Scottish Court of Session Decisions

Petitioner: Dewar; Drummond Miller LLP,

Respondent: Komorowski; Office of the Advocate General

4 April 2014

Introduction

[1] This is a petition for judicial review of a decision by the Upper Tribunal (hereafter "UT") to refuse leave to appeal from the determination of the First-tier Tribunal ("FTT") dated 16 September 2013. The FTT refused the petitioner's appeal from the decision of the Secretary of State on 22 May 2013 to make a deportation order under s.3(5)(a) of the Immigration Act 1971 on the basis of a crime committed by her some seven or eight years previously.

[2] The case called before me for a procedural first hearing. Because it raised a question about the best interests of the child, it was listed for hearing at the same time as another case (PW) in which a related point arose. I heard submissions in this case immediately after those in PW.

[3] My opinion in PW issued on 4 April 2014. I do not propose to repeat what I said there. It is sufficient simply to observe that before the petitioner can succeed she has to show, in no particular order, (a) that, in refusing permission to appeal, the UT erred in law or acted in some other way sufficient to justify reduction of their decision on ordinary judicial review principles and (b) that the Eba test (Eba v Lord Advocate 2012 SC (UKSC) 1) is satisfied. In accordance with what I regard as the correct approach where the supervisory jurisdiction is exercised over the decision of an inferior tribunal, I do not propose to go into the merits of the underlying dispute more than is necessary for the purpose of disposing of this petition.

The grounds of challenge - identification and discussion

[4] In its decision letter, the FTT referred to the terms of s.3(5)(a) of the Immigration Act 1971. That provided that a person who was not a British citizen was liable to deportation from the UK if the Secretary of State deemed his deportation to be conducive to the public good. In considering the decision of the Secretary of State that the petitioner's deportation was conducive to the public good, the FTT noted that it took into account guidelines given in a number of decided cases. It set out in sub-paragraphs (a)-(g) "the following basic principles [which] can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals". Mr Dewar, for the petitioner, complained that a number of the authorities there referred to were authorities decided not under the 1971 Act but under the later UK Borders Act 2007, which provided for a very different scheme of automatic deportation. The 2007 Act did not apply to someone like the petitioner, whose offence was committed before it came into force. However, as Mr Komorowski pointed out, some of the cases referred to by the FTT were cases on the 1971 Act; and the most recent, Masih (deportation - public interest - basic principles) Pakistan [2012] UKUT 00046 (IAC), though decided under the 2007 Act, summarised principles taken from the earlier cases on the 1971 Act. Mr Dewar was unable to identify anything in the principles summarised in the seven lettered sub-paragraphs which, in his submission, misstated the law applicable to cases decided under the 1971 Act. Accordingly, even if Mr Dewar is right in contending that the FTT should not be relying on cases decided under the 2007 Act when considering a decision taken by the Secretary of State under the 1971 Act, as to which I reserve my position, in the absence of any substantive complaint that the FTT applied the wrong principles, that error, if error it be, makes no difference to the outcome of the case.

[5] The second ground of criticism of the substantive decision of the FTT is that the FTT made no express finding as to where the best interests and welfare of the petitioner's child lay. The child was about two years old at the time of the decision. Mr Dewar acknowledged that the FTT had, in a number of paragraphs, given careful consideration to the best interests of the child. He had no specific criticisms of what they said. But, he submitted, this was not enough. It was incumbent upon the tribunal to make an express finding as to where the best interests of the child lay, and in particular in which country the best interests of the child lay. I cannot accept this submission. To my mind it is sufficient that the FTT has given full and proper consideration, as a discrete matter, to the best interests and welfare of the child. It may make this the subject of express findings. Or it may weave its conclusions into parts of the narrative and discussion. What is important is that it does in fact give full and proper consideration to the question of where the best interests and welfare of the child lie, and does in fact do so as a separate exercise distinct from the question of where the parent might end up. But I see no basis for saying that there must be an express finding on this matter. As Mr Komorowski pointed out, the case of Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690 provides an illustration of the FTT having made a thorough assessment of the child's best interests and welfare without having made the sort of express finding which Mr Dewar contends is necessary, an approach which appears not to have been criticised by the Supreme Court. There is no merit in this ground of challenge.

Conclusion

[6] For the reasons explained above, I do not regard either ground of challenge as arguable. No basis has been advanced for criticising on judicial review grounds the decision of the UT judge to refuse permission to appeal. The UT judge cannot be criticised for not having granted permission to appeal on the basis that these were arguable points of law arising from the decision of the FTT and likely to have some impact upon the outcome of the appeal. The UT judge considered that the grounds advanced were in essence no more than a disagreement with the FTT's findings. He concluded that those grounds did not disclose any arguable errors of law in their decision. I cannot find any error in that analysis.

[7] It follows from the above that this is not a case where the Eba test is met. There is no important point of principle or practice deserving of being heard in the UT, nor any other compelling reason why the decision refusing permission to appeal should be reduced.

Disposal

[8] For the above reasons, I shall refuse the petition.