QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
on the application of
HS and Others
| - and
|The Upper Tribunal
(Immigration and Asylum Chamber)
Secretary of State for the Home Department
Mona Bayoumi (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: 30 May and 17 July 2012
Crown Copyright ©
Charles J :
" ------------- 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."
" [ 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".
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
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.
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?
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.
" 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"
a. R(Khan and others) v SSHD  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)  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).
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.
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.
"---- 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 --- "
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  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.
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  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.
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.
The impact of the point that Beatson J took an arguability approach
The test to be applied by the UT judge on an application for permission to appeal to the UT
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
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)  EWHC 1086 (Fam);  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)  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  UKSC 4 and Tinizray v SSHD  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.
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).
Ground (b) – there was an error of law in failing to take into account or properly into account other compelling evidence
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
"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 -------"
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.
"(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."