SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Brodie Lord Drummond Young	[2013] CSIH 62 P238/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the reclaiming motion SA Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______________

Act: Devlin; Drummond Miller LLP

Alt: McGregor; Office of the Advocate General

6 June 2013

Background

[1] The reclaimer (appellant) has an immigration history which is best described as protracted. She maintains that she arrived in the United Kingdom clandestinely in or about December 2004 via Ghana. She came by boat and found herself in London, where she boarded a bus to Aberdeen; all of this accompanied by her daughter, who is now aged 9. She now also has a son aged 5. The respondent does not accept this version of events for a variety of reasons and considers that the reclaimer is in fact SOA, who arrived with her daughter directly from Nigeria on a visitor's visa, granted on 23 November 2005.

[2] The reclaimer's troubles in the UK began in March 2007, when she was arrested for possession of a forged Nigerian passport. In October 2007, the sheriff put her on probation for three years. Very soon after that, on 2 November 2007, the reclaimer claimed asylum. This was refused on 2 February 2009. On 31 March 2009, her appeal against that refusal was dismissed by an Asylum and Immigration Tribunal and, on 1 May 2009, her application for that decision to be reconsidered failed.

[3] In both June and September 2009 the reclaimer produced new information, which she maintained satisfied the terms of paragraph 353 of the Immigration Rules regarding "fresh" claims. The rule requires the information to contain facts which are significantly different from those before the original Tribunal; meaning that the new grounds must create a realistic prospect of success (ie a reversal of the original decision) upon a re-assessment of the situation. On 15 and 24 September 2009, the reclaimer's new claims were rejected but, following an interview with the reclaimer and her instigation of judicial review proceedings, it was decided that her position should be revisited. Mental health reports were obtained relative to the new material. However, on 20 August 2011, her claim was again rejected by the respondent. This was on the same basis that the new information did not create a realistic prospect of success. In the body of this decision were significant adverse findings concerning the credibility of the reclaimer.

[4] On 14 October 2011, a First Tier Tribunal refused the reclaimer's appeal against the respondent's decision. The issue at the hearing of the appeal was whether the reclaimer and/or her two children were entitled to humanitarian protection in terms of articles 3 and 8 of the European Convention on Human Rights. It was noted by the FTT that, during the course of her previous asylum claim, the designated immigration judge had considered the reclaimer's account to be "garbled and self-contradictory" and that she could not be regarded as "a reliable witness". Although, as the FTT correctly stated, the findings on credibility were not binding, nor were they challenged. They were based, in summary, upon the recovery of material, notably photographs, bank statements, children's clothing and the application for the visitor's visa (supra) in the flat of a male person (also Nigerian), which demonstrated fairly convincingly that the reclaimer had fabricated material parts of her account, especially that she had had no contact with the father of her youngest child since 2006. The findings were strongly indicative of the reclaimer: (1) not being who she said she was; (2) not having entered the UK as she said she did; and (3) living in family with the male person at the flat.

[5] Notwithstanding the somewhat damning criticisms of the reclaimer's credibility, the FTT went on to consider the new material presented in relation to the reclaimer's mental health. This revealed that the reclaimer did have significant problems, for which she had received medical treatment and substantial social work support. However, the FTT paid particular attention to the lack of credibility attaching to the account given by the reclaimer about her past history, not only as narrated in the immigration process but also to both a psychiatrist and a psychologist. The FTT concluded as follows:

"21 The evidence before me does not indicate that the [reclaimer] is currently threatening suicide or harm to her children, although she has done so in the past. Her children have been returned to her and it is anticipated that compulsory protection measures will soon be removed because of the progress she has made. There is a possibility that the appellant's mental health may deteriorate if faced with imminent removal, but that is a situation that can be managed and monitored, with appropriate support being given to the appellant and her children before and during the journey if it is required. By the time the appellant 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 ... 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. The risks and difficulties of her life in Nigeria may be much greater than would be the case if she were permitted to remain in the UK. She and her children may well have a happier life and better prospects in the UK, but that is not the test. I find that the evidence before me does not indicate that there is a real risk of the appellant and her children being exposed to conditions of such harshness and difficulty as to result in intense physical and mental suffering".

On this basis the FTT rejected the reclaimer's case for protection under Article 3.

[6] The FTT then assessed the Article 8 claim, under reference to R (on the application of Razgar) v Secretary of State for the Home Department (No. 2) [2004] 2 AC 368. The FTT was particularly concerned about the position of the two children. The children were described (para 25) as "clearly ... in no way responsible for" the reclaimer's actions in entering the UK and remaining there illegally. They were said to be "innocent children". The FTT noted that it required to have regard to their welfare and best interests as "a primary consideration". The effect of a decision to return the family to Nigeria would, the FTT expressly stated, be:

"27 ... to uproot the children from their present environment and require them to relocate to a very different environment. ... The obvious conclusion is that it would be in the children's best interest to avoid this scenario and permit them to remain in the UK".

Nevertheless, the FTT reasoned, it was necessary to see whether there were other factors, the cumulative effect of which would outweigh the primary consideration of the children's welfare. The FTT decided that there were such factors. The FTT concluded that:

"33 ... their interests in remaining in the UK are outweighed by the public interest in maintaining economic order and the rights of others by applying a consistent immigration control. The [reclaimer's] conduct in deliberately flaunting the UK's immigration laws is a matter which must be weighed in the balance. There is a strong public interest element in sending the message that persons breaching the rules will not be allowed to benefit from doing so. The [reclaimer] has proved herself to be a valued and well-liked member of the community during her time in the UK, but article 8 is not intended to be used as a vehicle for rewarding good behaviour. The Convention is designed to give direction to the protection of fundamental human rights, not the conferment of individual advantages or benefits".

Accordingly, the FTT found that the decision to remove the reclaimer was proportionate in terms of Article 8(2) of the Convention.

[7] The reclaimer applied to the FTT for permission to appeal to the Upper Tribunal. This was, broadly, on the basis of errors in the assessment of the psychiatric and psychological evidence and in the balancing exercise relative to the best interests of the children, as set against the other factors. A differently constituted FTT refused leave to appeal, holding that the grounds advanced disclosed no arguable error of law and simply amounted to disagreement with the "careful and fully reasoned findings of the immigration judge".

The Decision of the Upper Tribunal
[8] The reclaimer applied to the Upper Tribunal for leave to appeal. Since this reclaiming motion proceeds upon an application for judicial review of the UT's decision (and not that of the FTT), it is of critical importance to note, first, the precise nature of the application for leave to appeal to the UT and, secondly, the exact terms of the decision made. Leave to appeal, or "permission" to do so, as it is put in section 11 of the Tribunals, Courts and Enforcement Act 2007, may be granted in respect of "any point of law arising from a decision made by" a FTT.

[9] Form 1AUT-1 (Upper Tribunal (Immigration and Asylum Chamber) - Application for Permission to Appeal") is available for completion. Section F (Reasons for appealing) asks the applicant to state what error(s) of law have been made by the FTT. The reclaimer completed this form by inserting three paragraphs, the second of which is no longer relevant. The first paragraph refers to the description of the "Innocent children" in paragraph 25 of the FTT's determination (supra) and identifies this description as reflective of the comments of Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 (at para 33). It continues:

"The immigration Judge singularly fails to address how she is not visiting upon the children the faults of the [reclaimer]. The Immigration Judge is in effect blaming the children for something in which they are blameless and exacting retribution upon them for that by reaching the decision he (sic) did. Despite recording that the children are blameless the Immigration Judge left that out of account in the proportionality balancing exercise. In leaving a relevant matter out of account the Immigration Judge erred in law".

The third paragraph observes that the Immigration Judge had said (at para 21 supra) that the reclaimer's mental health could potentially deteriorate but that it could be monitored. It is then contended that:

"Whether that deterioration was manageable was irrelevant, if the very act of seeking to enforce removal was reasonably likely to bring a deterioration in mental health that would breach the [reclaimer's] physical and psychological integrity. In failing so to recognise the Immigration Judge left out of account a relevant matter".

It can instantly be seen that the error of law identified by the reclaimer in both paragraphs is a failure to take into account a relevant factor in the decision making process (and possibly taking into account an irrelevant one). That then was the issue focussed for the UT.

[10] On 12 December 2011, the UT refused leave to appeal. After three paragraphs of narrative, the UT stated its reasons for refusal as follows:

"The Immigration Judge considered the fresh evidence relied on by the [reclaimer]. She found, however, ... that the [reclaimer] had lied about how and when she had entered the UK and about who she was. There were serious problems with her evidence that she had no contact with her child's father (also Nigerian but without any immigration status) as her personal possessions and documents were found in his accommodation. The Immigration Judge took account of the psychiatric evidence which suggested that return to Nigeria would have a devastating effect on her mental health but quite rightly found that this was diagnosed on the basis that the [reclaimer] had no family support network to rely on which was found to be untrue. Contrary to what is argued in the grounds, the Immigration Judge was very much aware that the children were blameless victims (paragraph 25). She considered their situation with care and applied relevant case law. Both are Nigerian citizens. The Immigration Judge balanced their situation against the countervailing factors. She reached a conclusion that removal would be appropriate and although the grounds take issue with that, it was a conclusion properly open to the Immigration Judge on the available evidence.

The decision of the Tribunal is sustainable. No arguable error of law has been identified".

The Petition for Judicial Review
[11] The reclaimer presented a petition for judicial review, seeking reduction of the UT's refusal to grant leave to appeal. The petition purports to be in line with the guidance on the scope of such a review set out in Eba v Advocate General 2012 SC (UKSC) 1. It is accepted by the reclaimer that the dictum of Lord Hope in Eba (at para [48]) defines the scope as applicable only to cases in which there is "some important point of principle or practice" or "some other compelling reason" why an appeal should be allowed to proceed (see infra).

[12] The petition proceeds (statement of fact 10) to aver, as a generality, the existence of a number of obvious errors of law in the UT decision which provide "other compelling reasons" to allow review. The singular feature of the petition thereafter is that it does not identify any such errors of law on the part of the UT at all, but focuses on errors said to have been made by the FTT. The first of these (statement 11) is that the FTT made a finding that was based on "conjecture or speculation" and failed to ask the correct question in relation to the stresses on the reclaimer's mental health and the availability of treatment in Nigeria. The second and third errors (statements 12 and 13) are that the FTT erred in failing properly to evaluate the best interests of the children.

[13] The petition moves on to the separate category of "important point of principle or practice". Once again, as a generality, it is said that it is the UT's decision which contains an error, but the attack which follows on the responsibility of children for the illegal actings of their parents (statements 15 and 16) is all against the FTT's reasoning. The next ground (statement 17) relates to the FTT's reliance on a factor not presented by the respondent.

[14] The petition reverts to the "compelling reasons" category (statement 19) and once more avers the generality of errors on the part of the UT. What follows (statement 22) is a contention that the FTT's finding, that the best interests of the children were outweighed by the cumulative effect of other matters, was "clearly wrong given the length of time the children had been in the United Kingdom". This is followed by a statement that the UT had made an error in failing to find that the FTT's erroneous balancing exercise founded a "right of appeal". Finally, it is said (statement 23) that it was clearly wrong for the FTT to fail to consider that the removal of the reclaimer would breach her "psychological and physical integrity". Again it is stated that the UT had erred in holding that this did not create a "right of appeal".

[15] This would all be very interesting, if the court were to be engaged in an exercise of identifying an error of law on the part of the FTT. It is not. This is, quite rightly in terms of process, a petition for judicial review of the decision of the UT to refuse leave to appeal. In order to succeed, and before the guidance in Eba v Advocate General (supra) comes into play, it must identify an error in law on the part of the UT.

[16] The UT was asked to grant leave to appeal on the basis of two errors on the part of the FTT, both concerned solely with failing to take into account relevant considerations or taking into account an irrelevant one. The UT made a decision on the only two matters which it was asked to address. That decision was simply that the contentions of the reclaimer were wrong. It was clear that, whatever the merits of any balancing exercise or the accuracy of any findings in fact, the FTT had taken into account the innocence of the children (at para 25) and the potential for deterioration in the reclaimer's mental health (at para 21). As was correctly recognised at the hearing on the reclaiming motion, that is essentially an end of the matter. The reclaimer accordingly advisedly abandoned the reclaiming motion.

[17] It is regrettable that the Lord Ordinary was led down a path which involved a detailed and time consuming consideration of the FTT's lengthy determination. The court can readily understand why that happened, given the state of the record on the petition and answers. However, in an application for review in this category of case, it is of vital importance that the court focus upon what is actually being reviewed. Here it was a faultless determination of two straightforward grounds of appeal proffered by the reclaimer about whether relevant considerations had been left out of account.

[18] It is, of course, conceivable that a party could maintain that the UT had omitted to spot an obvious point of Convention jurisprudence (R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929). However, in order to do so, that party would have to have included that contention in any petition for judicial review. That was not done in this case; nor indeed could it have been done, given the lack of any obvious merit in the grounds which were advanced.

Submissions

[19] Notwithstanding the abandonment of the reclaiming motion, the parties were invited to address the court on the important points of practice and procedure arising, not in respect of the petitioner's appeal, but out of the use of judicial review in this type of case.

Petitioner and Reclaimer

[20] The petitioner argued that it would be appropriate for the court to hold that, whilst the tests in Eba (infra) of an "important point of principle or issue of general importance" and "other compelling reason" emphasised the need for judicial restraint, they did not restrict the grounds available for judicial review. The status quo had been rejected as untenable due to a perceived lack of judicial restraint (R (Cart) v Upper Tribunal [2012] 1 AC 663, Lady Hale at para 50). It was to be assumed that specialist tribunals were unlikely to make mistakes and the court should not be astute to pick up errors of law (Cooke v Secretary of State for Social Security [2002] 3 All ER 279, Lady Hale at paras 15-17, quoted in Cart, Lady Hale at para 49, under reference to R (Wiles) v Social Security Commissioner [2010] EWCA Civ 258, Dyson LJ at paras 53-54). However, whether an error was sufficiently serious to justify review depended on the circumstances of the particular case (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73). It was an inherently flexible test and a balance had to be struck between the strength of a point and the consequences of getting it wrong (JD (Congo) v Home Secretary [2012] 1 WLR 3273, Sullivan LJ at paras 23-27).

[21] The laws of Scotland and England ought to be the same in this area (Eba, Lord Hope at para [43]), but it remained to be determined how the test would operate in Scotland. The "second appeals test" criterion had not been applied to the judicial review of UT decisions on leave to appeal prior to Eba, but it was relatively well-known and considered in Eba to be appropriate in order to ensure the necessary level of restraint. Accordingly, it was to be applied by analogy.

[22] Plainly the test was intended in Eba to be applied in Scotland at the stage of first orders, but it was designed to apply when seeking leave to raise judicial review proceedings under English rules of procedure. An analogy could be drawn between granting first orders and granting permission to raise proceedings. In either case, the test should be applied prior to reaching the stage of substantive review. It was not a straightforward test to apply, given its relative novelty, and thus unlikely to be conducted as a paper exercise. Considerations of practicality and judicial time explained why the test was to be applied, but these were not additional qualifications. The test remained "perversity" and not whether the judge could be persuaded of the merits of the appeal quickly. The second appeals test ensured the appropriate degree of judicial restraint, but it did not necessarily entail that applications should be dealt with by undue expedition. Otherwise there would be a risk that complex or legal points, which were not readily obvious, would be wrongfully excluded (see BM, Petnr [2012] CSOH 142, Lady Clark at para [20]).

Respondents

[23] The Eba test should be considered at an early stage (Eba, Lord Hope at para [49]; A v Secretary of State for the Home Department 2012 SLT 1075, Lord Brodie at para [31]). In cases of this nature, first orders were granted as a matter of routine and substantive first hearings fixed (EY v Secretary of State for the Home Department 2011 SC 388). However, it would be appropriate for analysis of the Eba test to be undertaken at a much earlier stage. The practice of the respondent had been to enrol a motion for the Eba test to be considered at a procedural first hearing (see the Practice Note No 1 of 2012). There had been some reluctance in the Outer House to entertain substantive considerations at that stage because of the phrasing in the Practice Note (para 11, infra).

[24] It was envisaged that the first consideration of matters ought to be a paper exercise at the outset of the process (Eba, Lord Hope at para 49). The new procedural first hearing, at which all parties would be represented, was tailor-made for applications of this nature. Parties could simply lodge short statements of their positions in advance without the need for further timetabling.

[25] In order to pass the Eba test, the grounds for review ought to leap off the page. If days of constrained argument were required, this would suggest the test could not be satisfied. The point to be advanced should be capable of being stated succinctly in order to come within the second appeals test. The alternative analysis (BM Petnr (supra), Lady Clark at para [19]) represented a departure from the clear statement of intention in Eba. Only in exceptional circumstances, where there might otherwise be dire consequences, would review be justified (JD (Congo) v Secretary of State for the Home Department (supra) at para 32).

[26] The courts in Scotland had always exercised significant restraint in the judicial review of specialist tribunals. However, the new tribunal structure, which had judges of the higher courts sitting at the Upper level, was a clear reason for limitation of the court's supervisory role. The enhanced structure required a more restrained approach than has existed previously. The second appeals test encapsulated the high level at which standards should be set (Cart (supra), Lady Hale at para 56). A threshold of arguable or real prospects of success was not sufficient; there must be a new point arising for determination (Uphill (supra), Dyson LJ at para 18).

[27] It was extremely difficult to suggest a form of wording which would provide guidance on the Eba test. However, very high prospects of success were required such that the decision was perverse or plainly wrong (Uphill (supra), Dyson LJ at para 24). If a party were at fault in not raising the existence of an error of law at an earlier stage, that may be a reason why the "compelling reasons" test would not be satisfied notwithstanding its apparent merit (ibid). The test was not concerned with minor errors of procedure. Rather, a wholescale collapse of fair procedure was required. Second appeals were strongly to be discouraged and the courts had to fulfil a gatekeeping function (A (supra), Lord Brodie at para [27] et seq). This could be achieved on paper in the first instance followed by a fairly limited oral hearing (ibid at para 46).

Procedure

[28] In Eba v Advocate General 2011 SC 70, the Lord President (Hamilton) outlined (at para [34]) the origins of the Court of Session's supervisory jurisdiction in relation to quasi-judicial bodies. He explained that a party was entitled, as of right, to apply to the court to exercise this jurisdiction. Leave of the court was not required. The method of review was formerly by ordinary action for reduction of the particular determination, often accompanied by a petition for suspension and interdict in order to secure interim remedies. It was the cumbersome nature of such a process that prompted the introduction of the hybrid petition for judicial review following upon the observations of Lord Fraser in Brown v Hamilton District Council 1983 SC (HL) 1, at 49). However, the use of petition procedure meant that, rather than simply passing the signet, the relevant writ required orders for service (first orders) from the court before the process could commence (see now RCS 58.7).

[29] The power of the court to refuse to grant first orders was considered by the Extra Division in EY v Secretary of State for the Home Department 2011 SC 388. It had been exercised by the Lord Ordinary (Gill) in Butt v Secretary of State for the Home Department, 15 March 1995, unreported, but in circumstances where all relevant parties were present and the respondent had pressed for such a decision. Reference was made to Maclaren: Bill Chamber Practice (at 11), where it is said that a Lord Ordinary can "refuse" a Note (petition) if it is manifestly incompetent. No doubt that is still the position, in the sense that the court will not grant orders for service of a "manifestly incompetent" writ. In Eba (supra at para [35]), the Lord President suggested that the court could refuse to grant a first order if the merits of the petition were "manifestly without substance". However, the Division in EY held (at para [16]) that, whereas a party could not obtain first orders as of right, the process of seeking such orders was a procedural step which should not be equiperated with an application for leave to present the petition (as is required in England and Wales). Thus, it was not necessary for a petitioner to persuade the court that there was an arguable case.

[30] The court left open the possibility of refusing first orders in "exceptional circumstances", such as a clear lack of jurisdiction or incompetency and where the averments were "incomprehensible or gibberish" or "out of step with received and long established canons of law". Although it might not be entirely clearly where any "bright line" may be drawn using this test, the court seemed to accept that "manifestly without substance" could be an accurate description of the standard required before first orders could be refused (para [16]). That is where the law stands at present in relation to the powers of a judge to grant or refuse first orders.

[31] In Eba v Advocate General 2012 SC (UKSC) 1, the United Kingdom Supreme Court (per Lord Hope (at para [49](c)) stated that the low threshold for first orders described in EY (supra) needed to be reconsidered (presumably by the Court of Session) for the category of judicial review, which challenged an unappealable refusal of leave to appeal to an Upper Tribunal. The reasons for his recommendation appear to be pragmatic rather than principled. In particular, it was said that:

"The ever-increasing pressure on the court's business by applications for judicial review... together with the fact that the new tribunal structure requires that a more restrained approach be taken to judicial review of decisions of this kind, suggests that the Lord Ordinary... should be encouraged to consider the question whether there is an arguable case... is satisfied before he or she decides whether or not a first order should be granted".

[32] At present, at the stage of granting first orders, the Lord Ordinary fixes a "first hearing" (RCS 58.7.(1)(iii)). At that hearing, which occurs after any answers are lodged, the Lord Ordinary is obliged to hear the compearing parties and is entitled to determine the petition (58.9.(2)(a)). In terms of the Practice Note No 1 of 2012, which is applicable solely to "immigration and asylum judicial reviews", the court is ordinarily expected to appoint a date for a "procedural first hearing" (para 8(c)) rather than one simpliciter. This device is designed to focus the issues and to identify the best way of resolving them efficiently. The Note states:

"11. At the procedural first hearing the Lord Ordinary will consider the pleadings and the statement of issues, ascertain the parties' state of preparation, the likely duration of the hearing and identify whether the case can be heard along with other similar cases. The Lord Ordinary will exercise any of the powers set out in Rule of Court 58.9 as may be appropriate, for example to require the lodging of notes of argument and authorities, and, after consulting the Keeper of the Rolls, allocate the case to a substantive hearing".

It is important to recognise that this is a Practice Note and not a Rule of Court, far less a provision in primary legislation. However, it appears that the intention is to divide the first hearing into two parts. The first part is "procedural" and the second "substantive". Although paragraph 11 states that, at the procedural hearing, the court "will" exercise any of the powers in RCS 58.9 as may be appropriate (and this theoretically includes determination of the petition), it goes on to state separately (and not as an example of a power that may be used) that, whatever else the court does, it will allocate a substantive hearing. This strongly suggests that petitions are not normally to be determined at procedural first hearings. In this respect, the court endorses the reasoning of the Lord Ordinary (Boyd) in MUB, Petnr [2013] CSOH 19.

[33] It is likely that there will be significant changes in the procedure in the near future. The draft Courts Reform (Scotland) Bill introduces (section 84), into the Court of Session Act 1988, a new provision (section 27B) whereby leave will be required before a petition for judicial review can proceed. This follows the recommendations in the Report of the Scottish Civil Courts Review (the Gill Report) to this effect (chapter 12 paras 40-54, recommendation 152). There is a specific test laid down for leave to be granted. That is, following the practice in England and Wales, whether the application "has a real prospect of success" (recommendation 153). Presumably, consideration of whether there are prospects of success in a petition for review of an unappealable refusal of leave by an Upper Tribunal will involve the court determining whether the test in Eba (infra) is capable of being met. At all events, it would seem that, in the not too distant future, there will be scope for deciding that question as a preliminary issue at the outset of the proceedings.

[34] Standing the terms of the Bill as presently drafted (section 27C), it is likely that there will require to be an oral hearing where any Lord Ordinary is considering refusing leave. If there is no such hearing then, somewhat unusually, the applicant can subject the refusal by a single Lord Ordinary to review by a different single Lord Ordinary at a requisitioned oral hearing. Such elaboration is likely to result in oral hearings in every case where leave is not immediately granted. Any refusal of leave may be "appealed" to the Inner House. All of these provisions may require new rules of court to facilitate their implementation, perhaps especially in relation to the involvement of any respondent. Meantime, it may be that the court should consider whether the existing Practice Note should be amended so that it is clear whether (or not) the Eba test (infra) can be considered as a preliminary issue at a procedural first hearing.

The test in Eba

[35] In Eba, Lord Hope, in delivering the judgment of the United Kingdom Supreme Court, stated (para [48]) that, in cases which seek judicial review of unappealable decisions refusing leave to appeal to an Upper Tribunal, the Court of Session must limit ("use as a benchmark") the use of its powers of judicial review to cases in which the error of law identified falls into one or other or both of two categories. The first is where the error involves "some important point of principle or practice". This is said to require a petitioner to raise an issue "of general importance and not one confined to the petitioner's own facts and circumstances". The second is where there is "some other compelling reason" for allowing an appeal to the UT (not for allowing the review). This category "includes" decisions which are "perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all" (see, for an earlier similar exposition, Uphill v BRB (Residuary) [2005] 1 WLR 2070, Dyson LJ at para 24).

[36] The test is said to have been adopted "by analogy" from the "second appeals criterion". This criterion is apparently well established in England and Wales as the hurdle which has to be surmounted when a party is seeking to make a second tier appeal to the Court of Appeal in that jurisdiction. It is enshrined in statute in relation to the grant of leave to appeal from the UT to the Court of Appeal (2007 Act section 13(6) and Appeals from the Upper Tribunal to the Court of Appeal Order 2008). Lord Hope considered it appropriate to transfer this test to Scotland partly because RCS 41.59, which was introduced in 2008, contained very similar wording in relation to the grant of leave by the Court of Session to appeal from decisions of the UT. This rule was, somewhat anomalously, determined to have been ultra vires in KP v Secretary of State for the Home Department [2012] CSIH 38, because it was not a matter of practice and procedure capable of being regulated by Act of Sederunt. This decision merely prompted the introduction of section 23 of the Crime and Courts Act 2013 whereby the 2007 Act is amended to allow the Court of Session to make rules providing that leave ("permission") should not be granted to appeal from the UT unless: "(a)... the proposed appeal would raise some important point of principle, or (b)... there is some other compelling reason for the court to hear the appeal".

[37] This is the first occasion in which a Division of the court has had the opportunity of giving "such further guidance as may be needed as to how this analogy with the second appeals criterion should be applied in practice" (Eba, para [49]). In order to do so, the court must first wrestle with the meaning of the two principal elements of the benchmark test, which are soon, presumably, also to apply to applications for the grant of leave to appeal from the UT. The court has not found this task to be an easy one. The court notes that its difficulty is shared in the Outer House where there has been considerable judicial thought put into the matter, without achieving any unanimity of approach. Thus, as Lord Boyd recently said in MUB, Petnr (supra at para [13]) "There is however a divergence amongst the judges in the Outer House as to the correct approach to the Eba test...". There is perhaps a degree of understatement in this expression.

[38] The extent of the problem is exemplified by two cases (although there are others, see infra). In A v Secretary of State for the Home Department 2012 SLT 1075, the Lord Ordinary (Brodie) conducted an extensive analysis of the meaning of the two benchmark elements after hearing detailed argument from skilled counsel over the equivalent of two whole days (see para [10]). It is instructive to note in limine that the argument for the petitioner in that case, as in the present, was essentially that the Eba test did not alter the existing, and some would say fundamental, principle that the identification of a material error of law on the part of the inferior body provides sound grounds for the exercise of the power of judicial review. This argument (see para [24]) is, quite respectably, built upon the use in Eba of the words "plainly wrong" as illustrative of what may constitute a compelling reason to grant leave. On the not unreasonable assumption that the words mean, or include being, "plainly wrong in law" (see PR (Sri Lanka) v Home Secretary [2012] 1 WLR 73, Carnwath LJ at para 36), if a party can show that a tribunal has been wrong in law and that the "wrongness" is "plain", in the sense of being evident, albeit perhaps after extensive legal analysis, that was sufficient. Alternatively, as Lord Brodie put it, the same result could be achieved in immigration and asylum cases by using the illustration of a "strongly arguable" "error of law which has caused truly drastic consequences" (R (Cart) v Upper Tribunal [2012] 1 AC 663, Lord Dyson at para 131).

[39] Lord Brodie rejected the argument (para [27]). The fundamental reasoning for this is that it runs contrary to the general policy that second appeals should be strongly discouraged, other than in rare and exceptional cases (see Cart (supra), Lady Hale at paras 29 and 31), which escape exclusion through a "safety valve" applied to ensure that no "compelling injustice" occurs (PR (Sri Lanka) (supra), Carnwarth LJ at para 6, quoting Lord Woolf). Thus, a material error of law is not enough (see Cart (supra), Lord Brown at paras 99 and 100). Lord Brodie concluded that, whilst an analogy with the "sifting" of criminal appeals might not be quite accurate, the exercise involved in applying the second appeal criterion was a gate keeping one (para [28]) and not one which ought to involve a substantive hearing such as that which had taken place before him. What was involved was "an expeditious and fairly summary procedure" (para [29]).

[40] The contrasting case is BM, Petnr [2012] CSOH 142, in which the Lord Ordinary (Lady Clark) expressly disagreed (at para [19]) with Lord Brodie's approach. Lady Clark reasoned that:

"In cases with the potential harmful and sometimes fatal consequences which may occur in asylum cases... an examination by a judge, at whatever level... requires to be both detailed and very careful".

She continued (para [20]) that:

"...not every error of law, however, minor and tangential, would lead to a successful judicial review. ...however, ...if a judge concludes that a decision going to the heart of the merits of the case is perverse or plainly wrong in a situation relating to the petitioner's own facts and circumstances, that seems a compelling reason... for giving a remedy in the situation where the potential consequences of enforced return to the Country of Origin for example involve risk of death or injury".

Although stating that she would do her best to apply the principles expressed by Lord Hope (supra), the test which Lady Clark has applied is the same as that for the judicial review of asylum and immigration cases (indeed all cases) prior to Eba. Put another way, it is tantamount to sustaining the argument that Eba has had no effect whatsoever and that, as Lord Brodie put it, quoting counsel in A (supra at para [25]), "the lengthy judgments of the Supreme Court in Cart and Eba amounted to no more or less than...'an exercise in judicial masochism'".

[41] The reasoning in BM, Petnr (supra) is out of kilter not only with A (supra) but with several other Outer House decisions (eg MUB, Petnr (supra), Lord Boyd at para [9]; and AK, Petnr [2012] CSOH 17, Lady Dorrian at para [10]). The court has no difficulty in holding that the approach of Lord Brodie is to be preferred, standing the clear terms of what was said in Eba. Eba did not simply direct the Court of Session to exercise an appropriate level of restraint when asked to review unappealable refusals of leave to appeal. It altered the test to be applied when considering applications for judicial review in this particular category of case. The court now requires to be satisfied that the error identified by the petitioner in the decision of the UT fits into one or other of the two Eba categories.

[42] Eba suggested that this court should give further guidance on how the second appeals criterion should be applied in practice. That does not so much involve adding to the many glosses upon the criterion evident in the decisions from England, some of which appear to differ from others. Rather, the real guidance required is how the court should, as Eba states, actually apply the test in practice.

[43] In disapproving of the approach in BM, Petnr (supra), the court stresses that, as Lord Brodie stated in A (supra), the court's role should be seen as a gate keeping or sifting one. The decision should proceed upon a petition which clearly and unequivocally avers not only a specific error on the part of the UT in refusing leave, but also either the important point of principle/practice not yet established (Uphill (supra), Dyson LJ at para 18) or the other compelling reason why an appeal should be allowed to proceed. Before the petition progresses, the court should be able, quickly and without difficulty, to identify from the averments the point or reason advanced.

[44] As was said in JD (Congo) v Home Secretary [2012] 1 WLR 3273 (Sullivan LJ at para 23), no doubt the test must be sufficiently flexible to take into account the circumstances of the particular case. Nevertheless, as was stated in the same passage, the test is a "stringent one". It is designed to allow review only in rare and exceptional cases (see Cart (supra) Lady Hale at paras 29 and 31) in order to ensure that no "compelling injustice" occurs (PR (Sri Lanka) (supra), Carnwarth LJ at para 6). The error normally requires to be one which "cries out for consideration" (PR (Sri Lanka) (supra), Carnwath LJ at para 35), and not just potentially arguable, upon a reading of the petition. In so far as an oral hearing may be required, it should be relatively short and certainly last no more than an hour. The court's decision should be capable of succinct expression, at not much greater length than is currently employed by the UT itself, if refusing leave.