ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Eshun (3929)
Upper Tribunal Judge Macleman (1350)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
(Master of the Rolls)
LORD JUSTICE UNDERHILL
LORD JUSTICE FLOYD
| SAMIA WASIF
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
for Ms Wasif
Zane Malik (instructed by Seb Solicitors) for Mr Hossain
Deok Joo Rhee (instructed by Government Legal Department) for the Respondent
Hearing date: 7 December 2015
Crown Copyright ©
Lord Justice Underhill :
THE CORRECT APPROACH TO TWM CERTIFICATION
"Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing."
Rule 23.12, there referred to, reads:
"If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit-
(a) the court's order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order."
"(1) – (2) …
(3) Paragraph (4) applies where the Upper Tribunal, without a hearing—
(a) determines an application for permission to bring judicial review proceedings by—
(i) refusing permission or refusing to admit the late application, or
(ii) giving permission on limited grounds or subject to conditions; or
(4) Subject to paragraph (4A), in the circumstances specified in paragraph (3) the applicant may apply for the decision to be reconsidered at a hearing.
(4A) Where the Upper Tribunal refuses permission to bring immigration judicial review proceedings or refuses to admit a late application for permission to bring such proceedings and considers the application to be totally without merit, it shall record that fact in its decision notice and, in those circumstances, the applicant may not request the decision to be reconsidered at a hearing.
"(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.
(1A) Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court or where permission to apply for judicial review has been refused and recorded as totally without merit in accordance with rule 23.12 –
(a) the applicant may apply to the Court of Appeal for permission to appeal;
(b) the application will be determined on paper without an oral hearing.
(3) On an application under paragraph (1) or (1A), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.
(4) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (3), the case will proceed in the High Court unless the Court of Appeal orders otherwise."
Rule 52.15A reads:
"(1) Where permission to bring judicial review proceedings has been refused by the Upper Tribunal and permission to appeal has been refused by the Upper Tribunal, an application for permission to appeal may be made to the Court of Appeal.
(2) Where an application for permission to bring judicial review proceedings has been recorded by the Upper Tribunal as being completely without merit and an application for permission to appeal is made to the Court of Appeal in accordance with paragraph (1) above, the application will be determined on paper without an oral hearing."
One consequence of those provisions – and specifically rules 52.15 (1A) (b) and 52.15A (2) – is that where a permission application has been certified as TWM a judge of this Court is precluded from directing that the application for permission to appeal be heard orally even if he or she believes that in the particular circumstances of the case a hearing would be desirable. It is surprising, and sometimes inconvenient, that the hands of a judge of this Court should be tied in this way by a decision taken at first instance, and we rather doubt whether this was the rule-makers' intention; but it has been decided that that is the effect of the rules – see GR (Albania) v Secretary of State for the Home Department  EWCA Civ 1286.
THE DECISION IN GRACE
"I return to the purpose of CPR 54.12.7. It is not simply the prevention of repetitive applications or the control of abusive or vexatious litigants. It is to confront the fact, for such it is, that the exponential growth in judicial review applications in recent years has given rise to a significant number of hopeless applications which cause trouble to public authorities, who have to acknowledge service and file written grounds of resistance prior to the first judicial consideration of the application, and place an unjustified burden on the resources of the Administrative Court and the Upper Tribunal. Hopeless cases are not always, or even usually, the playthings of the serially vexatious. In my judgment, it would defeat the purpose of CPR 54.12.7 if TWM were to be given the limited reach for which Mr Malik contends. It would not produce the benefits to public authorities, the Administrative Court or its other users which it was intended to produce. I have no doubt that in this context TWM means no more and no less than 'bound to fail'. …"
We should also quote para. 15 of his judgment (pp. 3436-7), which reads:
"The adoption of this approach does contain within it two important safeguards. First, no judge will certify an application as TWM unless he is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case. Secondly, the claimant still has access to a judge of the Court of Appeal who, with even greater experience and seniority, will approach the application independently and with the same care. To my mind, these safeguards are sufficient. CPR 54.12.7 so applied does not detract from the vital constitutional importance of the judicial review jurisdiction. Moreover, it is consistent with the overriding objective of the CPR."
It is clear that those observations were intended to apply equally to rule 30 (4A) of the Upper Tribunal Rules, to which Maurice Kay LJ referred expressly at para. 2 of his judgment.
"The phrase 'totally without merit' is now firmly embedded in our Civil Procedure Rules. It is perhaps unfortunate that the word 'merit' is included in the phrase. We are familiar with the notion of a claim being meritorious or having merit, connoting the idea that the claim is just or 'is in accordance with the merits', but the word 'merit' in the phrase 'totally without merit' does not have this meaning. Although the court always seeks to do justice, the purpose of 'totally without merit' is to enable the court to root out claims which are bound to fail, and, for the reasons given by my Lord, I would construe that phrase as meaning 'bound to fail'."
(1) At the risk of spelling out the obvious, judges should certainly not certify applications as TWM as the automatic consequence of refusing permission. The criteria are different.
(2) We repeat what Maurice Kay LJ said in para. 15 of his judgment in Grace, as quoted above:
"[N]o judge will certify an application as TWM unless he is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case."
(3) The potential value of an oral renewal hearing does not lie only in the power of oral advocacy. It is also an opportunity for the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers (and which should have been identified in the reasons). The points in question may not always have been anticipated or addressed in the grounds and skeleton argument (particularly if the judge has drawn them from the respondent's summary grounds – see (6) below). The judge should only certify the application as TWM if satisfied that in the circumstances of the particular case a hearing could not serve such a purpose; the claimant should get the benefit of any real doubt.
(4) Mr Fordham submitted that the essential question for a judge in deciding whether to certify was "whether another Judge, with the benefit of oral submissions at an oral hearing, would be bound to refuse [permission]". That is broadly in line with what we have said above, but the reference to "another Judge" is not quite right. Although it will generally be the case that any renewal hearing will be before a different judge than the one who refused permission on the papers, the rules do not require that that be the case; and in any event in an ideal world one judge's standard of what is arguable should be the same as another's. The point of a renewal hearing is not that the claimant is entitled to another dip into the bran-tub of Administrative Court or Upper Tribunal judges in the hope of finding someone more sympathetic. Having said that, we do not deny that some judges may find it a useful thought-experiment to ask whether they can conceive of a judicial colleague taking a different view about whether permission should be granted.
(5) Judges considering permission applications will quite commonly encounter cases – particularly where the claimant is unrepresented – in which the claim form/grounds and/or the supporting materials are too confused or inadequate to disclose a claim which justifies the grant of permission but where the judge nevertheless suspects that proper presentation might disclose an arguable basis of claim. In such cases he or she should not certify the application as TWM. The right course will usually be to refuse permission, with reasons which identify the nature of the problem, giving the claimant the opportunity to address it at an oral renewal hearing if they can; but there may sometimes be cases where the better course is to adjourn the permission application to an oral hearing, perhaps on an inter partes basis.
(6) Mr Fordham pointed out that at the time that a judge decides the permission application on the papers the respondent will have had the opportunity to file an Acknowledgment of Service, incorporating summary grounds of defence, to which the claimant has under the Rules no right of reply (though some claimants do provide responses which are in practice put before the Judge). Judges should not certify a claim as TWM on the basis of points raised in the summary grounds to which the claimant might have had an answer if given the opportunity.
"[A]rguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application."
They went on to refer to the line of authorities about the flexibility of the civil standard of proof, referring in particular to R (N) v Mental Health Review Tribunal (Northern Region)  EWCA Civ 1605,  QB 468. We must confess to some difficulty with that passage: we do not see how the arguability of a claim can be affected by the nature or gravity of the issue. It may be that what was meant was that a higher degree of arguability might be required to justify the grant of permission in a claim that was trivial, or a lower degree for one which was very grave. But in that case it is a slightly different point from that which we have been addressing.
THE INDIVIDUAL CASES
A PRELIMINARY QUESTION
"There is one ground of appeal, namely: The Upper Tribunal erred in law marking the Appellant's application for permission to apply for Judicial Review as Totally Without Merit."
The position about Ms Wasif's grounds, settled by Mr Halim, is not quite so clear-cut. Two grounds are pleaded. The first is, to summarise, that the Upper Tribunal Judge could not reasonably have concluded that her claim was "bound to fail": that is, necessarily, a challenge to the certification. The second, again in summary, is that the Judge gave inadequate reasons for her decision: that could be read as relating to the substantive decision to refuse permission, rather than to the certification, though we are far from sure that that is what was intended, since he goes on to plead that the ordinary duty to give reasons is "heightened" where the application is certified as TWM.
"Subject [to various immaterial exceptions], the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."
The latter read (so far as material):
"(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (14)."
(By sub-section (13) which is the "relevant appellate court" falls to be specified by the Upper Tribunal: in the present cases it is the Court of Appeal. "Excluded decisions" are defined in sub-section (8): TWM certification is not such a decision. Sub-section (14) contains nothing material.)
(1) In answer to a question about the overdose that Ms Wasif had taken, she says:
"I acknowledge that I only have Miss Wasif's report that she was raped, yet I see no reason to doubt her veracity. She has nothing to gain from telling this story, and her distress in speaking about it seems entirely genuine; I am not surprised to learn that this lady has many of the symptoms of PTSD; the rape meets the entry criteria for a traumatic event. … Her suicide attempts are genuine because she has a wish to forget all her traumatic experiences. However, the amount of tablets she took as an overdose could not have resulted in fatality but that does not mean the next time she won't take a larger dose."
(2) She recommends treatment by cognitive behavioural therapy by a therapist with appropriate experience, observing that this is available on the NHS but that there can be long waiting times.
(3) She expresses the view that Ms Wasif's mental health is likely to deteriorate, and that she is at "high risk of committing suicide" if she is removed to Pakistan.
(4) She had been asked why Ms Wasif might not have mentioned the rape earlier than she did. She says:
"Miss Wasif is a victim of rape by her brother and that is a humiliating and shameful experience which leads to avoidance behaviour and she deliberately avoids speaking about the traumatic experience of the past. She finds it difficult to disclose such an horrific experience especially at the hand of a sibling because she believes that no-one will understand her."
Duncan Lewis's letter accompanying the report draws attention to those points and asks for removal to be stayed "to allow her access to the medical assistance she requires". There are no clearly formulated legal submissions.
(1) Treatment for PTSD is said to be available in Pakistan. Considerable detail is given about how such treatment may be accessed. The point is made that Dr George does not address the question of availability of treatment in Pakistan.
(2) Ms Wasif's case is said to fall outside very limited circumstances in which the removal of a person suffering from serious illness, including a mental condition giving rise to the risk of suicide, would constitute a breach of article 3 of the ECHR. Reference is made to, among other authorities, J v Secretary of State for the Home Department,  EWCA Civ 629, Y (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 362 and GS (India) v Secretary of State for the Home Department,  EWCA Civ 40,  1 WLR 3312. Six particular points are made. We need not go through them all, since the only one which is disputed is the fifth, in which it is said that Ms Wasif "does not have a well founded fear of return to Pakistan", observing that "this decision has been upheld by the courts": this appears to be a reference to the rejection by the FTT of her account that she had been assaulted and raped by her family there. This is also said to distinguish her case from that of the appellants in Y (Sri Lanka).
"The application for permission is hereby refused
Applicant seeks permission to amend her grounds of claim pursuant to the Respondent now making a decision dated 28 August 2014, served with her Acknowledgement of Service and Summary Grounds of Defence on 2 September 2014, to refuse her further submissions as amount to fresh claim for the purposes of paragraph 353 of the immigration rules.
The grounds at paragraph 19 refer to Dr George's report dated 31 August 2014. There is not a report of this date on the file. There is however a report by Dr George dated 31 July 2014, which has been considered by the respondent. The issue of the applicant's claimed rape has been considered by a First-tier Judge who disbelieved it. The respondent gave anxious scrutiny to the further submissions and the various psychiatric reports. The respondent's decision that the further submissions did not amount to a fresh claim was within the range of reasonable responses open to her.
The application is considered to be totally without merit."
"I accept that in the light of Dr George's report the Respondent may arguably not have been entitled to treat the FTT's rejection of the claimant's account as determinative, or therefore to distinguish the decision in Y (Sri Lanka) on the basis that in that case the appellants' accounts of their ill-treatment were accepted. But the authorities such as AJ (Liberia) make it clear that it is only exceptionally that the risk that a person may commit suicide on return will give rise to a breach of article 3, and I do not believe there is a realistic chance that even on the basis of Dr George's report a tribunal would find a breach in the present case, where the claimant was not the victim of abuse by the authorities and where the Respondent has shown with some particularity that treatment for her condition is available in Pakistan."
Of course that was not her reasoning. Rather, she said (a) that the FTT had disbelieved Ms Wasif's account and (b) that "the respondent gave anxious scrutiny to the further submissions and the various psychiatric reports". However that does not engage with the essential point made in the grounds, namely that Dr George's report undermined the FTT's finding. Nor does it deal with the supporting points based on the FTT's alleged disregard of the recognised fact that rape victims often find it very difficult to disclose what they have experienced, and on what Ouseley J said in the Detention Action case. Proper reasons would have had to address those arguments and show, however succinctly, why the Judge thought they were unarguable. We do not wish to be too critical of the Judge; and it is her misfortune to be caught in the spotlight of a leading case. We are well aware of the pressure of work in the Upper Tribunal. In addition, Ms Wasif's pleaded grounds were, as we have said, rather discursive, and the Judge did not have the benefit, as we have done, of hearing them expounded orally. But the essence of the points being made was sufficiently clear; and if she was going not only to refuse permission but to certify the claim as TWM she needed to address them more specifically than she did.
"We have reconsidered all the evidence that you have presented and there is nothing to show that there are any insurmountable obstacles that would prevent you and your spouse from relocating to your home country. You are both healthy and young people. There are no physical impediments to you both relocating to Bangladesh.
You have stated that your spouse has converted to Islam in order that you could marry. Therefore although she may not be fully conversant with life in Bangladesh her recent conversion to the Islamic belief will help her assimilate, with your help, into the life and culture of Bangladesh."
As regards the risk of political persecution, the Respondent acknowledged that there was "a degree of political turmoil in Bangladesh" but said that no evidence whatever had been supplied to substantiate the alleged risk to Mr Hossain. As regards the claim outside the Rules, the Respondent said that no exceptional circumstances had been shown: she rejected the claim that he would be at risk of persecution if returned for the same reasons as she had already given in the context of the "insurmountable obstacles" issue.
"My wife is British, she has never been to Bangladesh, she does not speak Bengali, she has no family or friends of Bangladesh, she does not know the Bengali culture. She will never be able to adjust herself. More than me she will suffer insurmountable obstacles. My wife has all her family and friends in UK, her culture and upbringing is British; she is well established in UK. It is highly wrong and unfair to expect her to uproot her life in the UK to go and try and settle in a totally strange country. As a British [sic] she is fully entitled to enjoy the benefits of a country, which is UK. She is entitled to have a husband live with her in the UK."
Finally he mentions two miscarriages which Ms Fernando had suffered, attributing them to the uncertainty about his immigration status. Para. 10 makes essentially the same points, with no greater detail. But we should note that the concluding point made (at sub-para. (vii)) is that "there is no guarantee that if I leave … I will be granted visa to return and join my wife in the UK".
"The application for permission is hereby refused
The grounds simply re-assert (and the reply to the summary of grounds of defence further exaggerates) the alleged political difficulties the applicant might encounter in Bangladesh, and the alleged 'exceptional circumstances' such that his wife should not be expected to relocate there.
The grounds are no more than insistence and disagreement. They do not show that the respondent's decision dated 12 March 2014 may arguably be found to be an unlawful one.
"21. The phrase "insurmountable obstacles" as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom.
22. This interpretation is in line with the relevant Strasbourg jurisprudence. ... The phrase as used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence. It is clear that the ECtHR regards it as a formulation imposing a stringent test in respect of that factor, as is illustrated by Jeunesse v Netherlands [(2015) 60 EHRR 17)] (see para. : there were no insurmountable obstacles to the family settling in Suriname, even though the applicant and her family would experience hardship if forced to do so).
Sales LJ then made two further points by way of clarification, one being that although the test is stringent it is intended to be interpreted "in a sensible and practical rather than a purely literal way", referring to both Jeunesse and the observations of Lord Dyson MR in this Court in MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192,  1 WLR 544, at para. 49. Turning to the facts of Mrs Agyarko's case, he observed, at para. 26, that there was no witness statement from her or her husband, Mr Benette, to explain what obstacles might exist. He continued:
"The mere facts that Mr Benette is a British citizen, has lived all his life in the United Kingdom and has a job here – and hence might find it difficult and might be reluctant to re-locate to Ghana to continue their family life there - could not constitute insurmountable obstacles to his doing so."
A similarly stringent approach was taken in Mrs Ikuga's case.