presented in ten paragraphs, were elaborate but not unduly prolix.)  By decision dated 1 March 2013 FTT judge R J Manuell refused permission to appeal concluding:  “No arguable error of law has been identified”.  The petitioner, as he was entitled to do, then made a second application, this time to the UT itself, for permission to appeal to the UT relying on the same grounds of appeal.  By decision dated 10 April 2013 UT judge—if I make out the signature correctly—Jane Coker refused permission to appeal to the UT.  The reasons for the decision were three sentences long, the last sentence being:  “There is no arguable error of law.”  The decision is unappealable but is amenable to judicial review if certain conditions are met.

 

Judicial review of unappealable tribunal decisions
[4]        The conditions for reviewing unappealable tribunal decisions are as laid down by the United Kingdom Supreme Court in the conjoined appeals of Cart and MR from England & Wales and Eba from Scotland [R (Cart) v Upper Tribunal; R (MR (Pakistan) v Upper Tribunal and anr [2012] 1 AC 663 and Eba v Advocate General for Scotland 2012 SC [UKSC] 1].  In Scotland these conditions are known as the Eba test.  The so-called Eba test has been further explained by the Inner House [eg SA v Secretary of State for the Home Department [2013] CSIH 62].  The ordinary test of reviewability is that the decision in question should be vitiated by a material error of law, in the broad sense, that is including process errors.  For reviews of unappealable tribunal decisions the Eba test superadds the condition that the application for review must involve either (a) an important point of principle or practice or (b) some other compelling reason for setting the decision aside.

 

The petition for judicial review
[5]        The petition for judicial review of the UT refusal of permission to appeal was presented on 7 June 2013.  The petition as presented had 26 paragraphs or statements.  Statements 1 to 8 provided background and context.  The thrust of statements 9 to 16 was that in refusing permission the UT judge’s reasons—as I say, three sentences long—had failed to engage with the grounds of appeal and amounted to an error or errors of law which constituted a compelling reason for judicial review.  The claim focused in statement 13 of the petition was that

“… there has been a collapse of fair procedure in that a decision has been taken without any or adequate reasons… and the UT judge addressed the wrong question”.

 

Statement 15 quoted the Eba test in both its branches and continued by narrowing down the challenge to one based on the second branch of the test:

“In the present case the decision of the UT gives rise to a compelling reason why the decision should be reduced being the collapse in fair procedure before the Upper Tribunal…”

 

The phrase “collapse in fair procedure” in the form “wholly exceptional collapse of fair procedure” or (somewhat differently) “wholesale collapse in fair procedure” is the paradigm of “some other compelling reason”.  The phrase is taken from Cart by way of the opinion of Lord Hope of Craighead in Eba [R (on the application of Cart) v Upper Tribunal 2012 1 AC 663 at [31], [108], [131];  Eba v Advocate General for Scotland 2012 SC [UKSC] 1 at [48]].

[6]        Statement 16 of the petition as presented averred:

“The correct approach in a case such as the present one is to determine firstly whether there is what might be called a ‘traditional’ error in law challenge to the decision of the [UT] judge. If there is it is then necessary to go on to determine whether the ‘Eba test’ is met.”

 

Statements 17 and 18 of the petition dealt with matters of process.

[7]        Up to this point, that is up to statement 19, the petition as presented was founded on the second, “other compelling reason”, branch of the so-called Eba test.  Statement 19 of the petition—confusingly giving the citation for Eba in the Inner House—quoted the Eba test in both its branches from Eba in the Supreme Court as epitomised in the rubric of the Session Cases report, Eba v Advocate General for Scotland 2012 SC [UKSC] 1.  Statement 19 could be read as a linking passage to the change of direction which followed.

[8]        At statement 20 there was a change of direction with the following averment:

“The present case meets the [Eba] test narrated in [statement 19] above. The important point of principal [sic] or practice or compelling issue is where [sic] the UT have refused permission to appeal but asked the wrong question in doing so this court reduce the decision of the UT, so the correct question may be asked [sic].”

 

Clearly “[whether] the UT have refused permission to appeal but asked the wrong question in doing so” in a particular case cannot be an “important point of principle or practice” as that concept has to be understood: it is not a point of general importance. Equally clearly from this stage onwards the intention appears to have been to found the challenge, whether intelligibly or not, on the first, “important point of principle or practice”, branch of the Eba test.  Statements 21 to 25 inclusive are five specific examples of alleged errors by the FTT judge—not, I emphasise by the UT judge—which are said to constitute important points of principle or practice.

[9]        The final statement, statement 26, in the petition as presented dealt with the applicability of PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 to immigration judicial reviews in the Court of Session.

 

The first procedural hearing
[10]      The petition and answers came before me at a brief first procedural hearing on 29 November 2013.  After dealing with administrative and procedural matters I upheld the government’s second plea‑in‑law so far as directed against articles 20 to 25 of the petition as presented.  The government’s second plea‑in‑law (as amended) was in the following terms:

“2.       The petition for judicial review does not raise an important point of principle or practice, or other compelling reasons for the Court to hear the case, and, accordingly should be refused.”

 

In upholding the plea to the extent which I did my intention was, first, to remove from the application the claim or claims ostensibly founded on the first branch of the Eba test and, secondly, to leave the claim founded on the second branch of the Eba test for later determination.  To the extent that I sustained the plea I was giving effect to the argument presented in the written note of argument for the government [no 13 of process], the section headed “The petitioner’s averments – important point of principle or practice”, paragraphs 14 and 15, in the light of oral submissions made on the day.  This section of the note of argument was directed, explicitly, at paragraphs 20 to 25 inclusive of the petition as presented.  The interlocutor accordingly read:

“… sustains the [government’s] second plea-in-law, quoad paragraphs 20 to 25 of the petition; assigns Friday 7^th February, 2014 at 10.00 a.m. within the Court of Session, Parliament Square, Edinburgh as the date for the First Hearing…”

 

The question of the applicability of the second branch of the Eba test was meant to be reserved for consideration with the merits: on the submissions made at the brief procedural hearing I took the view that the “other compelling reason” claim was not clearly irrelevant and was sufficiently bound up with the merits to deserve fuller consideration at the substantive hearing.

[11]      Just in advance of the first substantive hearing on 7 February 2014, the petitioner amended the petition unopposed.  The amendment removed statement 26 and replaced statement 16.  The original statement 16 is quoted in paragraph [6] above.  The amended statement 16 reads:

“The UT failed to demonstrate by their reasons they had applied the correct test. In particular the [FTT] Immigration Judge concluded at paragraph 13 [of the FTT determination dated 13 February 2013] that the petitioner’s presence was “not conducive to the public good”. Such a finding must have been material to the proper assessment of Article 8 outside the Immigration Rules. Ground 6 of the application to the UT for Permission to Appeal identified that issue as a question of law material to the Article 8 assessment. If, as was asserted in the Grounds, it was not open to the Immigration Judge to make such a finding (applying the correct definition of that phrase [see Bah (EO (Turkey)—liability to deport) [2012] UKUT 00196 (IAC) and the appendices to that decision] the refusal of permission fails to engage with the ground contending that with the Immigration Judge had regard to an immaterial matter (see Ground 6) [sic]. That Ground was not an attack upon the findings of the Immigration Judge but was an attack upon the criteria used by the Immigration Judge in assessing a matter material to the proportionality assessment ie as a matter of law was it open to the Immigration Judge to find the Petitioner’s presence was not conducive to the public for the reasons she gave [sic]. Ground 7 of the application asserts the Immigration Judge provided contradictory conclusions. That was a reasons challenge and not a dispute as to the findings made by the Immigration Judge the UT failed to engage with. Ground 8 relates to the Petitioner being an economic asset to the United Kingdom (notwithstanding the need to maintain Immigration control), a matter the Immigration Judge left out of account and is not a dispute as to the factual findings made by the Immigration Judge that the UT failed to engage with. Grounds 4 and 5 relate to the overall approach taken by the Immigration Judge to the “height” of the proportionality hurdle the Secretary of State required to surmount to show removal was proportionate and is not a dispute as to the factual findings made by the Immigration Judge that the UT failed to engage with.”

 

The material contained in statements 21 to 25 which I had ushered out of the front door, or most of it, had now found another way into the petition.  Possibly the petitioner would say that he was simply adding specifics to his claim based on the second branch of the Eba test.

 

The first substantive hearing
[12]      When the case came before Lord Glennie for the first substantive hearing on 7 February 2014 both parties reportedly agreed that insofar as I did not sustain the government’s second plea‑in‑law I had intended to repel it; and that the words “quoad ultra repels the [government’s] second plea-in-law” should accordingly be implied into the interlocutor [Mdluli Petitioner [2014] CSOH 28 at [36]—[39]].  This understanding is a misunderstanding based, it appears to me, on a misconception as to what is meant by “deciding” the Eba question at the first procedural hearing as—in the words of Lord Hope in Eba— “a matter of relevancy”.  Deciding the Eba question as a matter of relevancy means refusing claims which are clearly irrelevant and allowing claims which are not clearly irrelevant to proceed to a full substantive hearing.  Sometimes claims are so clearly well‑founded and the government’s answers so clearly without merit that petitions can be granted without further ado.  In retrospect what I ought to have done to avoid misunderstanding was, quoad ultra, to reserve the government’s second plea.  I have to say however, with due respect to all concerned, that the obvious interpretation of a situation in which a plea is neither expressly sustained nor expressly repelled and the case is continued for final determination is that the plea is reserved or reserved pro tanto.

[13]      A question was also raised about the removal of statement 20 along with statements 21 and 25.  My intention was to remove all reference to an application for review founded on the first branch of the Eba test.  To the limited extent that statement 20 related to the arguably relevant case founded on the second branch of the Eba test, it was tautologous [cf. original statements 15 and 16];  there was no prejudice to the petitioner in removing statement 20;  and in any event statement 20 was garbled to the extent that it was irrelevant in itself.  I note that when the petitioner reprinted the pleadings after the amendment of 7 February 2014 statement 20 was retained or reintroduced while statements 21 to 25 were omitted. Standing my interlocutor, statements 20 to 25 inclusive should have been removed.

[14]      As I say, the consensus reportedly presented by counsel to Lord Glennie was that the Eba question, second branch, had been answered categorically (rather than hypothetically or provisionally) in favour of the petitioner.  This, on a certain view of matters, necessarily involved that there was “a compelling reason” to reduce the UT decision because of the failure of the UT to “engage” with the petitioner’s grounds of appeal.  It was but a short step for Lord Glennie to grant the petition and to set aside the UT refusal of permission to appeal leaving it open for the UT to remake the permission decision; and this is exactly what Lord Glennie did [Mdluli Petitioner [2014] CSOH 28 at [40]—[42]].

 

The reclaiming motion
[15]      The government reclaimed.  The central complaint made in the government’s grounds of appeal was that Lord Glennie had erred in failing to determine what were called “the substantive merits” ie whether or not the UT judge’s decision contained a material error or material errors of law.  On 23 July 2014 an Extra Division of the Inner House granted the reclaiming motion. The opinion of the court delivered by Lady Clark of Calton accepted that Lord Glennie had fallen into error by failing to engage with the merits of the petition.  The case was remitted to me for a new first hearing on a date to be determined [M Petitioner 2015 SC 103 and Mdluli Petitioner [2014] CSIH 68, both at [26]—[28];  interlocutor of 23 July 2014].

[16]      The case did not call before me until 13 May 2015, almost ten months later.  Having heard submissions by counsel I took the matter under advisement.  Unfortunately the papers then went missing for a period.  Anyway, the papers have now been found and I can give my reasons for refusing the petition.

 

The re-hearing of the first substantive hearing
[17]      The question for me on re-hearing is about the permission decision made by the UT judge on 10 April 2013.  The question is whether the UT judge erred in law, in the broad sense, in some material way and, if so, whether there is a compelling reason for reducing her permission decision.  Looking first at the question of error of law, the task for the UT judge was to apply the Tribunals, Courts and Enforcement Act 2007 section 11(1).  Section 11(1) of the 2007 Act confers, and conferred on the petitioner, a “right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal…” The so-called right of appeal is subject to permission, that is to permission granted by the FTT or, in the event of refusal and on a second application, permission granted by the UT.  Permission should, as a rule, be given if the grounds of appeal raise an arguable point, or arguable points of law which could affect the outcome [Upper Tribunal Immigration and Asylum Chamber, Guidance Note 2011 No 1: Permission to appeal to UTIAC (subsequently amended September 2013 and July 2014)].

[18]      The petitioner’s case is that the UT judge erroneously failed to identify a number of arguable points of law raised in the petitioner’s grounds of appeal.  The petitioner seeks to have this Court reduce the UT permission decision.  The effect of reducing the UT permission decision would be to allow the UT to consider of new whether to grant the petitioner permission to appeal to the UT.

[19]      The UT judge’s refusal reasons are in the following terms:

“The grounds seeking permission to appeal take issue with the findings made by the First-tier Tribunal judge with regards to the proportionality of the decision to remove him. They seek to re-litigate matters that were aired before the First-tier Tribunal and upon which the First-tier Tribunal judge reached careful and considered findings taking account of the evidence as a whole in reaching his [sic] decision. There is no arguable error of law.”

 

At the re‑hearing before me both counsel approached the matter on the basis that the “error of law” question cannot be answered simply by analysing the UT judge’s jejune reasoning. There was a consensus, rightly or wrongly, that this is one of those cases referred to by Lord Glennie where it is not possible to know whether the UT made an error of law in its analysis of the petitioner’s grounds of appeal without looking in detail at the substantive decision of the FTT and the grounds of appeal [Mdluli Petitioner [2014] CSOH 28 at [15]].

[20]      The petitioner’s grounds of appeal to the UT are incorporated by reference into the petition pleadings at statement 14.  In terms of amended statement 16, the petitioner founds on four of the ten paragraphs in the grounds of appeal, namely paragraphs 4, 5, 6 and 7.  The petitioner’s case in statement 16 is that these paragraphs identify arguable points of law which—if the UT judge had engaged with the grounds—ought to have led to a grant of permission to appeal to the UT.  In oral submissions counsel for the petitioner, without objection, made a case based on paragraphs 6, 8, 9 and 10 of the grounds of appeal.  Counsel for the petitioner expressly disclaimed the case based on paragraph 7 of the grounds and presented no argument in relation to paragraphs 4 and 5.  Counsel for the government stated, without contradiction, that grounds 4 and 5 had been departed from by the petitioner.  I was addressed in some detail by both sides on the passages in the FTT judge’s determination of 13 February 2013 which are claimed to give rise to arguable points of law in terms of paragraphs 6, 8, 9 and 10 of the grounds of appeal.

[21]      Let me say that paragraphs 6, 8, 9 and 10 of the petitioner’s grounds of appeal to the UT are clearly badged as points of law, or purported points of law, by the use of expressions such as “had regard to an immaterial matter”, “left out of account... [a factor] material to the assessment”, “the wrong test”, “left out of account a material matter”, “failed to identify that this is a domestic and not a foreign case”, etcetera.

 

Grounds of appeal, paragraph 6
[22]      The main challenge centres on paragraph 6 of the grounds of appeal.  Paragraph 6 is about the FTT judge’s application of the Immigration Rules and the knock‑on effect on her subsequent proportionality assessment in terms of article 8 ECHR. The FTT judge considered the petitioner’s application for leave to remain in terms of the Immigration Rules paragraph 276ADE (“Requirements to be met by an applicant for leave to remain on grounds of a private life”) and Appendix FM-EX (“Family members”).  She also, and separately, considered the petitioner’s application on the basis claimed by the petitioner that his removal to Swaziland would constitute disproportionate interference with his right to respect for his private and family life in the United Kingdom in terms of article 8 ECHR.

[23]      The petitioner does not qualify for leave to remain under the Immigration Rules.  At the date of his application for leave to remain, 10 February 2010, the petitioner was 24 years and almost 11 months old;  and he had lived in the United Kingdom for three years and just over six months.  Accordingly the petitioner did not qualify for leave to remain in terms of the age and duration‑of‑stay criteria set out in rules 276ADE (iii), (iv) and (v);  neither did he qualify in terms of rule 276ADE(vi) (aged over 18 years and has lived continuously in the United Kingdom for less than 20 years but has no ties in the country [Swaziland] to which he would go if required to leave the UK).  None of this is contested.  In particular, the FTT judge’s finding that the petitioner still has family members in Swaziland and her refusal to accept that the petitioner has no friends in Swaziland are not contested.

[24]      For good measure the FTT judge found that the petitioner in any event failed under rule 276ADE(i).  In terms of rule 276ADE(i) private and family life applicants cannot qualify for leave to remain if they fall for refusal under any of the grounds Appendix FM [family members], section S‑LTR [leave to remain] 1.2 to S‑LTR 2.3 and S‑LTR 3.1.  The FTT judge found that S‑LTR 1.6 applies to the applicant.  This provision is:

“The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall with paragraphs S-LTR 1.3 to 1.5), character, associations or other reasons, make it undesirable for them to remain in the UK”.

 

The FTT judge reasoned as follows [at [13]]:

“In terms of S-LTR 1.6 the [petitioner] has no immigration status in the United Kingdom which he has known about at least since 29 June 2009. He continued to study and did not leave the United Kingdom when he was requested to which I find brings his conduct into question. I find that the [petitioner] cannot succeed in terms of paragraph S-LTR 1.6.”

 

[25]      The submission for the petitioner is that “not conducive to the public good” in S‑LTR 1.6 is a deportation concept which implies a risk of criminality or a threat to public order.  The FTT judge was clearly mistaken in applying it to a mere visa overstayer like the petitioner.  I was referred to a deportation case Bah (EO (Turkey): Liability to Deport), Re [2013] INLR 115 especially at paragraph 72 where the issue was about the seriousness of the applicant’s close association with a violent criminal gang.  The submission for the government is that the “not conducive” concept has different meanings for deportation and immigration purposes:  there is no particular standard for “not conducive”;  and if “failing without reasonable excuse to attend for interview” in terms of S-LTR 1.7 is a mandatory ground of refusal then why shouldn’t overstaying—overstaying which is knowing and deliberate—for a period of years be capable of amounting to “not conducive” conduct? I should have been inclined to prefer the submission for the petitioner: but does it matter? The petitioner’s argument is not—cannot be—that the petitioner has been unlawfully refused leave to remain by a misapplication of the Immigration Rules.  He simply does not qualify under the rules whether S-LTR 1.6 applies or not. 

[26]      Because the petitioner does not qualify under the rules he claims that he ought in any event to be allowed to remain on a proper proportionality assessment in terms of article 8 ECHR.  The complaint made in the grounds of appeal, paragraph 6, is that the S-LTR 1.6 “not conducive” finding “must have… affected [the FTT judge’s] assessment of article 8 ‘proper’” and that:  “In so proceeding [the FTT judge] had regard to an immaterial matter.”  I have read the FTT judge’s determination with great care and cannot detect the slightest trace of her article 8 ECHR assessment being “infected”, as the petitioner puts it, by her mistake—if it be a mistake—about the application of S-LTR 1.6.  The point is or purports to be a point of law:  but it is not arguable.

[27]      Further, I deduce that the petitioner is misled by the ingenuity of his own argument.  It may well be that a “not conducive” finding ought ordinarily to involve a risk of criminality or a threat to public order;  and if that is what the FTT judge had meant by “not conducive” in the present case then her “not conducive” finding ought logically to have entered into the article 8 ECHR proportionality assessment (as a negative factor).  It is however plain that the FTT judge did not mean to imply anything like the Bah level of seriousness.  For that reason too the point is not arguable.

 

Grounds of appeal, paragraph 8
[28]      The challenge made in paragraph 8 of the grounds of appeal is that the FTT judge’s article 8 ECHR proportionality assessment failed to have regard to a material factor in that she omitted to take account of the fact that the petitioner is a “positive economic asset to the United Kingdom”.  The most important finding in this connection is that during his unauthorised stay the petitioner has qualified as a quantity surveyor and has worked, on unpaid work experience placements, in that capacity.  The petitioner also makes a contribution through voluntary work.

[29]      The usual proportionality balancing exercise opposes the private interest in non‑removal to the public interest in removal.  The petitioner's argument is that in the petitioner’s case there is, as well, a public interest in non-removal that qualifies or diminishes the public interest in removal.  No text book or case law authority was cited:  but I am familiar with the line of argument [SM v Secretary of State for the Home Department [2012] CSOH 172;  R (on the application of Zermani) v Secretary of State for the Home Department [2015] EWHC 1226 (Admin)].  The response of counsel for the government was brief:  the petitioner’s argument does not work where the applicant’s contribution or potential contribution is not unique and where he would be taking someone else’s job if he were allowed to remain.

[30]      The test that seems to be developing is one of “practical irreplaceability”.  From the findings of the FTT judge it would be appropriate to conclude that the petitioner is “a jolly good chap”, as counsel for the government puts it: but there is nothing that would support the inference that the petitioner is practically irreplaceable or anything remotely approaching it; nor is there, or, it seems, has there ever been, a claim to this effect.  In these circumstances I cannot be persuaded that there is an arguable point of law around the issue of the petitioner’s economic value to the United Kingdom.  If there were an omission by the FTT judge, something I do not accept, it was not a material omission, not even arguably so.

 

Grounds of appeal, paragraph 9
[31]      Paragraph 9 of the grounds of appeal claims that the FTT judge applied the wrong test when considering the effect of the ruling in EB (Kosovo) on the delay by the government in processing the petitioner’s claim [EB (Kosovo) v Secretary of State for the Home Department [2008] 3 WLR 178].  The petitioner made his original application for leave to remain in terms of article 8 ECHR on 10 February 2010.  The government did not issue its refusal decision until 12 November 2012, 21 months later.  However, the petitioner himself delayed making his application for almost eight months; and following the initial submission he made further representations on 5 April 2011, 22 September 2011 and 25 October 2012.  The refusal decision was made within one month of the third further representation.

[32]      The FTT judge expressly referred to EB (Kosovo) and in particular paragraphs 14 and 15 in the speech of Lord Bingham of Cornhill.  It would be unreasonable, in the absence of any indication to that effect, to infer that the FTT judge misunderstood the test.  In any event, quite contrary to the assertion made in the grounds of appeal, the FTT judge did address the question of the potential effect of delay on the petitioner’s mind:

“If the years pass the sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. Each case has to be dealt with on its own merits… In his witness statement dated 25 January 2013 at paragraph 33 [the petitioner] states that “when I came over I always thought I would go back to Swaziland as my stay was not permanent”… I do not accept given the circumstances of this particular case that there has been a prolonged and inexcusable delay on the part of [the government] which would reduce the weight normally given to the need for firm, fair [and] consistent immigration control in the proportionality exercise.”

 

I reject the petitioner’s supplementary submission that the FTT judge left out of account a material matter by failing adequately to deal with the “build‑up” of the petitioner’s private and family life during the period of alleged delay. This ground is not arguable.

 

Grounds of appeal, paragraph 10
[33]      Paragraph 10 of the grounds of appeal asserts that the FTT judge erred by failing to identify that the petitioner’s case is a “domestic” one rather than a “foreign” one.  The difference between “domestic” and “foreign” cases is that in domestic cases the apprehended article 8 ECHR infringement will take place by virtue of removal from private and family life ties in the United Kingdom whereas in foreign cases the threatened violation will take place by virtue of circumstances or treatment in the destination state.  Applicants in “foreign” cases cannot succeed unless they run “a real risk of a flagrant denial” of article 8 ECHR rights [KBO v Secretary of State for the Home Department [2009] CSIH 30 at [14]—[16] per Lord Reed delivering the opinion of the court and citing EM (Lebanon) v Secretary of State for the Home Department [2008] 3 WLR 931].  This ground of appeal also asserts that the FTT judge failed to have regard to KBO as an example of where the proportionality balance lies in domestic cases.  In oral submissions counsel for the petitioner argued that these claimed errors by the FTT judge resulted in setting the proportionality threshold too high.

[34]      There is not the slightest indication that the FTT judge in the petitioner’s case made the error attributed to the senior immigration judges on appeal in the case of KBO.  The error made by the senior immigration judges in KBO was to impose a “foreign case” threshold for the second stage of the five‑stage Razgar test in what was a “domestic case” and to conclude that the apprehended interference with the applicant’s private life was of insufficient gravity to engage article 8 ECHR [KBO v Secretary of State for the Home Department [2009] CSIH 30 at [17] per Lord Reed delivering the opinion of the court;  Razgar, R (on the Application of) v Secretary of State for the Home Department [2004] 2 AC 368 at [17]].  In a domestic case like the petitioner’s, as counsel for the government submitted, it is reasonable to assume that the “domestic case” threshold has been applied in the absence of any indication to the contrary.  There is no indication to the contrary.  On the contrary the FTT judge in the present case has proceeded on the basis that the removal of the petitioner to Swaziland does have the potential to engage article 8 ECHR [FTT determination, 13 February 2013, at [22]].

[35]      Also in KBO the court held that in the absence of an error of law on the part of the first instance immigration judge there was no basis for interfering with her decision on the question of proportionality, which was a matter confided to her determination [KBO v Secretary of State for the Home Department [2009] CSIH 30 at [23] per Lord Reed delivering the opinion of the court].  By parity of reasoning the petitioner in the present case has failed to demonstrate any possible basis for undoing the FTT judge’s proportionality assessment.  This ground is not arguable.

 

Assessment
[36]      Did counsel for the petitioner make a strategic mistake by amending statement 16 of the petition as presented and by drilling down into the details of the grounds of appeal and the FTT judge’s reasoning?  The grounds of appeal plausibly, if superficially, present a number of matters, including the matters referred to above, as arguable points of law.  If I may say so with respect, the reasoning of the UT judge, sparsely expressed as it is, does not apparently engage with these points in any meaningful sense.  As Lord Glennie implied, the reasons do not follow the guidance given to tribunal judges, which guidance stated and states [citation above]:

“31.     Resort to very generalised or formulaic reasons or conclusions for refusing [permission to appeal] do [sic] not give an assurance that the point has been understood and engaged with.”

 

If the matter had been presented to me at the re-hearing as it was at the first procedural hearing, I might well have been inclined to grant the petition: I might well have been persuaded that the failure to engage amounted to the denial of a fair hearing and thus a compelling reason to have the permission decision re-made.

[37]      As things stand, however, and possibly unavoidably, the veil has been lifted;  and it has been demonstrated by the government to my satisfaction that the matters presented as points of law in the grounds of appeal are, albeit characteristically ingenious, simply not arguable in a legal sense.  It follows that whatever the strengths and weaknesses of the UT judge’s decision‑making, there is no arguable basis on which, properly directed, the UT judge could have made a permission decision in the petitioner’s favour.  In view of my decision on “the merits”, I also have to conclude that there is no compelling reason for reviewing the permission to appeal decision of the UT judge.

[38]      Paradoxically, the petitioner’s application does raise a point of general importance.  The point is about the quality of permission‑to‑appeal decision‑making by the UT.  I have to make it clear that I am not criticising the UT judge in this case: but I see it as entirely possible that in a similar case, differently presented, a petitioner could be successful without detailed consideration of the merits.  Counsel for the government makes the point that leave‑to‑appeal refusals by the Supreme Court are often expressed in the tersest terms; and the government has produced a table of Supreme Court leave‑to‑appeal decisions for the period mid‑October to mid‑November 2013 [no. 7/2 of process].  There are 23 refusals.  Four refusals are expressed in one sentence such as:  “Permission to appeal be refused because the application does not raise an arguable point of law.”  None of the reasons given for refusal is longer than three sentences.  This is all very well: it is vanishingly rare for Supreme Court leave‑to‑appeal decisions to be subject to judicial review challenges.

[39]      There is also, possibly, a lesson for the government.  If the aim is to remove overstayers as quickly as possible then there is much to be said for accepting a decision such as Lord Glennie made in the present case and in allowing the case to be remitted to the UT to re-make the permission decision.

 

Decision
[40]      In light of the foregoing I shall repel the petitioner’s sole plea‑in‑law;  I shall repel the government’s first plea‑in‑law to the relevancy of the petition as now superseded;  I shall sustain the government’s second plea‑in‑law (insofar as not already disposed of);  I shall sustain the government’s third plea‑in‑law;  and I shall refuse the petition.  I shall reserve in the meantime all questions of expenses.