Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 26
P281/13	OPINION OF LORD ARMSTRONG in the Petition of H H (AP) Petitioner; for Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 22nd October 2012 ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: McKendrick; Office of the Advocate General

14 February 2014

Introduction
[1] The petitioner is a Nigerian national who was born on 21 September 1988. She entered the United Kingdom, on 14 November 2005, on a six month visitor's visa and was granted a visa extension, to 20 March 2007, on the basis of the dependency of her husband who was already in the United Kingdom. The petitioner's husband made a claim for asylum in July 2010 which was rejected. His appeal to the First Tier Tribunal (Immigration and Asylum Chamber) ("the FTT") was refused by decision dated 13 September 2010. The petitioner claimed asylum on 9 March 2011. Her husband and her three children were dependents on her claim. Her three children were born in the UK but do not have British citizenship. One of her children, N, now aged 6 years, was born with neonatal hypoxic-ischemic encephalopathy and suffers from cerebral palsy. She receives care and therapy from a number of specialists and attends a school for disabled children. The petitioner's claim for asylum was made on the basis that she was at risk of being forced into marriage or killed by her uncle in Nigeria. She also claimed on the basis of the best interests of the children and under article 8, ECHR.

[2] The petitioner's claim for asylum was refused. After sundry procedure, she appealed to the FTT. Her appeal was refused by decision dated 10 September 2012. She applied to the FTT for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) ("the UT"). That application was refused by decision dated 4 October 2012. She then applied to the UT for permission to appeal. By a decision dated 22 October 2012, the UT refused permission to appeal. The petitioner now seeks to judicial review of that decision.

[3] The matter initially came before me at a continued procedural hearing at which the parties were agreed that the respondent's preliminary plea, to the effect that the issues raised in the petition fell outwith the supervisory jurisdiction of the court, should be determined at that stage. At that hearing, the case was conjoined with another (EP [2013] CSOH 99) in the decision of which I set out the nature of the test which is derived from the cases of Eba v Advocate General [2012] SC (UKSC) 1, R(Cart) v Upper Tribunal [2012] 1 AC 663, Uphill v BRB (Residuary) Ltd [2005] 1WLR 2070, and PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1WLR 73. The present case was continued for submissions on the content of the petition in the light of the case law as it then stood.

The test
[4] Since then, guidance as to the correct approach to the issue has been set out by the court in SA v Secretary of State for the Home Department [2013] CSIH 62, at paragraphs 41-44. In order for a petition of this type to proceed further, it must aver a specific error in the refusal of permission to appeal and either an important point of principle or practice not yet established or other compelling reason why the appeal should be allowed to proceed. The test is a stringent one, designed to allow review only in rare and exceptional cases in order to ensure that no compelling injustice occurs, the relevant error on the part of the UT normally requiring to be one which "cries out for consideration", rather than being merely potentially arguable.

The submissions for the petitioner
[5] It was averred in the petition that the UT had erred in law in the following ways:

(1) By failing to find that the FTT had erred by allowing an assessment of N's medical needs under article 3, ECHR, to "taint" the assessment of what was in her best interests;

(2) by operating under a misapprehension arising from the reference by the FTT to findings in relation to medical care which would be available for N in Nigeria, made by the immigration judge who determined the appeal to the FTT by the petitioner's husband; and

(3) by failing to find that the FTT had erred in assessing the best interests of the petitioner's children by:

(i) failing to find the weighty reasons required to separate a child from a community in which he or she has grown up;

(ii) failing to take into account the likely impact on the children's educational development, progress and opportunities in the broader sense, in particular in circumstances where discrimination is common and the standard of education is compromised;

(iii) failing to recognise the interests of the minor children as a primary consideration in the balance of competing considerations; and

(iv) failing to recognise that factors both for and against it being in the best interests of a child to remain or leave must not be overlooked.

[6] With particular regard to the position of N, it was contended that there was a compelling reason in this case. In the context of what is in the best interests of a child, under reference to the seven principles set out in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, at paragraph 10, it was submitted that the fifth and sixth were apt to the petitioner's case:

"[5] It was important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

[6] To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment."

Further, amongst the multifarious factors to be taken into account was continuity of care and educational development, opportunities and progress assessed in a broad sense and not just in the short term (MK (best interests of child) India [2012] Imm AR 325, 326 and at paragraphs 15, 21, 23, 24 and 41). Weighty reasons were required to justify separating a child from a community in which he or she had grown up for most of his or her life (LD [2011] Imm AR 99, at paragraph 26).

[7] It was submitted that, in circumstances where lack of medical treatment would have an effect on a child's development, the assessment required to fulfil the statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009, ("the 2009 Act"), to have regard to the need to safeguard and promote the welfare of the child was not the same exercise as that required to address the question of whether the nature of the child's medical condition was so compelling as to justify a departure from the usual practice of removal (TS v Secretary of State for the Home Department [2011] Imm AR 164 at paragraphs 28 and 45).

[8] Counsel for the petitioner reviewed the documentation available to the FTT. In the decision, dated 13 September 2010, by which the appeal of the petitioner's husband was refused, the immigration judge had found, at paragraphs 43-45, that there undoubtedly was discrimination against disabled citizens in Nigeria but, in circumstances where training facilities and self-help non-governmental organisations were being set up, relevant legislation was being progressed and N would have the support of her family, he considered that, in her case, the situation was not so difficult as to surmount the high threshold required for successful engagement of article 3. In considering whether article 8 was relevantly engaged, he made reference to evidence that the level of treatment available was supportive and rehabilitative rather than curative, and that physiotherapy, speech therapy and occupational therapy services were available. He considered that the facts that facilities in Nigeria might not be as sophisticated as those in the UK, and that it would be necessary to pay for medicine were, in that context, irrelevant considerations.

[9] In her statement, the petitioner had confirmed that she would require to pay for a school education for her children and for medicine. She confirmed the importance of physiotherapy to N's continuing mobility. The FTT had before it letters from N's treating consultant paediatrician and an orthopaedic surgeon, and a report by a specialist occupational therapist, all confirming her progress and requirements for specialist therapy and support. There was a lengthy expert report by Professor Mario Aquilar which set out in some detail the deficiencies apparent in the provision of medical services in Nigeria and, in particular, in relation to sufferers of cerebral palsy. His conclusions were that, in Nigeria, N would not receive medical services of the quality available in the UK. Other documentation confirmed the facts of discrimination against disabled persons and the inadequacy of the provision for children with physical challenges and learning disabilities. Country of origin information requests, relative to the position in Nigeria, had produced the following responses:

"for the former conditions (hypoxic-ischemic encephalopathy and severe spastic diplegia), the care and treatment involved for a young patient is supportive and rehabilitative rather than curative. We understand that physiotherapy and speech therapy are available. Occupational therapy, at least in the way it is administered in the UK, is not available, but local physiotherapists would likely see this as an extension of their work";

"The University of Nigeria, Department of Medical Rehabilitation, published a report in August 2007 about the prevalence and treatment of cerebral palsy in Nigeria. The report noted that treatment, both in terms of medication and physiotherapy, was available.

In addition, there appears to be an NGO called 'Cerebral Palsy Nigeria'... that supports people with cerebral palsy through 'training and capacity building'. However, no detailed information about this organisation was found...";

and

"A thesis paper submitted as part of a Doctorate of Philosophy of Special Education... provided some evidence that children with disabilities, including hearing and speech impairments, can be provided with specific attention relevant to their condition in schools in Nigeria. ...

The College of Medicine at the University of Ibidan... notes that the medical school has a speech therapist and separate wards and facilities."

[10] It was correct to describe the decision of the FTT as lengthy, detailed and comprehensive. It included, in relation to N, a conclusion that article 3 was not engaged, recognition of the requirements of section 55 of the 2009 Act, and consideration of her best interests, but, notwithstanding the available country information relating to children with N's needs, the view was expressed that "children of that age are very adaptable especially when they have the support of their parents, as will be the case here. They can easily adapt new situations, new circumstances and general change in their way of life."

[11] In the assessment of what was in N's best interests, there was no express reference to the issue of discrimination in Nigeria. The decision also expressed agreement with the findings of the immigration judge who decided the appeal by the petitioner's husband, insofar as they related to the provision of relevant care. The conclusion by the FTT that return to Nigeria would not breach the family's article 8 rights was wrong. Insufficient weight had been given to the country information available.

[12] The grounds of the petitioner's application to the UT for permission to appeal, set out criticisms of the FTT decision in a number of respects pertaining to the manner in which the assessment of the best interests of the children had been carried out. These bore on the assessment of N's medical needs under article 3, the assessment of her best interests as a child, the references to the findings of the immigration judge who refused the appeal of the petitioner's husband, the weight which should have been given to the available country information, the requirement for weighty reasons and the need to have regard to a child's broader educational development. It was maintained that the FTT had failed in these respects.

[13] Although the FTT had regard to discrimination in the context of article 3 protection, and had concluded that the situation was not so difficult as to surmount the necessary high threshold, discrimination was also a relevant consideration in assessing what was in the best interests of the child. The information available to the immigration judge who determined the appeal of the petitioner's husband had been augmented by further information which had come to light since then and was before the FTT in the petitioner's case. The decision of the UT was perverse because it failed to recognise that the FTT had attached insufficient weight to all of the available relevant background information.

Submissions for the respondent
[14] The best interests of the child had to be assessed, as a primary consideration, in making the proportionality assessment under article 8 (ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, at paragraphs 29 and 33). In that regard, the FTT had gone about the process in the correct way. Although the best interests of the child were a primary consideration which required to be assessed first in the overall assessment, they must be balanced with other considerations, notably the need to maintain firm and fair immigration control (AAN [2012] CSOH 151, at paragraph [21]). It was not disputed that the petitioner and her family had been in the UK unlawfully since 20 March 2008. The FTT had correctly applied the test set out in MK (supra) and ZH (Tanzania) (supra). The process involved an assessment of the available evidence comprising fact and opinion. The FTT had gone about the process appropriately.

[15] The decision of the FTT was lengthy, comprised 360 paragraphs, set out the evidence and disclosed clear conclusions. The FTT set out its assessment as regards article 3 at paragraphs 309‑314. As regards article 8, its assessment was set out at paragraphs 315-358. These paragraphs dealing with article 8, which disclosed a detailed consideration of the relevant issues, employed the correct test as to the consequences of interference, its gravity, accordance with the law and proportionality, all as specified by Lord Bingham in R (Razgar) v Secretary of State for the Home Office [2004] UKHL 27. Whilst the best interests of the child were a primary concern, they were not the primary concern. The FTT had taken into account the operational guidance, the whole circumstances of the children, their stages of development, N's medical condition, the medical opinion evidence, the report by Professor Aquilar, including the issue of discrimination, the guidance comprising background information which had come to light since the appeal by the petitioner's husband, the treatment said to be available in Nigeria and, in conclusion, had balanced the article 8 rights to be protected against the consequences and severity of the interference which would result from return.

[16] As regards the criticisms of the UT set out in the petition, it was necessary to read the decision of the FTT as a whole. The FTT had correctly identified the appropriate test in relation to article 3, had correctly assessed the impacts on the welfare of the child in that context, had identified the appropriate tests in relation to article 8 and had correctly evaluated the best interests of the child in that context. The question as to whether N's medical condition was so compelling as to warrant departure from the normal practice of removal, considered in TS (supra) in the context of art 16.1 of the Council Regulation (EC) Number 343/2003 (the Dublin II Regulation), had not been posed and so no error of law arose in that regard.

[17] As regards the findings of the immigration judge who determined the appeal of the petitioner's husband, while the FTT recognised them, it had additionally taken into account the available updated operational guidance on Nigeria and the law as set out in MK (India) (supra), decided since the appeal by the petitioner's husband, and had reached its own conclusions. That was the correct approach. The FTT had attached appropriate weight to the country guidance. The decision included reference to it and to the report by Professor Aquilar.

[18] The reasons given were sufficient and adequate. In any event, LD (Zimbabwe) (supra) the authority on which the petitioner relied for the proposition that weighty reasons were required to separate a child from his or her lifelong community, did not apply where, as here, the children concerned were not lawfully settled in the UK (OA [2012] EWHC 312 (Admin), at paragraph 37).

[19] Otherwise the criticisms made of the FTT related to the attaching of due weight, which was a matter for the immigration judge. It was not required of the FTT that it should refer to every piece of evidence. In all, the FTT in deploying its specialist experience and knowledge, had adopted the correct approach to the appeal and attached appropriate weight to the relevant evidence. In these circumstances, the failings ascribed to the UT were not apt.

Discussion
[20] Counsel for the petitioner accepted that, in effect, his principal submission was that on the evidence of the severity of N's disablement and her need for intensive ongoing care, as against the evidence of limited provision of medical services in Nigeria, no immigration judge, properly directed, would have reached the decision which the FTT did. In relation to that point, I must take into account that the FT, and the two tribunals which have since considered the issue of permission to appeal, are expert tribunals with relevant knowledge and expertise at their disposal. There is no doubt that the decision of the FTT in this case was comprehensive in its terms. I agree with the observation of counsel for the respondent that it comprises a careful evaluation of the evidence in which the appropriate tests have been applied in the correct manner. While the evidence relating to discrimination and the extent of the provision of medical care in Nigeria encompassed a range of factual information, it appears to me, reading the decision as a whole, that the FTT in weighing the evidence as it was open to it to do, did have a basis in evidence for the decision which it reached.

[21] I am not persuaded that the assessment of N's medical needs for the purposes of article 3 was allowed to compromise the assessment of what was in her best interests in the context of the protection of her article 8 rights. It is clear from the decision of the FTT that the two exercises were undertaken separately. I consider that the factors taken into account in each case, as set out in the decision, were those which were appropriate. The issue of her medical needs was considered appropriately in the consideration of proportionality necessary under the fifth question prescribed by Lord Bingham in Raszgar (supra). The FTT expressly recognised that evidence of provision of medical treatment, insufficient to engage article 3, could nevertheless be such as to indicate a breach of article 8 rights where the adverse effects on physical and moral integrity were sufficiently grave. Although the FTT, having balanced all the relevant considerations, came to the view that return to Nigeria would not breach N's article 8 rights, it does not follow that, in doing so, the FTT applied the same considerations which were required for an assessment of the position in relation to article 3. The content of paragraphs 315-318 of the decision suggests the contrary. It does not appear to me, therefore, that in that regard the UT acted irrationally or perversely in approaching the decision of the FTT as it did.

[22] As regards the findings of the immigration judge who determined the appeal presented by the petitioner's husband, as to the extent of the provision of medical and care services in Nigeria, whilst it is the case that reference was made to them, that was not the full extent of the FTT assessment of that issue. The FTT was aware of the guidance set out in MK (India) (supra), made specific reference to the available country of origin information, and the UKBA operational guidance note which post-dated the decision in the appeal by the petitioner's husband, and reached its own conclusions. That being so, it does not appear to me that the UT operated under a misapprehension in that regard.

[23] Having regard to the immigration history of the family, and under reference to the case of OA (supra), at paragraph 37, I accept the submission for the respondent that the requirement for weighty reasons, as considered in LD (Zimbabwe) (supra), is not applicable to the present case.

[24] As for the remainder of the criticisms directed towards the decision of the FTT, I consider, reading the decision as a whole, recognising the detail set out in it and the reasoning applied, that they are not substantiated.

[25] The question of the children's educational development, in the context of assessing what was in their best interests in relation to their article 8 rights, did not feature to any material extent in the submissions made before the FTT, other than by reference to the report by Prof. Aquila, which, at paragraph 341, the FTT took into account. In that context, the FTT did consider the fact that, in Nigeria, disabled children were subject to discrimination. Prof. Aquila's report also set out the extent of the provision of education which was available in Nigeria. It was significant that in her statement, the petitioner's concern was not that the quality of the education system in Nigeria was poor but rather that such provision as was necessary would require payment. In that context, there was evidence that her husband, now qualified, was well placed to find remunerative employment.

[26] At paragraph 322 of the decision, the FTT confirmed that the best interests of the children had been treated as a primary consideration.

[27] I consider that the content of paragraphs 315-358 is indicative of the fact that the FTT took into account all factors which, on the evidence before it, were said to impinge on the best interests of the children.

[28] For these reasons, it appears to me that the FTT did not err in the manner set out in the petition. In these circumstances, therefore, it follows that I consider that the criticisms directed against the decision of the UT are not made out. It appears to me that the UT has not acted irrationally or perversely and has not erred in law. That being so, I cannot say that the petition has high prospects of success.

Decision
[29] In the result, I am persuaded by the respondent's submission that no compelling reason has been made out. On that basis, it must follow that to allow this petition to proceed would offend against the restrained approach to judicial review of such refusal decisions. The petitioner has not met the test prescribed by Eba (supra) and AS (supra). I therefore sustain the respondent's fourth plea-in-law, repel the petitioner's plea-in-law and dismiss the petition. I reserve, meantime, all questions of expenses.