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Anjalans, Re Application for Statutory Review [2004] ScotCS 206 (18 August 2004)

OUTER HOUSE, COURT OF SESSION

P1172/04

SHORT STATEMENT OF REASONS BY LORD BRODIE

in the Petition of

ALFRED ANJALANS

Petitioner

for

Statutory Review of a decision of the Immigration Appeals Tribunal, dated 22 March 2004 to refuse permission to appeal

________________

Introduction

This is an application by Alfred Anjalans (the "petitioner") in terms of section 101 (2) of the Nationality Immigration and Asylum Act 2002, and part XI of chapter 41 of the Rules of Court as amended by the Act of Sederunt (Rules of the Court of Session Amendment No 3) (Applications under the Nationality, Immigration and Asylum Act 2002) 2003 (SSI 2003/223), for statutory review of a decision of the Immigration Appeal Tribunal on 22 March 2004 to refuse permission to appeal from a determination of an adjudicator, promulgated on 27 January 2004, refusing the petitioner's appeal against the refusal, by the Secretary of State for the Home Department, intimated by letter of 14 August 2003, of his application for asylum.

A preliminary issue arises as to whether I should consider this petition. The petition makes reference to the Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Applications under the Nationality, Immigration and Asylum Act 2002) 2003, SSI2003/223. This Act of Sederunt amends the Rules of Court by adding rules 41.46 to 41.52. The new rule 41.48 requires a petition for statutory review to be lodged not later than 14 days after the applicant is deemed to have received notice of the Tribunal's decision in accordance with rules made under section 106 of the Act of 2002. In terms of rule 54 (5) (a) of the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003/652) (the "Procedure Rules") the decision of the Immigration Appeal Tribunal, refusing permission to appeal, is deemed to have been received by the agents for the petitioner on the second day after dispatch. I understand the notice of refusal of permission to appeal to have been dispatched on 31 March 2004. The petitioner is therefore deemed to have received notice of that decision on 2 April 2004 (albeit that it is stamped as having been received on 1 April 2004) which, if my calculation is correct, means that this petition required to be lodged not later than 16 April 2004. I am not advised when the petition was lodged, although it would appear that the petition was intimated to the Secretary of the Immigration Appeal Tribunal on 20 July 2004. It is accepted, however, that the petition was lodged late. An affidavit by Grace Margaret McGill, lodged as required by rule 41.48 (3), explains some of the circumstances in which this occurred. I seriously question whether what the affidavit discloses are in fact exceptional circumstances. No explanation is provided in the affidavit, or otherwise, as to what occurred between 1 April 2004 and 25 June 2004 other than that Ms McGill's firm was "duly instructed". From 1 April to 25 June 2004 is a significant period of time. Thereafter, it cannot be said that matters proceeded with the degree of expedition that the rule requires. I recognise that the time limit is tight. Legal Aid had to be obtained. It is important that the petition for statutory review be drafted in terms which adequately present the grounds of appeal. These, however, are not exceptional circumstances. These are circumstances that apply in all cases. Nevertheless, having regard to the fact that this is a recently introduced procedure, the requirements of which may not yet be generally understood, I am prepared to extend the time-limit to such date as permits me to consider the petition.

The Determination and Reasons of the adjudicator disclose that the petitioner was born on 24 November 1963 and is a national of Sri Lanka. The petitioner is married. He is the father of three children, born, respectively, on 10 March 1994, 1 December 1998 and 6 July 2003. The petitioner lives together with his family in Glasgow. He entered the United Kingdom illegally on 9 March 2000 and applied for asylum that day. His claim was rejected in terms of a Reasons for Refusal Letter dated 14 August 2003 and on that same day the Home Office issued a Notice of Decision to remove him as an illegal entrant. Directions were given for the return of the petitioner to Sri Lanka at a date and time to be notified. The petitioner appealed this immigration decision to an adjudicator in terms of section 82 (1) of the 2002 Act. He founded on the ground provided by section 84 (1) (g) of the Act: that his removal from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Geneva Convention relating to the status of Refugees 1951, as amended by its 1967 Protocol, or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants rights under the European Convention on Human Rights. It was the petitioner's contention, as put to the adjudicator, that the refusal of his claim for asylum and consequent removal to Sri Lanka would result in him being at real risk of persecution for relevant reasons (persecution by the government by reason of his ethnicity and imputed political opinions as a supposed sympathiser with the Liberation Tigers of Tamil Eelam ("LTTE"); and persecution by the LTTE because of information about the LTTE that he had provided to the Sri Lankan army) under the Refugee Convention of 1951 and that he would be at real risk of treatment that would breach Article 3 of the European Convention on Human Rights. The adjudicator also considered risk of breach of the petitioner's Article 8 rights. As I have indicated above, that appeal was refused by the adjudicator. In terms of section 101 (1) of the 2002 Act, a party to an appeal to an adjudicator under section 82 or 83 of the Act may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law. As indicated above, the petitioner applied to the Immigration Appeal Tribunal for permission to appeal. This was refused. It is in respect of this refusal that he seeks statutory review.

Provision for appeal to the Immigration Appeal Tribunal is made by the Procedure Rules.

In terms of rule 15 (1) an appeal from the determination of an adjudicator may only be made with the permission of the Tribunal upon an application made in accordance with these Rules. Rule 17 of the Procedure Rules provides that the application notice for permission to appeal must state all the grounds of appeal and give reasons in support of those grounds. The grounds of appeal must identify the alleged errors of law in the adjudicator's determination; and explain why such errors made a material difference to the decision. In terms of rule 18 of the Procedure Rules, the Tribunal may grant permission to appeal only if it is satisfied that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard.

Section 101 (2) of the 2002 Act provides that a party to an application to the Tribunal for permission to appeal under [section 101 (1)] may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law. A failure by the Tribunal to grant permission where the grounds of appeal, as set out in the application notice for permission to appeal, disclosed what could be argued with real prospect of success was an error of law would, in its turn, amount to an error of law. I shall explain below the importance of the grounds of appeal being set out in the application notice for permission to appeal.

Mirroring the terms rule 18 of the Procedure Rules, Rule of Court 41.50 (4) provides that the court will reverse the Tribunal's decision only if it satisfied that the Tribunal may have made an error of law and, either that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. The plea-in-law to the present petition adopts the test set out in rule 41.50 (4) as the one to be met by the petitioner if he is to succeed.

Rule of Court 41.50 (1) provides that a petition for statutory review of a decision of an Immigration Appeal Tribunal will be determined by a single judge without a hearing, and by reference only to the petition and documents lodged with it. That reflects the terms of section 101(3)of the 2002 Act. Particular importance therefore attaches to the terms of the petition. The judge does not have the assistance of counsel to explain what the petitioner's case is. There is no contradictor. Rule of Court 41.47 (4) provides that a petition for statutory review must set out (a) the grounds upon which it is contended that the Tribunal made an error of law; and (b) reasons in support of those grounds. The purpose of the petition is to demonstrate to the judge reading it that the proposition set out in the plea-in law, that the Immigration Appeal Tribunal erred in law in refusing permission to appeal, the petitioner's appeal having a real prospect of success, is well founded. It is therefore to be expected that the petition will identify, in an articulate and specific way, what is the error of law or, if more than one, what are the errors of law, on the part of the Immigration Appeal Tribunal in refusing permission, that is or are founded upon, upon what basis it is argued that what is said to be an error of law is an error of law, why it is that the Tribunal is said to have fallen into it and why it is said that the error made a material difference to the decision which is made subject to statutory review.

I have not found the petition in this case to meet the expectation referred to in the above paragraph. In paragraphs 6 to 28 of the petition various criticisms are made of the adjudicator's Determination and Reasons (I deliberately use the word "criticisms" rather than grounds and reasons in support of these grounds) but, apart from averments of an entirely formal nature at paragraphs 4 and 5 and the plea-in-law, there is no reference to error of law on the part of the Immigration Appeal Tribunal. Paragraphs 4 and 5 and the plea-in-law are silent as to what it is said the error of law on the part of the Tribunal was. Now, it is true that the underlying decision which the petitioner wishes to make subject to statutory appeal to the Immigration Appeal Tribunal is the Determination of the adjudicator. To succeed in such an appeal an appellant must show, by reference to his grounds of appeal, that the adjudicator erred in law. I say "by reference to his grounds of appeal" because the effect of rules 17, 20 and 23 of the Procedure Rules is that the Tribunal will only consider the grounds of appeal contained in the appellant's application notice for permission to appeal, as they have been allowed to be varied. Accordingly, as I have already mentioned, a failure by the Tribunal to grant permission to appeal from the decision of an adjudicator where the adjudicator's decision disclosed an error of law, identified in grounds of appeal which explained why the error made a material difference to the decision, would, in its turn, amount to an error of law. Even where the Appeal Tribunal may have made some independent error, the underlying question will always be whether the adjudicator erred in law because it is only then that there will be a basis for the statutory appeal. Thus, in every case the adjudicator's determination will fall to be considered. That is not to say that one can lose sight of the fact that it is the decision of the Tribunal to refuse permission to appeal that is the subject of statutory review and not the adjudicator's determination on the appeal against the original immigration decision. As is required by Rule of Court 41.47 (3) (d) and (e), there was lodged with this petition the grounds of appeal to the Tribunal and the Tribunal's determination on the application for permission to appeal. Neither the grounds of appeal nor the Tribunal's determination on these grounds are referred to or otherwise addressed in the petition. If it is proper to regard what appears paragraphs 6 to 28 of the petition as grounds of appeal and reasons in support of these grounds, which I beg leave to doubt but is what I take them to be intended as, they are different from the grounds which appear on the application for permission to appeal. Given the petition's silence on the matter and reliance upon what is presented as other grounds, I take the petitioner now to accept that the grounds which appear on the application for permission to appeal were not well founded and that the Tribunal's Reasons for Decision, refusing permission in relation to these grounds, which are not subject to any challenge in the petition, disclose no error. It is probably therefore unnecessary for me to look at the Tribunal's Reasons for Decision but were I to look at these Reasons (in the absence of any assistance in the matter from the petition) I would respectfully regard them as sound and sufficient. Thus, by implicit concession in the petition, but also in my judgement, there was no error of law by the Immigration Appeal Tribunal.

That may not, however, dispose of the petition. Notwithstanding the quite express terms of the Procedure Rules, there is authority for the proposition that appellate bodies such as the Immigration Appeal Tribunal are not limited in their consideration of matters by the arguments actually advanced by the asylum-seeker or his representative. I refer to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson [1998] QB supra. What Lord Woolfe said in that case, at 945, was this:

"It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative. ...It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.

Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should be under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."

Having regard to what was said by Lord Woolfe in R v Secretary of State for the Home Department ex parte Robinson, which was recently applied by Lord Reed in Petition of Mutas Elabas for Judicial Review of a Special Adjudicator and Immigration Appeal Tribunal, 2 July 2004, unreported, it appears to me that I cannot disregard what appears in paragraphs 13 to 28 of the petition simply because it was not put before the Immigration Appeal Tribunal. Rather, I consider must read the petition as implicitly containing the proposition that, notwithstanding the fact that when invited to state all the petitioner's grounds of appeal and all the petitioner's reasons in support of these grounds, the petitioner's then legal adviser made no mention whatsoever of what now appears in paragraphs 6 to 28 of the petition, there was a readily discernible and obvious point of law (or points of law) which favoured the petitioner and which, it was arguable with a real prospect of success, would have the result that to refuse the petitioner leave to enter as a refugee would be a breach of his Geneva Convention and European Convention rights. I have therefore looked at the petition and at the adjudicator's Determination and Reasons with a view to seeing if I can discern a point of law in favour of the petitioner (in other words a ground of appeal) which might be arguable with a real prospect of success. For present purposes, I have assumed (as I would see it, in the petitioner's favour) that there is no material difference between a strong prospect of success and a real prospect of success. I have not found such a ground of appeal. I have accordingly come to the view that neither the adjudicator nor the Immigration Appeal Tribunal made an error of law and that for the following reasons. In giving the reasons I shall distinguish as between what the petition refers to as "Convention Rights", by which he intends the rights conferred by Geneva Convention relating to the Status of Refugees of 1951, as amended by the 1967 Protocol and enacted into law (most recently) by the Nationality, Immigration and Asylum Act 2002; and "Human Rights", by which the petitioner intends the rights conferred by the European Convention on Human Rights and Fundamental Freedoms of 1950, as enacted into law by the Human Rights Act 1998.

Convention Rights (paragraphs 6 to 12 of the petition)

What appears in the petition under the heading of Convention Rights is, first, a quotation of part of the rubric from the report of Karankaran v Secretary of State for the Home Department [2000] 3 All ER 449. The quotation is then referred to as a test. It is then averred that the adjudicator did not apply this test when assessing the evidence and, in particular, that he failed to allow scope for uncertainty and failed to consider whether the core of the petitioner's account at the hearing before the adjudicator was true or not. Other than referring to paragraphs 6, 17, 18, 19 and 22 of the adjudicator's determination the petition does not specify the matters of fact in relation to which it is alleged that the adjudicator misdirected himself and how any alleged misdirection affected his determination. Looking to the whole terms of the adjudicator's Determination and Reasons, I do not find him to have misdirected himself or to have made any other error in law. While I accept that the judgement of the Court of Appeal in Karankaran v Secretary of State for the Home Department supra provides authoritative guidance to immigration decision makers, such as the adjudicator, it was unnecessary for the adjudicator or to cite it or quote from it in order to demonstrate that he was properly directing himself in law. That the adjudicator was aware of the proper approach to the assessment of evidence is clear from paragraph 15 of his Determination. He makes specific reference in that paragraph to his having considered whether there might be a reliable core to the petitioner's evidence, once it was shorn of exaggeration or fabrication. From the terms of the subsequent paragraphs, I consider that this is the approach that the adjudicator followed.

Human Rights

The averment that section 2 of the Human Rights Act 1998 was not considered by the adjudicator at any time is entirely without content. That part of section 2 which is quoted in the petition requires any tribunal to take into account any judgement, decision, declaration or advisory opinion of the European Court of Human Rights. The tribunal can only be under such an obligation when the judgement is known to the tribunal or brought to its attention but more important for present purposes is the failure of the petition to identify what judgement, decision, declaration or advisory opinion the adjudicator (or the Immigration Appeal Tribunal if that is what is being referred to) failed to take into account. Part of section 6 of the 1998 Act is quoted. It is not averred that the adjudicator failed to have regard to that provision, which makes it unlawful for a public authority, including a court and tribunal, to act in a way which is incompatible with a Convention right. It could not, in any event, be so said in that it is the 1998 Act which obliges an immigration decision maker to consider whether his decision would breach an asylum-seeker's human rights (at least insofar as not guaranteed by the Refugee Convention). The adjudicator's references to articles 3 and 8 of the European Convention on Human Rights demonstrate that he was aware of the provisions of the 1998 Act, which he, in any event, mentions in his Determination. The adjudicator correctly directs himself that the question that he has to consider, in relation to the petitioner's claim under reference to the European Convention, is whether there is a real risk of breach of the petitioner's article 3 rights. That is a matter of fact. I accept that the petitioner's claim under reference to the Refugee Convention and his claim under reference to the European Convention are separate and require to be considered separately. That is not to say that they may not share a common factual basis. Here, the adjudicator found that the petitioner's Refugee Convention claim (referred to by the adjudicator as "the asylum claim in chief") had a common factual basis with his European Convention claim (referred to by the adjudicator as "the human rights grounds of appeal"). The petition does not explain why the adjudicator was not entitled to do so. That the adjudicator did apply his mind to the petitioner's European Convention claim additionally to his Refugee Convention claim is evident from the terms of paragraph 30 of the adjudicator's Determination.

In paragraph 19 of the petition there is a paraphrase of the terms of article 3 of the European Convention on Human Rights. I question whether the paraphrase adds anything to the terms of the article but I am prepared to accept it as providing examples of how someone might be subjected to inhumane or degrading punishment. Again at paragraph 19, it is averred that the adjudicator "failed to adopt this test". In relation to this averment, it is to be remembered that what is required of an adjudicator's determination is that it leaves the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what material considerations were taken into account: Singh (Jaswinder) v Secretary of State for the Home Department 1998 SLT 1370, Lord MacFadyen at 1374 quoting the familiar dictum of Lord President (Emslie) in Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 at 348. The adjudicator is not writing an examination paper on Immigration Law or Human Rights Law. He need not lay out the full extent of his legal knowledge at every opportunity or at every step in his assessment of fact, as long as nothing in his Determination gives rise to a substantial doubt as to whether he may have erred in law. In South Bucks District Council and Anor v Parker [2004] UKHL 33 at paragraph 36 Lord Brown of Eaton-under-Heywood, speaking for a unanimous House of Lords said this in relation to sufficiency of reasons:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration."

In my opinion, the Determination of the adjudicator in the present case meets the criteria identified in Wordie Property Co v Secretary of State for Scotland and South Bucks District Council and Anor v Parker supra. Where an adjudicator, as here, refers to an article of the European Convention of Human Rights it is to be assumed that he has understood its meaning unless something else in his Determination points in a different direction. He need not paraphrase the text or define it even where authoritative paraphrases or definitions are available.

At paragraph 20 of the petition it is averred that the adjudicator "appeared not to consider at any stage whether the petitioner would face conditions based on the country reports; as to whether he would be facing inhuman and degrading conditions. Reference is made to the Report on UK Immigration and Nationality Directorate fact finding mission to Sri Lanka, in particular paragraphs 3.1.16, 3.1.15, and 4.2.4." I have looked at the specified paragraphs. I do not understand what is the ground or grounds of appeal having a real prospect of success that is or are being referred to in paragraphs 19 and 20 of the petition. It is not clear to me from the terms of the Determination whether the adjudicator had specific regard to the paragraphs of the Report on UK Immigration and Nationality Directorate fact finding mission to Sri Lanka mentioned in the petition or indeed any part of that Report. At paragraph 3 of the Determination the adjudicator refers to the CIPU Sri Lanka Country Assessment for April 2003 and states that he read and considered "the pertinent parts of the objective evidence". It may be that the adjudicator did not have regard to the specified paragraphs. He may not have been referred to them. The petition does not explain why it is that the adjudicator was obliged to consider whether "the petitioner would face conditions based on the country reports". The adjudicator had to determine the issues falling for decision having considered the evidence presented to him in the round and having assessed that evidence bearing in mind the guidance provided by the Court of Appeal in Karankaran v Secretary of State for the Home Department supra. From a consideration of his Determination he appears to me to have done that. The petition does not aver what use, if any, was made of the specified paragraphs of the Report at the hearing before the adjudicator. It does not aver what the adjudicator should have found as to the risk of the petitioner's human rights being breached, based on these paragraphs or how otherwise what is said to have been a failure on the part of the adjudicator made a material difference to his decision.

The averment at paragraph 21 of the petition that the petitioner's second child was born en route to the United Kingdom is not supported by the petitioner's statement or, indeed, by any other document which is before me. I take the averment to have been made in error. The adjudicator clearly was aware that the petitioner, who was then resident in the United Kingdom had a family life which would be disrupted if he were removed from the United Kingdom, leaving his family there. However, he proceeded on the unchallenged basis that that will not happen unless the appeal at the instance of the petitioner's wife, which the petitioner had referred to, was determined against her. On that unchallenged view of the facts, the petitioner's article 8 right to respect for his private and family life could not be breached solely by an adverse determination of his appeal. In that sense the petitioner's article 8 rights were not engaged by the relevant immigration decision. Taking the adjudicator's understanding of the factual position to be correct, I simply do not see how it can be said that relevant immigration decision in relation to the petitioner, taken by itself, can have had the result that his article 8 rights have been breached. The petition provides no assistance on this matter. However, the adjudicator went on to consider whether a removal of the whole family from the United Kingdom would amount to breach of the article 8 rights of any member of the family. He accepted that it would cause disturbance and dislocation but that, under specific reference to the children's education, he did not find article 8 to be engaged. I can discern no error in law on the part of the adjudicator in reaching that conclusion. If, on the other hand, the adjudicator's determination is to be read as an acceptance that the removal of the entire family from the United Kingdom could be regarded as interference in the petitioner's family life, which may be what the petition is suggesting by its reference to proportionality, then the determination must also be read as including the acceptance by the adjudicator that such a removal, in implement of national immigration law and policy, was to be regarded as being in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and therefore not in contravention of article 8. What is clear is that the adjudicator considered article 8. He considered whether an order for removal amounted to relevant interference in family life by a public authority. He considered proportionality. I can detect no error of law in the conclusion that he came to.

The petition refers to the decision of the House of Lords in R (Daly) v Secretary of State for the Home Department, and, in particular, the speech of Lord Steyn, The case citation is omitted. The citation is [2001] 2AC 532. In his speech in Daly, at 546C to 548D, Lord Steyn discusses the contours of the principle of proportionality under reference to the adaptation of the test in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 to cases where fundamental rights were in issue as formulated in R v Ministry of Defence ex p Smith [1996] QB 517 at 554E to G. He mentions article 8 because that was the article founded on in Smith (a case relating to limitations on homosexuals in the army). The adapted test provides for a heightened degree of scrutiny in cases involving fundamental rights. A heightened degree of scrutiny can also be described in terms of greater intensity of review. I hesitate to go further in my understanding of what Lord Steyn was discussing in the absence of a clear statement in the petition of the proposition of law which Daly has been cited to establish. The purpose of the citation of authority is discussed by Lord Reed in at paragraph [29] of his opinion in Petition of Mutas Elabas supra. I respectfully agree with everything which is said there. I can see that it could be said that Lord Clyde in his speech in Freitas v Permanent Secretary of Ministry of Agriculture Fisheries Lands and Housing [1999] 1 AC 69 at 80, is putting forward an "approach" to be adopted by a court on judicial review of decisions which derogate from fundamental rights and freedoms. I do not see that that is what Lord Steyn was doing. On no view is Daly authority for the proposition that an adjudicator, or other judicial body, must "consider proportionality first". Rather, I would have thought that the first step is to consider whether there has been interference by a public authority. Here, as I read his determination, the adjudicator did not find there to have been an interference with the petitioner's private life. In that case the question of proportionality did not arise. In any event, if that is not the correct reading of the determination, the adjudicator expressly found, at paragraph 31 of his determination, that removal would be proportionate. I accept that where the decision under consideration relates to one individual then it is relevant to consider circumstances which are specific to him when looking to proportionality. The petition does not explain, in paragraph 27 or elsewhere, the particular circumstances of the petitioner which were not had regard to and which, if they had, would have made a difference to the adjudicator's decision.

I find paragraph 28 of the petition simply to lack content. It does not identify a ground of appeal or otherwise demonstrate any error of law on the part of the adjudicator.

For the reasons that no error of law on the part of the Immigration Appeal Tribunal is specified in the petition and, that no error of law on the part of the adjudicator is demonstrated by a consideration of the petition (or has otherwise become apparent to me), I am of opinion that the Immigration Appeal Tribunal did not err in law in refusing permission. I therefore affirm the Tribunal's decision.