Scottish Court of Session Decisions

Act:  Bovey QC, Winter; Drummond Miller LLP (for Katani & Co)

Alt: Gill; Office of the Advocate General

9 July 2014

Background

[1]        The applicant is a citizen of Nigeria who has been unsuccessful in resisting the respondent’s decision to order her removal.  She failed in her asylum claim and failed in a claim based on article 8 ECHR under reference to the health of her child.  She sought permission to appeal (“PTA”) to this court from the decision of the Upper Tribunal (“UT”),  on 5 June 2013.  Permission was refused by interlocutor of that date.  This is an application by motion in the following terms:

“On behalf of the Applicant to grant leave to appeal to the UK Supreme Court against the Interlocutor dated 5 June 2013 and Opinion of Lady Smith issued on 31 October 2013.”

Opposition to the motion was marked for the following reasons:

“Leave should be refused.  The proposed appeal (i) would raise no issue of law of general or public importance and (ii) in any event, would be incompetent because the Supreme Court has no power to grant permission to appeal against a decision of the Upper Tribunal when both the Upper Tribunal itself and this Court have (sic) refused such permission.”

[2]        The background facts are as set out in the opinion of 5 June 2013 to which the applicant refers in the motion.  PTA to this court from a decision of the UT was refused because it was considered that the application did not disclose grounds of appeal based on error of law which had a real prospect of success (Hoseini v Secretary of State for the Home Department 2005 SLT 550).  It was not argued that there was some other compelling reason why permission should be granted.  The reasons for the conclusion that there were no real prospects of the appeal succeeding are explained in that opinion and I do not propose to repeat them herein. 

[3]        On 10 October 2013, the applicant filed a notice of appeal in the Supreme Court, against the interlocutor of 5 June 2013 refusing PTA.  In the appeal document filed in the Supreme Court, it was stated that:

“The central issue in this appeal is the approach to be taken to deciding the best interests of a child who is suffering from a serious medical condition when it is proposed to remove her from the United Kingdom with her parents.”

It is said that the UT was wrong to have reversed the decision of the First-tier Tribunal.

[4]        The respondent filed a notice of objection to the appeal in which it was said (a) that the appeal was incompetent and (b) in any event, the appeal had no real prospects of success and it was, accordingly, correct to refuse permission to appeal.  In support of (a), the respondent relied on section 13 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”) as demonstrating that, in a Scottish case, the only court empowered to grant leave to appeal from a decision of the UT was the Court of Session.  Permission had been refused; that was final and not subject to review by the Supreme Court.

[5]        By letter dated 12 November 2013, the Supreme Court advised:

“Dear Sirs

Y (Appellant) (AP) v

Secretary of State for the Home Department (Respondent) (Scotland)

As the parties are aware, this appeal was issued without prejudice to the question whether or not the Supreme Court had jurisdiction to entertain it. 

The papers which the parties submitted have been referred to Lord Kerr,Lord Reed and Lord Hodge and they have decided that the Supreme Court does not have jurisdiction to hear the appeal as “it is an appeal against the Court of Session’s refusal to hear an appeal from the Upper Tribunal.  That judgment was not dispositive of the merits of the appeal.  Section 40(1)(b) of the Court of Session Act 1988 provides that it is competent to appeal against such an interlocutor only with the leave of the Inner House.  That leave has not been granted.”

I am sending a copy of this letter to the solicitors for the Respondent.

            Yours faithfully

Louise di Mambro

Registrar of the Supreme Court of the United Kingdom”.

Submissions for the applicant

[6]        Senior counsel for the applicant, Mr Bovey QC, began by stating that it was appropriate to make observations about the composition of the court.  That was a reference to his motion having been put out for a hearing before a single judge of the Inner House, sitting as a procedural judge.   He referred to Rules of Court (“RCS”) 37A, 41.2, 41.3 and 41.6 for those provisions which created the role of “procedural judge” of the Inner House and provide for applications where leave to appeal is required in statutory appeals to be brought before and determined by a procedural judge.  He said that there was nothing in the rules regarding the granting of leave to appeal to the Supreme Court and that different gatekeepers could apply in different contexts.  The thrust of what remained an observation – he did not actually submit that it was incompetent for his motion to be determined by a single judge of the Inner House sitting as a procedural judge – seemed to be that an application for leave to appeal to the Supreme Court may fall outwith the above provisions notwithstanding that the context was a statutory appeal.   

[7]        Turning to the present motion for permission to appeal to the Supreme Court, Mr Bovey explained that, if it were granted, his motion to that court would be that the application for permission to appeal from the decision of the UT should be granted.   He would be inviting the Supreme Court to grant PTA from the decision of the UT.

[8]        Mr Bovey explained that the issue was whether or not the approach adopted in the case of Bensaid v UK 44599/98 (2001) 33 EHRR 10 applied to children who have serious ill health.  The decisions taken in Bensaid and in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 required, he said, to be reconciled and meshed and that ought to be done by the Supreme Court.  That, evidently, is what he would seek to have the Supreme Court do in the context of this appeal which the applicant seeks to take against the refusal of PTA.  In explaining that this would be the issue, he submitted, at one point, that the effect of the interlocutor of 5 June 2013 refusing permission to appeal was, in substance, that of a final decision on the merits.  He did not, however, address the apparent incompatibility between that approach and the Supreme Court having, in its letter of 12 November 2013, stated that it did not consider that that interlocutor was dispositive of the merits of the appeal. 

[9]        Regarding competency, Mr Bovey submitted that it could be inferred from the Supreme Court’s letter that it had determined that it was competent to grant leave to appeal to that court against the refusal of PTA by this court.  Such an appeal was, he submitted, competent; an appeal lies unless excluded and there was no provision excluding such an appeal to the Supreme Court.  An example of such an exclusion could be seen, he said, in section 32 of the Extradition Act 2003 which stated that the appeal provisions in that section – allowing for appeal to the Supreme Court – did not apply to Scotland.  I do not consider that to be a helpful comparison. The thrust of his submission about section 32 was that a right of appeal to the Supreme Court was generally to be implied and it was to avoid implication that Scotland was expressly excluded. However, the problem that the drafter of section 32 had to address was a different one. Had the exclusion of Scotland not been stated, the right of appeal would not have been implied. It would, due to the definition of ‘High Court’ adopted by the drafter, have been express.

[10]      Mr Bovey submitted that section 40 of the Court of Session Act 1988 could not be defeated by implication; he was seeking to appeal against an interlocutory judgment within the meaning of section 40(1)(b) and was entitled to do so provided he could show that the issue he would wish to bring before the court was of general and/or public importance.  The present case met that requirement because it concerned the correct approach in cases of children who have serious ill health.  It seems that the applicant would now submit that Bensaid does not apply to such cases although that was not, I would observe, the applicant’s approach at the time of the application for PTA on 5 June 2013.  The complaint then, as borne out by the terms of the written application for leave, was that the Upper Tribunal had failed to apply Bensaid correctly, not that it did not apply to a case such as the present one. 

Submissions for the respondent

[11]      Counsel for the respondent, Mr Gill, submitted that the motion should be refused.  First, the applicant’s proposed appeal failed to recognise that the Upper Tribunal had decided as it did not only because it applied Bensaid – which the First-tier Tribunal had failed to do – but also because it considered that the First-tier Tribunal had also applied ZH incorrectly.  Further, the applicant’s submissions failed to recognise that the article 8 proportionality assessment was an evaluative judgment based on the individual facts and circumstances, as in the present case (EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159), the correct approach in the proportionality assessment to the welfare of a child was settled in the case of ZH , and the correct approach in the proportionality assessment of the impact of removal on a person with a serious medical condition was settled in the case of Bensaid.  There was no point of law that was new or of general or public importance. 

[12]      Secondly, what the applicant’s submissions had disclosed was that the purpose of the motion was to seek to conduct a full appeal before the Supreme Court against the decision of the UT under the guise of an application for PTA.  It would, evidently, not be restricted to an appeal against the refusal of PTA; indeed, the applicant’s submissions did not address the test for interfering with a decision on permission to appeal at all.  The test at the gatekeeping stage involved recognising that a decision on permission to appeal was not a final determination of the merits of the appeal; it was a matter of impression.  Different judges might reach different decisions on the matter.  That was not of itself, demonstrative of error of law.  Further, Parliament had clearly provided that the only court which could grant PTA from a decision of the Upper Tribunal was, in a Scottish case, this court.  That was part of a deliberately organised system within the structures set out in the TCEA.  Section 13 provided for the requirement of PTA and did not empower the Supreme Court to grant it.   

[13]      Mr Gill did not accept that the letter from the Supreme Court amounted to a determination that it would be competent to appeal against a refusal of permission to appeal in these circumstances.  Regarding the matter of quorum, under reference to MBR v Secretary of State for the Home Department 2013 CSIH 66, at paragraph 29 and to the relevant RCS, this motion was brought prior to any procedural hearing and it was, therefore, competent that it be determined by a procedural judge. 

The Tribunals Courts and Enforcement Act 2007 (“the TCEA”)

[14]      The TCEA introduced a wholly new and carefully structured system of specialist tribunals.  It brought about “a major change to the order of things” ( see: R (Cart) v Upper Tribunal [2012] 1 AC 663 per Lord Dyson at paragraph 115).  Within that system, appellants are afforded first and second tier appellate review with each tier having power to review its own decisions (sections 9 and 10) in addition to the ability, with leave, to appeal from first to second tier.  At Upper Tribunal level, decisions are taken by senior judges and at both levels, PTA decisions are taken by judges not involved in the initial first tier decision.  As was observed by this court in the case of EP v Secretary of State for the Home Department 2014 CSIH 30, at paragraph 24:

“..it is intrinsic to the TCEA system that there is no automatic right to appeal from the FTT to the UT, that PTA is required, that it may be sought twice but that decisions to refuse PTA are not appealable.”

[15]      There is a strong and consistent flavour of the value of finality regarding appeals against administrative decisions and of the importance attached to it by Parliament when enacting this legislation.  As was observed by Lord Hope of Craighead in Eba v Advocate General 2012 UKSC 1, at paragraph 8, when referring to the “principle of finality”:

“There is obvious merit in achieving finality at the tribunal level in the delivery of administrative justice.”

It is possible to appeal outwith the tribunal system, into the court system, to the relevant appellate court.  It is, however, not at all surprising that, given the importance attached to principles of finality, PTA is required.  Section 13 TCEA, insofar as relevant, provides:

“13 Right to appeal to Court of Appeal etc.

1. For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellant court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
2. ………
3. That right may be exercised only with permission….
4. Permission… may be given by –

1. the Upper Tribunal or
2. the relevant appellate court,

                              on an application by the party.

………………

(11) Before the Upper Tribunal decides an application made to it under subsection (4), the Upper Tribunal must specify the court that is to be the relevant appellate court as respects the proposed appeal.

(12) The court to be specified under subsection (11) in relation to a proposed appeal is whichever of the following courts appears to the Upper Tribunal to be the most appropriate –

            (a) the Court of Appeal in England and Wales;

            (b) the Court of Session;

            ( c)the Court of Appeal in Northern Ireland.

(13) In this section except subsection (11) , “the relevant appellate court”,  as respects an appeal, means the court specified as respects that appeal by the Upper Tribunal under subsection (11).”

[16]      Accordingly, before an appeal may be entertained by this court, a gatekeeping role must be performed.  PTA requires to have been granted by the court or by the UT.  As is well established, when considering whether or not to grant such permission, this court requires to be satisfied that the proposed appeal has a real prospect of success or that there is some other compelling reason for doing so (Hoseini v Secretary of State for the Home Department).  Only if so satisfied may the court open the gateway into the court system thus triggering the operation of the relevant procedures for processing and determining such an appeal (see RCS Chapter 41).  Without such permission, an appeal from a decision of the Upper Tribunal cannot cross over and enter the court system at all.   

[17]      Further, as was stressed by Mr Gill, section 13 does not mention the Supreme Court.  Unlike the Courts of Appeal of England and Wales, and Northern Ireland, and the Court of Session, it is not a “relevant appellate court” and does not have power under the TCEA to grant PTA – an appeal which would, in terms of section 13, require to be determined by this court - against a decision of the UT.

[18]      Turning to the Court of Session Act 1988 (“the 1988 Act”), section 40 provides, insofar as relevant:

“40.  – Appealable interlocutors.

1. Subject to the provisions of any other Act restricting or excluding an appeal to the Supreme Court ……….., it shall be competent to appeal from the Inner House to the Supreme Court –

(a)….

(b) with the leave of the Inner House, against any interlocutory judgment other than one falling within paragraph (a) above.”

Although not specified as such, it is apparent that the applicant’s present motion is made under that provision.  Accordingly, if it is not applicable, the motion is not competent. 

MBR v Secretary of State for the Home Department [2013] CSIH 66

[19]      One of the issues before this court in MBR was that of whether or not a procedural judge of the Inner House could determine an application for permission to appeal.  In that case, PTA from a decision of the Upper Tribunal to this court, in an immigration appeal, had been refused.  It was suggested that RCS 37A did not apply at the stage of application for leave to appeal and, moreover, that decisions on such applications were not procedural in nature.  At paragraph 29, the Lord Justice Clerk said:

“..the court considers that a decision on whether to grant leave to appeal is solely a procedural one.  It is, after all, a determination only of whether an appeal is to be allowed to “proceed”.  It does no more than that.  Although, as in many procedural applications, some consideration may be given to the strength of the merits of the grounds of appeal, the court does not determine those merits when granting or refusing leave.”

It was, accordingly, competent for a procedural judge, sitting alone, to determine an application for PTA.

Discussion and decision
[20]      Although, as above noted, Mr Bovey did not actually submit that the motion could not competently be heard and determined by a procedural judge, I should deal with his observations.  I am satisfied that no distinction falls to be drawn between an application for PTA to the Court of Session and an application for PTA from  the Court of Session. The motion could, accordingly, competently be heard by a procedural judge.  No attempt was made to distinguish the present circumstances from the generality of the discussion at paragraph 29 of MBR and, in my view, no real distinction can be drawn between the two.  In both cases, the role that is being performed is the same, namely a gatekeeping role.  I cannot see that it matters that, in the case of permission to appeal to this court, the issue is whether or not the gate should be opened to let the applicant in whereas in the case of PTA from this court, the issue is whether or not the gate should be opened to let the applicant out.  It remains the case that what is involved is a procedural step in the appeal process; it is solely a procedural matter.  Mr Bovey did not, in any event, seriously suggest otherwise.  Such submissions as he made regarding the effect of the decision to refuse permission were, as I understood it, directed rather at seeking to persuade that this was a meritorious appeal of some general or public importance. 

[21]      Turning to the competency of the applicant’s motion, I do not accept that the Supreme Court’s letter can, on any view, be read as a determination that it is competent for it to grant PTA against a decision of the UT.  It seems, essentially, to be a response to the applicant’s written submission to the effect that she did not require leave to appeal at all because she was, in reality, seeking to appeal against a judgment of the Inner House on the whole merits of the cause falling, in effect, within section 40(1)(a) of the 1988 Act.   

[22]      The submissions before me were, in any event, different.  They proceeded on the basis that the applicant required leave.  What became clear was that her intention would be to seek PTA against the decision of the UT from the Supreme Court.  That, of course, has to be her position because there can be no competent appeal against that decision at all except with the permission of the relevant appellate court: TCEA section 13 (3) and (4).  However, the TCEA makes no provision for appeal against the refusal of permission to appeal or for such permission to be obtained other than from the UT (which has refused it) or from the relevant appellate court, a category of which the Supreme Court is not a member.  The relevant appellate court is this court and it, in common with the UT, has refused PTA.   

[23]      It is difficult to avoid seeing the applicant’s approach as nothing more than a device to evade the provisions of the TCEA.

[24]      The context of the TCEA is that it is, as discussed above, characterised by making clear provision for finality and setting out a clear self contained appeal structure of which no court, including the Supreme Court, forms a part.  Appeals taking cases outwith that structure and into the court structure are to be carefully controlled and it is, in the case of Scotland, this court which has the power and responsibility of exercising that control.  For the applicant to be entitled to do as she would intend if her motion were to be granted, the conferring of a power upon the Supreme Court to grant such permission would have to be implied into the TCEA.  I cannot, however, find any basis on which that could properly be done.  The evidence all points in the opposite direction.  It prevents it being inferred that Parliament intended to empower the Supreme Court to grant PTA to allow the applicant to appeal against the decision of the Upper Tribunal.  That would, I consider, run directly counter to the plain meaning of section 13 of TCEA.  That being so, no motion for leave to appeal can competently be made under section 40(1)(b) of the 1988 Act; the provisions of the TCEA exclude it.   

[25]      This approach is, I would observe, consistent with the approach of the Supreme Court in the case of Davidson v Scottish Ministers (No. 2) [2004] UKHL 34 where, at paragraph 65, Lord Hope said that it was “beyond question” that the right to exercise the discretion to give leave to appeal to the Supreme Court under section 40(1) (b) of the 1988 Act belongs not to that court but to the Inner House.  It could not, accordingly, be controlled by the Supreme Court.   

[26]      Separately, on a proper analysis, it seems to me that any rights available to an appellant under section 40(1) of the 1988 Act cannot arise at all before PTA to this court has been granted by it or by the UT.  Only then does the case enter the court structure and become an appeal before this court. The granting of PTA has the effect of taking the case out of the TCEA structure but until then, it remains within its four walls.

[27]  Even if the motion had been competent, I would not have granted it.  The applicant evidently proposes, in any application for PTA, to address the substantive merits of the appeal before the Supreme Court, not the Hoseini test or whether, in refusing permission to appeal, this court erred in law (such as, for instance, by misunderstanding or misapplying the law applicable when considering an application for PTA or misunderstanding or misapplying the relevant facts or reaching a wholly unreasonable decision).  No thought had been given to the question of whether, in the event of PTA being granted, there would require to be a remit to this court.  Perhaps that was because of a recognition that that would amount, in effect, to the Supreme Court directing this court as to how to exercise the power to grant PTA but it had, in Davidson where, as here, there was no express statutory power to grant PTA, made it clear that it could do no such thing.  The assumption seemed to be that what the applicant perceived as the need authoritatively to “clarify and mesh” the decisions in ZH and Bensaid would be met by the Supreme Court‘s decision within the four walls of its decision on a motion for PTA; it seemed to be anticipated that the merits of the appeal against the decision of the Upper Tribunal would be determined by the Supreme Court without this court ever having done so.  In effect, on the applicant’s approach, there would be a “leapfrog” appeal direct to the Supreme Court from the decision of the UT.  There is, however, no obvious basis for that assumption and none was explained.  Leapfrogging is manifestly not an aspect of the appellate structure provided for by the TCEA.

[28]      I also accept that it is not possible to discern any issue of general or public importance.  The outcome of the appeal to the UT turned on the weighing, for the proportionality exercise, of the particular facts and circumstances of this case, not on any determination of a point of law.  The applicant presents this as a case which involves principle because it concerns article 8 and children who have “serious ill health” but that states a generality and thus put, it is simply eloquent of the assessment of proportionality in each case being bound to depend on its own particular facts and circumstances.  It is not as if the general approach to be adopted in any immigration appeal where the decision is liable to affect children has not already been carefully explored by the Supreme Court (see: ZH). 

[29]      In all these circumstances, the motion for leave to appeal to the Supreme Court is refused.