England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		20th December 2012

Mr Justice Hickinbottom:

1. In this application, by way of judicial review, the Claimant Sohail Amir challenges the decision of the Upper Tribunal of 8 February 2012 refusing him permission to appeal a determination of the First-tier Tribunal promulgated on 21 November 2011, which dismissed his appeal against the Secretary of State's decision of 21 September 2011 to refuse his application to revoke a deportation order that had been made against him.
2. The background to the claim is as follows.
3. The claimant is a national of Pakistan. He entered the United Kingdom on 21 March 2007, having obtained entry clearance as the spouse of a British national. He and his wife have two children, born on 16 January 2007 and 27 March 2010 resepctively, also both British nationals.
4. In June 2009, charged with his wife, the Claimant was tried at Bradford Crown Court of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861, a crime involving the stabbing of a neighbour, which the Claimant denied. He was convicted on 12 June and, on 30 June 2009, sentenced to four years' imprisonment. His wife, as I understand it, was convicted of an offence under section 20, and received a non-custodial sentence. The Claimant's sentence being in excess of 12 months, on 6 January 2011 a deportation order was automatically made against him pursuant to section 32(5) of the UK Borders Act 2007.
5. The Claimant applied for the revocation of the deportation order, which the Secretary of State refused. The Claimant then appealed against that refusal on the ground that to remove him from the United Kingdom would interfere with the right of himself and his family members in the United Kingdom (including, of course, his children) to respect for family life under Article 8 of the European Convention on Human Rights. That appeal was refused by the First-tier Tribunal (Immigration Judge Laws and Mrs Schmidt) on 31 March 2011, in a determination in which the tribunal considered the Claimant's case that his deportation would separate him from his wife and children, fully in the light of section 55 of the Borders, Citizenship and Immigration Act 2009 and the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4. Despite the interests of the children and the respect for family life that the claimant and his family members, were all due, after anxious consideration the tribunal found that the decision to make a deportation order was lawful and his removal would be a proportionate interference with those human rights.
6. Permission to appeal that decision was refused by the First-tier Tribunal on 17 May and the Upper Tribunal on 2 June 2011. In the Upper Tribunal, the judge (Senior Immigration Judge Kekiç) noted, with some justification, that the First-tier Tribunal in its determination "gave great care to the issue of family life and the possible separation of the family". The Claimant sought to judicially review that refusal of permission. Permission to proceed was refused on paper, and again at a renewed oral permission hearing on 16 August 2011. In the course of those proceedings, HHJ Raynor QC sitting as a judge of this court observed that the Upper Tribunal's refusal to grant permission to appeal was "not even arguably impugnable". Again, if I might respectfully say so, I agree. It seems to me that the claim for judicial review lacked legal merit.
7. However, between the refusal on paper and the refusal at the oral hearing, on 25 July 2011 the Claimant claimed asylum. The contents of the interviews he gave in that connection, and further representations made by him on Article 8 grounds, were properly treated by the Secretary of State as an application to revoke the deportation order. As I have already indicated, that application was refused on 21 September 2011. In refusing the Claimant's human rights claim, the decision letter referred to the findings of the First-tier Tribunal only six months before, and noted that all the material relied upon by the Claimant was before that tribunal except (i) there was a letter from the NHS indicating that the Claimant's wife had attended hospital on 9 August 2011 complaining of chest pains: it was a single complaint for which she was discharged that day, and (ii) there was a letter from a knitware company indicating that they would be willing to engage the Claimant in employment in the future. The decision-maker considered that none of that amounted to new evidence which the tribunal had not previously considered.
8. If that had been only that claim, then, inevitably the claim would (it seems to me) have been treated as a claim other than a fresh claim under paragraph 353 of the Immigration Rules, and it would have been certified as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002, thereby depriving the Claimant of a right of appeal. However, the claimant was granted an in-country right of appeal on the basis that, whereas the Article 8 claim relied upon nothing materially new over and above that which was before the tribunal in March 2011, it was arguable that the asylum claim was both new and could not have been raised before. Thus, the Claimant did obtain a right of appeal to the First-tier Tribunal, which he exercised.
9. That appeal was heard by the First-Tier Tribunal (Immigration Judge Eldridge and Mr Griffiths) on 1 November 2011, with the tribunal promulgating its decision on 21 November. The appeal was dismissed. The main burden of the appeal lay in the Claimant's asylum claim, and his parallel claim that to return him to Pakistan would breach his Article 3 rights. Those claims, however, were not only dismissed, but are no longer pursued.
10. The Claimant also took the opportunity to appeal the refusal of his Article 8 claim. That appeal was dismissed, and it is that dismissal which lies at the root of the claim now before this court.
11. In respect of the Article 8 claim, the tribunal said this:

"70. The Appellant's claim under Article 8 in respect of his family and private life has been litigated four times in a little over six months.

71. The Panel that determined the first appeal in March 2011 were found by Senior Immigration Judge Kekiç to have given great care to the issue of family life and the possible separation of the family and she also found that they were entitled to reach the conclusions that they did and to dismiss the appeal on Article 8 grounds. His Honour Judge Raynor QC sitting in the Administrative Court found that Senior Immigration Judge Kekiç's refusal of permission to appeal was not 'even arguable impugnable'.

72. We have no intention of re-opening the full Article 8 arguments. In our judgment appellants cannot seek time after time to re-open issues already determined after a full hearing. It is right, however, that human rights issues must be determined at the time they are before the Tribunal and we have looked to the issues that might be said to be new and have carried out the balancing act described by the House of Lords in Huang & Ors v SSHD."

12. The tribunal then set out six matters which were said by the Claimant to be new or different from those before the tribunal in March 2011, and indicated why they did not materially change the position from then. Only one of those factors related to the Claimant's children, namely a letter from the school of the older child. The Tribunal dealt with that letter at paragraph 80 of their determination thus:

"... [W]e considered the letter from the Deputy Head of [the child's school]. This is the school at which the older child, [S], is a young pupil. He is now aged five and will be six in January 2012. He is reported as suffering from several difficulties at school. Unhelpfully, the nature and degree of these difficulties are not explained. The school believes that [S] is suffering 'seperation (sic) anxiety' because of his father's incarceration. We would be surprised if this young boy was not missing his father, but we do not accept that the Appellant's wife is bringing up the children on her own. She clearly has the support of her mother and sister - they all live around the corner from each other and have spoken of their closeness. [S] was born whilst the Appellant was in Pakistan, and as the Panel described at paragraph 43, 'his period of hands on contact was limited by his later arrival in the United Kingdom, and his incarceration following the commission of his offence'. The Panel went on to note that the only contact for the younger child has been whilst the Appellant has been in prison (now detention). Essentially, this remains the position although a further six or seven months have passed. We found this letter took matters no further."

In respect of all six of allegedly new matters, the Tribunal concluded in paragraph 84 that none raised anything of significance that could alter the decision reached by the tribunal panel in March 2011, and subsequently endorsed by the Upper Tribunal and twice by this court, saying:

"We are not an appeal court yet again considering the issues afresh."

13. The First-tier Tribunal refused permission to appeal, as did the Upper Tribunal (Senior Immigration Judge Warr) on 8 February 2012. It is that refusal by the Upper Tribunal that is now challenged.
14. An application to judicially review a refusal of the Upper Tribunal to grant permission to appeal from the First-tier Tribunal can only be made on second-tier appeal grounds, i.e. on the basis that the challenge raises an important point of principle or practice, or there is some other compelling legal reason to allow the challenge to proceed (R (Cart) v The Upper Tribunal [2011] UKSC 28). The importance of any challenge addressing those issues specifically, clearly and succinctly, was stressed in R (Khan) v The Upper Tribunal and Secretary of State for the Home Department [2011] EWHC 2763 (Admin) in which Ouseley J gave practical guidance to those involved in such potential challenges.
15. In this claim, Mr Nazar Mohammad for the Claimant concedes, if I might say so with grace, propriety and wisdom, that this application does not fall within the first limb of that test: that is, he concedes that an appeal would not raise any important point of principle or practice. However, he contends that there is "some other compelling reason that the appeal be heard".
16. The second limb was considered in R (PR (Sri Lanka) & Others) v Secretary of State for the Home Department [2011] EWCA Civ 988 (in which the Court of Appeal heard three consolidated appeals raising similar issues), and also in JD (Congo) & Others v Secretary of State for the Home Department [2012] EWCA Civ 327. No application for judicial review on the ground that there is some other compelling reason that an appeal should be contemplated, yet alone issued, progressed or heard, without proper consideration of these important authorities and the guidance they give. It is clear from PR that for a case to fall within the second limb will be an exceptional and rare occurrence. The Senior President of Tribunals, Carnwath LJ (as he then was), giving the judgment of the court, said this (at [35]-[36]):

"35. Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be 'very high', or (as it was put in Cart para 131) the case should be one which 'cries out' for consideration by the court. The exception might apply where the first decision was 'perverse or otherwise plainly wrong', for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it 'plainly unjust' to refuse a party a further appeal, since that might, in effect, deny him a right of appeal altogether'. In Cart Lord Dyson, following Laws LJ, characterised such a case as involving 'a wholly exceptional collapse of fair procedure' (para 131). Similarly, Lord Hope in Eba referred to cases where it was 'clear that the decision was perverse or plainly wrong' or where, 'due to some procedural irregularity, the petitioner had not had a fair hearing at all'.

36. It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words 'compelling' means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

Whilst it would be unnecessary and wrong to attempt comprehensively to prescribe the categories of case that might fall within this limb, that passage gives a clear indication of the degree of exceptionality for which the courts will look. However, those comments were made in the context of the test for "some other compelling reason" in the court system. The Senior President went on to stress the particular narrowness of the exception in the second-tier of the tribunal system, which has a hallmark of judicial specialist expertise.

17. The case of JD, which chronologically followed PR, does not detract from those comments; but adds, as is implicit in PR, that, although the test is a stringent one, it is and must be sufficiently flexible to take account of the particular circumstances of the case to ensure that no injustice is done (see paragraph 23 per Sullivan LJ, giving the judgment of the court).
18. Whilst of course cases will depend on their own facts, how the Court of Appeal dealt with the argument concerning the interests of the children in a particular case is instructive. The issue was raised in the case of TC (Zimbabwe), one of the three consolidated appeals heard together under the umbrella of PR. One ground of appeal in TC was that inadequate regard had been given to the interests of the children of the claimant, who had entered the United Kingdom to be with his wife. They had a son, a British citizen, although unfortunately in that case the marriage had broken down, and the claimant had later had two children by a different partner. The submission in that case was, much as in the case before me, that, in considering the reasonableness of return to Zimbabwe, the Senior Immigration Judge had failed to have proper regard to ZH (Tanzania) with its emphasis on the primary importance of the interests of the children, particularly if they are British citizens. Carnwath LJ dealt with that issue summarily in paragraph 64 thus:

"As to the other points, they are points of detail not principle. Overall, the SIJ placed weight on the interests of the children, but greater weight on the seriousness of the crime (para 53-4). Such points, even if realistically arguable, do not amount to "compelling" reasons justifying the exceptional course of a second appeal to the Court of Appeal."

19. With that background, I now come to the ground relied upon by Mr Mohammad in this case. Leaving aside the general contention infused in the grounds and the skeleton argument that the First-tier Tribunal gave inappropriate weight to the interests of the claimant's children – clearly a matter for the Tribunal, and equally clearly insufficient to found an argument that there is a compelling reason for an appeal to be heard –, Mr Mohammad submitted that the First-tier Tribunal erred in law by failing to have proper regard to the welfare of the children, as required by section 55 of the 2009 Act, particularly in the light of the fact that the two children are British citizens. Given the primacy of the interests of the children, as I understood the submission, he contended that on the second occasion the tribunal ought to have reconsidered all matters going to the Article 8 balancing exercise required by Huang afresh; and they erred in law in not doing so.
20. Mr Mohammad deployed the same eloquence before me that he clearly deployed before the Deputy Judge, who in its face was tempted to grant permission to proceed. However, for the following reasons, I am unpersuaded.
21. First, although Mr Mohammad accepted that the guidance in Devaseelan [2004] UKIAT 282, particularly at paragraph 37(1), is still good, the submission in substance contends that the starting point for the second tribunal was something other than the First-tier Tribunal's findings in the March 2011 determination. However, those findings were precisely the correct starting-point. In Devaseelan, the Immigration and Asylum Tribunal held in relation to such second tribunal appeals on human rights grounds:

"The first Adjudicator's determination should always be the starting point" (both levels of emphasis from the original).

There may be no room here for the rule of res judicata, but unless justice requires a different course (see LD (Algeria) (also known as Djebbar) [2004] EWCA Civ 804 at paragraph 30, and also to an extent the case of JD to which I have already referred), parties to a tribunal determination must generally regard any matter between them as finally settled by a determination of a competent tribunal (see AS and AA (Effect of previous linked determination) Somalia [2006] UKAIT 00052 at paragraph 60, approved by the Court of Appeal, [2007] EWCA Civ 1040 at paragraph 20). The Court of Appeal have repeatedly confirmed the principle that the second tribunal should have regard to the earlier decision as a starting point. In Djebbar, at paragraph 40, the Court of Appeal specifically declined to redraft the guidance given in Devaseelan. All of the Devaseelan guidance to which I refer in this judgment has been the subject of the same endorsement by this court and the Court of Appeal in those and many other cases.

22. Taking the March 2011 determination as a starting point, the second tribunal were correct to identify anything material that was new, i.e. anything that was not before, and taken into account by, the earlier tribunal which might have affected the findings and conclusions of that tribunal had it been before them. That approach is set out and endorsed in the Devaseelan guidance, especially at paragraph 39(2). The tribunal here, as I have described, identified the six matters which were, the Claimant contended, new or different. For the reasons I have given, they were entitled to take the view that none of those matters individually or in aggregate were material and clearly so. The time between the two considerations of the tribunal was no more than six months, and it is unsurprising that the second tribunal found that nothing of any substance or materiality had changed in that short time.
23. In my judgment, they were not only entitled to come to that conclusion, they were clearly correct to have done so. On the evidence, that conclusion was inevitable. Simply because children, and children's rights, were involved in this case does not require any departure from the principles which I have described. In those circumstances, the Devaseelan guidance goes on to state at paragraph 39(6):

"If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the Appellant' at the time of the first determination. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion."

In other words, the second tribunal were entitled to make their findings in line with the earlier determination. Indeed, without good cause to depart from them, it was bound to do so. Again, the tribunal's conclusion in this case was not only one which they were entitled to make, it was unarguably correct. Mr Mohammad, again properly, accepted that the second tribunal did not arguably err in the manner in which they dealt with the only matter relating to the children that was allegedly new, namely the letter from the school.

24. For those reasons, although the Deputy Judge in giving permission on what was before him was persuaded otherwise, I respectfully do not consider the merits of the suggested appeal to be arguable. However, even if, contrary to that very firm view, they might be arguable, they fail (and they fail by a very long way) to satisfy the high hurdle of the second limb of the second appeal criteria. The chances of success on appeal here are certainly not "very high". They are, in my respectful view, not even modestly high; nor on any other basis does this case begin to approach the high threshold required for "some other compelling reason" for allowing an appeal to proceed.
25. For those reasons, in my judgment, and with respect to the permission that was granted, the decision of the Upper Tribunal to refuse permission to appeal to it from the First-tier Tribunal, which is challenged on this judicial review, is not arguably wrong in law.
26. Mr Mohammad submitted that there were other new materials which related to matters which have occurred since the First-tier Tribunal's decision last year. However, those materials cannot affect the legality of the Upper Tribunal's decision, with which this court is concerned. I have not considered those materials, but if they show that there has been a material change in the position of the claimant, then the proper course is for representations to be made to the Secretary of State in relation to those matters, and for the Secretary of State to make a decision in respect of them. It is not the appropriate course for those matters to be aired in this court on an application of this type.
27. For those reasons, this claim is refused.
After further submissions in relation to costs
28. In relation to the costs of this application, although costs are in the discretion of the court, the general rule is that an unsuccessful party pays a successful party's costs, unless there is reason to depart from that convention. In this claim, there is no reason for such a departure. I appreciate both that the Claimant is privately funding this claim, and also that he is not in employment. However, those are not reasons for not making a costs order in an otherwise appropriate case. It may, of course, mean that, in practice, enforcement of a costs order is the more difficult for the Secretary of State.
29. For those reasons, I shall order that the Claimant pays the Defendant's costs of this application.
30. However, this claim was set down for a day (and it has, in fact, taken significantly less time than that). Under the CPR, such applications require parties to serve a statement of costs to enable the costs to be summarily assessed by the court and to save further expenditure of costs, and court time in any assessment procedure. I am confident that this not Mr Evans' personal fault, but unfortunately no statement has been lodged or served by the Secretary of State in this case. I am able, and indeed am bound, to take into account a party's conduct of proceedings in determining any costs issue. Given that conduct in failing to comply with the rules, the order on costs I will make is that the Claimant pays 90 per cent of the defendant's costs of the claim, to be summarily assessed if not agreed.
31. The directions I give for the summary assessment are that the Defendant will by 4 pm on 11 January 2013 lodge and serve a statement of costs; that the Claimant will respond to that statement within 14 days thereafter; and then the matter will be referred to me for summary assessment of those costs. For the avoidance of doubt, I reserve that matter to myself.