Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 147

P466/14

OPINION OF LORD DOHERTY

In the Petition of

DL

Petitioner;

for

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

Petitioner:  Forrest;  Drummond Miller LLP (for Katani & Co, Glasgow)

Respondent:  Gill;  Office of the Advocate General for Scotland

27 June 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 January 2014 in terms of which Upper Tribunal Judge Storey refused the petitioner’s application for permission to appeal to the UT from a decision of the First‑tier Tribunal (“FTT”) dated 11 November 2013.  That 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 2014 SC 1;  EP v Secretary of State for the Home Department [2014] CSIH 30).  The matter came before me for a procedural first hearing.  On behalf of the petitioner it was submitted that the challenge raised an important point of principle or practice.  It was not suggested that there was any other compelling reason for a further appeal.

Background
[2]        The petitioner is a citizen of China, now aged 23.  She entered the United Kingdom on 26 August 2009 with leave to remain as a student until 25 August 2010.  She was granted further leave to remain as a student until 10 July 2011.  She remained in the UK following the expiry of her leave and failed to take any steps to regularise her stay until 14 July 2013 when she applied for asylum.  By letter and notice dated 26 July 2013 her application was rejected by the Secretary of State for the Home Department (“the respondent”) and directions were issued for her removal to China.  The petitioner appealed to the FTT.  The FTT dismissed the appeal on 11 November 2013.  On 6 December 2013 the FTT refused the petitioner’s application for permission to appeal to the UT.  On 16 January 2014 the UT refused her application to it for permission to appeal.

The FTT’s decision
[3]        The petitioner’s appeal before the FTT proceeded on the basis that she feared persecution in China for two reasons.  First, that she had assaulted an official there and anticipated retribution for that.  Second, that since her arrival in the UK she had given birth to two children.  That was in breach of China’s family planning policy.  If she returned to China she could face forced sterilisation and a fine.  If she was unable to pay the fine her children could be denied access to education and the health system.

[4]        Immigration Judge McGrade found the petitioner’s account of the circumstances in which she came to leave China to be incredible.  Having regard to the material placed before him and to the relevant country guidance in AX (family planning scheme) China CG [2012] UKUT 00097 (IAC) he did not consider that the petitioner faced a real risk of persecution in China as a result of having given birth to two children.  He rejected her asylum claim and her human rights claims (advanced under articles 2, 3 and 8 of ECHR).  He was not persuaded that there was a good basis for departing from the country guidance.  The petitioner’s solicitor had referred him to the decision of the Seventh Circuit of the United States Court of Appeals, Qiu Yun Chen v Holder, 715 F. 3d 207 (7^th Cir. 2013) (“QYC”), and to a further US Court of Appeals decision, and had argued that they provided a good basis for departing from the country guidance in AX.  Judge McGrade disagreed.  He was not satisfied that they did. He dismissed the appeal.

The application to the FTT for permission to appeal
[5]        The petitioner sought permission from the FTT to appeal to the UT.  In the reasons for appealing she contended that the decision in QYC was binding on the FTT, that AX was inconsistent with QYC, and that the FTT ought to have departed from AX.  Immigration Judge Campbell refused permission, holding that Judge McGrade had been entitled to conclude that there was no basis on which he should depart from the country guidance given in AX.

The application to the UT for permission to appeal
[6]        The petitioner applied to the UT for permission to appeal on the same grounds as she had sought permission from the FTT.  Upper Tribunal Judge Storey refused permission.  He held that Judge McGrade had been entitled to decide as he did, and that no arguable error of law in Judge McGrade’s reasoning had been identified.

The petition
[7]        In the petition the petitioner averred:

“10.2 Error in law: the Upper Tribunal erred in law because it has left out of account the inclusion in QYC of evidence that was not before the Upper Tribunal in AX. Some of the evidence referred to … post-dates April 2012 (date of the decision in AX) and is said to document instances of forced abortion. The effect of this is that there is further credible evidence that was not - nor could have been - considered in AX. This in turn means that the decision in AX was not binding on either the First Tier or Upper Tribunals.

10.3 Error in law: the Upper Tribunal erred in law in holding that the First Tier Tribunal did not err in law because the system of country guidance requires that decision makers  in the immigration appellate system follow decisions in country guidance cases…It erred because the system of country guidance authority is not absolute and in certain circumstances a decision in a country guidance case can be departed from (DSG & Others (Afghan Sikhs: departure from CG) Afghanistan (2013) UKUT 148 (IAC) - also referred to by the UT - see second paragraph in its decision). The circumstances in this case fell into that category because the circumstances of the appellant in QYC were similar to those of the petitioner.”

[8]        The petitioner further averred that the proposed appeal raised two important points of principle or practice.  First, whether the decision in QYC was a binding precedent which the FTT and the UT had required to follow.  Second, what were the circumstances in which a country guidance case did not require to be followed?

The petitioner’s submissions
[9]        Mr Forrest submitted that the FTT had left out of account evidence referred to in QYC which it ought to have taken into account. QYC had been decided about a year after AX.  Some of the material discussed in QYC post‑dated AX - in particular an article in the New York Times of 23 July 2012 by Edward Wong “Reports of Forced Abortions Fuel Push to End Chinese Law”;  the 2012 Annual Report of the Congressional-Executive Commission on China;  and a decision of the U.S. Court of Appeals for the Seventh Circuit dated 1 October 2012, Zheng v Holder, 666 F. 3d 1064.  Mr Forrest clarified that while the decision in QYC had been before the FTT the three items mentioned in it which he founded upon had not been produced to Judge McGrade.  Given that these three items post‑dated the decision in AX, the FTT had erred in law in concluding that much of the material considered in QYC had related to the crackdown in family planning policy which had taken place in 2010, and that that had been considered in AX. The error had been repeated by the UT.

[10]      Mr Forrest acknowledged that nothing in QYC bound the FTT or the UT.  Any decision of a foreign court could, at best, only be of persuasive authority.  Nonetheless, the question of what weight the FTT and the UT should give such decisions raised an important point of principle or practice.  A second important point of principle or practice arose because guidance was needed as to the circumstances in which a country guidance case did not require to be followed.

[11]      Mr Forrest drew my attention to ML v Secretary of State for the Home Department [2014] CSOH 54.  He recognised that it did not assist him.  He informed me that it was being reclaimed.

The respondent’s submissions
[12]      Mr Gill 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.  Here the petitioner averred that the challenge raised an important point of principle or practice.  There were no averments as to there being any “other compelling reason”.  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 the decision of the UT.  Reference was made to Eba v Advocate General, supra, per Lord Hope at paragraphs 48‑49;  SA v Secretary of State for the Home Department, supra, per the Lord Justice Clerk (Lord Carloway) at paragraphs 38-44; and EP v Secretary of State for the Home Department [2014] CSIH 30 at paragraph 26.

[13]      Neither of the points the petitioner put forward arose for determination in this case.  Neither was a point which had not yet been established.  No important point of principle or practice had been raised.

[14]      The arguments the petitioner advanced were substantially the same as the arguments which had been rejected in ML v Secretary of State for the Home Department, supra at paragraphs 13‑14.  ML had been correctly decided.

[15]      It was trite law that decisions of foreign courts were not binding on Scottish or British courts (DM Walker, Scottish Legal System (8^th ed.), page 457).  The FTT and the UT were not “inferior” courts in relation to federal courts in the United States. The principle and practice in this regard were clear.

[16]      In any event the petitioner had misunderstood the nature and terms of the decision in QYC.  The court there had not made findings in fact.  It had allowed the appeal on the basis that the Board of Immigration Appeals had proceeded irrationally in carrying out its task.  The Board had not attempted to marshall the considerable literature on the nature and enforcement of the one-child policy.  It had simply brushed aside the question whether the petitioner faced a substantial risk of forced sterilisation.  In the circumstances the court had remitted the case back to the Board to carry out its task properly and to make a fresh decision (page 16).  (The print‑out of the decision produced (6/5 of process) begins at page 1 and ends at page 16.  That may not accord with the pagination of the 715 F. 3d 207 report).

[17]      There was no dubiety as to the proper approach to country guidance cases:  see  Practice Direction 12 of the Practice Directions: Immigration and Asylum Chambers of the First‑tier Tribunal and the Upper Tribunal;  paragraphs 11 and 12 of the Upper Tribunal Immigration and Asylum Chamber’s Guidance Note 2011 No. 2;  R (SG (Iraq)) v Secretary of State for the Home Department [2013] 1 WLR 41 at paragraph 47;  DSG & Others (Afghan Sikhs: departure from CG) Afghanistan, supra.  The FTT and the UT had correctly followed and applied the established approach.  But even if they had not, that would not be sufficient to pass the Eba test.  A misapplication by the UT of an established principle would not be amenable to judicial review.

Decision
[18]      I accept Mr Gill’s submissions.  I respectfully agree with the reasoning in ML.

[19]      In my opinion neither of the matters founded upon by Mr Forrest raises an important point of principle or practice.  The law and practice relating to persuasive authorities is not in doubt.  Nor is the law and practice concerning country guidance cases.  In essence, what the petitioner complains of is the application of that law and practice in the present case.  Such questions are not amenable to judicial review.  That is sufficient to dispose of this petition.

[20]      Had it been necessary to determine whether the FTT and the UT erred in law I would have held that they did not.  Judge McGrade gave proper consideration to the question whether, on the basis of the material before him, he should depart from the country guidance.  The only document placed before him which Mr Forrest suggested provided a basis for such a departure was the decision in QYC.  But it is plain that while the Court of Appeals referred to the literature available to it, it was not in any position to make definitive findings about the application of the one‑child policy, or the sanctions for violating it, or the probability that a violator would be detected and severely punished (see page 15).  In short, the decision in QYC does not provide any rational basis for departing from the country guidance.

Disposal
[21]      I shall sustain the respondent’s second plea‑in‑law and refuse the petition.

Postscript
[22]      I heard this case on 27 June 2014.  I did not take it to avizandum, but delivered an ex tempore judgement.  I was not asked to write on it at that time, nor was my clerk advised when the reclaiming motion was enrolled that an opinion was required (see paragraph 9 of Practice Note No. 3 of 2011).  I was not informed until 25 September 2014 that a reclaiming motion had been marked.

[23]      There is a clerical error in the interlocutor of 27 June 2014 - it was the respondent’s second plea‑in‑law which was sustained, not the first.