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Cite as: [2013] ScotCS CSOH_94

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OUTER HOUSE, COURT OF SESSION

[2013] CSOH 94

P1356/12

OPINION OF LORD BOYD OF DUNCANSBY

in the Petition

Petitioner;

For Judicial Review of a decision of the Upper Tribunal (immigration and Asylum Chamber) dated 3^rd September 2012 refusing permission to appeal against a decision of the First Tier Tribunal (Immigration and Asylum Chamber)

________________

Petitioner: Winter; Drummond Miller LLP

Respondent: Pirie; Office of the Solicitor to the Advocate General

13 June 2013

[1] The petitioner seeks judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 3 September 2012 refusing permission to appeal against a decision of the First Tier Tribunal dated 18 June 2012.

[2] The petitioner is a Chinese national. She arrived in the UK in August 2008 on a student visa valid until August 2009. That was renewed until August 2011. However she overstayed the period of her visa and claimed asylum in March 2012. She did so on the basis that she was a member of the Chinese Democratic Party and that she faced persecution on her return to China.

[3] The immigration judge made the following findings:

"181. In conclusion I do not consider that the Appellant has established that she is a member of the UK branch of the China Democracy Party and I do not consider that she has established that she has recruited the two said individuals in China to be members of the party. I do not accept that the Appellant has established that a Citation has been issued for her in China as claimed by her. I accept that there is a photograph of the Appellant on the website of the UK branch of the China Democracy Party but, as indicated, I do not consider that the Appellant has been politically active on behalf of the party in the UK.

182. It seems to me that the Appellant may have joined the party with a view to this helping her in her claim for asylum and this may be how and why the Appellant's photograph is on the said website.

183. It is my view that, although the Appellant's photograph is on the said website, she could not be identified from same, bearing in mind my conclusion in respect of the said Citation. The Appellant was not politically active in China to the extent that the authorities have an interest in her. The Appellant confirmed that she had no difficulty in China before she came to the UK and it seems to me that the Appellant could return to China without coming to the adverse attention of the authorities in China because in relation to the China Democracy Party I do not consider that the Appellant has any profile. She is married and as this Determination is being promulgated she may be giving birth to her first child born within wedlock.

184. I have given consideration to the said case of BA and the factors which require to be taken into consideration by me including the nature of sur place activity, identification risk, factors triggering inquiry/action on return, consequences of identification and the issue of identification risk on return.

185. Even if the Appellant is a member of the UK branch of the China Democracy Party there is no indication that the authority in China would be aware of her activities and able to identify her on return to China.

186. I have considered the provisions of section 8 of the Asylum & Immigration (Treatment of Claimants etc.) Act 2004. I have as required taken into account as damaging credibility elements of the Appellant's behaviour. The Appellant has, I believe, behaved in a way designed or likely to conceal information. This is because the Appellant has failed without reasonable explanation to provide full and accurate information to the respondent."

[4] The sole ground of seeking judicial review is said to be a failure by the FTT and the UT to consider Country Guidance cases. This ground is narrated in paragraph 8 of the petition. In particular it is said that both tribunals failed to take account of XH (Illegal departure - risk of return) China CG (2002) UKIAT 01478 at paragraph 14.

[5] This ground was not advanced before either the FTT when seeking leave to appeal to the UT or indeed to the UT itself in seeking leave to appeal. Nevertheless the petitioner says that the failure to follow a Country Guidance case is an error of law whether or not either tribunal has been referred to it.

[6] For the petitioner Mr Winter relies on paragraph 14 of XH for the proposition that the petitioner would be picked up and questioned on her return to China. However paragraph 14 says nothing about interrogation or questioning by the authorities on return. The guidance relates to the possible punishment for someone who leaves China illegally and is then apprehended on their return. The paragraph notes information to the effect that someone who leaves China legally, as the petitioner did, would face an administrative fine of up to $1,000 Canadian dollars and an "administrative" jail term of 15 days if they were unable to pay the fine. The Immigration Appeal Tribunal surmised that this might be a reference to a person who had left legally but had overstayed their permission to be outside China. If that interpretation is correct then it would apply to the petitioner as she has overstayed the terms of her permission to be outside China. But the IAT specifically says that they pass over the information concerning persons who leave China legally with a valid Chinese passport. So the IAT specifically eschewed giving guidance which would be of relevance for the petitioner and says nothing about questioning at the airport on her return.

[7] If she was questioned then it is said that she would have to admit that her photograph was on the website of the Chinese Democratic Party. However the immigration judge found (a) that she was not in fact a member of the party and (b) that it was accepted that her photograph was on the website but that there was insufficient material to identify her. The immigration judge also found that the petitioner had not taken part in any of the activities of the party in China. These were matters of fact for the immigration judge.

[8] Accordingly it seems to me that the application of XH to the facts of this case is highly doubtful. Parties were not agreed whether there was an obligation on the FTT or the UT to consider this case in the absence of being invited to do so by the petitioner. Mr Winter founded on the case of R (Iran) and others v The Secretary of State for the Home Department (2005) Imm AR 535 at paragraphs 21 to 27 for the proposition that such a failure was a material error of law, even where neither tribunal are referred to it. Mr Pirie on the other hand founded on the passage of Lord Woolf in the Court of Appeal in R v The Secretary of State for the Home Department ex parte Robinson 1998 QB 929 at page 946A -D. He submitted that the tribunals were not required to engage in a search for new points. It was only if there were obvious points, by which he meant ones having strong prospects of success, that leave should be granted on a point not focused in the application. For the reasons given below I do not require to decide this point.

[9] A petition for judicial review of an unappealable decision of the Upper Tribunal can only be made if it raises a point of general principle or practice or there is some other compelling reason to grant it - the second tier appeals test. The arguments on both sides of the Bar are now very familiar and need not be rehearsed in full. I acknowledge that these short summaries do not do justice to the fuller arguments presented.

[10] Mr Winter submitted that the petition engaged both parts of the test; that is to say an important point of principle or practice and that there was some other compelling reason to allow the petition.

[11] On the first matter he submitted that the case raised an important point of principle which required Country Guidance about the treatment of members of the Chinese Democratic Party on their return to China. It was not clear to me why such guidance is required. However even if such guidance is required,the immigration judge found that the petitioner was not a member of that party. Accordingly I cannot accept that such an issue of principle arises in this case.

[12] Turning to the other compelling reasons Mr Winter referred me to the cases of R (Cart) v The Upper Tribunal 2012 1 AC 663; Eba v The Advocate General 2012 SC (SC) 1; PR (Sri Lanka) v The Secretary of State for the Home Department 2012 1 WLR 73 as well as a number of cases in the Outer House of the Court of Session viz AKA v The Secretary of State for the Home Department 2012 SLT 1075, a decision of Lord Brodie, BM v The Secretary of State for the Home Department 2012 CSOH 142 a decision of Lady Clark of Calton and AHC v The Secretary of State for the Home Department 2012 CSOH 147 a decision of Lord Stewart. In summary I understood his submission to be that the test of some other compelling reason is satisfied if a decision of the FTT is said to be plainly wrong.

[13] Mr Pirie for the respondents submitted that a material error of law was not a sufficient condition to satisfy the test. "Compelling" meant "legally compelling". The prospects of success must be very high. It must be a case that cries out for consideration. He drew my attention to the examples given in the authorities of what might satisfy the test; wholly exceptional collapse of fair procedure, strongly arguable error of law with truly drastic consequences for the petitioner, perverse or plainly wrong. In addition to the cases cited by Mr Winter he referred me to the cases of DB Petitioner 2012 CSOH 82 and two cases from Northern Ireland, Re A High Court of Northern Ireland 9 November 2012 and Re DJ 1 and DJ 2, High Court of Northern Ireland 22 February 2013.

Discussion

[14] The adoption of the second tier appeals test by the Supreme Court in Cart and Eba is plainly meant to be a restriction on the jurisdiction of this court to entertain petitions for judicial review against unappealable decisions of the Upper Tribunal. The phrase "some other compelling reason" is a robust and stringent test. Various judges have used different words in an attempt to elucidate the phrase. These have included "very high prospects of success", "strongly arguable", "legally compelling", "a sufficiently serious legal basis" and "perverse and plainly wrong". All of these phrases should be read within the context of the decisions in Cart and Eba. The clear intention of the Supreme Court was to provide that the courts would only intervene in very exceptional cases where there was a clear need for them to do so.

[15] Having considered the petition, the determination by the immigration judge and the decision of the Upper Tribunal in refusing leave together with the submissions of counsel I am of the view that the issue raised in this petition falls far short of satisfying the test that there is some other compelling reason to grant the petition. Accordingly I sustain the respondents' first plea-in-law and dismiss the petition. I shall reserve the question of expenses.