Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 11

P1152/14

OPINION OF LORD WOOLMAN

In the petition by

HALIT GENC

Petitioner;

for Judicial Review of a decision dated 1 August 2014 by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to give the petitioner permission to appeal

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

4 February 2015

Introduction

[1]        The petitioner seeks judicial review of a decision taken on 1 August 2014 by the Upper Tribunal (Immigration and Asylum Chamber), refusing him leave to appeal against a decision of the First‑tier Tribunal dated 19 May 2014.  The matter came before me for a procedural first hearing.  Before it can proceed, the petitioner must establish that his challenge involves an important point of principle or practice.

Background
[2]        The petitioner was born on 10 April 1990.  Both he and his wife are Turkish nationals and after their marriage they initially lived in Turkey.  She then moved to the United Kingdom and now has settled status here.  Together they have three children, who are all British citizens.  Prior to July 2012, the petitioner maintained family life by visiting the United Kingdom from time to time and using modern forms of communication.

[3]        The petitioner came to the United Kingdom on 1 July 2012 with permission to remain as a visitor until 20 December 2012.  On 17 December, he applied for further leave to remain on the basis that he had established a family and private life in the UK.  The Home Secretary refused his application on 4 January and notified him of her decision on 6 January 2013.

[4]        The petitioner appealed to the First‑tier Tribunal.  At the hearing before the immigration judge the petitioner was represented by Mr Ndebuisi, solicitor.  He conceded that the petitioner did not meet the requirements of Appendix FM of the Immigration Rules.  He relied on one ground of challenge – that the decision involved a disproportionate interference with the article 8 rights of the petitioner and his children.

[5]        The context in which Mr Ndebuisi made that ground of challenge is as follows.  Where an applicant invokes article 8 rights, the Home Secretary (through her officials) approaches the matter in two stages.  First, she considers the application of the Immigration Rules.  If they do not produce a fair result in line with article 8, she proceeds to the second stage and considers whether leave should be granted outside the Rules.  She exercises her discretion only in exceptional cases where the hardship resulting from removal would be disproportionate to the aim of maintaining consistent control over immigration policy.

[6]        Having considered the facts and heard submissions, the immigration judge refused the appeal.  She held that it was “proportionate to the competing public interest issues” to require the petitioner to return to Turkey and make his application from there (paragraph 15).  She indicated that during the period that it was being determined, his wife and children had the option of (a) remaining in the United Kingdom with family life continuing as before, or (b) moving to Turkey.

[7]        The petitioner lodged ten grounds of appeal against the decision of the First‑tier Tribunal.  Most concerned matters of approach and assessment.  Having considered the papers, a different immigration judge refused permission to appeal.  The petitioner then sought permission to appeal direct from the Upper Tribunal.  He founded on the existing grounds of appeal, together with three additional grounds.

[8]        In refusing permission to appeal, the Upper Tribunal Judge stated:

“Contrary to the assertion made in the grounds it is clear that the judge undertook a careful and detailed assessment of the appellant’s circumstances and those of his family members and took account of all the evidence before her including that of the appellant’s father-in-law … She gave careful consideration to the best interests of the children. Her decision was entirely in accordance with recent jurisprudence and guidance relevant to Article 8 and the immigration rules and the conclusion that she reached was one that was open to her on the evidence before her. The grounds amount to little more than a disagreement with her decision and do not disclose any arguable errors of law.”

[9]        The petitioner challenges the decision of the Upper Tribunal on four separate grounds, which can be summarised as follows:

1)         The provisions of Appendix FM of the Immigration Rules are “illogical, unreasonable, irrational, encourage law-breaking, are not in the best interests of children and prevent Article 8 rights being vindicated.”

2)         The petitioner’s prospects of obtaining leave to enter the UK from Turkey are relevant.

3)         His position should not have been equated with that of an illegal entrant.

4)         The Upper Tribunal should have taken into account section 117 B (6) of the Immigration Act, which came into force on 28 July 2014.

[10]      The petitioner submits that all four grounds involve an important point of principle or practice in terms of the first limb of the test set out in Eba v Advocate General for Scotland 2012 (UKSC) 1.  He does not argue that there are “other compelling reasons” for this court to hear the case based upon the second limb of the Eba test.

Decision
[11]      I conclude that the petition for judicial review should be dismissed for the following reasons.  First, none of the grounds of challenge raises an issue of general importance.  They all relate to particular matters confined to the position of the petitioner.  

[12]      Second, the petitioner has failed to identify an error in law on the part of the Upper Tribunal, which is the decision under challenge:  SA v Secretary of State for the Home Department 2014 SC 1, paragraph 15.  In substance, the petitioner directs his challenge at the approach taken by the First‑tier Tribunal.

[13]      Third, I do not consider that the petitioner has prospects of success if I allow further procedure to take place.  In EP v Secretary of State for the Home Department [2014] CSIH 30, at paragraph 26 the court stated:

“Eba made it quite clear that the court’s role is as a gate keeper and that that gate is a high and formidable barrier which is not easy to surmount. It has been constructed that way deliberately, after careful and thoughtful consideration by the UKSC, so as to restrict resort to judicial review to those rare cases where there is an important point of principle or practice that needs to be determined or there is a reason that can properly be classed as a compelling one. Even then, the court may consider that, absent good prospects of success, the judicial review jurisdiction ought not to be open to the applicant.”

[14]      Mr Caskie argued that the qualification in the last sentence only applied to a “compelling reason” case.  I disagree.  The Inner House stipulated that the prospects of success are a relevant factor for both branches of the Eba test.  In the present petition, there is another cogent reason for considering the prospects of success.  The petitioner did not advance the present grounds of challenge to the Upper Tribunal.  In such circumstances, he is only entitled to leave if he establishes that the new grounds have strong prospects of success:  R v Home Secretary ex parte Robinson [1998] QB 929, 946D.  I am not so satisfied, for reasons that I will now outline.

Error 1
[15]      Mr Caskie candidly stated that he seeks to have the Immigration Rules set aside.  He founded on the fact that if the petitioner had waited four days, although he would have been an over-stayer, he would have met the requirements of Appendix FM.  Mr Caskie maintained that the rules were irrational as they encouraged law‑breaking.  A major difficulty, however, faces the petitioner.  Sales J has held that the immigration control regime (including the Immigration Rules and the Home Secretary’s residual discretion) is compatible with article 8:  R (Nagre) v Home Secretary [2013] EWHC 720 (Admin).  The Inner House expressly approved that decision in MS v Secretary of State for the Home Department [2013] CSIH 52. It follows that the petitioner does not raise a point of general public importance.  That matter has already been determined.

Error 2
[16]      The petitioner’s prospects of obtaining leave to enter from Turkey is not a relevant factor: SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28 at paragraphs 19‑27.  Again, this raises no point of general principle.

Error 3
[17]      On a fair reading of its decision the First‑tier Tribunal did not equate the petitioner’s position with that of an illegal immigrant.

Error 4
[18]      The argument that the Upper Tribunal should have applied section 117 B (6) of the Nationality, Immigration and Asylum Act 2002 is ill‑founded.  It can only give permission for an appeal “on any point of law arising from the decision made by the First Tier Tribunal”:  section 11 of the Tribunals, Courts and Enforcement Act 2007.  As the new provision only came into force on 28 July 2014, it fell outside the scope of the Upper Tribunal’s jurisdiction in this case.

Conclusion
[19]      I hold that this is not one of those rare and exceptional cases where a reading of the petition alone cries out for the matter to be reconsidered:  SA v Secretary of State for the Home Department 2014 SC 1, paragraph 44.  The petitioner will not suffer compelling injustice as a result of the First‑tier Tribunal decision.  He is entitled to make his application from Turkey.  I shall therefore sustain the respondent’s first plea‑in‑law and repel the petitioner’s plea‑in‑law.  In dismissing the petition I find the petitioner liable to the respondent as an assisted person in the expenses of the petition and modify his liability to nil.