Scottish Court of Session Decisions

Petitioner: Caskie; McGill & Co., Solicitors

Respondent: Gill; Office of the Advocate General

10 July 2013

Introduction

[1] The petitioner is a citizen of Pakistan who entered the United Kingdom in 1985. He married on 30 November 1985. During the course of the marriage he was granted Indefinite Leave to Remain. He was divorced on 25 March 1992. The petitioner's former wife and the two adult children of that marriage live in England. In 1992 he met and married his second wife in Pakistan. She came to live with him in the United Kingdom. She was granted Indefinite Leave to Remain. There are three children of the marriage (born on 26 November 1994, 28 January 1999, and 19 June 2007). The petitioner's spouse and their three children are UK citizens.

[2] On 21 June 1999 at the High Court of Justiciary at Edinburgh the petitioner was convicted of the following charge:

"that on 20 and 21 November 1998, having induced [x] to enter a private hire vehicle driven by you ...you did abduct and assault [x] and seize hold of her head and force her to suck your private member to the emission of semen ... and further you did restrain her, forcibly remove her clothing, place your fingers in her mouth, bite her breasts, struggle with her and did rape her, as a consequence of which she became pregnant, all to her injury".

The petitioner was sentenced to 9 years imprisonment. The sentencing judge observed:

"The jury, by their verdict, have found you guilty of the abduction and of a prolonged, degrading and indecent attack on the complainer, carried out at a time when she was alone and in a vulnerable state and when she entrusted herself effectively to your care. A violation which it seems has had, and still continues to have, serious adverse effects upon her, not least in light of the resultant pregnancy and its termination. An attack, the memory of which she had to relive for some time in this court. In the course of which with, it seems to me, considerable dignity and great courage she faced the further insult of the suggestion made, as it had to be on your instructions, that sexual contact was initiated by her. You will realise in these circumstances that this is a matter which this Court requires to take very seriously indeed."

[3] The petitioner was released from custody on licence on 17 June 2005. His licence expiry date was 17 June 2008. On 18 May 2006 he was served with notice of a decision to make a deportation order. In accordance with section 3(5)(a) of the Immigration Act 1971 the respondent deemed his deportation to be conducive to the public good. The petitioner appealed against that decision. His appeal was dismissed by an immigration judge on 5 September 2006. He made a review application for an order requiring the Asylum and Immigration Tribunal to reconsider that dismissal. That application was refused by a senior immigration judge on 26 September 2006. A deportation order was signed on 15 March 2007. On 4 April the petitioner presented a petition for judicial review. His petition was sisted to await the outcome of the decision in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. Following the decision, the respondent conceded the petition, but on 27 July 2009 issued a new decision to make a deportation order. The petitioner's appeal against that decision was dismissed by the Asylum and Immigration Tribunal on 18 September 2009, and his application for review of that dismissal was refused by a senior immigration judge on 15 October 2009. A further review application to the Court of Session seeking an order requiring the Asylum and Immigration Tribunal to reconsider the dismissal was refused on 28 January 2010. The respondent signed a deportation order on 21 May 2010. On 17 June 2010 the petitioner intimated to the respondent a copy of an application to the European Court of Human Rights for rule 39 interim measures. On 23 July 2010 the petitioner's advisers accepted that that application was inept. They requested that the respondent treat it as an application to revoke the deportation order. On 16 May 2012 the respondent refused to revoke the deportation order. The petitioner's appeal to the First Tier Tribunal ("FTT") was dismissed on 10 August 2012. The petitioner applied for permission to appeal to the Upper Tribunal ("UT"). On 20 November 2012 the Upper Tribunal refused that application. There is no right of appeal against a judge of the UT's refusal to grant permission to appeal to the UT from a decision of the FTT. The only possible means of challenging such a decision is by petition for judicial review.

The petition, and the submissions for the petitioner

[4] The present petition seeks judicial review of the Upper Tribunal's decision of 20 November 2012. The matter came before me for a first hearing.

[5] Mr Caskie described the first ground for review as the petitioner's "bull point". It focussed on the terms of the respondent's decision letter of 16 May 2012. In that letter she had stated that the application "has been considered in accordance with paragraph 390 and 391 of the Immigration Rules. Rule 391 deals with applications for revocation after a person had been deported and applies a presumption that the person concerned will be out of the UK for 10 years. Rule 390 deals with applications for revocation where a person has not yet been deported and contains no such presumption. By considering the application in accordance with rule 391 the respondent had erred in law by applying the wrong test and taking an irrelevant consideration into account. The error had been founded on by the petitioner in the appeal to the FTT, but the FTT did not consider it to have been material. In its view, while the decision letter had referred to the application having been considered in accordance with rules 390 and 391 it was plain she had in fact applied the criteria of rule 390. That, it was said, was an error of law on the FTT's part. In failing to identify that the FTT "may have erred in law" (stat. 18 of the petition) the UT had itself erred in law.

[6] The second ground relied upon focussed on the FTT's reasoning concerning the best interests of the petitioner's children. It was accepted that the FTT had properly directed itself in terms of the relevant jurisprudence in this regard. It was submitted, however, that when it came to apply it to the facts its reasons had been inadequate. There had, it was submitted, been a failure to assess the impact of removal on each child's educational development, progress and opportunities in the broader sense: MK (best interests of child) India [2011] UKUT 00475 (IAC)). In considering whether deportation was proportionate the FTT had, it was said, had regard to an irrelevant factor - whether there were insurmountable obstacles to the children and their mother going to India with the petitioner. It was submitted that in these respects the UT "had erred in law in failing to identify that the [FTT] may have erred in law" (stat. 26 and stat. 27 of the petition).

[7] Mr Caskie recognised that for judicial review of the UT's decision to be available the Eba test (Eba v Advocate General for Scotland 2012 SC (UKSC) 1, per Lord Hope of Craighead at paragraph 48) had to be satisfied. He submitted that it was satisfied in relation to each of the two grounds he relied upon. Each of them was said to raise an important point of principle or practice. Similar erroneous references to rule 391 had been made by the respondent in other cases, as Petition of AMC for Judicial Review [2011] CSOH 155 demonstrated. That case and the present showed diverse approaches to the error being taken by differently constituted FTTs. A binding decision of the UT on the point was needed. The important point of principle or practice raised by the second ground was said to be how elaborate, or otherwise, the FTT's reasons dealing with the children's best interests had to be. This ground was also said to provide "some other compelling reason" for a second appeal, because, Mr Caskie submitted, if a wife and children were to be deprived of a husband and father they should be told in clear terms why.

Discussion

[8] Although the hearing before me lasted for two days I have no difficulty deciding that the petition should be refused. I mean no discourtesy in not setting out counsel for the respondent's submissions (which were cogent). I find it more convenient in this case simply to set out my conclusions.

[9] Neither of the suggested errors which Mr Caskie identifies in the decision of the UT satisfies the Eba test (see also SA v Secretary of State for the Home Department [2013] CSIH 62 at paragraphs 35-44). Neither raises "some important point of principle or practice", or "some other compelling reason" for permitting an appeal to the UT.

[10] The fact that the same erroneous reference to rule 391 occurred in another case, Petition of AMC for Judicial Review, falls very far short of demonstrating even a commonly recurring problem, far less an important point of principle or practice.

[11] Likewise, the FTT's and the UT's treatment of the best interests of the children does not raise any important matter of principle or practice, or some other compelling reason. It involved the application of two well established principles: the principle in ZH(Tanzania) [2011] UKSC 4 (the importance to be accorded to the best interests of children); and the duty to give adequate reasons. The petitioner's complaint is simply about the application of those principles in his case.

[12] That is sufficient to dispose of the petition; but had it been necessary to do so I would have held that neither of the grounds advanced by Mr Caskie identified material errors of law on the part of the UT.

[13] While the respondent erroneously made reference to rule 391, it is plain from a reading of her decision as a whole that she had not applied that rule. The FTT and the UT were, rightly, of that view; and it is very evident that the critical issue for the FTT was the article 8 ECHR proportionality assessment.

[14] Moreover, the FTT directed itself to the correct legal principles anent the best interests of the children. Its decision, read fairly, shows that it properly took their best interests into account, and that it made a proportionality assessment which it was entitled to make.

Disposal
[15] I shall sustain the respondent's first plea-in-law, repel the petitioner's plea-in-law, and refuse the petition. I shall reserve all questions of expenses meantime.