Scottish Court of Session Decisions

Petitioner: Caskie; Drummond Miller LLP

Respondent: Maciver; Office of the Advocate General

18 February 2014

[1] In this petition for judicial review, the petitioners seek reduction of the decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse permission to appeal from the decision of the FTT adverse to their case.

[2] The petition came before Lord McEwan at a procedural first hearing. Lord McEwan allowed the petition to be adjusted and thereafter, for reasons given orally and set out in a note attached to his interlocutor, appointed the petition to a substantive first hearing on 5 March 2014.

[3] The petition identified what was said to be an important point of principle concerning "sufficiency of protection" and "internal flight alternatives" available to individuals facing an individualised threat to their life or safety, and the construction of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 read in light of Council Directive 2004/83/EC, turning on the omission of the words "inter alia" in the 2006 Regulations. It is unnecessary to say any more about that point. It was argued on behalf of the petitioner that for this reason the Eba test was satisfied: Eba v Advocate General 2012 SC (UKSC) 1.

[4] In the note attached to his interlocutor, Lord McEwan explained his decision in these terms. First, he expressed concern that on the admitted facts the petitioners were at risk if they returned to either of their countries of origin. That risk was a risk to their lives. Second, while he accepted that the "inter alia" point raised before him had not been put before the Upper Tribunal in the application for permission to appeal, he considered that the point "ought to have been obvious to the Upper Tribunal" which could have ensured that the correct question was asked and answered within the tribunal system. Third, "to that limited extent" he allowed the case to proceed to a (substantive) first hearing, expressing no view on the case at that stage save to observe that "if an important point of principle or practice has actually already been established, it will not do for any Tribunal simply to overlook it". That last remark was, as I understand it, directed to the submission that the point of law sought to be argued on the appeal was not a new and undecided point of principle but had in fact already been resolved, so that even if the First-tier Tribunal had not correctly applied the law the case did not meet the Eba test.

[5] From these reasons, I take the following to be established. First, the "inter alia" point was a point of law arising from the decision of the First-tier Tribunal. That must be so, otherwise Lord McEwan could not have said that it ought to have been obvious to the Upper Tribunal. Second, the Upper Tribunal erred in law in failing to identify this as a point of law arising from the decision of the First-tier Tribunal. Third, by allowing the petition to proceed to a substantive first hearing, Lord McEwan was making it clear that he regarded the Eba test as having been satisfied. In other words, the point of law was an important point of principle meriting an appeal to the Upper Tribunal. Fourth, and thus arises from the first point identified in the preceding paragraph, he regarded the risk to life on the admitted facts before him as constituting a compelling reason why permission to appeal against the decision of the First-tier Tribunal should be granted.

[6] In those circumstances it seemed to me that there was nothing further to discuss at any substantive first hearing. Mr Maciver said that he would wish to argue at that substantive first hearing that the Eba test was not met. With great respect, however, it seems to me that it is too late for that. The point was argued and Lord McEwan held that it was met.

[7] The case came before me not at the substantive first hearing but on a motion by the petitioners that the case be transferred to the Upper Tribunal in terms of s.20(1)(b) of the Tribunal is, Courts and Enforcement Act 2007 and Rule of Court 58.11. Mr Caskie, for the petitioners, submitted that this was the most expeditious course. Since Lord McEwan heard made it clear that permission to appeal should be granted, there was no point in a further first hearing. By transferring the case to the Upper Tribunal, the expense of that substantive first hearing would be avoided and it was to be hoped that the Upper Tribunal would combine the formal consideration of the application for permission to appeal with a substantive hearing of the appeal itself. That promises to be the most economical and expeditious way forward.

[8] Mr Maciver, for the respondent, opposed this motion. He submitted that it would be appropriate for the point of principle to be resolved authoritatively by the court. That is not a good reason for opposing the motion, since the matter can only be resolved authoritatively by the court at a later stage, if there is an appeal to the Inner House from the decision of the Upper Tribunal hearing the appeal itself. He argued, in the alternative, and perhaps as his main point, that if I were to make an order transferring the case to the Upper Tribunal, rather than letting it go to a substantive first hearing at which a judge might grant decree of reduction, I would be depriving the respondent of her right to reclaim to the Inner House. The transfer of this case to the Upper Tribunal would not be a final decision and leave to reclaim would be necessary.

[9] I took the view that Mr Caskie's approach was to be preferred. It is not for this court, of course, to dictate to the Upper Tribunal how it conducts its affairs, but there is some force in the suggestion that, since this court has already indicated that permission to appeal should be granted, the Upper Tribunal might be able to combine what might well be a formal application for permission to appeal with the hearing of the appeal itself. That would save both time and money. However, I emphasise that that is a matter for the Upper Tribunal and not for this court. But whether the Upper Tribunal can or will do this does not affect my decision. There is nothing left for this court to do in this case and the sooner it goes to the Upper Tribunal the better.

[10] I was not persuaded that the loss of a right to reclaim to the Inner House was a good reason for refusing the motion. Appeals at this stage are, in my view, not to be encouraged. It is in the interests of all parties that the final determination of the petitioners' status is made as soon as possible. Transferring the case to the Upper Tribunal appears to offer the best prospect of this happening. Accordingly, I granted the motion.

[11] Mr Maciver applied for permission to appeal against my decision. I refused that application. I ordered the respondent to pay the petitioners' expenses of process.