Scottish Court of Session Decisions

Applicant: Caskie; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)

Respondent (Advocate General): C A Smith; Office of the Advocate General

30 May 2014

[1] This is an application under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 - "the 2007 Act"- for leave to appeal a decision of the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal decision was issued on 19 August 2013, which is the same day as that on which the Act of Sederunt (Rules of the Court of Session Amendment No.5) (Miscellaneous) SSI 2013/238 came into force. That Act of Sederunt was made following an amendment to the 2007 Act by section 23 of the Crime and Courts Act 2013 which inserted in section 13 of the 2007 Act a new subsection (6A). The application for leave is thus one to which the rule of court added by that Act of Sederunt, namely rule 41.57 applies. That rule provides:

"Permission shall not be granted on the application unless the court considers that -

(a) the proposed appeal would raise some important point of principal or practice; or

(b) there is some other compelling reason for the court to hear the appeal."

[2] The applicant is a citizen of the People's Republic of China. He came to the United Kingdom on 1 August 2002 and was granted 6 months' leave to enter as a visitor. During that period he met and married a British citizen. On 10 October 2005 he applied for leave to remain as the spouse of a person settled and present in the United Kingdom. No decision was taken on that application until, almost three and one half years later, 2 March 2009 when the Secretary of State for the Home Department, represented in these proceedings by the Advocate General for Scotland, granted discretionary leave to remain for a period of three years, namely until 2 March 2012. Prior to the expiry of that period, viz on 7 February 2012, the applicant sought an extension of that leave. At that time the applicant and his wife had separated, but they remained married to each other. That application for an extension of leave was refused on 19 September 2012.

[3] The applicant appealed against that refusal decision of 19 September 2012. A material ground was that, given the applicant's personal circumstances, to require him now to leave the United Kingdom would infringe his rights to a private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"). The respondent's position appears to have been that any matter respecting rights under article 8 ECHR was conclusively governed by rule 276ADE of the Immigration Rules. Before the First-tier Tribunal much of the argument was directed to whether, respecting the timing of his application for an extension of leave and the transitional provisions in the Immigration Rules, the application should have been considered under different earlier provisions. The First-tier tribunal judge (Morrow) held that the application was covered by the transitional arrangements to the effect that it fell to be considered under the amended version of the Immigration Rules. While I was not taken to the particular terms of the rule in question, counsel on both sides appeared to agree that the amended version envisaged entertainment of an entitlement under the Immigration Rules of leave to remain on the basis of the protection of private life under article 8 of the ECHR only if the person concerned had been resident in the United Kingdom for at least 20 years. The applicant, having been resident for only one rather than two decades, accordingly did not meet the requirements of the amended rules.

[4] The applicant appealed to the Upper Tribunal. The grounds upon which he was granted leave by another judge of the First-tier Tribunal were that First-tier Tribunal judge Morrow had erred both in his decision respecting the applicable provision of the Immigration Rules and also in failing to consider the applicant's separate, free-standing claim that his removal from the United Kingdom would infringe his rights under article 8 ECHR. In his decision on the appeal from the Home Secretary's decision, the First-tier judge did not address to any extent the free‑standing article 8 claim.

[5] Those grounds were argued before the Upper Tribunal. In its decision, the Upper Tribunal records as part of the submission on behalf of the applicant that his private life (scilicet in the United Kingdom), was "considerable". The determination of the Upper Tribunal however simply states:

"10. The arrangements set down in the transitional provisions, in particular Part A 277(c) and the interaction between Part 8 and Appendix FM, apply to Mr Zhang and because his relationship has broken down his application had to be considered under Appendix FM and paragraphs 276ADE to 276H.

11. The judge found that on this basis Mr Zhang does not qualify for discretionary leave and his appeal cannot succeed. This was clearly correct. We see no basis for saying that the appellant is entitled to leave despite failure to meet the requirements of the relevant Rules."

[6] In moving the application for leave to appeal, Mr Caskie submitted, in brief summary, that, as was set out by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2AC 368 at paragraph 17, a claim advanced under article 8 ECHR involves at least five separate issues. Further, this was not a "foreign case" article 8 claim but a "domestic" article 8 claim which involved a much lower threshold - see the opinion of the court delivered by Lord Reed in KBO v Secretary of State for the Home Department [2009] CSIH 30. While it might be inferred from the Upper Tribunal's determination that it had not upheld the applicant's discrete claim under article 8 ECHR, there was a complete absence of any reasons for that rejection; it was not apparent whether the Upper Tribunal had ever embarked upon the analysis of a claim under that article which was desiderated by the House of Lords in Razgar. Mr Caskie submitted that a point of principle or practice arose since this was the first case upon which the Court of Session is called upon to apply the "second appeals test" set out in Rule 41.57. But in any event, there was a compelling reason, individual to the case, in that there was a total absence of a reasoned decision on a relevant and discrete branch of the appeal to the Upper Tribunal.

[7] Again in brief summary, counsel for the Advocate General, recognising, I think, the difficulty in construing the second sentence of paragraph 11 of the Upper Tribunal decision has in constituting a reasoned treatment of the discrete article 8 claim, submitted that the reasons for the rejection of that claim might be found in the terms of the Upper Tribunal's refusal of leave to appeal its decision to this court. In those brief reasons the Upper Tribunal states:

"The Tribunal gave brief consideration to the claim under article 8 and clearly decided it in the second half of paragraph 11. In order to show that a person has a right to be in the United Kingdom when he does not meet the requirements of the rules (including those importing article 8 considerations) it is clear that something more than a recitation of the ordinary aspects of life is required."

But accepting that at the least the First-tier Tribunal had not dealt with the article 8 claim, the principal thrust of the argument for the Advocate General came to be that the prospects of ultimate success of a claim based on an infringement of the applicant's right to the private life which he had established in the United Kingdom were "poor".

[8] In approaching these competing submissions I start with the omission of the First-tier Tribunal judge, accepted by counsel for the Advocate General and recognised in the grant by the First-tier Tribunal judge of leave to appeal to the Upper Tribunal, to examine and give any decision on the case advanced by the applicant under article 8 ECHR independently of the Immigration Rules. There was thus, in my view, a seriously arguable material failure of procedure. Perhaps somewhat ironically, it is also seriously arguable that in its decision the Upper Tribunal perpetrated the same failure. For my part, at least at this preliminary stage of considering whether leave to appeal the Upper Tribunal's decision should be granted, I have difficulty in accepting that the Upper Tribunal's determination can be seen as having given a proper, reasoned decision on the free-standing article 8 ECHR claim. The second sentence of paragraph 11 of that determination, already quoted, may indeed be open to the construction that no consideration was given to the discrete claim on the view, simply, that the applicant did not meet the 20 year requirement of the Immigration Rules.

[9] Counsel for the Advocate General sought, by way of an effort to remedy that apparent deficiency, to rely on the reasons given for the refusal of leave which sought to supplement the Upper Tribunal's decision. I do not consider that it is legitimate for the tribunal from which leave to appeal is sought to attempt, in giving reasons for its refusal of leave to appeal, to correct deficiencies in the judgment in respect of which that leave is sought. In any event, I regard it as plainly arguable that what is said in the relevant sentence in the Upper Tribunal's reasons for refusal of permission fails to correct those deficiencies.

[10] I turn now to the "second appeals" test. Counsel provided me with what is, I understand, the current guiding expression of judicial view in England and Wales on the nature of that test, namely Uphill v ERB (Residuary) Limited [2005] EWCA Civ 60; [2005] 1 WLR 2070. In giving the opinion of the duumvirate court, Dyson LJ, explained in paragraph 24 - as respects the "other compelling reason" branch of the test - that a consideration of the prospect of success was normally an important initial factor. But he went on to say, at paragraph 24(3) of the court's opinion:

"There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether."

[11] In my view, what was said in that passage is apposite in the present case. In essence the discrete or "free standing" claim that removal of the applicant from the United Kingdom would be in breach of his rights under article 8 ECHR - which it is accepted was presented to the First-tier Tribunal and the Upper Tribunal - has not been the subject of any reasoned, substantive decision at either level. The underlying rationale of the "second appeals test" assumes procedural regularity. Within that concept I include the giving of a duly reasoned decision. If the inferior tribunals at both levels have failed to deal in any substantive sense with the relevant branch of the applicant's claim, the rationale for excluding judicial consideration at a further appellate level falls away.

[12] As I have already indicated, the ultimate thrust of the argument for the Advocate General was that, while the merits of the applicant's claim under article 8 ECHR might not have been the subject of proper, reasoned decisions, the eventual prospects of success of his claim under that provision of the Convention were "poor". However, it was not said, and in my view it could not be said, that the prospect of success of that claim were "fanciful" or that there was no basis for arguing such a case. The applicant had been in the United Kingdom for 10 years prior to the refusal decision under appeal. As the Court of Appeal in England and Wales observed, in cases within the kind envisaged in the passage quoted above, it is not necessary that the prospects of ultimate success at the end of the procedure be high.

[13] In these circumstances I have reached the conclusion that, in the peculiar circumstances of this case, there is a "compelling reason" wherefore leave to proceed with the appeal should be granted.