Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 129
P494/12	OPINION OF MORAG WISE QC (Sitting as a Temporary Judge) in the cause OGB (AP) Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum chamber) dated 24 January 2012 to refuse the petitioner's application for permission to appeal Respondent: ________________

Petitioner: Gibson, advocate; Drummond Miller LLP

Respondent: Olson, advocate; Office of the Advocate General

8 August 2012

Introduction

[1] The petitioner is a citizen of Nigeria, born on 29 October 1980. Her counsel accepted that she has a poor immigration history. She entered the United Kingdom via Turkey on 17 December 2007 using a false passport and entry clearance visa in the name of OAO. On 7 July 2008 she gave birth to a son, FB, who lives with her. On 29 April 2010 she claimed asylum under her own name and identity. Her claim for asylum was refused by letter of 20 May 2010. The petitioner appealed that decision to the First-tier Tribunal (Immigration and Asylum Chamber). Her appeal was refused by determination dated 27 July 2010. She sought permission to appeal that decision but was unsuccessful. The petitioner became appeal rights exhausted on 16 September 2010.

[2] On 26 November 2010 the petitioner submitted fresh representations, which were rejected by the respondent who refused to recognise them as a fresh claim for asylum, by letter of 10 December 2010. On 7 January 2011 the petitioner submitted further representations. The respondent rejected these further representations and refused to recognise them as a fresh claim for asylum by letter dated 17 January 2011.

[3] On 6 June 2011 the petitioner lodged a fresh application for leave to remain. That application was refused by the respondent by letter dated 21 June 2011. The petitioner appealed and her appeal was refused by determination of the First-tier Tribunal (Immigration and Asylum Chamber) on 2 September 2011. The petitioner then applied (on 28 October 2011) to the Upper Tribunal for permission to appeal to that Tribunal. The Upper Tribunal refused the petitioner permission to appeal by decision dated 24 January 2012. It is that decision that is the subject of challenge in these proceedings.

Scope of the petitioner's challenge

[4] As the decision of the Upper Tribunal refusing leave to appeal from a decision of the First-tier Tribunal is an " excluded decision" in terms of section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, a petition for judicial review is the only remedy open to the petitioner. Such decisions are only amenable to judicial review in cases where there is an important point of principle or practice or some other compelling reason - Eba v The Attorney General for Scotland [2011] 3 WLR 149 at para 48. Counsel for the petitioner acknowledged that this is not a case raising any important point of principle or practice. He restricted his argument to there being "some other compelling reason". Further, it was accepted that the petitioner required to show both (i) that there was an arguable error of law on the part of the First-tier Tribunal, resulting in an error by the Upper Tribunal in refusing to grant leave to appeal and (ii) that there was a compelling reason for reducing the decision of the Upper Tribunal. It was submitted that both requirements were satisfied. It was also contended that as part of the exercise of reviewing the decision being challenged, the court should pronounce on the merits of the proposed appeal.

Decision of the First tier Tribunal

[5] The petitioner's more recent appeal to the First-tier Tribunal was brought solely under articles 3 and 8 of the European Convention on Human Rights ("ECHR"). The relevant parts of the decision (No 6/1 of process) relate to the article 8 considerations that are the subject of the present petition. The petitioner claimed that it would cause a disproportionate breach of her and her son's right to respect for family and private life in the United Kingdom should they be removed. Her son suffers from asthma and a skin condition and she claimed that she would not be able to afford to buy any medicine for him in Nigeria. The immigration judge addressed the article 8 claim in the following passages from the decision:

"55. The appellant states ... that she will not be able to afford to buy any medicine for her son in Nigeria. However, I note from the letter from Gregor Donaldson, Social Worker ... that there are no significant concerns in relation to [F's] global development and that his health issues related to asthma and his skin condition appeared to be appropriately managed.

56. Reference is made at paragraph 55 of the appellant's written submissions to the case of ZH (Tanzania) v SSHD [2011] UKSC 4 and the consideration of the best interests of the child. It is submitted that the Respondent has not considered the best interests of the child to be paramount in this case as stated in ZH.

57. However, it is clear from paragraph 33 of ZH that, although he best interests of the child must be a primary consideration and must be considered first, they can be outweighed by the cumulative effect of other considerations. In the case of ZH, 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.

58. In the present case, the appellant left Nigeria in December 2007, using a passport in another name. She overstayed her visa and worked illegally in the United Kingdom. It was only when she claimed asylum on 29 April 2010 did she reveal her real name. Her immigration status was indeed precarious when she discovered that she was pregnant with her son in December 2007... Most importantly, the appellant's son, [F], is not a British citizen as in the case of ZH.

59. The written submissions for the appellant state that her removal from the United Kingdom would constitute a severe disproportionate breach to both the rights of the appellant and her child under Article 8. Various matters are mentioned such as the young boy's asthma and skin condition and the fact that he would be thrust into an environment and culture which is alien to him were he removed to Nigeria. However, I note that the previous Immigration Judge did consider the best interests of the child at paragraphs 55-57 of her Determination. She found that the child's asthma could be treated in Nigeria and she found that the appellant's family life could continue in Nigeria ... I note also that the Country of Origin Information Request reply dated 8 April 2010 indicates that medication is available locally for treatment of asthma and eczema in Nigeria. In particular, Beclamethasone (via a spacer device), Ventolin, Montelukast and Hydromol cream are all available.

60. Accordingly, I find that removal from the United Kingdom would not constitute a severe disproportionate breach to the rights of the appellant and her child under Article 8.

61 ... I do not accept that the appellant and her son would not be in a position to build private lives in Nigeria. I do not accept that they would suffer extreme hardship in the effects of their deteriorating health ...

62. ... it is argued that, if the appellant and her son are returned to Nigeria, they would not be able to develop private lives that bear any resemblance to those they presently have. However, the question which I require to decide is whether the interference with the exercise of the private lives of the appellant and her son would be proportionate to the legitimate public end sought to be achieved. I find, as did the previous Immigration Judge, that it would not be disproportionate to return the appellant and her son to Nigeria ... .as recently as 16 February 2011, the appellant told Ms Ross that she was making attempts to re-establish communication with her family in Nigeria."

Refusal of Permission to Appeal to the Upper Tribunal

[6] In seeking permission to appeal to the Upper Tribunal, the petitioner sought to argue that the immigration judge had erred in her approach to the "best interests of the child issue". Relative statement of reasons for appealing is lodged at no 6/2 of process. In particular it was contended (i) that the immigration judge had treated the availability of medical treatment in Nigeria as decisive, (ii) that she had failed to state what she considered to be in the child's best interests and (iii) that she had not carried out the correct balancing exercise by failing to consider the "alternative lives" faced by the child in the United Kingdom and Nigeria.

[7] In refusing permission to appeal the upper tribunal judge gave the following reasons:

"Plainly the FTIJ considered s55 and ZH Tanzania principles: see paras 56-7. Contrary to what these grounds assert, the FTIJ did not treat the availability of medical treatment as decisive. It was properly treated as part of the overall assessment the FTIJ made of the best interests of the child (born in 2008) in the context of the wider proportionality assessment. The FTIJ was plainly right to find that the child's best interests lay with continuing to be cared for by her mother who in turn was found to have a family network she could turn to in Nigeria. On AL (India) principles the FTIJ was not required to consider that the child's best interests in this case lay anywhere other than being with her mother (someone who had properly been found to be returnable to Nigeria without violation of her human rights) unless there were separate factors that made it best for her to be in the UK. Such separate factors were not demonstrated."

The petitioner's argument

[8] Two main arguments were presented in support of the requirement to show that there was an arguable error of law on the part of the First-tier Tribunal. First, it was contended that the immigration judge did not approach article 8 in a manner that was consistent with Lady Hale's judgement in ZH Tanzania v Secretary of State for the Home Department [2011] 2 AC 16. Secondly, it was contended, that even if the immigration judge had considered the best interests of the child as a primary consideration, she had failed to provide proper and adequate reasons as to what was in the child's best interests and had not justified her conclusion. So far as the first of these was concerned, it was submitted that the First-tier Tribunal had failed to assess the best interests of the child as a distinct stage of inquiry. Those best interests were a high ranking matter that could only be displaced if there were strong countervailing factors. Only those countervailing factors had been explored and no weight had been given to the fact that the child was born in the United Kingdom. Further, no mention had been made of section 55 of the Borders, Citizenship and Immigration Act 2009 and the Upper Tribunal had erred in stating that that provision had been taken into account.

[9] On the second point, there were said to be no adequate reasons given to justify separation of the child from the community in which he has lived all his life. The Upper Tribunal had also erred in indicating that the immigration judge had found that the best interests of the child lay with continuing to be cared for by his mother. No such finding had been made. This error in interpretation of the First-tier Tribunal decision resulted in the Upper Tribunal relying, wrongly, on the case of AJ (India) v SSHD [2011] EWCA Civ 1191. While the Court of Appeal had accepted in that case that specific reference to section 55 of the 2009 Act was not required, it had made clear that a careful balancing exercise was required in respect of the article 8 considerations. No such balancing exercise had taken place in this case. In any event, in AJ India) there were no health issues. In this case the First-tier Tribunal ought to have considered that it would be in the child's best interests to remain in the United Kingdom to continue to receive medical treatment even if the petitioner was removed. There was no acknowledgement that his skin conditions were being managed only as a consequence of his being in the United Kingdom. The petitioner's claim that she could not afford medical treatment in Nigeria was effectively ignored. For all these reasons there was an arguable error of law.

[10] On the basis that there was such an arguable error of law, it was submitted that there was also a compelling reason for reducing the decision. It was accepted that the " compelling reasons" test is a high one. It has been described as an exceptional test designed to deal with situations where there has been a total collapse of procedure - AK v Secretary of State for the Home Department [2012] CSOH 17. However, in R (Cart) v Upper Tribunal (Public Law Project and another) [2011] 3 WLR 107 Lord Dyson had explained that examples of compelling reason might include a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences. That was the sort of territory the present petitioner was said to be in. The consequences of the decision if not reduced would be a return to Nigeria for the petitioner and her son in circumstances where the petitioner would not be in a position to access medical treatment for her child.

The respondent's position

[11] Counsel for the respondent disputed that there had been an error of law on the part of the First-tier Tribunal. Even if there had been, the case did not meet the Eba criterion of " some other compelling reason" and the decision should stand. There would have to be a clear error of law coupled with very serious consequences for the individual before the court should interfere. This was a case involving a very young child who one would expect to reside with his mother and who is, in the absence of proof to the contrary, in reasonable health. The focus of the petitioner's challenge related to claims about her son's medical condition, but it could not be said that his condition could somehow only be managed effectively in the United Kingdom. The specific nature and extent of the child's skin conditions was unknown and it was for the petitioner to provide evidence of that. There was no suggestion that he suffered from a life threatening condition of any kind. The relevant passages from the immigration judge's decision (paras 54-57 of No 6/1 of process) illustrated that the evidence was that the child had asthma and eczema being treated by means available in Nigeria.

[12] The petitioner's claim that she could not afford medicine for her son in Nigeria was made against a background of adverse credibility findings. While there was no clear statement that her position on being able to fund treatment in Nigeria was not believed, it was at least implicit in the decision and the overall view taken on the medical treatment issue was clear from the terms of paragraph 59. Any perceived gap in the reasoning of the immigration judge was not fatal. The funding of medical treatment was not stated as a reason for appealing when seeking permission from the Upper Tribunal. In any event, the petitioner could not demonstrate that the outcome would have been any different had there been a specific finding on the matter. It was not sufficient for the purpose of article 8 to point to the medical system in the other country being inferior to that in the United Kingdom. No evidence of the cost of such treatment in Nigeria had been produced and the frequency with which the child might require it had not been proved. It was noteworthy that no information following the child's referral to Yorkhill Hospital Dermatology Department in March 2011 had been produced (see para 54 of No 6/1 of process). Overall there was no evidence to support a conclusion that the immigration judge had failed to consider that it would be in the child's best interests to remain in the United Kingdom and receive medical treatment here. If there was information suggesting that the child has a more severe condition than the current medical evidence indicated, that could be raised in further fresh submissions.

[13] The respondent's position was that there was nothing in the argument that there had been a failure to assess the best interests of the child as a distinct stage of the inquiry. The best interests of the child were a part of the overall consideration of article 8. The immigration judge was aware of and referred to the exercise required by ZH Tanzania. At paragraph 63 of her decision (No 6/1 of process) she finds that the child and his mother will be returned together and that there is no question of them being separated. The terms of the previous immigration judge's findings on best interests were also referred to (see paragraphs 55-57 of No 7/2 of process) and those had been taken into account. It was clear from the Court of Appeal decision in AJ (India) that form in these matters was far less important than substance. There was no need to refer to the relevant statutory provision if it had been complied with. Where it was, as here, obvious that it was in the interests of a three year old child to be with its mother, that did not require to be the subject of a distinct finding. The point was that there did not require to be an analysis for the child separate from the mother's article 8 claim because there was no question if him being parted from her. In any event, it was not being suggested that the child somehow had relationships or private life separate from his mother. The case was similar to that of AJ (India) in that respect.

[14] It was argued that the petitioner was wrong to suggest that this court should consider the merits of the proposed appeal. The correct question was whether the case came within the scope of the supervisory jurisdiction. A useful discussion of how the court should approach matters "post Eba" could be found in the Opinion of Lord Brodie in Petition of AKA for Judicial Review [2012] CSOH 86. There Lord Brodie expressed the view (at para 46) that, post Eba, he did not consider that the court was obliged to come to a conclusion on the merits of an appeal notwithstanding that he had heard full argument on it in the context of a judicial review against refusal by the Upper Tribunal of permission to appeal. In any event, it was argued, the petitioner in this case did not come close to the "some other compelling reason" test of Eba. In the recent decision of JD (Congo) v SSHD and another [2012] EWCA 327 the Court of Appeal emphasised (at para 26) that absent a sufficiently serious legal basis for challenging a decision, extreme consequences for the appellant would not suffice to satisfy the "some other compelling reason" test. The need for a sufficiently serious legal basis of challenge reflects the fact that the threshold for a second appeal must be higher than that for an ordinary appeal (para 27). It was submitted that the purpose of the "safety valve" of judicial review was not to dissect the minutiae of the First-tier Tribunal decision and point to parts that might have been better expressed. This was hardly a case that was "crying out for consideration" by the Upper Tribunal.

Discussion

[15] Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes an obligation on the Secretary of State to make arrangements to ensure that immigration functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. Accordingly, a relevant decision taken without any regard to the best interests of any children concerned would not be "in accordance with law" for the purpose of article 8(2) ECHR. The petitioner complains that the First-tier Tribunal made no specific mention of section 55 of the 2009 Act. However, as the case of AJ (India) illustrates, it is not necessary to refer to a particular provision if it is clear that the Tribunal fulfilled the substantive requirements of it. The position was summarised by Sir Mark Potter in that case as follows (at para 52):

" ... albeit that there was no reference to section 55 of the 2009 Act in the determination of the First tier Tribunal, very careful consideration was given to the necessary balancing exercise in respect of article 8 considerations which arose and to the position of the child within the family, the child being of an age at which his welfare interests clearly dictated that he should remain within the care of his parents whether in the United Kingdom or in India."

Thus what matters is the approach taken to the article 8 considerations having regard to the particular circumstances of the case. In my view it is very clear from the immigration judge's decision that she was aware of and was seeking to apply the necessary welfare considerations First, there is specific reference to ZH Tanzania in her decision (para 56) and the need to consider first the best interests of the child. Further, there is an acknowledgement that this particular child's best interests had already been the subject of consideration by a previous immigration judge (para 59 and No 7/2 of process) in 2010. Section 55 was relied upon and referred to in that decision. Given the tender age of the child, this is not a case where he has moved on to a different stage in his development such that specific private life factors for him as distinct from his mother have now come into play. The fact that the petitioner's concern to have the best interests of her child considered as part of the decision making in her claim had already been addressed (see paras 44 and 55-57 of No 7/2 of process) was a relevant and important piece of background information available to the decision maker.

[16] The main criticism under this part of the argument seemed to be that the First-tier Tribunal emphasised only the countervailing factors, rather than starting with a narration of what would be best for the child and then seeing whether there were any factors that could displace a conclusion reached by applying the best interests test. There is in my view no substance to this complaint. In ZH Tanzania Baroness Hale expressed the following view in exploring what was encompassed in the best interest of the child requirement:

"... it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away.

Although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (article 7) and to preserve her identity, including her nationality: article 8. "

In this case, it was not suggested to the immigration judge that the child would live with anyone other than his mother. Unlike the situation in ZH Tanzania, the petitioner's child is not a British national. His presence in the United Kingdom arises only because his mother entered this country illegally when he was in utero. The petitioner's precarious immigration status at the material time is something the immigration judge was entitled to take into account. It is apparent from the passage in ZH Tanzania quoted above that it may well be assumed that, all things being equal, it would be best for the child to live in the United Kingdom, the question then being whether it is nonetheless reasonable to expect him to live in another country. The balancing exercise then becomes primarily an exploration of the relevant factors to see whether the interference with the article 8 rights is proportionate always having regard to the legitimate aim of effective immigration control. That is precisely the approach taken in this case. There is the implicit acknowledgement in paragraph 62 that taking the petitioner's stance at its highest, she and her son will not have the same quality of life in Nigeria as they would here. That is taken into account in deciding whether removal is nonetheless proportionate. The broad approach taken by the First-tier Tribunal seems to me to be entirely consistent with that set out by Lady Hale in ZH Tanzania. I agree with Counsel for the respondent that it is not necessary to make an explicit finding that the child's best interests lay in continuing to be with his mother when no other position was suggested. The reference by the Upper Tribunal to the First-tier Tribunal having found that it was in the child's best interests to continue to be with his mother has to be read in the context of that Tribunal also stating that there was no need to consider that the child's best interests in this case lay anywhere other than being with her mother. Taking the two statements together, it is clear that the Upper Tribunal regarded the immigration judge as having reached the conclusion that it was clear where the child's best interests lay. It cannot be an appealable error of law that the finding was implicit rather than explicit.

[17] However, even if the general approach was correct, a specific point about the child's interests and how these were dealt is challenged by the petitioner. This is the issue of whether her claim that she could not afford medical treatment for her son was addressed adequately by the First-tier Tribunal. As initially characterised in the reasons for the proposed appeal (No 6/2 of process) this was an argument that the immigration judge had treated the availability of medical treatment in Nigeria as decisive of the best interests of the child issue, rather than simply a material factor. At the hearing of this petition that developed into an argument that the immigration judge had referred to but not addressed in terms of the petitioner's claim that she could not afford medical treatment in Nigeria, as distinct from the general availability of such treatment. It is certainly the case that in paragraph 55 of her decision the immigration judge addresses the issue of the child's current medical treatment rather than meeting directly the point about affordability. However, the point that would appear to be made in paragraph 55 is that there are no significant concerns about this child's global health and development. He is not a vulnerable child where issues would arise about whether it would be disproportionate for him to live in Nigeria regardless of his mother's poor immigration record and his lack of British nationality. He is a child with asthma and a skin condition, both of which can be treated in Nigeria. The petitioner had made the point about medical treatment on a previous occasion and the detailed findings of the previous immigration judge are referred to. The conclusion reached is that the child can easily be treated in Nigeria. Implicit in that is a rejection of the mother's claim that she could not afford such treatment. No information to back up that assertion was provided. It was a statement made by someone who had been found to lack credibility. Ultimately it does not appear to have been considered as a material point distinct from the general availability of medical treatment either by the immigration judge or by the petitioner in seeking permission from the Upper Tribunal to appeal. It appears to have been introduced as a subordinate issue within the larger point about availability of medical treatment and been treated as such by the immigration judge. There is specific rejection (see paras 59-60) of the claim that it would be disproportionate to remove the petitioner and her child to Nigeria because of the child's health issues. That rejection must be deemed to include rejection of the suggestion in relation to affordability, made as it was without information as to what that cost would be. It was open to the petitioner to lead evidence of that. Of course, it might have been better for the immigration judge to have stated in clear terms that each and every assertion made by the petitioner in relation to the availability and affordability of medical treatment was being rejected. A failure to do so does not, however, amount to a material error of a sort that would give rise to a strong appeal point. The tenor of the decision on the issue of the child's health and the consequences for him on removal are clear enough. As correctly stated by the upper tribunal judge, that issue was part of the overall assessment of the best interests of the child in the context of the wider proportionality assessment. It cannot be said that the petitioner's submission on this issue was not properly considered by the immigration judge. Ultimately the argument seemed to me to relate to the form of the immigration judge's written decision rather than its substance.

[18] For the reasons given above, I do not consider that any error that would justify interference in the decision by this court exists. In any event, even if an error could be discerned, the issue arising in this case does not meet the test in Eba. It is accepted that no issue of general importance arises and that only the "safety valve" of the "some other compelling reason" part of the test could apply. Thus the decision would have to be perverse, or plainly wrong, or there must be some procedural irregularity such that the petitioner has not had a fair hearing at all. Again it was acknowledged that the "compelling reasons" test is a high one, an exceptional test designed to deal with situations where there had been a total collapse of procedure - Uphill v BRB (Residuary) Limited [2005] EWCA Civ 60; AK v Secretary of State for the Home Department [2012] CSOH 17. I agree with counsel for the respondent that this case falls well short of a case which "cries out for consideration by the court if the Upper Tribunal refuses to do so" (Lord Dyson in R(Cart) v Upper Tribunal (Public Law Project and another) [2011] 3 WLR 107). The petitioner has taken the opportunity of presenting the argument about her child's health at two separate hearings before the First-tier Tribunal and I cannot see that she has been the victim of any procedural unfairness. While there were arguments to be made about the manner of expression of the latest First-tier Tribunal decision these were not points of substance rendering it unfair for the matter not to be considered at a further appeal. I do not consider that the petitioner meets the second part of the Eba test relied on and the decision complained about is accordingly not within the scope of judicial review.

Decision

[19] For the reasons given, I will sustain the pleas-in-law for the respondent and refuse the petition, reserving meantime all questions of expenses.