Scottish Court of Session Decisions

Petitioner:  Caskie; Drummond Miller LLP

Respondent:  McGregor; Office of the Advocate General

1 July 2014

Introduction
[1]        The petitioner is a 39 year old Gambian national.  The respondent is the Advocate General for Scotland representing the Secretary of State for the Home Department.  The petitioner entered the UK with a valid work permit, on 1 June 2007.  His immigration history discloses, thereafter, a persistent pattern of offending in relation to controlled drugs.  On 11 January 2012 he was sentenced to a period of imprisonment of 3 years 4 months following conviction in respect of being concerned in the supply of controlled drugs.

[2]        He appealed to the First-tier Tribunal (“the FTT”) against refusal of asylum and against deportation on human rights grounds.  By decision of the FTT, dated 29 October 2013 (“the FTT decision”), that appeal was dismissed.  An application for permission to appeal against that decision was refused by the FTT on 19 November 2013.  He thereafter applied to the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) for permission to appeal.  That application was refused by the UT on 18 December 2013 (“the UT decision”).  The petitioner seeks reduction of the UT decision.

[3]        The case came before me on the preliminary issue of whether the matters raised in the petition were apt for consideration within the supervisory jurisdiction of this court.  The relevant test in that regard is now well understood. In that regard, I was referred in the course of the hearing to Eba v Advocate General [2012] CSIH 62.

The submissions for the petitioner
[4]        It was argued that, on a consideration of the UT decision, the test in Eba was met by reason of the existence of two compelling reasons and one important point of principle which justify the future progress of the case. 

The test applied by the UT
[5]        As regards the first asserted compelling reason, it was said to comprise of three constituent parts.  Firstly, the UT, in considering the petitioner’s application for permission to appeal, had applied the wrong test.  That was apparent from the last line of the UT decision itself, by which it was expressly stated that “The grounds do not show an error on a point of law”.  It was accepted that the correct test in that context is whether grounds disclose an arguable error of law.  Secondly, under reference to the justification for the now accepted position that unrestricted judicial review of unappealable decisions of the UT is neither proportionate nor necessary for maintaining the rule of law, as set out by Lord Dyson JSC in R (Cart), at paragraph 123, it was a significant requirement, if the second appeals test was to be applied, that the decision of the FTT must have been scrutinised not just once, by the FTT itself, but a second time by the UT.  Where the decision of the UT was tainted by error, in this case by applying a higher test than was appropriate, the petitioner had in effect been denied that second procedural opportunity.  Thirdly, while it was accepted that a demonstrated error of law on the part of the UT was not in itself sufficient to meet the Eba test, a strongly arguable error of law coupled with truly drastic consequences for the individual concerned might amount to a compelling reason.  The extreme consequences of an erroneous decision, while they could not of themselves amount to a free-standing compelling reason, were a legitimate consideration in determining whether there was a compelling reason (JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273, at paragraphs 25-27).  Here, it was said that the permanent separation of a parent and child, the effect of the decision under challenge, amounted to truly drastic consequences.

Consideration of the grounds stated
[6]        The second asserted compelling reason arose from the fact that following a failure on the part of the FTT to consider six of the grounds advanced by the petitioner, of that number, the UT had subsequently failed to consider five of them.  In summary, these grounds were:

1.      the decision of the FTT was contradictory because having stated that the petitioner had an arguable case, it rejected every element of his claim;

4.      the FTT had concentrated only on factors adverse to the petitioner’s claim, an example of which was that reduced weight was attached to the evidence that he had not offended for three years while outwith the country or in prison;

6.      the FTT failed to have regard to, or misconstrued, information submitted in relation to the proportion of mixed ethnic groups in Scotland insofar as it impacted on M, the petitioner’s child; 

7.      the FTT concluded, without foundation in fact, that it was of greater benefit to M to have contact with the petitioner’s sister and her family in Birmingham than with anyone of African origin in the child’s home area of Rosyth (where she lives with her mother);

7[sic] having failed to take full account of the available demographic statistics (ground 6) and having concluded that it was of greater benefit to M to have contact with the petitioner’s sister and her family (ground 7), the FTT erred by concluding that there was no evidence that her best interests would be undermined by the decision to deport the petitioner. 

The position of a child of mixed ethnicity in an ethnically homogenous part of the UK
[7]        It was argued, in the context of the relevant assessment for the purposes of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, that in this case an important point of principle arose in relation to the need to have regard to the importance of a child’s racial and cultural background.  Reference was made to certain observations by Lord Caplan in Osborne v Matthan (No. 2) 1990 SC 682, at 705B‑D.  The point was associated with the sixth ground presented to the FTT and, subsequently, to the UT.  At paragraph 51 of the FTT decision, it was stated that “no percentage was provided for mixed ethnic groups (of which [M] is one).”  That statement was in fact incorrect.  A document had been produced to the FTT which stated that mixed/multiple ethnic groups in Scotland comprised 0.5% of the population.  Since, in terms of the document, Asian/Asian Scottish/Asian British groups, otherwise the largest non-white ethnic grouping, comprised 2.1% of the Scottish population, the greatest proportion of mixed race groups in Scotland was likely to be of Asian, rather than African, origin.  It was asserted that the geographic location in the UK of such a child was a matter which ought to be taken into account by the Secretary of State.  In the absence of her father, M was unlikely to have contact with another pure African in Rosyth.  That was a matter which ought to have been viewed as a factor of significant weight in determining whether the petitioner should be allowed to remain in the United Kingdom.  While the FTT had recognised the materiality of contact, nevertheless, without any evidence that the petitioner’s sister had previously had any involvement in M’s life or was willing to in the future,  it had expressed the view that “it is of more importance that [M] has, in the UK, relatives of her father in the form of his sister and her family in Birmingham with whom she can share family occasions and cultural celebrations and with whom she could visit her father in Gambia if she wished.”.

The submissions for the respondent

The test applied by the UT
[8]        Reference was made to the case of EP v Secretary of State for the Home Department [2014] CSIH 30, at paragraph 31.  While the word “arguable” did not appear in the determination by the UT, nevertheless the UT was a specialist tribunal and the test is a trite one.  Against that background, it was not legitimate to infer that the wrong test had in fact been applied.  Further, the identification of an error of law was insufficient.  It was noticeable that the petition was silent on the issue of truly drastic consequences in the context set out in JD (Congo) at paragraphs 25‑27.  There had not, therefore, been compliance with the guidance set out in SA v Secretary of State for the Home Department, at paragraph 43.  In any event, the submissions made for the petitioner were not to the point.  It was said that the drastic consequences in contemplation related to the best interests of the child.  The normal meaning of the phrase “truly dire consequences” was directed towards the individual whose immigration status was being determined.  It was generally recognised as a reference to persecution or torture following deportation.  There was no suggestion of such consequences in the present case.  Although it might be argued that the separation of parent and child was not always desirable, it was a necessary part of the decision making process to balance the best interests of the child against the national interest, in this case having regard to the petitioner’s immigration history.  In reviewing the FTT decision, when considering the grounds submitted, it was appropriate that the UT recognised that.  The combination of the error identified and the consequences of the decision did not render the case into the rare and exceptional class referable to the Eba test. 

Consideration of the grounds stated
[9]        Reference was made to the case of QE v Secretary of State for the Home Department [2014] CSOH 53, in particular at paragraphs [10], [11], [15], [21], [23] and [26].  In QE, the argument now presented by the petitioner had been considered.  Even if there had been a failure on the part of the FTT, and thereafter the UT, to consider certain grounds, it did not follow that such a situation had necessarily brought about the sort of exceptional collapse of fair procedure which fell within the scope of the principles laid down in the case of Eba and R (Cart).  It could not readily be inferred that a specialist tribunal had failed to consider the issues concerned.  In the decision of the FTT by which permission to appeal was refused, dated 19 November 2013, the characterisation of the grounds as nothing more than expressions of disagreement and an attempt to re-argue the matter, was correct. 

The position of a child of mixed ethnicity in an ethnically homogenous part of the UK
[10]      The principle of the need to have regard to relevant cultural ties was already well-established.  Since the asserted point of principle was not new, it did not meet the Eba test.  In terms of the petition, it was submitted that “the presence of the child’s ethnic minority parent should be viewed as a factor of significant weight in determining whether that parent should be allowed to remain”.  In Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690, it was confirmed that the necessary proportionality assessment under article 8 was inevitably fact sensitive.  In particular, the evaluative exercise excluded any “hard-edged or bright‑line rule” to be applied in the generality of cases.  In some cases the child’s best interests might point only marginally in one, rather than another, direction and there may be circumstances in which the weight of another primary consideration can tip the balance and make the proposed interference proportionate even where it has very severe consequences for a child (per Lord Hodge JSC at paragraph 13).  In the present case, such a primary consideration was the national interest in dealing appropriately with an immigration and criminal history such as that of the petitioner.  That had been recognised by the UT in its decision.  In seeking to argue to the contrary, the petitioner could not be said to have very high prospects of success.  In any event, at paragraph 51 of the FTT decision, there was clearly stated recognition of the need to have regard to contact and the need for appropriate links to the child’s cultural heritage.  In paragraph 39 et seq, the FTT had set out the basis of its assessment of proportionality.  The FTT had in fact applied the relevant point of principle. 

Discussion
[11]      It is appropriate that emphasis should be placed on the disciplined and restrictive approach of the Eba test.  The demonstration of error on the part of the UT is not enough.  There must also be an important point of principle or practice not yet established or another compelling reason why the petition should be allowed to proceed.  The test is sufficiently flexible to take into account the circumstances of a particular case, but it must also be recognised that the test is a stringent one, designed to allow review only in rare and exceptional cases (per the Lord Justice Clerk in the case of A v Secretary of State for the Home Department 2013 SLT 1132 at paragraphs [43] and [44]). 

[12]      In relation to the first asserted compelling reason relied upon by the petitioner, I do not consider that the contention that the UT lost sight of the correct question to be asked (“is there an arguable error of law?”) is necessarily well-founded.  While it is true that the word “arguable” does not appear in the UT decision, nevertheless, it is relevant to note that the UT is a specialist tribunal and that the nature of the test is trite.  That being so, a specialist tribunal should be given credit for knowing the task required of it. In these circumstances, the mere absence of the word “arguable” is not necessarily determinative.  Whether the wrong test was in fact applied is a matter of inference to be determined from what appears from the reasons stated.  The reasons stated in the UT decision are, in my view, equally referable to consideration of the possibility of an arguable error of law as to consideration of the possibility of an error of law.  In this case, the FTT had already decided, expressly, that there was no arguable error of law.  Having regard to the whole facts and circumstances, I do not consider that the assertion that the UT in fact lost sight of the correct question, and  so misdirected itself in law, has very high prospects of success. 

[13]      In any event it was conceded on behalf of the petitioner that even if the UT had erred in the respect submitted, that was not enough to meet the Eba test.  Reliance was placed on two further factors, viz: (i) the loss of the justification for the second appeals test, by reason of the UT decision having been tainted by the error of applying the wrong test, and (ii) truly drastic consequences.  As to the former, the argument is predicated on an assumption that the UT did in fact fall into error.  For the reasons I have expressed, I do not consider such a position to be justified.  In any event, I interpret the constituent parts of the second reason set out by Lord Dyson (in R(Cart), at paragraph 123), correctly read, as being, in the sense of the submission made for the petitioner, references to procedural requirements rather than qualitative standards.  As to the latter, I am not persuaded that the effect of the decision in respect of which permission to appeal is sought would amount to truly dire consequences in the sense in which the phrase is employed in JD (Congo) at paragraph 27.  I accept that such consequences are generally understood to comprise prejudice of a level comparable to that which would result from persecution or torture.  Here it was said that the separation of parent and child amounted to truly drastic consequences.  Whilst I accept that such a set of circumstances will generally be undesirable, I do not accept the implied comparison.  In any event the consequences in this context are referable to the individual who is the subject of the decision.  In this case the child, M, was born in May 2012.  She is therefore just over 2 years of age.  At the time of her birth, the petitioner was in prison and although he has seen her during prison visits on several occasions, at the time of the appeal hearing before the FTT he had not seen her since she was 17 months old and had never lived with her.  Having regard to the extent of the relationship, I am not persuaded by the contention that any separation of this parent and child would amount to truly dire consequences in the JD (Congo) sense.  Since it was accepted that the existence of truly drastic consequences was a necessary constituent part of the submission, I am therefore not persuaded that the first asserted compelling reason is made out.

[14]      In relation to the second asserted compelling reason, I favour the submissions for the respondent.  The grounds which it is said were omitted from consideration by the UT concerned matters which fell within the ambit of the exercise of the FTT’s discretion.  In so far as grounds 6, 7 and 7(sic) were concerned, at paragraph 51 of the FTT decision it was made plain that the proportion of mixed ethnic groups in Scotland was not considered to be a crucial or important factor when viewed against all the other available evidence.  In relation to ground 7, the observations made about the petitioner’s wider family could be said to be reasonable assumptions, having regard to the knowledge and experience of such a specialist tribunal.  To the extent that there may have been error on the part of the UT, I do not consider that there was thereby brought about the sort of exceptional collapse of fair procedure falling within the scope of the principle laid down in Eba and R (Cart).  Even if there was a measure of unfairness to be inferred from the absence of explicit reference in the UT decision to the content of the grounds relied upon in this context, I do not accept that any such irregularity amounted to there having been no hearing at all.  Even if there was truly a failure on the part of the UT to have regard to certain of the grounds submitted, given the content of these grounds, in the context of the whole evidence and the other considerations taken into account, I do not consider that such an error cries out for consideration.  Having regard to the content of the grounds identified in this part of the submission, I do not consider that a compelling reason has been demonstrated.

[15]      In my assessment, the submission that the petition raises an important point of principle that has not yet been established is not made out.  Whilst it does appear to be the case that aspects of relevant demographic statistics provided were overlooked, I consider that the exercise, of which reference to them and to M’s ethnic and cultural needs comprised part, was the application of an important point of principle which is already established and was applied by the FTT, namely the evaluative exercise of the assessment of proportionality for the purposes of article 8.  In that context, the assessment of the opportunity for a child of mixed race to form relationships with persons of similar ethnic background is no doubt one of a number of factors to be taken into account, and statistics of the sort presented in this case may well be relevant adminicles of evidence in that regard.  In my assessment, however, this was a case where another primary consideration (the need to maintain firm and fair immigration control in the face of an immigration and criminal history such as that of the petitioner) had to be weighed in the balance.  That was recognised in the reasons stated in the UT decision, the effect of which was to confirm that removal was proportionate.  That being so, under reference to the use of the demographic statistics provided, to the extent that an established point of principle was misapplied in this case, I do not consider that to amount to a compelling reason.

Decision
[16]      I am persuaded by the respondent’s submission that the case, that there are compelling reasons or an important point of principle established, is not made out.  I do not consider the petition to have high prospects of success.  In any event, I would regard the errors alleged as ones of the character which the principles set out in Eba and R (Cart) were designed to exclude from further consideration.  This is not a case which, for these purposes, falls into the class of the rare and exceptional. 

[17]      In the result, therefore, I sustain the respondent’s first plea-in-law and dismiss the petition.  I reserve, meantime, all questions of expenses.