Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 10

P499/14

NOTE BY LORD STEWART

In the Petition of

A A & M N

Petitioners;

for

Judicial Review of a decision by Kate Eshun Judge of the Upper Tribunal (Immigration and Asylum Chamber) dated 30 January 2014 refusing permission to appeal a decision of the First-tier Tribunal to the Upper Tribunal (Immigration and Asylum) Chamber

and Answers for the

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioners:  Dewar; Drummond Miller LLP

Respondent:  McIlvride QC; Office for the Solicitor of the Advocate General

10 December 2014

[1]        This is an immigration judicial review which called before me at a first procedural hearing on 10 December 2014.  I dismissed the petition and gave brief reasons ex tempore.  The petitioners have appealed to the Inner House by way of a reclaiming motion and this note gives fuller reasons in writing.

Immigration history
[2]        The petitioners are a husband and wife from Pakistan.  They entered the United Kingdom on 21 July 2012 with six-month visas issued on 24 June 2012 valid until 24 December 2012.  On 22 November 2012 they claimed asylum on grounds of a well‑founded fear of persecution and extreme risk human rights violations were they to return to Pakistan.  This is because, they say, they have married across the Sunni‑Wahhabi/Shia sectarian divide against the wishes of their families.  Their claims for asylum, and human rights and humanitarian protection were refused by the UK Border Agency [UKBA] on 12 March 2013.  The existing limited leave to enter was curtailed in terms of the Immigration Act 1971 s 3(3)(a) on the basis that the petitioners no longer met their visa requirements in relation to intention to leave.  At the same time leave was statutorily extended in terms of the Nationality, Immigration and Asylum Act 2002 s 82 pending the determination of any appeal.  On 28 August 2013 the female petitioner gave birth to the parties’ son M at Glasgow.  The petitioners appealed to the First-tier Tribunal, without success; and then sought permission, twice, to appeal to the Upper Tribunal, again without success.  With that refusal the petitioners became rights of appeal exhausted.  The petitioners now seek to have the final non-appealable decision in the tribunal system judicially reviewed by this Court.

Subject matter
[3]        This case provides material for the debate about the jurisdiction of the Court of Session to oversee the judges and functionaries of “inferior judicatories” in the United Kingdom tribunal system located in England.  But that is a side issue.

[4]        The main point is about the omission—in a determination of one of those United Kingdom tribunals—of the word “not”.  These things happen; and they happen to texts both secular and sacred.  The best known example is the seventh commandment in King James’s version, Exodus, xx:14, as printed in the so called “Wicked Bible” of 1631 whereby, until the Court of the Star Chamber intervened, the faithful subjects of Charles I were ordained to commit adultery.  A recent secular example is the case of Izuazu in which a panel of the Upper Tribunal (Immigration and Asylum Chamber) including the president quoted Lord Bingham of Cornhill to the following effect:

“the Immigration Rules and supplementary instructions are not the product of active debate in Parliament where non-nationals seeking leave to remain are in any event represented”

Foreigners represented in Parliament?  What Lord Bingham actually said was “... where non‑nationals seeking leave to enter or remain are not in any event represented” [Izuazu (Article 8: New Rules: Nigeria), Re [2013] UKUT 45 (IAC), [2013] INLR 733 at § 49].  I have been afflicted by the omitted “not” syndrome: in AHC when I meant to say “but I do not think”, it came out as “but I do think”.  The sentence in question should read [corrections in italics]: “The logic of the Court of Appeal's approach arguably leads to the conclusion that an even ‘less demanding standard’ and more than ‘some flexibility’ are called for when applying the second appeals rule to first appeals: but I do not think I have to go there on this occasion” [AHC (Pakistan) v Secretary of State for the Home Department [2012] CSOH 147 at § 57].

[5]        AHC was about the Eba test. The instant petition also raises the usual question about whether the petitioners’ averments do or can potentially satisfy the Eba test for judicially reviewing non-appealable decisions of the Upper Tribunal [Eba v Advocate General for Scotland 2012 SC (UKSC) 1].

Procedural history
[6]        The procedural history of the instant case starts, for present purposes, in the First-tier Tribunal (Immigration and Asylum Chamber) on 30 October 2013.  On that date the First-tier Tribunal [FTT] immigration judge Mark Dennis rejected the petitioners’ asylum and human rights claims.  On 11 December 2013 a different FTT judge refused permission to appeal to the Upper Tribunal [UT] on a point of law.  The petitioners—as they were entitled to do―made a second permission application to the UT itself.  The second permission application was decided on the papers by UT immigration judge Kate Eshun.  On 30 January 2014 judge Eshun refused the petitioners’ application for permission to appeal.  In the “REASONS” section she stated:

“Insofar as the previous grounds are relied on they were properly considered by the First-tier judge who earlier refused permission.

The grounds are rather lengthy. It is arguable that the judge applied too high a standard of proof when assessing the appellants’ respective claimed religions or failed to properly assess the extent of the risk posed to the appellants. The judge conducted the hearing fairly. He considered the extensive documentary that was before him. The judge’s determination is comprehensive and well reasoned. The grounds disclose no arguable error of law in the judge’s decision.”

The petitioners—as they were entitled to do―made application to this Court for judicial review with the purpose of setting aside judge Eshun’s decision (in order to allow it to be re‑made), pleading five errors in the FTT’s decision-making, each alleged error being allegedly  “compounded by [judge Eshun’s] decision to refuse the petitioners permission to appeal”.

[7]        On 29 May 2014 the petitioners placed their petition for judicial review before Lord Uist in this Court and moved his Lordship ex parte to grant first orders, that is orders for intimation and service of the petition.  As the petitioners’ note of argument puts it:

“... his Lordship identified two defects in the decision complained of. In particular, his Lordship considered that the word ‘not’ may [sic] have been omitted from the second sentence and, similarly, that the word ‘evidence’ was likely to be missing in the fourth sentence.”

His Lordship continued consideration to allow the petitioners time to clarify matters with the UT.  The UT failed to respond to the petitioners’ enquiries and, when the continued motion for first orders called on 11 June 2014, Lord Uist granted first orders and appointed his own clerk to request clarification, ordaining the clerk to the UT, located at Field House, London EC, to respond within fourteen days.  The clerk to the UT responded not within fourteen days but three months later by letter dated 10 September 2014 addressed to “Court of Session” simpliciter—no name, rank or office—bearing to enclose “amended decision dated 8 August 2014 for your attention”.

[8]        The so-called “amended decision” is in the standard form of the UT’s “Notice of Decision of Application for Permission to Appeal”.  In gremio the document is described as “a further clarification of my decision dated 30 January 2014”. The “further clarification” consists of a minor re-writing of the “REASONS” section to address the issues identified by Lord Uist on 29 May 2014 and to add some wording presumably for the sake of clarity. The “clarified” or “amended” reasons now read [changes in italics]:

“Insofar as the previous grounds are relied on they were properly considered by the First-tier judge who earlier refused permission.

The grounds are rather lengthy. It is not arguable as claimed in the grounds that the judge applied too high a standard of proof when assessing the appellants’ respective claimed religions or failed to properly assess the extent of the risk posed to the appellants. The judge conducted the hearing fairly. He considered the extensive documentary evidence that was before him. The judge’s determination is comprehensive and well reasoned. The grounds disclose no arguable error of law in the judge’s decision”

The so-called “amended notice of decision” is dated 8 August 2014 and is signed by judge Eshun.

[9]        I agree with Mr Dewar for the petitioners that the decision of 30 January 2014, read literally, is nonsense; and that, were that all, the petitioners would be entitled to have it set aside for “irrationality”, assuming the Eba test to be satisfied [Eba v Advocate General for Scotland 2012 SC (UKSC) 1].  However, the decision of 30 January 2014 now falls to be considered with the so-called “amended notice of decision” dated 8 August 2014.

The power to correct
[10]      Parties are agreed that the UT has power to correct its own determinations “at any time”.  The Tribunal Procedure (Upper Tribunal) Rules [UTR] 2008/2698 (as amended) provide:

“Clerical mistakes and accidental slips or omissions

42.  The Upper Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision or record of a decision by—

1. sending notification of the amended decision, or a copy of the amended record, to all parties; and

    

2. making any necessary amendment to any information published in relation to the decision or record.”

In spite of the fact that the instrument of 8 August 2014 is not expressed to be a “correction” and contains no reference to the rule, parties appear to accept that the instrument is an exercise or purported exercise of the power to correct in terms of UTR 42.  The covering letter calls it an “amended decision”; and “amended decision” is the term used in the first sub-paragraph of the rule.  The requirement of the rule for notification to all parties has been complied with.  All that being so this Court is bound to take notice of the instrument of 8 August 2014.

[11]      Mr Dewar accepts that the correction consisting of the insertion of the word “evidence” after the word “documentary” is competently made in terms of UTR 42.  (Neither side said anything about the insertion of the words, which add nothing important, “as claimed in the grounds”.)  The omitted “not”, now inserted, is the point of controversy.  The petitioners’ argument is that it is not obvious that the word “not” has been omitted; and that the omission of the word “not”, if an error at all, is a substantive error rather than a “clerical mistake or other accidental slip or omission” and so not correctable in terms of UTR 42.  The petitioners cite the case of Marley, a  will contest case, involving a claim for rectification  in terms of the Administration of Justice Act 1982 s 20 on account of failure “to carry out the testator’s intentions in consequence of—(a) clerical error;...”  The Supreme Court distinguished clerical errors in the narrow sense, being mistakes in copying or writing out a document, and clerical errors in the wider sense, meaning mistakes “arising out of office work of a relatively routine nature”.  Mr Dewar argues that on no view can judge Eshun’s mistake, if it be a mistake, be described as a “clerical error” even in the wider Marley sense: a mistake in the determination of a specialist tribunal does not arise “out of office work of a relatively routine nature” [Marley v Rawlings (SC(E)) [2014] 2 WLR 213 especially at §§ 74—82 per Lord Neuberger of Abbotsbury with whom the other justices agreed].

[12]      Mr Dewar’s argument continues to the effect that judges can have a wide discretion to resolve evident blunders by looking at and construing documents as a whole: but judge Eshun’s mistake, if it be a mistake, is not an evident blunder and, even if an evident blunder, it is not such a mistake as requires to be resolved in order to give the instrument its apparently intended effect, namely to refuse permission [cf. North British Railway Co v Tunnock and Anr 1864 3 R 1].  In the case of Glen’s Trustees the Court of Session resolved a “literally meaningless” article in a life assurance policy by reading it without a superfluous “not” for the purpose of making the article operative [Glen’s Trustees v Lancashire and Yorkshire Accident Insurance Co Ltd 1906 14 SLT 168].

[13]      Mr McIlvride QC for the respondent submits that it is apparent from a most cursory reading of judge Eshun’s determination of 30 January 2014 that it contains an evident blunder “a clerical mistake or accidental slip or omission”.  It is competent in terms of UTR 42 to correct it.  The rule contains a very wide power.  The decision states: “Permission to appeal is refused.”  The rest of the decision in the “REASONS” section is only intelligible if the word “not” is inserted. If the insertion is made, as has now been done by or in the “amended notice of decision” dated 8 August 2014, the result is that the reasons for refusal are coherent and fully intelligible.  The UT’s power to make corrections in terms of UTR 42 is analogous to the power of the Court of Session in terms of RCS 4.15(6) which provides that an interlocutor of the Lord Ordinary “may be corrected or altered at any time before extract” on cause shown.  The power is exercisable to bring the interlocutor into line with the court’s original intention; and it may be exercised by “a correction of error, or... removing ambiguity, or clarifying what the court intended to say, by putting matters differently” [Laing v Scottish Arts Council 2001 SC 493 at 493F—G], § 14 per Lord Prosser delivering the opinion of the Court].

Decision on the correction question

[14]      I have no difficulty in rejecting the petitioners’ argument, attractively presented though it was by Mr Dewar.  True, it is stretching the words to describe refusing permission to appeal as “office work of a relatively routine nature” [cf. Marley v Rawlings above]: but UTR 42 expressly allows “decisions”―necessarily meaning decisions of specialist tribunals―to be corrected; and what bears to have been corrected in this case is an instrument which calls itself “NOTICE OF DECISION”.  The operative part, refusal of permission, is followed by brief reasons.  I agree that the operative part is, at least in a sense, effective without correction of the reasons: but, without correction, the decision, which I take to be the instrument as a whole, is not intelligible and may be ineffective because vulnerable to review.  Perhaps Lord Uist paid the paperwork more attention than would normally be done at the threshold stage, particularly since nothing is said in the petition to sound the alert: but once the “NOTICE OF DECISION” is looked at it does not take long to see that the “NOTICE OF DECISION” cannot be correct.  In other words there is a patent defect in expression, whether by omission or otherwise.  I say “by omission or otherwise” because it is highly likely though not absolutely certain that the defect consists in the omission of the word “not”: but something has clearly gone wrong.  The defective expression has now been corrected by, as both parties accept, an apparent exercise of the power of correction given by UTR 42.  I hold that what has been done is properly done, that it is within the scope of the UTR 42 power of correction properly construed. Judge Eshun’s corrected reasons are, as Mr McIlvride QC puts it, “coherent and fully intelligible”.  The reasons are now wholly in line with the operative part of the decision.

[15]      The only reference I have found by my own researches to the power of correction with which this case is concerned is a passing remark in a decision of the First-tier Tribunal (Tax Chamber), Marks & Spencer Plc v Revenue and Customs Commissioners [2009] UKFTT 231 (TC) at § 9.  That was a reference to a different rule having the same wording, namely Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009/273, rule 37.  I should also notice Supreme Court authority, not cited by counsel, for the proposition that courts have an inherent power to correct the reasons expressed for their decisions [discussed in Shetland Islands Council v Anderson's Executor [2014] CSOH 23 at §§ 11―20]. For completeness, neither side in the instant proceedings thought it necessary to have the UT involved.

Decision on the Eba test

[16]      There remains the question whether the petition passes the Eba sifting or gatekeeping test. In my view, it does not, absolutely not if the amended decision notice of 8 August 2014 takes effect, as I have decided it does.  The Eba test has two parts and the second part has two branches, the test in all its parts and branches being: part (1) material error of law plus part (2) either branch (a) “an important point of principle or practice” or branch (b) “some other compelling reason” or both branches (a) and (b). Submissions on this question were brief and there is no need to rehearse them.  The petitioners’ Note of Argument makes no reference to the Eba test. In the petition itself, at statement 8, it is averred that:  “The aforementioned errors of law are sufficiently severe in degree... so as to create a compelling injustice that cries out for consideration by the court.”  Accordingly, it is averred, “the second limb of the Eba test... is satisfied” [Eba v Advocate General for Scotland 2012 SC (UKSC) 1 at §§ 48, 49 per Lord Hope of Craighead].

[17]      “Compelling injustice”, even if sufficiently specific (of which more below), is not of itself sufficient basis for allowing the petition to proceed to a first (substantive) hearing.  The petitioners’ application is one for judicial review of the decision of the UT.  The other necessary condition is that there has to be an error of law by the UT.  The only criticism of the UT decision in the petition is that, in refusing leave, the UT “compounded” the alleged errors of the FTT.  The petition does not clearly and unequivocally identify a specific error or specific errors of law on the part of the UT. On the ratio of SA this is not good enough. [SA v Secretary of State for the Home Department 2014 SC 1 at §§ 11―17, 43, 44 per Lord Justice Clerk delivering the opinion of the Court].

[18]      An adminicle which supports the view that the petitioners’ complaint is not focused on the UT decision is that the petition does not even identify an error or errors in the garbled first version of the UT decision issued on 30 January 2014.  The inference is available for those who might be inclined to draw it that no attention whatsoever was paid to the actual terms of the UT decision now sought to be brought under review when the petition was instructed, drafted and presented. It was left to Lord Uist to pick up the apparent blunder.

[19]      Further and in any event “compelling injustice” is not sufficiently specific.  What injustice, and why is it compelling?  Where are the requisite averments?  Having applied anxious scrutiny, I cannot find them; and to borrow and recast the words of Lord Justice Clerk Alness in Hayford “the most anxious scrutiny of the petitioners’ averments cannot properly be regarded as a surrogatum for such averments” [Hayford v Forrester-Paton 1927 SC 740 at 757 per Lord Justice Clerk].  The matter might have been fleshed out in the Note of Argument: but, as stated above, there is no supporting written argument to show how the Eba test is satisfied.

[20]      Putting technicalities aside, I have decided to find out for myself whether there has been an injustice. I have gone back to both the UKBA decision of 12 March 2013 and the FTT decision of 30 October 2013, the latter being the underlying cause of complaint, and made up my own mind.  The 24-page UKBA decision is exemplary.  As regards the FTT decision, the most important question is about the standard of proof; and this is the subject matter of the omitted “no” sentence. FTT judge Mark Dennis was well aware of the “reasonable degree of likelihood” standard of proof for asylum claims and applied it [§§ 35, 42, 60].  With undue caution and unnecessarily, it seems to me, the learned immigration judge bent over backwards to be fair to the petitioners and directed himself to impose a distinct burden for rejecting the petitioners’ evidence on credibility grounds; and for that exercise he set himself a higher standard of proof, namely, as I understand it, categorical improbability [§ 36].  The standard for rejection does not conflict with the standard for acceptance. It may be that the learned immigration judge did not stick methodically to his scheme: for example, at one point he found that the petitioners’ account was not reasonably likely and that the alternative scenario was reasonably likely [§ 54].  However, when the learned immigration judge stated that he was unable to accept the petitioners’ account as “even reasonably likely” he must be taken to have meant that he found the petitioners’ account categorically improbable [§§ 42, 55, 60].  He described the petitioners’ story as “a cleverly and carefully contrived fiction, well learned and well rehearsed by the parties for their own ends” [§ 55].  For the avoidance of doubt, no complaint is made about the learned immigration judge’s approach to proof of incredibility.

[21]      The grounds of appeal to the UT at paragraph 1 and the petition at statement 7.4 make a particular complaint about the standard of proof applied by the learned immigration judge at paragraph 59 to the assessment of the petitioners’ evidence about their respective religions.  The core issue, correctly identified by the learned immigration judge and decided by him against the petitioners, was not about religious persuasion but about “mutual family disapproval” of the petitioners’ marriage [§ 42].  As I read paragraph 59 of the determination it is simply to the effect that negligible weight can be attached, in the circumstances, to the petitioners’ evidence about religious affiliation and separately that no weight can be given to the conclusion of the so-called expert report that the petitioners are “at real risk of unlawful killing or serious physical harm” by their respective families.  The reason that no weight can be attached is that mutual family disapproval of the marriage had not been made out to even a reasonable degree of likelihood.  No standard of proof issue arises in relation to the religious affiliation issue.

[22]      Overall the learned immigration judge undertook a meticulous credibility assessment, anxiously scrutinising the evidence, applying the recognised tools of “internal credibility”, “external credibility”, plausibility, coherence, consistency and so on, and, finally, judging the matter in the round as he was bound to do [§§ 43, 44, 45, 46, 48, 50, 51, 53, 54, 55, 56, 57, 58; Immigration Rules, rule 339L; Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at § 18 per Sedley LJ, etc].

[23]      In my respectful opinion the determination of the learned immigration judge as a whole is comprehensive, humane, balanced and cogent; and he reached the only rational conclusion open to him on the material presented [§ 60].  Judge Eshun in her turn was correct to determine that: “It is not arguable as claimed in the grounds [of appeal] that the judge applied too high a standard of proof when assessing the appellants’ respective claimed religions or failed to properly assess the extent of the risk posed to the appellants.”  Her decision to refuse permission to appeal, as amended, is not challengeable on the grounds presented in the petition for judicial review.

Disposal

[24]      My conclusion is that the petitioners do not present an arguable case for meeting the Eba test referred to above. Accordingly I have dismissed the petition, etcetera, all as set out in my interlocutor of 10 December 2014.