Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 142

P482/14

OPINION OF LORD DOHERTY

In the Petition of

DAVID NDAGIJIMANA

Petitioner;

for

Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal

Petitioner:  Caskie;  McGill & Co

Respondent:  McIlvride;  Office of the Advocate General for Scotland

16 September 2014

Introduction

[1]        In this petition for judicial review the petitioner seeks reduction of a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) dated 16 April 2014  in terms of which Upper Tribunal Judge Lane refused the petitioner’s application for permission to appeal to the UT from a decision of the First-tier Tribunal (“FTT”) dated 5 December 2013.  The decision of 16 April 2014 is an unappealable decision.  It is amenable to judicial review only if (i) the challenge raises an important point of principle or practice, or (ii) there is some other compelling reason for the court to hear the case (Eba v Advocate General 2012 SC (UKSC) 1; SA v Secretary of State for the Home Department [2013] CSIH 62; EP v Secretary of State for the Home Department [2014] CSIH 30).  The matter came before me for a procedural first hearing. The petitioner did not suggest that the challenge raised an important point of principle or practice.  He submitted that there was a compelling reason for the court to hear the case.

Background

[2]        The petitioner is a citizen of Rwanda now aged 42.  He entered the United Kingdom on 15 October 2004 with leave to remain as a student until 31 March 2006.  He obtained annual extensions to that leave, the final such extension expiring at the end of January 2010. On 24 February 2010 he was granted further leave to remain for two years as a Post Study Work Migrant.  Ultimately, after working in a number of temporary positions, he obtained employment with a housing association as a sheltered housing manager.  On 22 February 2012 he applied for indefinite leave to remain.  On 17 April 2013 his application was rejected by the Secretary of State for the Home Department (“the respondent”).  He appealed to the FTT.  The FTT dismissed the appeal on 5 December 2013.  On 5 March 2014 the FTT refused the petitioner’s application for permission to appeal to the UT.  On 16 April 2014 the UT refused his application to it for permission to appeal.

The FTT’s decision

[3]        The petitioner’s appeal before the FTT proceeded on the basis that his removal from the UK would be disproportionate having regard to his article 8 ECHR right to private life.  It was accepted that he did not qualify for leave under the Immigration Rules.  In its decision the FTT noted:

“6.  The Appellant was accompanied by two witnesses to speak to their appreciation of his character and contributions, and he has supplied what might be called a small sheaf of written letters of support and commendation, as well. It is clear from this that the Appellant is a conscientious and hard-working man, conscious of his ability to contribute to the community and ready to do so. He appears to be a valued employee.

7.  The Appellant rests his application and now his appeal on the basis that his private life here is of such a nature and degree that a decision to return him to Rwanda would be, effectively, disproportionate…”

[4]        The FTT made reference to MS v Secretary of State for the Home Department [2013] CSIH 52 in relation to the circumstances in which consideration of an article 8 claim outside the Immigration Rules might be necessary;  but rather than determining whether the petitioner had demonstrated a good arguable case for leave being granted on article 8 grounds outside the rules, the Immigration Judge simply proceeded to a full proportionality assessment:

“ 9.  I find it much simpler and more satisfactory rather than trying tortuously to argue whether one should embark on the secondary analysis or not simply to do so for the sake of completeness and am happy to leave it to a higher authority to debate whether that effort was otiose or not. “

[5]        The Immigration Judge then proceeded to carry out that assessment.  He found that the petitioner did have a private life in the UK and that removal would interfere with it.  He recognised that that had to be balanced against the enforcement of immigration control measures.  He had regard to the fact that the decision complained of was consistent with the Immigration Rules.  He continued:

“14. … I accept that the Appellant has used his time here well and the opinions he has earned are very much to his credit… However, there is no provision made in the Rules or in the jurisprudence on the subject for some form of assessment of personal contributions or societal worth of the private life of an Applicant.

15.  I have considered the terms of the Appellant’s terms of admission. He entered the UK as a student with the understanding and commitment that he would return to Rwanda on completion of his studies. He abandoned those studies and took up lesser ones over a long period, but this was approved and his leave was extended by the Respondent. Nonetheless, all of those years of extensions were accrued with the specific understanding that this was a short-term, limited leave to remain which explicitly included an expected return of the Appellant to Rwanda. The same applies, of course, for the specifically and explicitly limited two year Post Study Work programme…”

He concluded that in the circumstances the decision appealed against was not disproportionate.

The application to the FTT for permission to appeal

[6]        The petitioner sought permission to appeal on the ground that the FTT had left out of account “the personal contribution or societal worth” of the petitioner, and that there was jurisprudence indicating that such factors were a relevant consideration.  The FTT (Judge Colyer) refused permission, reasoning:

“…3.  In a succinct determination and (sic) the judge considers the essential and central features of the appeal and makes clear findings with regard to the requirements which must be established by the appellant to succeed under the Article 8 ECHR in respect of his private life. The judge refers to the appellant’s private life and his immigration history. The judge finds that the respondent has established that the decision is proportionate and gives adequate reasons for that decision.

4.  The grounds amount to nothing more than a disagreement with the findings of the judge, findings which were properly open to the judge on the evidence before him. I can discern no arguable error of law.”

The application to the UT for permission to appeal

[7]        The application to the UT for permission to appeal advanced the same “societal worth” ground, but it also submitted that the FTT had erred “by placing inappropriate weight on the nature of repeated temporary visas”.

[8]        UT Judge Lane’s reasons for refusing permission were:

“1. The grounds ignore the important point, which is that the appellant could not meet the requirements of the immigration rules. Given his temporary status and reliance on private life, his human rights case was frankly hopeless, given the dicta in Patel [2013] UKSC 72.

2. There is no arguable error of law in the determination.”

The petition

[9]        In the petition the petitioner refers to the two suggested errors in the Immigration Judge’s decision.  He accepts that UT judge’s reasons could be read as deciding that if these were errors of law they were not material.  He avers that each error “was arguably material”.  At the outset of the first procedural hearing I granted Mr Caskie’s motion to amend the petition by adding the following averments:

“17.  The error in law in the present case is clear. The Immigration Judge in carrying out the proportionality assessment left 2 relevant matters out of account. The consequences of the decision are to bring an end to the life the Petitioner has made for himself (and others) in the decade he has lived in the United Kingdom. Those consequences are dire and drastic (JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273 at paragraph 25 – 27). That gives rise to a compelling reason.”

The petitioner’s submissions

[10]      Mr Caskie submitted that the Immigration Judge had failed to have regard to one relevant matter (the petitioner’s societal worth).  That was a relevant consideration in a proportionality assessment (R v Immigration Appeal Tribunal, ex parte Bakhtaur Singh [1986] 1 WLR 910, per Lord Bridge at pp. 916F-7G;  Niemietz v Germany (1993) 16 EHRR 97, paragraph 29 of the judgment;  R (Tekle) v Secretary of State for the Home Department [2008] EWHC 3064 (Admin), [2009] 2 All ER 193, at paragraphs 24, 25, 29, 35 and 36;  UE (Nigeria) v Secretary of State for the Home Department [2012] 1 WLR 127).  Mr Caskie acknowledged that none of these authorities had been cited to the Immigration Judge, but he submitted that that ought not to prevent the petitioner from founding upon the error.  A second error was that the Immigration Judge had had regard to an irrelevant factor - the fact that the petitioner’s private life in the UK had been built up during periods when he had had “time-limited” leave to remain.  Both errors were material.  It could not be said that had the Immigration Judge directed himself properly it would have made no difference to the outcome.

[11]      Mr Caskie recognised that in light of Eba v Advocate General, supra the petitioner had a significant hurdle to overcome.  In that connection he made reference to Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104, paragraphs 51-52.  He maintained that in the circumstances there was a compelling reason for judicial review.  The consequences for the petitioner of his inability to appeal were said to be “drastic and dire”(JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273, at paragraphs 20-27).

The respondent’s submissions

[12]      Mr McIlvride submitted that the decision challenged was only amenable to judicial review if the proposed appeal raised an important point of principle or practice, or if there was some other compelling reason why an appeal should be heard.  The court’s role was a gatekeeping one.  The test to be applied was a stringent one designed to allow review only in rare and exceptional cases.  It did not suffice for a petitioner to identify an error of law in a decision. For such an error to give rise to a compelling reason it should cry out for consideration in order to prevent injustice.  In relation to most article 8 cases it may be presumed that the immigration rules will properly reflect the factors to be taken into account in determining whether a proposed removal is proportionate.  It was for a petitioner to demonstrate that his removal would result in such unjustifiably harsh consequences as to be disproportionate.  Reference was made to Eba v Advocate General, supra, per Lord Hope at paragraphs 48-49;  JD (Congo) v Secretary of State for the Home Department, supra, at paragraphs 20-23;  SA v Secretary of State for the Home Department, supra, per the Lord Justice Clerk (Lord Carloway) at paragraphs 38-44;  MS v Secretary of State for the Home Department, supra, at paragraph 28.

[13]      The Immigration Judge had been perfectly entitled to have regard to the petitioner’s awareness throughout the relevant period that his right to remain was finite.  There had been an arguable error of law in the Immigration Judge’s approach to the issue of the petitioner’s societal worth.  However, there had been no error of law on the part of the UT when it had determined that the appeal was hopeless.  There was no compelling reason why the proposed appeal should be heard by the UT.  The suggestion that this was a case where the petitioner faced dire and drastic consequences was simply untenable.

Decision

[14]      I agree with Mr McIlvride’s submissions.  Even on the assumption that the factors  relied upon by the petitioner were material errors of law on the part of the FTT, and that there were corresponding material errors of law in the decision of the UT, no compelling reason for a further appeal has been demonstrated.  The circumstances in this case fall very far short of that. As the FTT found (paragraphs 4 and 17) the petitioner lived in Rwanda, graduated from University there, and worked in that country for five or six years after that. He has family there.  He has now acquired further skills, qualifications and experience which ought to stand him in good stead on his return.  He does not wish to leave the UK, but it is a gross overstatement to say that removal will result in dire and drastic consequences for him: his circumstances do not even approach such territory.

[15]      But in fact I am not persuaded that there was any error of law on the part of the UT Judge, never mind a material error.  It was open to him to find that the appeal was hopeless. The FTT was entitled to have regard to the petitioner’s immigration history – that was not an irrelevant consideration.  The Immigration Judge erred in leaving out of account the evidence of the petitioner’s contribution to the community, but in the circumstances of this case that was not a material error of law.  The fact that a community will lose something of value if an immigrant is removed is capable in principle of being relevant to a proportionality assessment, but it is unlikely in practice to carry much weight.  In UE (Nigeria) v Secretary of State for the Home Department, supra, Sir David Keene observed at paragraph 36:

“36. I would, however, before concluding emphasise that, while this factor of public value can be relevant in the way I have described, I would expect it to make a difference to the outcome of immigration cases in only a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge of Harwich in Ex p Bakhtaur Singh [1986] 1 WLR 910. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that.  It will be unusual for loss of benefit to the community to tip the scales in an applicant’s favour, but of course all will depend on the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life.”

Richards LJ opined to similar effect at paragraph 43:

“43. …I would accept that the matters relied upon here by way of contribution to the community are indeed capable of affecting the weight to be given to the maintenance of effective immigration control.  I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations….I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether.”

I agree with those observations. The petitioner is a valued employee but there is no suggestion that his job involves skills or expertise which would make it very difficult to replace him.  He is conscientious, hard-working and ready to contribute to the community. These attributes are admirable, and to his credit, but they are by no means extraordinary.  They are not matters deserving of significant weight when it comes to the assessment of proportionality in the circumstances of this case.

[16]      It follows that the UT’s decision was lawful.  The petitioner has failed to demonstrate a compelling reason for a further appeal.  I shall sustain the first and second pleas-in-law for the respondent, repel the plea-in-law for the petitioner, and refuse the petition.  I shall reserve meantime all questions of expenses.

[17]      I add this observation.  In my opinion the Immigration Judge ought to have followed the guidance of the Inner House in MS v Secretary of State for the Home Department, supra, at paragraphs 28 and 30.  Rather than embark immediately on a full scale proportionality assessment he ought to have examined the circumstances put forward by the petitioner and determined whether they disclosed a good arguable case for leave to remain being granted outside the Immigration Rules.  Had he done that in this case in my view the only reasonable conclusion would have been that they did not.