England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/11/2012

Charles J :

General Introduction

1. HS, who I shall refer to as the Claimant, and her two children, seek a judicial review of the decision of the Defendant (the UT) made by Senior Immigration Judge Warr, and dated 4 April 2011, (the Decision of the UT refusing permission to appeal) by which the UT refused to give her permission to appeal a decision of Immigration Judge Crawshay promulgated on 21 February 2011 (the Immigration Appeal Decision). When I refer to arguments being advanced by the Claimant this is on the basis that she was advancing them on behalf of herself and her children.
2. The Claimant was born in May 1977. She is from Kenya where she went to school and University. She met her ex-husband Mr S in 2000 and their first child (W) was born in June 2001. They married in October 2001. Mr S was raised as a Luhya in Luhyaland and, as his mother had suffered domestic violence from a Kikuyu man, she developed a hatred for the Kikuyu people. After their marriage, Mr S moved to the USA to study leaving his wife and child in Kenya. He lived in the USA from January 2002 to May 2007, firstly as a student and then he worked there. This meant that the Claimant and her husband spent prolonged periods apart. The Claimant and her oldest son lived with her mother in law in Luhyaland until March 2003 when they left that home. After that, the Claimant worked in a doctor's surgery between July 2003 and March 2005 and, with money sent by Mr S, a house was built for the Claimant and her oldest son to live in. Shortly after his return from the USA, Mr S moved his mother and aunt into the house to live with them.
3. In January 2008, the Claimant and her oldest son, W, moved to the UK with her husband Mr S, as his dependents. He held a highly skilled migrant visa (HSMV). Shortly after her arrival in the UK the Claimant gave birth to her second son (I) who was born in February 2008.
4. On 28 July 2008, the Claimant left the family home with her two sons. In November 2008, she was granted, on a without notice basis, a non-molestation order under s. 42 Family Law Act 1996 by a judge sitting at the Romford County Court. As I understand it, at the same time, and so also on a without notice basis, the court ordered that, until further order (a) the children were to live with their mother the Claimant (the Residence Order), and (b) the Respondent father (Mr S) was not to remove the children from the care of the Claimant, or from the jurisdiction of England and Wales, and that he was to surrender the children's passports to the court (the Injunctive Order). On the evidence, it is not clear whether the non-molestation order was continued and the Injunctive Order confirmed, at a later hearing on notice. But, if such a hearing took place, it is clear that such continuation or confirmation would have been on the basis of disputed evidence. This is because there was a later fact-finding hearing covering allegations that were relied on by the Claimant to support the two orders made on a without notice basis.
5. The family proceedings were transferred to the Cardiff County Court where a fact finding hearing took place in 2009 before HHJ John. At that hearing, the Claimant was represented and Mr S appeared in person. The judgment is dated 15 October 2009 (the Fact-Finding Judgment). I have seen no reference to any continuation or confirmation of the without notice orders at that stage, but it seems that if the non-molestation order was still running it, and the Residence Order and the Injunctive Order, simply continued.
6. On 24 July 2009, just before her husband's HSMV was due to run out, the Claimant made a claim for asylum. In broad terms, she claimed that if she returned to Kenya her husband's family would forcibly take her children from her in accordance with tribal culture and tradition in Kenya, their attitude to her and her children and the disadvantaged position of women in Kenyan society. This claim was refused by the Interested Party (SSHD) by a decision letter dated 20 August 2009 (the First Refusal Letter). The Claimant appealed, and by a decision promulgated on 25 November 2009 (the 2009 Appeal Decision ) Immigration Judge Alakija dismissed her appeal on asylum grounds and for humanitarian protection, but allowed the appeal on human rights grounds (Article 8) because he took the view that:

" ------------- if the children are forced to remain in the United Kingdom by virtue of the current or any further court order that it would be a breach of the article 8 rights of both mother and children unless such an order transfers custody of the children away from their mother. Consequently I find that in the current situation the removal of the appellant without her children would engage their rights under Article 8 of the ECHR and although such removal may be considered to be legitimate would not be proportionate at present."

7. As a result, the Claimant was given discretionary leave to remain pending the outcome of the family proceedings. On 22 April 2010, the Claimant made an application to extend that leave, in which she states that it would expire on 19 May 2010.
8. The evidence before me does not reveal the details of the orders made in the family proceedings and, in particular, whether the Injunctive Order was ever discharged. But, it is clear that the parties proceeded on the basis that the family proceedings were at an end because Mr S had indicated that he no longer wanted to proceed with his application and had returned to Kenya. In line with that, no disposal hearing took place in the family proceedings. In any event, and it seems contrary to the understanding of Immigration Judge Alakija, no injunction was made in the family proceedings that required the children to remain in the jurisdiction of England and Wales. The injunction was to prevent the father removing them.
9. But the family proceedings were ongoing on the basis that the whole family were here. As I understand it, there were rival claims for residence orders in the family proceedings and so until they were effectively brought to an end issues remained as to (a) where the children would live, and (b) their contact with the non-resident parent.
10. The Claimant's application to extend her leave was refused by a refusal letter dated 25 November 2010 (the Second Refusal Letter). In broad terms, this application for an extension of leave was based on the same grounds as the first application, with the added factors that the Claimant and her children had been here for a longer period of time and the orders, findings and allegations in the family proceedings. The Claimant appealed the refusal, and by the 2011 Immigration Appeal Decision Immigration Judge Crawshay dismissed her appeal on asylum grounds, on humanitarian protection grounds and on human rights grounds.
11. Permission to appeal the 2011 Immigration Appeal Decision was refused by the First–tier Tribunal (Immigration Judge Blandy) sent on 16 March 2011 and then by the Decision of the UT refusing permission to appeal. Permission to bring these proceedings for judicial review of the decision of the UT refusing permission to appeal was refused on the papers by HHJ Jarman, but was granted at the renewal hearing by Beatson J. The note taken by the Claimant's counsel of his reasoning was not disputed and it contains the following:

" [ the Applicant ] raises arguable points as to the satisfaction of the second appeals criteria in the aspect of an important principle as to how an Immigration Judge should deal with fact-findings made in family proceedings with different evidence on whether there needs to be an analogous approach as in Devaseelan as in relation to previous immigration decisions.

Also on the other compelling reason ground which relies on a combination of procedural flaws in the decision together with the fact that there was authority subsequent to the decision in ZH Tanzania as to the best interests of the child test".

12. That reasoning reflects an approach that the second-tier appeals criteria was arguably satisfied and thus that it was that test that was to be applied at this substantive stage. The order simply provided that permission was granted to bring proceedings for judicial review of the Decision of the UT refusing permission to appeal was granted.

The grounds for the grant of permission for judicial review and, if such permission is granted the grounds upon which the Court can grant relief by way of judicial review

13. As appears from the postscript to this judgment these issues have been addressed by new Rules introduced by the 59^th Update to the Civil Procedure Rules and as a result much of what I say in paragraphs 14 to 43 is only of historical interest.
14. The Decision of the UT refusing permission to appeal from the 2011 Immigration Appeal Decision of the First-tier Tribunal is not appealable to the Court of Appeal because it is an excluded decision whereas, with permission, a substantive decision of the UT is appealable on a point of law to the Court of Appeal, if the second-tier appeals criteria is satisfied (see the references to the relevant legislation in paragraphs 26 and 27 of the speech of Lady Hale in R(Cart) v The Upper Tribunal; R(MR(Pakistan) v The Upper Tribunal [2011] UKSC 28).
15. The second-tier appeals criteria is that either (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant (appellate) court to hear the appeal. And, as its description indicates, the second-tier appeals criteria set out a permission or filter test. In PR(Sri Lanka) & Others v SSHD [2011] EWCA Civ 988, which is a case concerning an appeal from a substantive decision of the UT (and so not an excluded and so unappealable decision) that post-dates Cart, the Court of Appeal explain and confirm at paragraph 34 that, when the second-tier appeals test is applied by the Court of Appeal in determining whether permission to appeal should be given (e.g. from a substantive decision of the UT):

a. that test is applied at and limited to that stage of the appeal process, with the result that,

b. if permission is granted on the application of that test, on the substantive appeal the question whether it was correctly granted is academic because it is not the test that is applied on the substantive appeal.

16. In Cart the Supreme Court addressed "the scope for judicial review" of unappealable decisions of the Upper Tribunal (see paragraph 1 of the judgment of Lady Hale) and concluded that this was governed by the second-tier appeals criteria or test. In doing so, it adopted a middle course between the rival arguments put to it.
17. When this case was first argued before me, I raised the point whether, having regard to the decision in Cart, I was being invited at this substantive hearing of the application for judicial review to apply the second-tier appeals test or some other test. Of course, the answer to this point is dictated by whether in Cart the Supreme Court decided that on an application for judicial review the Administrative Court in determining whether or not to grant permission had to:

a. apply the second-tier appeals criteria, or

b. determine whether it was arguable that the second-tier appeals criteria would be established at the substantive hearing of the application for judicial review.

And, if (a) is correct the question arises: What grounds, test or criteria are to be applied by the Court in determining the substantive application for judicial review?

18. As is shown by divergent approaches taken by the Administrative Court, the answer to the points is not clear.
19. Also the position of the parties has changed on them during this case. At the first hearing it was accepted by both counsel that I should apply the second-tier appeals criteria in determining the substantive challenge by way of judicial review to the Decision of the UT refusing permission. In doing so, they therefore agreed that the position was different to that on an appeal as explained in PR (Sri Lanka).
20. I was referred to guidance on the application of the second-tier appeals criteria, as a permission or filter test given by the Court of Appeal. In addition to PR(Sri Lanka) I was referred in particular to JD(Congo) & Othrs v SSHD [2012] EWCA Civ 327, and Uphill v BRB (Residuary Ltd) [2005] EWCA Civ 60. From them I derive the following guidance, which is focused on the application of the second-tier appeals criteria as a permission or filter test:

a. The test has inherent flexibility and falls to be applied, in all the relevant circumstances of a given case, against the background that the Claimant has failed twice in the Tribunal system. It is therefore a stringent test which must be higher than that which governs (i) the grant of permission for an ordinary appeal – "real prospect of success" – or (ii) in other types of cases the grant of permission to bring a judicial review which, if permission is granted, will be determined by an application of the public law principles that are generally applied.

b. The point of principle or practice, should not merely be important but should be one which calls for attention by the UT at a substantive hearing of the appeal from the First-tier Tribunal, and so potentially by the Court of Appeal (on an appeal from a substantive decision of the UT, for which permission applying the second-tier appeals criteria would have to be obtained).

c. A compelling reason means a "legally compelling" reason why the issue on which the Claimant has failed twice should be subject to a third legal process, and extreme consequences are not a free standing compelling reason.

d. At the permission stage, this naturally and inevitably introduces a consideration of the chances of success. Normally, at that stage, they should be very high and so justify the view that the case is one that "cries out" for consideration.

e. But, given the exceptional nature of the jurisdiction, in some cases the test, when applied at the permission stage, will be satisfied even though the prospects of success are not very high (but are real as opposed to fanciful) because it would be plainly unjust not to allow the Claimant a further appeal.

21. It was submitted that this guidance informed the application of the second-tier appeals criteria as a substantive test, and therefore that as such it is a high one, and the person seeking to satisfy it has to show that the relevant decision cries out for review or that it would be plainly unjust to let it stand.
22. This common ground, on when and how the second-tier appeals criteria were to be applied, accorded with the "arguability approach" taken by Beatson J in his noted reasoning when giving permission and with the skeleton and oral arguments of both sides
23. At that stage, permission had been given by Wilkie J in R(Kuteh) v The Upper Tribunal AAC [2011] EWHC 2061 but the substantive review had not been decided. As I read that decision Wilkie J, like Beatson J, when granting permission did not conclude that the second-tier appeals criteria were satisfied but that it was arguable that they were satisfied (see paragraphs 4 and 26). This approach was followed at the substantive hearing before HHJ Sycamore [2012] EWHC 2196 (Admin) in that he applied the second-tier appeals criteria in determining that the refusal of permission to appeal should be set aside.
24. So, the approach in Kuteh accords with the approach taken at the first hearing of the substantive review before me.
25. The day after that hearing before me, (R)Essa v (1) Upper Tribunal (Immigration Chamber) and (2) SSHD [2012] EWHC was handed down by Lang J, who records in paragraph 2 of her judgment that:

" Mitting J did not limit the grounds upon which he granted permission to apply for judicial review. It was common ground before me that, once a Claimant had satisfied the court at permission stage that the second appeal test had been satisfied, he was not required to go on to satisfy the court hearing the substantive judicial review that the second appeals test applied, in order to obtain substantive relief"

26. This approach did not accord with the common ground before me and gives rise to the question whether, on a judicial review of an excluded decision of the UT, the second-tier appeals criteria provide a permission test, as on an appeal, or the test that governs the substantive challenge. If it is the former, it appears that in giving permission in this case Beatson J took the wrong approach as did Wilkie J and HHJ Sycamore in Kuteh.
27. So I gave the parties an opportunity both in writing and at a further hearing (followed by more written submissions) to re-address the issue as to what the Supreme Court decided in Cart.
28. The result of this was that the common ground before me changed because the SSHD adopted the position taken in Essa and submitted that, on its correct analysis, Cart provided that the second-tier appeals criteria were to be applied at, and were confined to, the permission stage of a judicial review. With some refinement (which I need not go into) Counsel for the Claimant accepted and argued for that conclusion. I should also record that she asserted that she had argued for this at the first hearing but, if she did, I confess that I missed it.
29. I should mention two further relevant cases, namely:

a. R(Khan and others) v SSHD [2011] EWHC 2762 (Admin), in which Ouseley J gives guidance on the approach to be taken at the permission stage in the light of the decision in Cart, but he does not indicate whether, in his view, at that stage the second-tier appeals criteria are to be applied as the "permission test", or whether at the permission stage the court only considers whether it is arguable that they will be satisfied at the substantive hearing, and

b. R(Nicholas) v UT(AAC) [2012] EWHC 2724 (Admin), which was decided after the final oral hearing before me and the report may well not have been available before the final exchange of written submissions. In that case, permission was given by Foskett J and the substantive hearing was before Haddon-Cave J. Foskett J granted permission on the basis that it was arguable that there was a "collapse of fair procedure". So in line with Kuteh, and Beatson J in this case, he took an "arguability approach". And as I read the judgment Haddon-Cave J applied the second-tier appeals criteria as the substantive test and Essa is not mentioned. (I understand that Claimant in that case is seeking permission to appeal).

Discussion

30. At the first hearing, I raised with the parties the test that they submitted I should apply because I was unclear as to whether on an application for judicial review Cart decided that the second-tier appeals criteria:

a. were to be applied at the permission stage, with the result that they are spent if permission is granted, or

b. were to be applied at the substantive stage on the basis that when granting permission the court had to consider and conclude whether they were arguable.

Having done so, I was content that their common approach that the second-tier appeals criteria were to be applied at the substantive hearing was correct.

31. However, on reflection and on consideration of their further submissions I have changed my mind and concluded that in Cart the Supreme Court has decided that:

a. at the permission stage, the Court is to decide whether the second-tier appeals criteria are satisfied and not whether it is arguable that they will be satisfied at the substantive hearing, and so

b. if permission is granted on that basis (as with a second-tier appeal) the permission test is spent and is no longer the test to be applied at the substantive hearing.

32. Given the divergent approaches in the cases I have referred to I shall explain why I have reached that view, and so why I am content to proceed on the basis of the changed common ground before me.
33. To my mind, there are a number of passages in the judgments in Cart that can fairly be read as supporting the contrary conclusion, i.e. that the criteria chosen by the Supreme Court are to be applied at the substantive stage with the result that, at the permission stage the court is only concerned with whether they are arguable. For example at paragraph 38 where Lady Hale says:

"---- that judicial review in these cases should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted --- "

34. Also:

a. the point that in MR permission to bring proceedings for judicial review had been given and the conclusion of the Supreme Court was that that judicial review should be dismissed (see for example paras 60 and 134), can be said to support the view that the Supreme Court was setting a substantive and not a permission test for judicial review, and

b. the judgment in Eba [2011] UKSC 29, dealing with the position in Scotland does not provide clarity, because of the different procedure in Scotland. But it seems to me that paragraph 49 can be said to point to the conclusion that the second-tier appeals criteria are to be applied as a substantive test and that at earlier stages an arguability approach is to be applied.

35. However, in my view the passages and indications that point to a conclusion that the Supreme Court was identifying the substantive test for judicial review of an excluded and so unappealable decision of the UT are to be read in the context of the point that the arguments that were rejected advanced rival substantive tests whereas the middle course accepted adopted criteria that in the context of:

a. appeals, clearly provide a permission or filter test, and

b. the earlier cases discussed relating to judicial review also addressed the permission stage, or as Dyson LJ described it in Wiles v SSC & Anr [2010] EWCA Civ 258 at paragraph 47 the opening of the door to judicial review.

And, when this is done it seems to me that the thrust of the reasoning and conclusion of the Supreme Court is that the second-tier appeals criteria should be adopted and applied as the permission test to provide a proportionate limit to the availability of judicial review of excluded and so unappealable decision of the UT.

36. Further:

a. At the start of paragraph 38 (referred to above) Lady Hale adopts the reasoning of Lord Dyson, who by reference to the earlier view expressed by him in Wiles and at paragraph 129 is, in my view, taking an approach that is describing a permission or filter test at paragraph 130,

b. The following passages support the view that the Supreme Court was deciding that the second-tier appeals criteria were to be applied as the permission test for an application for judicial review of an excluded and so unappealable decision of the UT:

i. Lady Hale's assertion at paragraph 57 that the courts are now used to applying the test, and her references to applications for permission in paragraph 58,

ii. Lord Phillips' reference at paragraph 61 to acceding to an application to judicially review, to restricting the right of judicial review in paragraph 74, his discussion under the heading "Restrictions to the right of judicial review" and in particular his citations from earlier authority therein and the approach of the courts in those cases to permission, his approach in paragraphs 89 to 92 and his reference in paragraph 93 to: "What are first required are readily identifiable criteria for the grant of permission to seek judicial review",

iii. Lord Brown's references to permission at paragraphs 98 and 101,

iv. Lord Clarke's references to the permission stage and test working well in the Court of Appeal at paragraphs 104 to 106, and

v. Lord Dyson's reference to his earlier view and to proportionality at paragraphs 129, 130 and 133.

c. A permission or filter test is in line with the overarching issue as expressed namely: What is the scope for judicial review? Are such unappealable decisions refusing permission to appeal amenable to judicial review? It is also in line with the proportionality approach and thus, as Lord Dyson says at paragraph 133, having earlier discussed the second-tier appeals criteria as a permission test:

" More positively in my view the second-tier appeals approach provides a proportionate answer to the question: what scope of judicial review of unappealable decisions of the UT required to maintain the rule of law?"

d. The criteria were designed and have been used as a filter test and as such fit more easily into the scheme and nature of an application for judicial review in that it is easier to apply them to reject claims at the permission stage by reference to the nature of the error of law etc alleged than it is to apply them as a substantive test and so create the prospect that at a substantive hearing an error of law is established but it cannot found a decision in favour of the Claimant because is not sufficiently serious or far reaching.

e. If the second-tier appeals criteria set the permission test for judicial review this is in line with the position on appealable decisions of the UT.

37. On that analysis, the Supreme Court is silent on the available grounds for judicial review in a case where permission applying the second-tier appeals criteria has been granted. And, if that is so, it cannot be applied again at the next stage as the substantive test.
38. In my view, that analysis of Cart means that the position set out in paragraph 34 of PR in respect of an appeal (see paragraph 15 above) also applies at the substantive stage of an application for judicial review.

The impact of the point that Beatson J took an arguability approach

39. The SSHD did not argue that as Beatson J took this approach, the filter provided by the second-tier appeals criteria has not been applied and so I should apply it now. To my mind, such an argument might have some legal merit and may be available in other cases. It would probably include an argument that Cart decides, on a jurisdictional or constitutional basis, that relief by way of judicial review cannot be granted unless at some stage in the proceedings the Claimant has satisfied the court that the second-tier appeals criteria are satisfied. But a counter argument is that, as on an appeal, if in the view of the court dealing with the substantive hearing permission should not have been given for any reason (including the application of the wrong test), the fact that it has been granted is an end of the relevance of that filter.
40. As these arguments were not pursued before me on behalf of the SSHD, I propose to adopt the changed common ground and proceed on the basis that the grounds for a successful review are not limited to the second-tier appeals criteria, and that I have to apply the well established grounds for judicial review in determining whether the Decision of the UT refusing permission to appeal should be set aside.
41. This approach is favourable to the Claimant and renders academic arguments advanced on behalf of the Claimant by reference to Essa and R (on the application of Lichfield Securities Ltd v Lichfield DC [2001] EWCA Civ 304 that as Beatson J had given permission I should not and could not re-visit it, or the second-tier appeals criteria because to do so would serve no pragmatic or other purpose and would not be in line with the principles of good administration.

The test to be applied by the UT judge on an application for permission to appeal to the UT

42. So, my conclusion on the impact of Cart means that in determining this judicial review I have to consider whether the Decision of the UT refusing permission to appeal, or the decision making process relating to it, are flawed by applying the well established grounds for judicial review. In doing so, I accept the point raised by the SSHD that a factor to be taken into account is that a result of the legislative scheme is that the UT has specialist expertise in this jurisdiction.
43. The challenge in this case is essentially that the UT failed to properly apply the test to be applied by the UT in considering whether to give permission to appeal. The UT can give permission if there is an error of law (s. 11 TCEA 2007). Guidance has been given by the President of the UT(IAC), Blake J, on the application of this test and on the approach to be taken by the UT when applying it. This is not an authoritative statement of law but I respectfully comment that, in my view, it is an accurate and helpful one that provides useful guidance. I have had particular regard to and applied paragraphs 8 (types of appeal), 12 (arguable error of law) and 14 (relevance of prospect of success) in considering whether the grounds advanced by the Claimant found the conclusion that SIJ Warr failed to properly apply that test. As to error of law, Blake J in that guidance mentions R(Iran) [2005] EWCA Civ 982 and approach to this ground is also summarised in Macdonald's Immigration Law and Practice, 8^th edition at paragraphs 20.7 to 20.11.

The grounds relied on by the Claimant

Ground (a) – there was an error of law and an important point of principle or practice in the approach taken to the findings of the Family court, which also gives rise to important points of principle or practice

44. Important points of principle or practice. The arguments that the alleged error of law relates to an important point of principle or practice now falls away. But as the case was argued on this basis I record that if this ground had been directed to the approach taken to the Article 8 Grounds in the 2009 Appeal Decision it seems to me that, subject to the point that the issues of practice and principle involved were primarily a matter for Government, there would have been much to be said in favour of the assertion that an important point of principle or practice arose, because:

a. The approaches of the public authorities and courts concerned with the administration of family justice, and the exercise of duties and powers under the Children Act 1989, are different to those applied by the public authorities, courts and tribunals concerned with immigration.

b. In particular, (i) in family proceedings and decision-making the welfare of the child is paramount, whereas under s. 55 of the Borders Citizenship and Immigration Act 2009 and Article 3(1) of the UNCRC the best interests and welfare of the child are a primary consideration, and (ii) the approach to Article 8 in the two jurisdictions is not the same because immigration policy is not a factor that falls to be taken into account in applying the paramountcy test.

c. Further, an immigration decision takes priority over a family decision in the sense that the latter cannot deprive the Secretary of State of the power to remove a child or anyone else from the UK (see for example Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam); [2003] 2 FLR 921 at paragraphs 41 to 53).

d. Anyone involved in the family justice system or social services is very aware that a great many cases involve children who, and whose parents, have no right to remain in this country and that these cases result in considerable time, effort and cost being expended that could be deployed on other families if immigration decisions resulting in the removal of the family were made and enforced earlier. Further, the uncertainty as to whether family members will be permitted to remain in the UK, or will be removed, adds complications to the family proceedings and decision making. This is reflected in Re M & N (Parallel Family and Immigration Proceedings) [2008] EWHC 2281 (Fam), and an exchange of correspondence I instigated in 2005 led to a letter dated 11 November 2005 from the Home Office to the Office of the President of the Family Division in which it was said:

"Following discussions with the relevant parties, Ministers have agreed that when dealing with the immigration status of children who are the subject of care proceedings, the Home Office should, wherever possible, make a decision prior to the commencement of those proceedings. This would have the advantage that the Court would know the intent of the Home Office and this can inform their decisions. Where Court proceedings have already started and the Court so requests, the Home Office will seek to give an indication as to the likely outcome of the relevant immigration application"

This relates to care proceedings, and not private law proceedings such as those that existed here. And, my later experience is that this policy, practice or approach is not generally applied pursuant to the protocol called "Communicating with the Home Office in Family Proceedings" unless the court presses for such information.

e. So, in many cases, public and private law family proceedings, at considerable expense in terms of both cost and manpower, are effectively directed to putting in place a holding position the continuation of which is subject to the immigration decision.

f. It follows that there is much to be said for an approach in which the immigration decisions, applying s. 55, and the guidance given in ZH Tanzania v SSHD [2011] UKSC 4 and Tinizray v SSHD [2011] EWHC 1850, are accelerated to minimise the period of uncertainty for children and to avoid the family justice system having to reach decisions, sometimes described and approached as final decisions, against the background of an uncertain immigration position.

45. I therefore express the hope that if and when the Family Justice Council produce guidance with the Immigration Tribunal it will address the approach to be adopted when there are concurrent immigration issues and family proceedings. Any such guidance will clearly involve budgetary and timing issues relating to the application of hard pressed public authorities responsible for operating two systems that can have profound and life-long impact on children and their families.
46. Error of law. As mentioned earlier there were no orders in the family proceedings that prevented the removal of the children from the UK by any person other than their father and it is not easy to see how any such order could have been continued so as to thwart an immigration decision. So, it seems to me that, the reasoning that underlay the 2009 Appeal Decision to allow the Claimant's appeal on human rights grounds was, at least arguably flawed. But that is now water well under the bridge and by the times that (a) the Claimant made her application to extend her discretionary leave, and (b) the decisions triggered by that application were made culminating in the 2011 Immigration Appeal Decision and the Decision of the UT refusing permission to appeal (and so the decisions that are the subject of this application for judicial review), there were no concurrent family proceedings.
47. It should also be remembered that historically:

a. no welfare decision had been made in the family proceedings on the basis of findings of fact or after a contested hearing on submissions;

b. the Residence Order had been made on a without notice basis and would have been re-considered if the final hearing set in the family proceedings had taken place because Mr S had challenged it by seeking a residence order himself or a shared residence order;

c. so, all that had happened in the family proceedings was that orders had been made on a without notice basis (which may have been continued or confirmed on the basis of firstly disputed allegations, and then against the background of the Fact-Finding judgment);

d. the Fact Finding Judgment was limited to five incidents of domestic violence by Mr S against the Claimant which were spread out over a number of years and none of them concerned violence to the children, although the children may have witnessed some of the incidents, and

e. none of them related to, and so HHJ John made no findings in respect of, the then recent events that had triggered the without notice applications in November 2008, including the matters underlying a letter from Havering Women's Aid or the reasons why the police had not disclosed the whereabouts of the Claimant to her husband (as to which I add that for understandable reasons such a course is often taken if there are allegations of domestic violence; and there was no evidence before HH Judge John to the effect that the police had photographs or other evidence indicating that the Claimant had been a victim of domestic violence).

48. All incidents of domestic violence are serious and can cause significant harm to children who witness them, but the nature of the findings in this case put them at the less serious range of such findings. This is reflected in the findings themselves and the clear message, appropriately given by HHJ John, that it was likely that the court would order that there was to be direct contact between the children and their father.
49. As recognised by HH Judge Jarman QC, when refusing permission on the papers, at the heart of this point is an attack on the finding of the Immigration Judge based on the email exchanges in 2010 that the father had not expressed any wish to take the children away from their mother (paragraph 48 of the 2011 Immigration Appeal Decision). At paragraph 46 IJ Crawshay had recorded and recognised the findings of fact made by HH Judge John in the family proceedings. But, it is argued that he erred in law in not having proper regard to the credibility findings and the orders made in the family proceedings and that if he had done so the conclusion he reached on the intention and likely actions of the father should and so would or may have been different. It was also argued that guidance was needed concerning the approach to be taken to earlier findings and orders in the family court.
50. I reject this attack. I acknowledge that other judges may have taken a different view on the impact of the emails but in my view the finding made by reference to the emails was open to the IJ and he did not err in law in making it.
51. He recognised the existence of the findings in the family court and thus the proceedings. As I have mentioned, the orders of the Family court were made without notice and against a background of disputed facts, the findings of fact left a number of issues in dispute and HH Judge John recorded that the findings and disputed allegations were unlikely to found a result that the father should not have contact. The family proceedings, and so the without notice orders and the findings made in them are background to the fact finding exercise of the IJ. In my view, Devaseelan v SSHD [2002] UKIAT 00702 in particular at paragraphs 37 to 42 gives helpful guidance on the approach to be taken to such findings, orders and their consequences (e.g. the children have lived with their mother pursuant to interim orders). That guidance accords with the general approach to be taken to fact finding in later and different proceedings and contexts when earlier findings have been made. In my view, the arguments that further guidance was needed in respect of the earlier findings and orders in family proceedings were without merit. The position is that the existing law provides the answer and to, for example, both earlier findings of fact and findings on welfare (before and after a full hearing in the family court). I would add that the existing law also provides the answer to the approach to be given to earlier credibility findings, and this includes account being taken of the Lucas direction (R v Lucas [1981] QB 720), namely that a conclusion that a person is not being truthful about point A does not mean that he is not being truthful about point B.
52. Here there were no welfare decisions applying the paramountcy test after a contested hearing and limited findings of fact in respect of which the mother had been found to be credible and the father had not. But those findings, and the point that when he was in England the father was seeking a residence order, do not found a conclusion that the father was not being truthful in the emails or that in relying on them as he did the IJ erred in law.

Ground (b) – there was an error of law in failing to take into account or properly into account other compelling evidence

53. This is linked to, and has to be considered together with, the argument relating to the approach taken to the findings and orders made in the family court. The Claimant relied on the decision in Kuteh (and the cases cited and relied on therein at paragraphs 43 to 51) to support her argument that IJ Crawshay erred in law by failing to have any or any proper regard to the combination of the family findings, orders and information before the family court, an email to a women's organisation in Kenya asking for advice in family law and identifying that the father's mother is Luhya, the opinion of a Kenyan barrister and the quite extensive objective country information and as a result reached a finding of fact on the position of Mr S that was not properly open to him. It was argued by reference in particular to the citation at paragraph 51 in Kuteh from PH v The Independent Safeguarding Authority [2012] UKUT 91 (AAC) and SB v The Independent Safeguarding Authority [2011] UKUT 404 (AAC) that the 2011 Immigration Appeal Decision was disproportionate when considered in the light of all the evidence. From those starting points it was argued that the SIJ erred in law by failing to recognise that those errors of law were at least arguable and merited the grant of permission to appeal.
54. This argument, like that focused on the family proceedings, relates to the Article 8 argument put on behalf of the Claimant to the effect that she and children would be separated in they were to be returned to Kenya. To my mind, it is clear from the references to this Article 8 argument, and the materials before the IJ Crawshay, that it cannot be said that he did not have any, or any proper, regard to any part of parts of the totality of the evidence relied on by the Claimant in the bundle, in skeleton argument, evidence and oral submission. Nor can it be said that having regard to that, and the earlier finding of IJ Alakija, that his conclusion that the Claimant had failed to establish that if she and the children were returned to Kenya there was a real risk that they would be separated, was not open to him on the evidence or was disproportionate. This is so, notwithstanding his acceptance of the points advanced by the Claimant that in Kenya there is corruption in the court system and discrimination of women. Indeed, that acceptance is to my mind a clear indication that IJ Crawshay had regard to the totality of the case advanced on the risk of such separation occurring and did not simply rely on the earlier decision or ignore parts of the Claimant's case.
55. Further, the core of the reasoning of the 2011 Immigration Appeal Decision is not that the risk factors relied on by the Claimant based on the totality of the material she put before the tribunal did not exist, but that they did not establish the existence of the risk for her and her children because of the findings about her and the father of the children set out in paragraphs 48 and 49 of the Decision.

Pausing there

56. It follows that in respect of these grounds, which reflect the way in which the case was argued before IJ Crawshay and in seeking permission to appeal, I agree with SIJ Warr that there was no error of law meriting the grant of permission to appeal and so reject the challenges by way of judicial review to the Decision of the UT refusing permission to appeal.

Ground (c) – there was an error in law in failing to properly consider s. 55 of the Borders, Citizenship and Immigration Act 1999 (s. 55) and the welfare of the children

57. Under this ground the Claimant argues that there would be, or arguably would be, a breach of Article 8 for different reasons to those advanced up to, and at the time of, her application for permission to appeal. So, even though represented she argues that this alternative argument should have been considered by the First Tier Immigration Tribunal, and its failure to do so and the failure of the UT to identify this omission, is an error of law.
58. This alternative argument is that removal of the children (or one of them) from the United Kingdom per se (and so on the basis that they would be able to and would live with and not be separated from their mother in Kenya) would be a breach of Article 8 and that a failure to consider this aspect of the children's Convention rights amounted to a failure to properly comply with the arrangements made pursuant to s. 55 (which came into force on 2 November 2009) to have regard to the need to safeguard and promote the welfare of children who are in the UK. Prior to that, the House of Lords in Beoku-Betts v SSHD [2008] UKHL 39 and [2009] AC 115 had made it clear that the Article 8 rights of all relevant family members must be taken into account when considering the application of Article 8.
59. Guidance on the approach to be taken to have proper regard to the need to safeguard and promote the welfare of children who are in the UK was given by the Supreme Court in ZH Tanzania v SSHD [2011] UKSC 4 by a judgment dated 1 February 2011, and thus shortly before the hearing before IJ Crawshay on 14 February 2011. It is not known whether or not the relevant representatives were then aware of this judgment. Given its importance it is likely that they would have been but, in any event, the possibility that an Article 8 claim could be advanced on this basis was well known at that time.
60. It is clear that this aspect of a potential Article 8 claim was not raised by the Claimant before the Immigration judges and this falls to be assessed against the background that s. 55 was expressly referred to in the Second Refusal Letter (dated 15 November 2010) which includes the following paragraphs, after an express reference to s. 55:

"19. In essence the duty placed on the UKBA, is the need to consider the "best interests" of any child in the United Kingdom when making a decision which will either directly or indirectly affect the child.

20. The underlying principle in relation to children is to keep families together and to promote the continuity of their social and cultural environment. It is noted that [W] has integrated into school life in the UK. However, given that your claim for asylum, humanitarian protection and other forms of leave in the UK have found to be without merit, the appropriate course is considered to be that he should return together with you and his younger brother I, as soon as possible to put an end to the uncertainty of his situation and delays in return to Kenya. As he will be returned with you and the rest of the family, it is considered that he will be able to access your support and comfort during a return to Kenya and when settling into your live in Kenya. It is considered that [W] will also be able to re-adapt back to school life and life in general in Kenya -------"

61. To my mind, this passage shows that the decision maker did have regard to the alternative that return to Kenya per se of the children (and in particular W who was then 9 years old) engaged and might found an Article 8 claim by the Claimant, W and I (who was then 2 years old). The argument is one that in broad terms attaches importance to place/environment and in this letter the obvious connection with schooling and W's integration into English life between the ages of 6 and 9, and its disruption if he was to be returned to Kenya with his mother, is considered.
62. At no stage has the Claimant advanced any further aspects of the lives of the children that merited consideration, or any other enquiries that she asserts should have been made, or should be made, directly with the children or with others about them, by or on behalf of the SSHD, the Tribunals or the Court.
63. To my mind, the clear indication from this is that this alternative argument was not raised because it was recognised that it had no merit. But that is speculation and in any event, in my view, the absence of a challenge to this consideration of the potential Article 8 claim and thus the argument now relied as a late entry into the case, is a factor in favour of the conclusion I have reached that, although it has a theoretical base, this argument has no substance in the circumstances of this case.
64. In line with the Decision of the UT refusing permission to appeal, it was argued on behalf of the SSHD that IJ Crawshay had closely and thoroughly considered the position of the children and so all aspects of their Article 8 claim. I agree that this is the case in respect of the claim as put but I accept that it is at least arguable that a fair reading of the Immigration Appeal Decision shows that the IJ did not consider this possible aspect of the claim. For example, his reference to "flagrant breach" is clearly a reference to EM (Lebanon v Home Secretary [2009] 1 AC 1198 at paragraph 45, and thus the way in which the Article 8 argument was put (i.e. breach in Kenya).
65. I shall proceed by assuming in favour of the Claimant and her children that this possible aspect of an Article 8 claim was not considered by the IJ or the SIJ. That, of itself, is not an error of law because it was not advanced on behalf of the Claimant and her children and the question arises whether it was a "Robinson" obvious point and thus one that should have been identified and raised by them (see Robinson v SSHD [1997] Imm AR 568, [1998] QB 929 at 945-6 and Macdonald's Immigration Law and Practice 8^th edition paragraphs 19.14, 19.70 and 20.66). Some support for the view that it was such a point is to be found in SS (Sri Lanka) v SSHD [2012] EWCA Civ 945, in particular at paragraphs 16 and 17 (citing from DS(Afghanistan) v SSHD [2011] EWCA Civ 305). It is also to be noted that in SS the Court of Appeal concluded that the second-tier appeals test was satisfied in respect of such an argument because, although by itself the point that the decision affected children was not enough, the Court of Appeal concluded that whether the tribunal should have raised grounds relating to the best interests of the children raised an important point of principle, and there was a compelling reason because of the lack of explicit consideration of the best interests of the children (and by analogy here to an aspect of it). But, for the reasons given earlier I do not have to consider whether in the circumstances of this case this ground would satisfy the second-tier appeals test.
66. However, in my view the point that here the Second Refusal Letter did address this alternative, means that in the absence of:

a. any indication that there was or would be likely to be on enquiry further material that would be relevant in respect of this alternative basis, or

b. any appeal or argument advanced in respect of it,

the FtT and UT did not err in law because they did not raise it or deal with it expressly.

67. Put another way, the time that the children had been here and W's age had alerted the decision maker at the SSHD to consider and refer explicitly to this line of argument and it is from that base, together with the absence of a challenge to or comment on that part of the appealed decision of the SSHD, that the passages relating to the role of the Tribunal (referred to in paragraph 16 of SS) have to be applied. And, when this is done the point cannot be said to be Robinson obvious or one that for any other reason the FtT or UT should have raised and dealt with.
68. I have not forgotten that in SS the substantive appeal failed. But that does not lead me to conclude that the Claimant should be allowed to succeed at this stage by reference to an "arguability test" to enable this alternative line of argument to be tested on a substantive appeal before the UT. As to this, although to be "Robinson" obvious a point does not have to have a strong prospect of success (see again Macdonald at paragraph 20.66), the guidance given by Blake J in respect of the relevance of the chances of success on the substantive appeal before the UT, if it gives permission, is relevant and in my view an application of that guidance, by reference to the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 which he refers to (see Rule 2), supports the conclusion I have reached because the evidence available to the FtT and the UT indicates that this un-advanced alternative had no real prospect of success. Further, that view is supported by the conclusion reached on the substantive appeal in SS based on the findings made by the FtT on the preservation of family life on a return to Sri Lanka (see paragraphs 22 and 24) because the analogous finding in this case is that the Claimant had failed to establish that there was a real risk that she and the children would be separated if they were to be returned to Kenya.

Conclusion

69. I dismiss this application for judicial review.

Postscript

70. When this judgment was circulated in draft it was pointed out to me that the 59^th Update to the Civil Procedure Rules which came into force on 1 October 2012 (and so after the hearings before me) introduce a procedure in respect of applications for judicial review of non-appealable decisions of the Upper Tribunal following Cart. Rule 54.7A(7) provides:

"(7) That the court will give permission to proceed only if it considers –

(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and

(b) that either -

(i) the claim raises an important point of principle or practice; or

(ii) there is some compelling reason to hear it."

71. I am relieved that my interpretation of that rule is that it complies with the conclusions I have expressed above, because sub-rules (7) (a) and (b) are conjunctive, and (b) provides that the second-tier appeals criteria is to be applied at the permission stage to the arguable error(s) of law mentioned in (a).
72. Further, in my view the language and effect of the rule supports the conclusion that, as with permission to appeal, once the second-tier appeals criteria have been satisfied at the permission stage, they and thus sub-rule (7)(b) are spent, and at the hearing for which permission has been given the judicial review court considers the arguable error(s) of law mentioned in (7)(a).
73. So, for the future this rule renders much of my discussion triggered by the different approaches taken to Cart of only historic interest.