Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 108
P238/12	OPINION OF LORD PENTLAND in the Petition of S A Petitioner; for Judicial Review of a Refusal of Permission to Appeal by the Upper Tribunal dated 12 December 2011 ­­­­­­­­­­­­­­­­­________________

Petitioner: Devlin; Drummond Miller lLP

Respondent: MacGregor; Office of the Advocate General

28 June 2012

Introduction

[1] This petition for judicial review came before me for a First Hearing, at which the petitioner sought reduction of a decision made by Dr R. Kekić, a judge of the Upper Tribunal, dated 12 December 2011. By that decision the Upper Tribunal Judge refused the petitioner permission to appeal against a decision of the First-tier Tribunal made by Immigration Judge Montgomery on 14 October 2011. The Upper Tribunal Judge held that no arguable error of law had been identified in the decision of the First-tier Tribunal. Permission to appeal had previously been refused by Immigration Judge Plumptre, another judge of the First-tier Tribunal, on 14 November 2011. He too considered that there was no error of law in the reasoning of Immigration Judge Montgomery. Although the petition for judicial review also craved decree of declarator, counsel for the petitioner told me that this was not to be insisted in.

[2] The petitioner argued that the decision made by the Upper Tribunal judge was vitiated by a number of errors of law which, according to the averments in the petition, raised issues of principle or practice of sufficient importance to satisfy the test for a so-called second appeal laid down by the Supreme Court in Eba v Advocate General for Scotland [2011] 3 WLR 149. To set the scene for consideration of those contentions, I shall first summarise the core facts of the case.

[3] The petitioner (about whose true identity there is considerable doubt) avers that she is a Nigerian citizen. She claims to have arrived in the United Kingdom in December 2004 accompanied by her daughter, AA, who, the petitioner avers, was born in Ghana on 11 November 2004. The petitioner goes on to aver that since her arrival in the United Kingdom she has had a son, KA, who was born in Aberdeen on 15 September 2006. It is a matter of some importance to note that neither of these children has British citizenship. They are both Nigerian citizens. In March 2007 the petitioner was arrested for possessing a forged Nigerian passport. She was convicted and was placed on probation for a period of 3 years at Aberdeen Sheriff Court on 25 October 2007.

[4] On 2 November 2007 the petitioner claimed asylum, but this application was refused on 2 February 2009. Her subsequent appeal against the refusal of her asylum claim was dismissed on 31 March 2009 by the Asylum and Immigration Appeal Tribunal and her request for reconsideration of that refusal was in turn dismissed by a Senior Immigration Judge on 1 May 2009. Her rights of appeal were exhausted on 21 May 2009. Then in June 2009 and again in September of that year the petitioner submitted what she claimed was new information about her case. These fresh representations were rejected on 15 and 24 September 2009. Thereafter the petitioner brought proceedings for judicial review and on 18 February 2010 the UK Border Agency agreed to review its refusal letters of 15 and 24 September 2009. This led eventually to a lengthy decision letter being issued by the Border Agency on 20 August 2011. The decision reached at that stage was that the points taken on behalf of the petitioner had not previously been considered, but that when they were considered together with the previous information, the new points would not have created a realistic prospect of success before another Immigration Judge. The petitioner was afforded a further right of appeal against that decision. By decision issued on 14 October 2011 the First-tier Tribunal (Immigration Judge Montgomery) dismissed the petitioner's appeal. As already explained, permission to appeal to the Upper Tribunal against that decision was refused by another Immigration Judge and by a Judge of the Upper Tribunal, neither of whom could identify any error of law.

[5] I should mention also, by way of introduction, that the petitioner has suffered from certain mental health difficulties while she has been in this country. As a result of these difficulties the children were removed from her care for a few months in 2010. They were returned to her care in September 2010, subject to a Home Supervision Order. It should also be noted that the Immigration Judge who considered the petitioner's asylum appeal and Immigration Judge Montgomery both found the petitioner to be an incredible and unreliable witness; they held that she had fabricated much of her evidence about her background and history.

The petitioner's arguments

[6] The first line of argument advanced on behalf of the petitioner before me was to the effect that the First-tier Tribunal judge erred in law in paragraph 21 of her decision because she made a finding based on conjecture or speculation and separately that she failed to ask herself the correct question. At this stage of her decision the Immigration Judge was addressing the petitioner's case insofar as it was based on Article 3 ECHR and on humanitarian grounds. In paragraph 21 of the decision the Immigration Judge stated inter alia as follows:

"By the time the (petitioner) and her children reach Nigeria, the threat of removal will have passed, the stress of uncertainty will have been removed and the fact of return will have become a reality. On the evidence before me, the evidence does not suggest that there is a reasonable degree of likelihood that, given her current state of mental health, she will deliberately harm either herself or her children. She has improved considerably since her low point in 2010. Should her mental health deteriorate again in the future, there is treatment available for mental health problems in Nigeria, albeit that it may not be of the same standard as that offered in the UK and may not be free of charge".

[7] Counsel for the petitioner argued that no proper evidential basis existed for the views expressed by the Immigration Judge about what the position would be if and when the petitioner and her children were returned to Nigeria. The views expressed were said to be purely speculative and based on what counsel described as personal conjecture. Reference was made to the decision of the Court of Appeal in J v Secretary of State for the Home Department [2005] Imm AR 409 at paragraphs 25 and 31. I note that in the former paragraph it was confirmed that in "foreign cases" the relevant test was whether there were strong grounds for believing that the person, if returned, would face a real risk of torture, inhuman or degrading treatment or punishment. In paragraph 31 the court said that a question of considerable relevance was whether the removing and/or receiving state had effective mechanisms to reduce the risk of suicide.

[8] It was argued in the present case that the Immigration Judge should have asked herself whether there were effective measures in Nigeria for controlling the risks to the safety of the children and the petitioner in the event that they were returned to that country. The Immigration Judge had not, it was argued, properly assessed the effectiveness of the mechanisms which would be available to reduce the risk that the petitioner might commit suicide if she went back to Nigeria. It was submitted that the questions which the Immigration Judge ought to have asked herself were: (i) were there strong grounds for believing that the (petitioner's) mental state would deteriorate if she were returned to Nigeria and, if so, would it deteriorate to the extent that there was a real risk that she would deliberately harm herself or the children and (ii) did Nigeria have effective mechanisms to reduce those risks. It followed, so the argument ran, that the Immigration Judge asked herself the wrong questions and thereby erred in law.

[9] The second argument for the petitioner was that the Immigration Judge erred in law in paragraph 27 of her decision in that she failed properly to evaluate the best interests of the children in the context of the claim based on Article 8 ECHR. Paragraph 27 is in the following terms:

"I followed that approach (i.e. the approach in ZH (Tanzania)) in this case and had no hesitation in accepting that the best interests of the children must be a primary consideration. A is now 6 years old and approaching her 7^th birthday. She has been attending her current school for over 2 years and is progressing well there. K started school in August 2011 and has settled in well. The effect of the decision would be to uproot the children from their present environment and require them to relocate to a very different environment. Life in Nigeria is likely to be more difficult in many ways than life in the UK. The transition from one culture to another is likely to result in an unsettled and perhaps distressing period for the children as they learn to adapt to their new circumstances. If the move were one their mother had chosen, and was approaching in a positive light, the impact of these factors would be minimised. However, in the situation of an enforced removal, the transition is more likely to be difficult, particularly in view of the (petitioner's) history of mental health problems. The obvious conclusion is that it would be in the children's best interests to avoid this scenario and permit them to remain in the UK. However, using the approach set out above, I must also look to see whether there are other considerations the cumulative effect of which outweighs this primary consideration".

[10] The argument for the petitioner on this branch of her case was firstly that at no point in paragraph 27 does the First-tier Tribunal judge attempt to evaluate the individual factors for and against it being in the best interests of the children to remain in the United Kingdom or alternatively to go to live in Nigeria. In particular, the Immigration Judge made no attempt to evaluate the extent of the difficulties that the petitioner's children were likely to experience on their return to Nigeria on account of their mother's mental health problems. The Immigration Judge simply stated that "...in a situation of enforced removal, the transition is likely to be difficult, particularly in view of the mother's mental health problems..." The Immigration Judge did not go further, as she should have done, and consider the nature and extent of those difficulties. In the second place the Immigration Judge made no attempt to evaluate the desirability of continuity in the children's upbringings or their ethnic, religious, cultural and linguistic backgrounds. She had failed to consider the effects on the children if they were sundered from their backgrounds. It was said that the Immigration Judge contented herself with stating that "...the transition from one culture to another was likely to result in an unsettled and perhaps distressing period for the children as they learn to adapt to their new circumstances..." This was said to be insufficient.

[11] Thirdly, it was argued that the Immigration Judge made no attempt to evaluate the effect of any short-term disruption to the children's current schooling that would be caused by removal and also the inevitable disruption due to the impact on the children's educational development, progress and opportunities in the broader sense. It was said that the Immigration Judge merely noted the stage which the children had reached in their educations.

[12] Moreover, the petitioner argued that the Immigration Judge made no attempt to evaluate the cumulative strength of the factors pointing for and against it being in the best interests of the children to remain in the United Kingdom or alternatively to go to Nigeria. Without evaluating the cumulative strength of those factors the Immigration Judge, it was argued, could not determine whether the countervailing factors were of sufficient strength or weight to displace the children's best interests. By failing properly to evaluate the strength of the individual factors and their cumulative strength, the Immigration Judge had erred in law. Reference was made to ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, paragraphs 25, 27 and 28. Reference was made also to MK (Best Interests of Child) India [2011] UKUT 00475 (IAC) and to the UNHCR guidelines on determining the best interests of the child, pages 69 and 70. There had to be a comprehensive assessment made as to what the best interests of the children required and the Immigration Judge had failed to carry out such an assessment. Without such an overall evaluation it was impossible to determine the weight to be given to the best interests of the children on one side of the balancing exercise; and unless one assessed the weight of those factors it was impossible to determine whether they were outweighed by the countervailing considerations favouring removal.

[13] The third line of argument advanced for the petitioner was that the Immigration Judge erred in law in paragraphs 29 and 30 of her decision in that she treated factors which were relevant to the assessment of where the best interests of the children lay as though they were countervailing considerations capable of displacing the best interests of the child. These paragraphs in the decision read as follows:

"29. It is important to note that neither the (petitioner) nor either of her children have any claim to British nationality. That fact distinguishes this case from ZH (Tanzania) in which it was stressed that, although not a 'trump card', nationality is a matter of particular importance in assessing the best interests of any child. A was allegedly born in Ghana and did not move to the UK until she was around 1 year old. (I have rejected the (petitioner's) evidence that she came in 2004). Although K was born and has been brought up in the UK, he is a national of Nigeria and Nigeria is his rightful homeland. It is the country of origin of both his parents and he probably has an extended family there.

30. It is also important to note that no family tie is being broken by the proposed removal of (the petitioner) and her son. The (petitioner) and her two children will be returned together. The (petitioner) denies being in contact with TA but, in any event, he is a Nigerian national. There is no evidence to suggest that he has the right to remain in the UK. This factor clearly distinguishes the circumstances of this case from those which applied in LD (Zimbabwe)".

[14] The fourth argument advanced on behalf of the petitioner was that the Immigration Judge erred in law in that she failed to take account of the principle that children should not be blamed for the actions of their parents. Reliance was placed on the observations of Baroness Hale of Richmond in paragraph 33 of ZH (Tanzania) where her Ladyship said this:

"We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that, and the inevitable result of removing their primary carer would be that they had to leave with her."

[15] Reference was made also to the judgement of Lord Hope of Craighead in paragraph 44 of ZH (Tanzania).

[16] It was argued for the petitioner that the Immigration Judge offended against these statements of principle when one had regard to paragraph 31 of her decision. There the Immigration Judge said this:

"Although not the primary consideration, the (petitioner's) immigration history is a matter which must be taken into account. She obtained entry as a visitor and overstayed. She was sentenced to 3 years probation for possession of a false passport. She made a claim for asylum which was rejected, and her evidence was found to be lacking in credibility. There is a strong public interest element in sending the message that persons engaging in such reprehensible conduct will not be allowed to benefit from doing so. It is settled law that the deterrent factor is one that can legitimately be taken into account. Consideration of this factor is relevant here".

[17] Finally, the petitioner argued that the Immigration Judge left out of account certain observations made by the Sheriff when imposing a probation order on the petitioner. It was said that in these observations the Sheriff had showed a degree of sympathy for the petitioner's position. The Immigration Judge had also failed to take into account, it was argued, the petitioner's good behaviour in the period since she committed that offence. Reference was made to MK (Deportation - Foreign Criminal - Public Interest) Gambia [2010] UKUT 281 where it was held that the gravity of criminal offending was to be assessed by the Tribunal with reference to the nature of the offence, the sentencing judge's remarks and, importantly, the actual sentence.

The respondent's reply

[18] Counsel for the respondent submitted that all the points made on the petitioner's behalf amounted to no more than disagreement with the findings of a specialist tribunal. The petitioner had failed to show that there was any error of law in the reasoning of the Immigration Judge. It was submitted that the Immigration Judge had considered the relevant medical evidence and where the best interests of the children lay. She had made legitimate decisions as to their best interests. She had then considered the countervailing factors, reached a properly reasoned decision and provided adequate reasons for it. Counsel stressed that in a case of this nature everything was fact-specific and context was all important. It was said that this court should exercise restraint and eschew the temptation to indulge in a forensic analysis of an Immigration Judge's decision. A broad assessment as to whether there was really a material error of law was appropriate.

[19] Counsel for the respondent placed reliance firstly on the observations of Baroness Hale of Richmond in AH (Sudan) v The Home Secretary [2008] 1 AC 678. In paragraph 30 her Ladyship said this:

"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialist field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para.16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently".

[20] Counsel reminded me that the present case involved a fresh consideration appeal. He pointed out that in the Border Agency's detailed decision letter of 20 August 2011 consideration had been given to the mental health issues and to the mental health assessments. This is clear from paragraphs 62 to 65 on pages 11 and 12. The decision maker considered psychological reports prepared by Mrs Mary Keenan Ross in May 2009 and January 2011. Paragraph 64 of the Border Agency's decision letter is in the following terms:

"The assessment of the psychologist has been made after reference to (the petitioner's) own statements, her asylum interview record, the appeal determination and a range of psychological tests. It is considered, however, that your client has not been entirely honest with the psychologist as she has assessed the risk of return to Nigeria in relation to the fact that your client has no contact with the father of her son and that she has no family in Nigeria who could support her if she was to return there. As detailed above, neither of these statements is accepted as reliable and it is considered that the findings of the psychologist are tainted as a result".

[21] In response to the Article 8 arguments on the best interests of the children, counsel for the respondent reminded me that these were a primary consideration and not the primary consideration. I was asked to approach the decision in ZH (Tanzania) with a degree of caution because the two children in that case had been UK citizens (unlike the children in the present case). Then it was said that on a fair and proper reading of the Immigration Judge's decision in the present case there was clearly an understanding of the relevant principles developed in the case law. This could be seen particularly from paragraphs 8, 10, 11, 12, 16 and 17. Paragraph 21 had to be read against the background of the decision letter as a whole. When seen in that way, it contained a very fair assessment of matters. There was similarly no error of law in paragraph 27 of the decision. In the whole circumstances, there were no grounds for judicial review.

Assessment

[22] In my opinion, there is no merit in any of the petitioner's arguments. Like the specialist judges who have already considered the matter, I am unable to identify any error of law in the decision of the Immigration Judge.

[23] Taking the petitioner's arguments in turn, I find the first line of argument unconvincing. I do not consider that the Immigration Judge indulged in objectionable speculation or conjecture at any point in paragraph 21 of her decision. It seems to me that she was entitled to infer that the threat of removal will have passed, the stress of uncertainty will have been removed and return will have become a reality once the petitioner and the children have reached Nigeria. These are, as it seems to me, observations based on common sense. The sentence in which the Immigration Judge makes these observations comes just after she has accepted that there is a possibility that the petitioner's mental health may deteriorate if she is faced with the prospect of imminent removal. She considers, however, that this possibility can be managed and monitored by means of appropriate support. Then immediately after the sentence in question the Immigration Judge goes on to consider the evidence available as to the current state of the petitioner's mental health; she concludes that this does not suggest that she is likely deliberately to harm herself or the children. Next she

addresses the mental health facilities available in Nigeria and finds that these, while not as good as in the United Kingdom, are adequate. This leads to the Immigration Judge's conclusion that, on the evidence before her, there is no real risk of the petitioner or her children being exposed to conditions of such harshness or difficulty as to result in intense physical and mental suffering.

[24] I can detect no error of law in any of this. There was evidence before the Immigration Judge about the mental health care facilities available in Nigeria. The Country of Origin Information Report dealt with this; it is referred to in paragraph 66 of the Border Agency's letter of 20 August 2011. The decision made by the Border Agency was, of course, relied upon by the Home Secretary's representative before the Immigration Judge (see paragraph 8 of her decision).

[25] It seems to me that when one reads paragraph 21 of the Immigration Judge's decision fairly, as a whole and in the context of the entire decision, there can be no doubt that she has addressed herself to the correct issues. She has evaluated the evidence as to the petitioner's mental health, considered the risk that this may deteriorate if she returns to Nigeria and concluded that any risks and difficulties are not "such as to cross the threshold required by Article 3 or in terms of paragraph 339C of the Immigration Rules." In my opinion, the petitioner's criticisms of the approach taken in paragraph 21 amount to no more than disagreement with the conclusions reached; the conclusions do not contain any error in law, particularly when one bears in mind that the decision was one reached by a specialist tribunal very accustomed to dealing with issues of the type that arise in the present case. The Immigration Judge found as a fact that there was no real risk of the petitioner or the children being exposed to conditions of such harshness and difficulty as to result in intense physical and mental suffering. It seems to me that there can be no doubt that this was a conclusion open to her on the evidence. It follows that removal would not infringe Article 3 ECHR.

[26] Turning then to the petitioner's various criticisms of the reasoning in paragraph 27 of the Immigration Judge's decision, it seems to me that these too fail to identify any error of law in the approach she took. It is important to note that in paragraph 22 the Immigration Judge correctly sets out the questions that fall to be asked when considering an Article 8 case; she does so under express reference to the familiar passage in Lord Bingham's speech in R v Secretary of State for the Home Department (ex parte Razgar) [2004] 2 AC 368 at paragraph 17. In paragraph 23 of the Immigration Judge's decision she finds that the first four questions can be answered in the affirmative and (correctly) identifies the issue in the case "as in so many" as being whether the interference with the petitioner's right to respect for her private and family life is proportionate to the legitimate public aim which is sought to be achieved. In paragraph 25 the Immigration Judge says that while the petitioner chose to enter and remain in the United Kingdom illegally:

"... clearly her two children are in no way responsible for that choice. They are innocent children whose current circumstances and future prospects will be radically different if the proposed removal goes ahead. They will face a period of turmoil if uprooted from the life they know and relocated (sic) to a very different country and culture. I am required to have regard not only to the (petitioner's) rights and interests, but also to those of her children. Indeed, the case law to which I was referred makes very plain that the children's welfare and best interests must be 'a primary consideration'."

[27] In paragraph 26 the Immigration Judge considers the guidance given by the Supreme Court in ZH (Tanzania) on the correct way to approach Article 8 cases where the lives of children will be affected by decisions involving one or other of their parents. She notes that a primary consideration is not the same as the primary consideration. She refers to the approach developed in the Federal Court of Australia. She records that the Supreme Court concluded in ZH (Tanzania) that the best interests of the children must be considered first and then (and only then) should consideration be given to whether the strength of the other considerations outweighed them. All of this is plainly correct.

[28] One comes then to paragraph 27. In my view there is no substance in the criticisms of this advanced on behalf of the petitioner. It seems to me that in paragraph 27 the Immigration Judge comes to the clear (indeed, as she says, obvious) conclusion that the best interests of the children, in the particular circumstances of the present case, lie in their not being removed from the United Kingdom to Nigeria. The argument for the petitioner was that the Immigration Judge had failed to evaluate various matters which had a bearing upon where the children's best interests lay; for example, the difficulties they would face in Nigeria or the desirability of continuity in their upbringings or the interruption to their educations. In my opinion, there was no need for the Immigration Judge to conduct any such detailed evaluative exercise in relation to each and every one of the particular factors relevant to the best interests' assessment. It would be unrealistic, artificial and excessively analytical to expect the Immigration Judge to break down her assessment of where the best interests of the children lay into separate individual components and then to ascribe a value or some sort of scoring to each of the individual elements. Yet this is the type of exercise that counsel for the petitioner submitted was essential. In my view, what the Immigration Judge required to do was to make a broad and fair assessment of what was in the children's best interests. It seems to me that it is beyond question that this is exactly what she has done in paragraph 27. She had regard to their current circumstances, their ages, their educational progress, the effect of uprooting them from the United Kingdom and the difficulties they would have in adjusting to life in Nigeria. And having carried out such a broad and fair assessment, she came to the clear and obvious conclusion that their best interests lay in their being allowed to remain in the United Kingdom. Having reached that conclusion, the only issue which remained for consideration was whether there were other factors sufficient, when taken together, to outweigh the primary consideration based on the children's best interests. The Immigration Judge clearly understood that this was the right approach for her to take; this is plain from the final sentence in paragraph 27 in particular. For these reasons, I reject the petitioner's second argument.

[29] So far as the petitioner's third argument is concerned, this too is unsound in my view. I do not agree that the Immigration Judge has wrongly treated as countervailing factors considerations which are only relevant to the best interests of the children. On the contrary she has, as I have already observed, come to a clear conclusion as to where the best interests of the children lie and she has then gone on to consider whether, in the particular circumstances of the case, their best interests are outweighed by other relevant considerations. One sees this balancing exercise being carefully carried out in paragraphs 28 to 33 of the decision. The countervailing factors identified by the Immigration Judge may, I think, be summarised as these:

·       Neither of the children are British citizens. They are Nigerian;

·       A was allegedly born in Ghana; K is a national of Nigeria, which is his rightful homeland;

·       Both children probably have an extended family in Nigeria with whom they will be able to enjoy an extended family life in that country;

·       The petitioner is very familiar with Nigerian life and culture;

·       The petitioner has a bad immigration history;

·       The petitioner will be able to keep in contact with the UK;

·       The qualifications and experience which the petitioner has gained in the UK; may assist her in supporting herself and the children in Nigeria;

·       There is a need for firm and fair immigration control in this country;

·       It is in the public interest to enforce immigration control so that those who might be tempted to evade it are deterred from doing so.

[30] I see no substance in the contention that some of these factors could not legitimately be regarded as countervailing factors. It seems to me that the Immigration Judge was entitled to regard each of them as factors falling to be set against the best interests of the children. What the Immigration Judge clearly did was to balance the cumulative effect of all these factors against the fact that (as she had already held) it was in the best interests of the children to stay in the United Kingdom. The balance came down, in her view, in favour of removal to Nigeria, particularly having regard to the public interest in maintaining economic order and the rights of others by applying consistent immigration control. Again, I am unable to detect any error of law in what the Immigration Judge has done. She was entitled to reach the conclusion that she did.

[31] The petitioner's fourth line of argument was to the effect that the Immigration Judge erred in law in that she failed to take account of the principle that children should not be blamed for the actions of their parents. In my view, this is untenable. The Immigration Judge expressly stated in paragraph 25 of her decision that the two children were clearly in no way responsible for the petitioner's decision to enter the United Kingdom and remain in this country illegally. She goes on to refer to them as "innocent children". It seems to me to be obviously the case that the Immigration Judge appreciated that the children must not be blamed for their parents' conduct.

[32] Finally, the petitioner argued that the Immigration Judge left out of account certain observations made by the Sheriff when imposing a probation order on the petitioner. In deciding the petitioner's first appeal the Immigration Judge had remarked that the petitioner's offending was at the low end of the scale, as reflected in the sentence and the Sheriff's sympathetic remarks. It was submitted also that Immigration Judge Montgomery failed to take into account the petitioner's good behaviour in the period since she committed the offence.

[33] In my opinion, these criticisms of the Immigration Judge are unjustified. She clearly understood that the petitioner had been put on probation and must have appreciated that this reflected a relatively lenient view of the petitioner's culpability on the part of the Sheriff. It seems clear also that the outcome of the criminal prosecution did not play a major part in the Immigration Judge's reasoning. More importantly, it is plain that the Immigration Judge was well aware of the positive features of the petitioner's behaviour while she has been in this country. In paragraph 23, for instance, she refers to the facts that the petitioner has attended college and courses, that she has involved the children in various pre-school and school activities, that she has studied to obtain academic qualifications in order to improve herself, that she regularly attends church and that she is "by all accounts" a loving and devoted mother. So it is plain that the Immigration Judge attached weight to those aspects of the petitioner's behaviour which went in her favour.

[34] In the whole circumstances, I conclude that the Immigration Judge did not err in law in any of the respects suggested by counsel for the petitioner at the First Hearing. Looking at her decision fairly and reading it as a whole, it seems to me that she has considered all the relevant features of the case with conspicuous care and applied the law faithfully. Her decision contains no errors of law. It follows that, contrary to the averments in the petition, the present case raises no issues of principle or practice of sufficient importance to satisfy the test laid down by the Supreme Court in Eba v Advocate General for Scotland (supra). Nor are there any compelling reasons which render the decision of the Upper Tribunal Judge unlawful or irrational. I must, therefore, refuse the petition. I have accordingly sustained the respondent's first, third and fourth pleas-in-law and repelled the petitioner's pleas. I have reserved all questions of expenses.