Act:  Martin QC, Caskie;  Drummond Miller LLP

Alt:  Drummond QC, Komorowski;  Office of the Advocate General

23 July 2014

The reclaiming motion
[1]        This is a reclaiming motion on behalf of the Secretary of State for the Home Department directed at a decision of Lord Glennie dated 7 February 2014 which followed his consideration of submissions on behalf of the parties at a first hearing of a petition for judicial review.  Lord Glennie found in favour of the petitioner, granted the prayer of petition and reduced the decision of the Upper Tribunal (Immigration and Asylum Chamber) which refused to grant to the petitioner permission to appeal from a decision of the First-tier Tribunal. 

[2]        In order to understand the issues raised in the reclaiming motion, it is necessary to explain the history and context of the various proceedings both in the Tribunal system and in the judicial review proceedings. 

Summary of the legal framework applicable to this case
[3]        Under and in terms of part 1 of the Tribunals, Courts and Enforcement Act 2007, there was established a new unified tribunal structure which includes the First‑tier Tribunal and an Upper Tribunal, organised into chambers, dealing with specialist subjects including immigration.  One of the important changes was to give a new right of appeal from the Lower Tribunal to the Upper Tribunal in defined circumstances.  In the present case, there was no dispute that the petitioner had a right of appeal from the First‑tier Tribunal “on any point of law” arising from a decision made by the First‑tier Tribunal but that right of appeal may only be exercised with the permission of the First‑tier Tribunal or permission of the Upper Tribunal.  The petitioner sought such permission both from the First‑tier Tribunal and the Upper Tribunal.  Both tribunals refused to grant permission to appeal.

[4]        In the aforesaid circumstances the parties did not dispute that, as a matter of law, the decision of the Upper Tribunal to refuse leave to appeal was not appealable to this court and that any remedy by way of judicial review seeking to reduce the decision of the Upper Tribunal to refuse leave to appeal was also limited.  The limitations and reasons for the limitations of the judicial review remedy are discussed at length in R(Cart) v Upper Tribunal and R(MR) (Pakistan) v Upper Tribunal (2012) 1 AC 663 and Eba v Advocate General 2012 SC (UKSC) 1.  In Eba it was held that the approach in Scottish courts to unappealable decisions of the Upper Tribunal should be to align with the approach of the court in Cart.  The Supreme Court in Eba, in relation to such cases approved a restriction in the scope of judicial review.  The practice recommended was that the Lord Ordinary to whom a petition is presented for a first order should be encouraged to consider whether there is an error of law that raises an important issue of principle or some other compelling reason for hearing the case before deciding whether or not a first order should be granted.  The phrases “some important point of principle or practice” and “some other compelling reason”, which restrict the scope for a second appeal in England, provide a standard for the court to use in the exercise of a supervisory jurisdiction in relation to decisions in immigration cases that are unappealable to this court.  This restrictive approach approved in Eba is commonly referred to as “the Eba test”.  The Practice Note No 2 of 2013 relative to immigration and asylum judicial reviews in Scotland (effective from 24 September 2013) makes provision for such an approach.

Summary of proceedings in the Tribunal system
[5]        Thabo Jones Mdluli (hereinafter referred to as “the petitioner”) is a citizen of Swaziland who entered the United Kingdom aged 21 years on 2 July 2006 as a working holidaymaker with entry clearance valid from 1 July 2006 until 1 July 2008.  On 10 February 2010 he submitted an application to the Secretary of State for the Home Department (hereinafter referred to as “the respondent”) for his case to be considered inter alia under article 8 of the European Convention on Human Rights (“ECHR”) on the basis of his private life and the fact that he lived as part of a family unit with his father and siblings.  His father and sister are British citizens.  The respondent refused the application and the petitioner appealed against said refusal.  The appeal was considered by the First‑tier Tribunal (Immigration and Asylum Chamber) and was dismissed in the determination dated 13 February 2013.  (Appendix pages 1 to 15).

[6]        Thereafter the petitioner applied for permission to appeal to the Upper Tribunal from the decision of the First‑tier Tribunal dated 13 February 2013 but this application was refused.  (Appendix page 26).  The petitioner then applied for permission to appeal to the Upper Tribunal from the Upper Tribunal itself.  The reasons advanced by the petitioner are set out in pages 19 to 21 of the Appendix.  The Upper Tribunal refused said application by the petitioner for permission to appeal.  (Appendix page 23).  It was not disputed by the parties that, as a matter of law, the said decision of the Upper Tribunal to refuse permission to appeal was unappealable to this court.  The petitioner thereafter sought to challenge the decision of the Upper Tribunal refusing permission to appeal by raising a petition of judicial review. 

The judicial review proceedings
[7]        It was not in dispute by the parties in the reclaiming motion that the judicial review proceedings required to take place within the context of the general legal framework outlined in paragraph [4] of this opinion.  In the judicial review petition, the petitioner sought reduction of the decision of the Upper Tribunal which refused to grant the petitioner permission to appeal to the Upper Tribunal against the determination of the First‑tier Tribunal dated 13 February 2013.  After sundry procedure, a procedural first hearing date of 29 November 2013 was assigned by interlocutor dated 22 August 2013. 

[8]        The appointed procedural first hearing on 29 November 2013 took place before Lord Stewart.  The procedural first hearing in this case appears to have been conducted with regard to said Practice Note No. 2 of 2013.  Inter alia this in effect required the court at the procedural hearing to consider whether the Eba test was met.  We were informed that at the procedural first hearing the petitioner did not contend that the issues raised in the judicial review raised an important point of principle or practice which is the first branch of the Eba test.  Reliance was placed by the petitioner on the second branch of the Eba test.  The petitioner contended that there was some other compelling reason for this court to hear the case for judicial review.  In statement [15] of the judicial review petition, the petitioner averred that:

“In the present case the decision of the UT gives rise to compelling reason why the decision should be reduced being the collapse in fair procedure before the UT when it was giving consideration to whether or not to grant permission to appeal.”

[9]        We note that in the written statement of issues prepared by the parties in advance of the procedural first hearing as required by Practice Note No 2 of 2013, paragraph [10], there is no notice that anything other than the Eba test was to be addressed at the procedural first hearing.  In particular no notice was given that a submission was to be made that the substantive grounds should be decided at said hearing thereby leaving no other issues to be determined (see pages 31 to 42 of the Appendix).  Both parties gave notice that one day would be required for a substantive first hearing.  In addition it was not represented to us by senior counsel for either party in the reclaiming motion that the oral submissions before Lord Stewart significantly deviated from the written submissions or that Lord Stewart was addressed and invited by either party to determine the substantive issues or that he did so.

[10]      Lord Stewart did not issue any written opinion and nothing relevant is noted in the minute of proceedings.  The only written information with which we were provided relating to the hearing before Lord Stewart was the interlocutor dated 29 November 2013.  The interlocutor states:

“The Lord Ordinary, having heard counsel at the Procedural First Hearing, on the unopposed motion of the respondent made at the bar, allows the Inventory of Productions to be received and marked no.7/1 of process, grants leave to the Respondent to amend their answers by deleting the words ‘dismissed’ where it appears in Plea In Law 1, 2 and 3 and replace it with the word ‘refused’, also delete the word ‘to’ where is appears before the word ‘raise’ and replace it with the word ’not’ in Plea In Law 2; Sustains the respondents second Plea In Law, quoad paragraphs 20 to 25 of the Petition; assigns Friday 7 February 2014 at 10.00am within the Court of Session, Parliament Square, Edinburgh as the date for the First Hearing; Finds the expenses of today’s hearing to be expenses in the cause.”

[11]      The respondent’s second plea in law, as amended, focussed the Eba test and invited the court to refuse the judicial review petition on Eba grounds, on the basis that the judicial review did not raise an important point of principle or practice or other compelling reason for the court to hear the case.  Lord Stewart was persuaded in part by the respondent’s submissions to the extent that he sustained the respondent’s second plea in law in relation to paragraphs 20 to 25 of the petition.  By necessary implication, we conclude that he was not so persuaded by the respondent’s submission in relation to the remaining statements in the petition.  We observe also that in the interlocutor Lord Stewart did not dispose of the first and only plea in law for the petitioner in relation to the merits of the judicial review which stated:

“The decision by the Upper Tribunal refusing to grant the Petitioner permission to appeal against a decision of the First‑tier Tribunal should be reduced as that decision is unlawful.”

The interlocutor also did not dispose of the third plea in law of the respondent directed to the merits of the judicial review in relation to material error of law.  We note also that Lord Stewart assigned 7 February 2014 as the date for the first hearing.

[12]      There was no reclaiming motion by either party in relation to the interlocutor of Lord Stewart.

[13]      The assigned first hearing of the petition for judicial review was heard before Lord Glennie on 7 February 2014.  Senior counsel on behalf of the respondent submitted to us that the substantive issues about the merits of the petition which counsel then instructed had intended to address at the first hearing were not fully addressed.  We were informed by senior counsel for both parties that the hearing before Lord Glennie focussed on a discussion about the Eba test, the developing jurisprudence and implications thereof.  These were the issues which Lord Glennie seemed interested to explore with the parties. 

[14]      Lord Glennie issued a written opinion dated 18 February 2014 in which he granted the prayer of the petition and reduced the decision of the Upper Tribunal refusing to grant permission to appeal from a decision of the First‑tier Tribunal.  It is from that decision that the respondent reclaims as we explained in the first paragraph of this opinion.

Submissions by senior counsel in the reclaiming motion
[15]      Senior counsel for the respondent, who is the reclaimer, submitted that Lord Glennie erred in holding that Lord Stewart’s interlocutor of 29 November 2013 constituted a holding that there was a compelling reason to reduce the Upper Tribunal’s decision refusing permission to appeal and that there was therefore nothing further to discuss at the hearing before him.  She submitted that Lord Glennie’s interpretation of Lord Stewart’s interlocutor was untenable.  The main part of the submission developed by senior counsel on the basis of the written grounds of appeal was an attack on the Lord Ordinary’s approach to the Eba test.  This submission was developed at some length reviewing the history of the Eba test under reference to R (Cart) v Upper Tribunal [2012] 1 AC 663.  She also reviewed the developing jurisprudence in AKA v Secretary of State for the Home Department 2012 SLT 1075 and A v Secretary of State for the Home Department 2013 SLT 1132.  She submitted that Lord Glennie had misunderstood and wrongly reformulated the Eba test.  In particular he had erred in his understanding in what was meant by a “compelling reason” in the context of the Eba test.  Counsel submitted that what is meant by that is that there must be a compelling reason for the petition for judicial review to be allowed to proceed in order that the errors of law set out in the petition can be substantively determined.  Senior counsel sought to persuade us that this was an appropriate case to give guidance about the application of the Eba test and the role of the court at the substantive first hearing in circumstances where the court has decided that the threshold Eba test has been met at a procedural first hearing. 

[16]      In response, senior counsel for the petitioner invited the court to refuse the reclaiming motion.  He did not dispute that the consideration of the Eba test is generally made at the preliminary stage of the procedural first hearing but submitted that the Eba test and its implications were irrelevant to the present reclaiming motion.  Senior counsel submitted that the only issue for determination in the reclaiming motion is for the court to decide what Lord Glennie did in his decision making.  He submitted that if Lord Glennie’s opinion is properly read and construed, it is apparent that he did deal with the substantive merits of the judicial review in this case and did not merely assess the case and conclude that Lord Stewart had in his decision making somehow determined the merits.  Senior counsel for the petitioner made it plain that he was not submitting that Lord Stewart had determined the merits.  His submission was that Lord Glennie determined the merits in this case.  This court was therefore invited to consider in detail the decision of Lord Glennie and come to that conclusion.  Senior counsel candidly conceded that if he was wrong in his interpretation of Lord Glennie’s opinion and if the court concluded that Lord Glennie had not determined the merits of the case, the reclaiming motion should succeed.

Discussion
[17]      We consider that the core of the submissions on behalf of the respondent may be simply stated.  In making his decision at the first procedural hearing Lord Stewart carried out the task expected of him.  He came to a view, after hearing submissions, about whether he was satisfied that the Eba test was met.  Lord Stewart came to a conclusion by finding that the Eba test was not met in respect of paragraphs 20 to 25 of the petition, by necessary implication he was so satisfied about the remainder of the petition and assigned a first hearing for consideration thereof.  Senior counsel for the respondent submitted that in his interlocutor Lord Stewart was not concluding that the Upper Tribunal had erred in law or that a compelling reason had been demonstrated to reduce the decision of the Upper Tribunal.  Lord Stewart was merely deciding whether or not the Eba test was met in respect of some or all of the averments in the petition.  His decision making was restricted and did not decide the merits.  Issues therefore remained to be determined later by the Lord Ordinary at the first hearing.  In particular the Lord Ordinary at the first hearing required to determine whether or not the petitioner had established grounds of judicial review which would justify a reduction of the decision of the Upper Tribunal refusing leave to appeal. 

[18]      This submission was focussed in the only ground of appeal by the respondent in this way:  “The Lord Ordinary erred in holding that Lord Stewart’s interlocutor of 29 November 2013 constituted a holding that there was a compelling reason to reduce the Upper Tribunal’s decision refusing permission to appeal, and that there was therefore nothing further to discuss at the hearing before him.”  Reference was made to paragraph [41] of Lord Glennie’s opinion.  The various points made in paragraphs (a) to (e) of the grounds of appeal were advanced in support of that general proposition. 

[19]      We note that the respondent had no grounds of appeal directed to the substantive merits of Lord Glennie’s decision-making.  This is not surprising as the error in law identified by the respondent was that Lord Glennie had not considered and decided the substantive merits of the parts of the petition which had survived the consideration of the Eba test by Lord Stewart.  We consider that the consequence of this formulation of the ground of appeal is that the reclaiming motion is periled on the ground that Lord Glennie refused to determine (or declined or avoided determining) the merits.

[20]      We consider that the starting point for our analysis is to consider what Lord Stewart decided.  In the absence of any written opinion by Lord Stewart we have only the interlocutor.  We consider that it is plain from the terms of the interlocutor which we discussed in paragraphs [10] and [11] that Lord Stewart did not purport to determine the merits of the judicial review and that task remained for the Lord Ordinary at the first hearing.  By the time of the first hearing before Lord Glennie, there was an interlocutor to the effect that averments in paragraphs 20 to 25 in the petition had “failed” the Eba test and by implication averments in the remainder of the petition had “passed” the Eba test.  In our opinion the task of Lord Glennie was to consider and adjudicate on the merits of the judicial review excluding paragraphs 20 to 25.

[21]      What we now require to do in this reclaiming motion is to consider the opinion of Lord Glennie and reach a conclusion as to whether or not he addressed and determined the merits of the parts of the judicial review pleadings which had been sent by Lord Stewart to be considered at the first hearing.  In our opinion if Lord Glennie carried out that task, the respondent must fail.  If Lord Glennie did not carry out that task, we are of the opinion that it follows that no Lord Ordinary has carried out that task and the respondent must succeed. 

[22]      Senior counsel for the petitioner was eloquent in trying to persuade us that Lord Glennie had carried out the task of deciding the merits of the judicial review, albeit counsel had to concede that some of the language used by Lord Glennie was not helpful to his submission. 

[23]      Bearing in mind the submissions from counsel for both parties, we have considered in detail the opinion of Lord Glennie.  We note paragraph 2 in which the Lord Ordinary states that the hearing before him raised issues of principle and practice and involved consideration of the Eba test.  We are puzzled by this as the task of the Lord Ordinary at the first hearing was not to consider the Eba test but to consider the substantive merits.  The Lord Ordinary then sets out the factual background and history of decision‑making in paragraphs [3] to [11] of his opinion.  In paragraphs [12] to [23] he considers judicial review and the Eba test which he chooses to rephrase in his own words at the end of paragraph [12].  In our opinion these remarks are obiter and it is not clear why the Lord Ordinary embarked on this analysis.  The Lord Ordinary then considers in paragraphs [24] to [30] his understanding of how current practice has developed.  We merely comment that the parties in this case were not agreed about the Lord Ordinary’s description of current practice.  Interesting as this discussion may be, we consider that it does not assist with the merits of this case.  In paragraph [28], the Lord Ordinary concludes that there is a difficulty as to what is to be the subject matter of a substantive first hearing.  He discusses this difficulty as a matter of generality but he does not explain what the difficulty is in relation to the present case.  And we are unable to understand what that difficulty could be. 

[24]      At paragraphs 31 to 42 of his opinion, the Lord Ordinary turns to consider the “current petition”.  Having considered some general issues about the way in which he understands Eba issues may be decided, he appears to bring that analysis to his consideration of this case.  We understand that there was no information before the Lord Ordinary that Lord Stewart had in the current petition approached his decision‑making applying such an analysis.  In paragraphs [32] to [33], the Lord Ordinary describes the terms of the petition.  In paragraphs [34] to [35], he notes the procedural history.  At paragraph [36], he notes the interlocutor of the Lord Stewart.  In paragraph [37], he states that Lord Stewart was, in effect, accepting the respondent’s submission that part of the petition failed the Eba test and refused to appoint that part to a substantive first hearing.  That part was identified as being at paragraphs 20 to 25 of the petition.  We pause here to observe that this analysis, with which we agree, can only point to the conclusion that Lord Stewart did not decide the underlying merits of the petition.  We consider this is even more obvious if reference is made to the pleas in law.  Despite what we consider to be the inevitable conclusion to be drawn from this analysis the Lord Ordinary then concludes in paragraphs [40] to [41]:

“[40]    It follows that, in repelling the respondent’s second plea in law with regard to the remainder of the petition, in particular paragraphs 9– 6, Lord Stewart is to be understood as having accepted the submission on the part of the petitioner that the circumstances narrated in those paragraphs, which I have summarised in terms of the UT judge asking himself the wrong question and, in effect, failing to give any proper consideration to the application for permission to appeal, amounted to an error of law on the part of the UT judge; and, because it meant that the petitioner had not had an effective hearing of his second application for permission to appeal, it provided a “compelling reason” for reducing the UT judge’s refusal of permission to appeal and, in effect, sending the matter back to the UT consider the application afresh.

[41]      In those circumstances it seemed to me that there was nothing further to discuss at the substantive first hearing before me.  Lord Stewart had decided that the circumstances narrated in the petition, which relied for their force only upon the terms of the refusal by the UT judge to grant permission to appeal (read in the context of the decision of the FTT and the application for leave) amounted to a compelling reason why the decision to refuse leave should be reduced and the case sent back for a UT judge to consider the application afresh.  On that basis, there was nothing further to decide.”

[25]      Although the Lord Ordinary appears to acknowledge the importance of the interlocutor of Lord Stewart, he appears to overlook or misinterpret the terms and implications of the interlocutor particularly the pleas in law which are not disposed of by Lord Stewart.  The interlocutor of Lord Stewart did not uphold the substantive grounds of the judicial review.  It merely gave effect, in part, to plea in law 2 of the respondent dealing with Eba issues.  It may be as senior counsel for the reclaimer submitted that the Lord Ordinary misled himself because of the view he took of the practical application of the Eba test as formulated by him.  That may or may not explain the difficulty which has arisen.  We do not wish to speculate.  It is clear in our opinion that the approach of the Lord Ordinary in this case failed to recognise that Lord Stewart’s interlocutor did not determine the merits and could not be interpreted in such a way.

[26]      When we consider in detail the opinion of the Lord Ordinary we are unable to detect any attempt by him to engage with the substantive merits of the judicial review.  Rather he appears to consider that this exercise must have already been carried out by Lord Stewart.  Indeed in paragraph [41], the Lord Ordinary states it is unnecessary for him to do so.  Senior counsel for the petitioner accepted that the repeated reference by the Lord Ordinary to “compelling reason” was, in the context of a decision about the merits difficult to understand, as it refers to language associated with the Eba test.  In our opinion the high point of the submission by senior counsel for the petitioner was his reference to the description by the Lord Ordinary of the substantive grounds of the petition.  He submitted that this indicated that the Lord Ordinary had considered the merits.  In our opinion that reference by the Lord Ordinary was no more than a narration by him of the terms of the pleadings.  It did not demonstrate any engagement with the averments, followed by a reasoned decision in the opinion as to why the refusal by the Upper Tribunal to grant leave should be reduced in the opinion of the Lord Ordinary.  We have no difficulty in concluding that there is nothing in the opinion of the Lord Ordinary to persuade us that he considered and decided the merits of the judicial review as to whether the decision of the Upper Tribunal should be reduced.  We are satisfied that this exercise has not been carried out by any Lord Ordinary.  In these circumstances we conclude that the reclaiming motion by the respondent must succeed and the interlocutor of the Lord Ordinary recalled.  

[27]      Both in the written note of argument and in oral submission, senior counsel for the respondent sought to address us about the Eba test and sought to persuade us that the Lord Ordinary had erred in his formulation and understanding of the Eba test.  She sought to persuade us to give guidance both about the Eba test and about practice.  In our opinion the issue in this case is a narrow one and this is not an appropriate case to give guidance about Eba, current practice or improvements therein.  It is a case which appears to have gone off the rails.  Some difficulties may have been caused by the absence of any written opinion or any summary in the minute of proceedings following the first hearing by Lord Stewart and some confusion about the terms of the interlocutor.  This appears to be compounded by events at the first hearing before the Lord Ordinary and his interest in exploring the developing Eba jurisprudence.

[28]      One final point which does not bear upon our conclusion about the main issue.  This relates to paragraphs [37] and [38] of the opinion of the Lord Ordinary.  He refers to submissions made to him by both parties that the reference in the interlocutor to paragraphs 20 to 25 of the petition should have been a reference to paragraphs 21 to 25.  It is considered that paragraph 20 is in general terms and applies both to what has gone before and to what follows in the pleadings.  This issue may or may not arise in subsequent proceedings before another Lord Ordinary.  In circumstances in which there may be some dispute and potential lack of clarity about Lord Stewart’s interlocutor, we conclude that the case should be remitted to a first hearing before Lord Stewart to proceed as accords.