Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 85

XA16/14

OPINION OF LADY CLARK OF CALTON

in the

application

for leave to appeal

under the Tribunals and Courts Enforcement Act 2007, section 13

by

IU AND OTHERS

Applicants;

_______________

Act:  Caskie;  Drummond Miller LLP

Alt:  J Komorowski;  Office of the Solicitor to the Advocate General

16 October 2014

Summary
[1]        This is an application for leave to appeal by IU and others.  The first two applicants are husband and wife.  They have a daughter born in the UK in 2009.  The first appellant, a national of Pakistan has been a work permit holder lawfully in the UK in that capacity since 13 January 2007 until 11 December 2011.  The second appellant entered the UK with a valid visa as his wife on 3 October 2007.

[2]        The application bears to be an application for leave to appeal two decisions of the Upper Tribunal.  The first decision is dated 27 August 2013 and is a substantive decision.  The second decision promulgated and dated 18 December 2013 refused to grant permission to appeal.

Preliminary issue
[3]        Counsel for the applicant conceded at the outset that it is not competent to appeal the decision of 18 December 2013.  The relevant decision which is the focus for leave to appeal is the decision of the Upper Tribunal dated 27 August 2013.

The decision of the First tier Tribunal and the Upper Tribunal
[4]        This is a case in which the Secretary of State successfully appealed against the determination of the First tier Tribunal dated 25 February 2013 which allowed the appeals of the applicants.  It was not disputed in this court by counsel for the parties that the immigration judge made a material error of law in her approach to the immigration rules.

[5]        In paragraph 22, the immigration judge carried out and concluded an assessment taking into account article 8 grounds.  The immigration judge concluded in favour of the applicants and their child that interference with their article 8 right would be “grossly disproportionate”.  The immigration judge stated:

            “To remove a person on such a minor transgression of the law would amount to a removal which is arbitrary and on a whim.  …”

[6]        The Upper Tribunal considered the facts and provided an analysis of the facts in paragraphs 8-13 of their determination.  They considered the particular circumstances of the applicants’ daughter, who was born within the UK when her parents were temporarily resident.  The Upper Tribunal concluded that the daughter is not a British or Union citizen and will have developed no appreciable private life at her age which is not dependent upon her relationship with her parents.

[7]        The Upper Tribunal concluded in paragraph 27 of their determination that:

“The private and family life developed by the family whilst in the United Kingdom since January 2007 was not, for the reasons we have identified in paragraphs 9‑13 above, of a quality such as to render removal disproportionate”.

The grounds on which leave to appeal is sought
[8]        There are four grounds set out in the application presented to the court.  Counsel for the applicant identified ground 4 as the most important ground.  He submitted that it raised an important point of principle similar to issues to be considered by the Inner House in the case P W (Petitioner) 2014 SCOH 64.  During the course of submissions, counsel for both parties agreed that the present application be sisted in respect of ground of appeal 4 pending determination by the Inner House of the reclaiming motion in the case P W (Petitioner).  I agreed to the joint motion by counsel. 

[9]        In these circumstances I require therefore to deal only with grounds 1‑3 relied on by the applicant.  It was submitted that these grounds raised an important point of principle for the purposes of RCS 41.57(2)(b).  No submission was made that there was some other compelling reason for the court to hear the appeal.

Grounds 1 and 2
[10]      As I understand the submissions on behalf of the applicant in respect of grounds 1 and 2, which counsel submitted were interlinked, the submissions were based on the proposition that there was no error in law in that element of the decision of the immigration judge which dealt with the article 8 assessment.  Counsel submitted that the Upper Tribunal therefor erred in law in interfering with that part of the judgment of the immigration judge by considering the matter afresh.  Despite the valiant efforts of counsel for the applicant, I cannot accept his submission.  On my reading of the decision of the immigration judge, the admitted error of approach in relation to the interpretation of the immigration rules appears to permeate the reasoning in relation to the article 8 assessment.  There is no separate analysis of the facts which the immigration judge considers relevant to article 8 in paragraph 22.  There is no separate consideration of the best interests of the child.  The immigration judge’s approach to article 8 and the language used referring to “minor transgression”, “arbitrary”, and a “whim” does not in my opinion indicate that the immigration judge carried out a separate and proper article 8 assessment free from the mistaken opinion about the immigration rules.  In my opinion, the Upper Tribunal were entitled to conclude that the immigration judge erred and they were entitled to set her decision aside and to remake it.  In making this conclusion, I make no comment on the way in which the Upper Tribunal itself dealt with the article 8 assessment.

Ground 3
[11]      Counsel for the applicant was also critical of the approach adopted by the Upper Tribunal in failing to take proper account of the importance and status of persons such as the applicant who is a work permit holder with his dependent family on a “route to settlement”.  The Upper Tribunal was said to be in error in comparing the situation of the applicants to the situation of students.  I accept that it is important to give proper weight to the particular and specific circumstances of an applicant and that holding a work permit for a number of years is of importance.  I also accept that it may be unhelpful to make comparison to other categories of immigrants.  I am unpersuaded however that the approach of the Upper Tribunal in this particular case can be elevated in this respect into an error of law on their part and that some important point of principle arises.

Conclusion
[12]      For these reasons I do not accept that any point of principle arises.  I therefor refuse leave to appeal in respect of grounds 1, 2 and 3.  Any question in relation to expenses is reserved.