Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 9

P1028/14

NOTE OF LORD STEWART

In the Petition

 SHAKUNTALA GUPTA

Petitioner;

for

Judicial Review of a decision by Jeremy Rintoul Judge of the Upper Tribunal (Immigration and Asylum Chamber) dated 17 March 2014 refusing permission to appeal a decision of the First-tier Tribunal to the Upper Tribunal (Immigration and Asylum Chamber

and Answers for

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner:  Caskie;  Drummond Miller LLP

Defender:  McIver;  Office of the Solicitor for the Advocate General

27 November 2014

[1]        This is an immigration judicial review which called before me at a first procedural hearing on 27 November 2014.  I dismissed the petition and gave brief reasons ex tempore.  The petitioner has appealed to the Inner House by way of a reclaiming motion and this note gives fuller reasons in writing.

Background, immigration and procedural history

[2]        The background and immigration history have not been disclosed to me in a methodical way.  I have gathered the following information largely from the determination of the First-tier Tribunal (Immigration and Asylum Chamber) [FTT] judge Ms M M Hutchison promulgated on 28 January 2014 and from the few productions lodged in support of the instant application.

[3]        The petitioner is a 69-year-old female citizen of India.  She is reported to be the widow of a colonel in the Indian army.  She has a married daughter, Pooja Chauhan, who lives with her husband and their son in a joint family in Delhi.  I take “in a joint family” to mean “with her in-laws”.  The petitioner’s son, Shalabh Gupta, is described in the FTT determination as “the sponsor”.  Mr Gupta, born 25 November 1975, was brought up in India.  He came to the United Kingdom on a work permit on 27 January 2006 and has resided permanently in the United Kingdom since then.  He is married with two children, a daughter, born on 12 August 2002, and a son, born in India after Mr Gupta’s move to the United Kingdom on 17 September 2006.  His wife and the two children remained in India living apart from him for almost five years.  On 17 November 2010 Mrs Gupta and the children moved to the United Kingdom to live with Mr G.  Mr and Mrs Gupta have their home at an address in Glasgow G44.

[4]        According to Mr Gupta his wife and children lived in India with the petitioner from January 2006 until 17 November 2010.  (This is how the FTT judge’s determination puts it, possibly suggesting a degree of dependence by the daughter-in-law and the grandchildren on the petitioner rather than vice versa.)  From 17 November 2010 until 19 October 2012 the petitioner lived on her own in India in, it is asserted, Ajmer, Rajasthan.

[5]        The petitioner testified to the FTT judge that she lived latterly in Simla: Mr Gupta testified to the FTT judge that the petitioner had not lived in Simla since she grew up there.  The divergence may be evidence of dementia (see below) or alternatively of an attempt to exaggerate the separation from other family members still resident in India.  The petitioner’s witness statement, quantum valeat, states that she has not lived in Simla since she grew up there.  The sceptic might question whether the petitioner’s short term memory problems give her difficulty in remembering her witness statement as opposed to where she lived three or four years before.  The FTT judge did not analyse the matter in depth but seems to have favoured the dementia explanation [6/5 of process, § 11].  The point about Simla is that the petitioner has adult siblings who live in Simla, Himachal Pradesh.  The petitioner receives a pension in India equivalent to approximately £250 per month.  The petitioner owns a property in India worth £170,000 from which she used to receive a rent of £250 per month.  The property is currently vacant.  (It is unclear when the property was let out, where the petitioner lived when the property was let out and whether the petitioner has a house in India in addition to the rental property.)  The petitioner came to the United Kingdom on a visitor’s visa from 17 November 2010 to 2 April 2011.  During that visit she stayed with her son and daughter-in-law in Scotland.  It was represented to the FTT judge that, thereafter, while living on her own in India the petitioner was given food “once a week or once a month” by neighbours “if she had a problem with cooking”. 

[6]        The petitioner’s son applied for permission for the petitioner to return to the United Kingdom on two occasions.  Visas were refused.  On review following the second refusal, at the request of solicitors instructed by Mr Gupta, a visitor’s visa was granted.  The named sponsor was, I infer, Mr Gupta.  On 19 October 2012 the petitioner returned to the United Kingdom to stay with her son and daughter-in-law.  She has been living with her son and his family in Scotland since then.  She is cooked for and does not go out on her own.  (Since the petitioner required the services of a Hindi interpreter when giving evidence before the FTT judge I infer that she is isolated in Scottish society, a situation that can only have been aggravated by her precarious immigration status.)

[7]        I assume that the petitioner’s visa expired not more than six months after entry, at latest therefore on 18―19 April 2013.  She remained in the United Kingdom.  She apparently registered with a general practitioner, Dr Travers, in Glasgow G44.  On an undisclosed date prior to 3 June 2013 Dr Travers referred the petitioner for a private assessment of cognitive function by Dr Stuart Ritchie, consultant psychiatrist.  The petitioner attended for assessment accompanied by her son at the Priory Hospital, Glasgow, on 3 June 2013.  On 4 June 2013 Dr Ritchie reported to Dr Travers that the petitioner believes her memory to be reasonable but that she can be forgetful at times.  She is happy and denies feeling depressed.  On formal cognitive assessment Dr Ritchie found the petitioner to be fully orientated in place but wholly disorientated in time.  Following scored testing Dr Ritchie assessed the petitioner as suffering from a dementing condition.  Dr Ritchie reported that he would arrange a CT scan to exclude vascular disease.  His diagnosis at that time was: dementia, probable Alzheimer’s disease, awaiting CT scan of the brain [6/4 of process].  Presumably the CT scan was carried out and did not exclude, or confirmed vascular dementia since the FTT judge referred to “a diagnosis of vascular dementia dated 18 June 2013” [6/5 of process, § 11].  No medication is prescribed and the petitioner is not undergoing treatment [6/5 of process, § 26].  A letter from Dr Travers was produced to the FTT judge expressing the opinion that it was unlikely, based on Dr Ritchie’s findings, that the petitioner is capable of safely living on her own independently.  (It is unclear whether the letter was written before or after the CT scan was reported.) Mr Gupta told the FTT judge that he and his wife could not allow the petitioner to cook as she might leave the cooker on [6/5 of process, § 12]. 

[8]        On a date which is not disclosed but which must have been prior to 18 June 2013 application was made to the Home Office for variation of the petitioner’s leave.  By Reasons for Refusal letters dated 18 June 2013 the Home Office refused the variation application and determined that the petitioner should be removed from the United Kingdom.  The decisions were subsequently reaffirmed after the diagnosis of vascular dementia had been exhibited [6/5 of process, §§ 1, 14].  The Reasons for Refusal have not been produced but it appears from the FTT judge’s decision that the reasons were (1) that the petitioner does not meet the requirements of the Immigration Rules appendix FM (family members); and (2) that the petitioner does not meet the requirements of the Immigration Rules rule 276ADE (private life).  The petitioner appealed to the FTT in terms of the Nationality, Immigration and Asylum Act 2002 s. 82(1).  Mr Gupta apparently became a British citizen on 7 December 2013 and renounced his Indian citizenship on 21 January 2014.  His children apparently became British citizens on 28 November 2013 and renounced their Indian citizenship also on 21 January 2014 [6/4 of process].

[9]        The hearing before the FTT judge took place on 23 January 2014.  By decision dated 28 January 2014 FTT judge Hutchinson dismissed the appeal.  The petitioner sought leave to appeal.  By decision dated 14 February 2014 a different FTT judge, Warren Grant, refused permission to appeal to the Upper Tier Tribunal [UT].  The reasons for refusal concluded by stating: “The grounds amount to nothing more than a disagreement with the findings...”.  The petitioner then applied to the UT for permission to appeal on the grounds of appeal previously lodged.  By decision dated 17 March 2014 UT judge Jeremy Rintoul refused a second application for permission to appeal to the UT.  The reasons for refusal stated among other things: “The challenges to [the factual finding about family life] are nothing more than a disagreement...”.  The non-appealable second refusal decision of 17 March 2014 is the decision which the petitioner now seeks to bring under review in this court.

Error of law, an “important point” and “some other compelling reason”?

[10]      It has been decided that the Court of Session should not entertain a judicial review of this kind unless the application passes the Eba “second appeals” test [Eba v Advocate General for Scotland 2012 SC (UKSC) 1; SA v Secretary of State for the Home Department 2014 SC 1].  To pass the Eba test this petitioner has to show that there is (1) a material error of law in the decision of the UT dated 17 March 2014 (2) which involves either (a) an important point of principle or practice or (b) some other compelling reason to review the decision.  Parties are agreed that this is the law.  If there is a material error and an important point or a compelling reason―it is enough for these things to be arguably so at this stage―the petition and answers will be continued to a substantive first hearing.  Otherwise the petition falls to be summarily refused or dismissed.

[11]      Mr Caskie for the petitioner submits that there are clear errors on the part of the UT; that the petition raises one important point of principle; and that there are two compelling reasons.  Without prejudice to Mr Caskie’s contention that the point of principle is “obvious”, the point in question can be difficult to grasp in the abstract.  Indeed the petition describes the point as “somewhat complex” [petition, stat. 21].  It is best to start with the applicable law, move to the concrete illustration and only then to try and articulate the point.

[12]      The applicable law is Lord Bingham’s five-stage Razgar test [Regina (Razgar) v Secretary of State for the Home Department] [2004] 2 AC 368 at § 17 per Lord Bingham of Cornhill]:

“In a case where removal is resisted in reliance on article 8 [right to respect for family and private life], these questions [that the reviewing court must ask itself] are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?  (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?  (3) If so, is such interference in accordance with the law?  (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?  (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

Razgar was a “foreign” case.  The stage (2) question is highly relevant in “foreign” cases where the issue is about the risk of article 8 violations by foreign states on return.  The instant case is a “domestic” case where the apprehended interference is by the host state.  No special threshold of gravity is required to engage article 8 in “domestic” cases.  In “domestic” cases the question of consequences is subsumed within the stage (5) proportionality question and the stage (1) and (2) questions are run together [KBO (Ghana) v Secretary of State for the Home Department [2009] CSIH 30 at §§ 6, 7, 12―18 per Lord Reed delivering the opinion of the court].

[13]      In the present case Mr Caskie submits that the FTT judge answered the Razgar stage (1) and (2) questions in the negative and then went on to consider the stage (5) Razgar question, proportionality, on a hypothetical basis.  The key passages illustrative of this analysis are:

“16.      ...  Even if the appellant had family life with her daughter-in-law and children prior to 2010 (of which there was no evidence...) the appellant then lived on her own in India for approximately a year and a half.  I am not satisfied that it has been established that then [from 19 October 2012] sharing the same house for just over a year in the UK indicates that the relationship between the appellant and her adult family goes beyond normal emotional ties.

17.       Although I accept that the appellant will need assistance including as she gets older and the medical evidence indicates that she is unlikely to be capable of safely living on her own, I am not satisfied that such assistance and companionship that she currently receives in the UK amounts to family life.  The appeal must therefore fail.

[...]

Article 8―Proportionality

18.       In my alternative finding if I am wrong and family life does exist (which for the reasons above it does not) and also taking into consideration the appellant’s private life in the UK (including her health) I have considered whether the appellant’s removal would be proportionate to the legitimate aim pursued by the respondent of effective immigration control...

[...]

32.       ...  There is no family life.  It is, in my alternative finding if there is family life, proportionate to the legitimate aim of maintaining effective immigration control.”

So, says Mr Caskie, the FTT judge conducted a hypothetical proportionality balancing exercise in the absence of family life on the plus side of the scales.  This is Mr Caskie’s point: “whether it is possible to address the stage (5) Razgar proportionality question hypothetically leaving family life out of account?”  Mr Caskie answers this issue in the negative: it is not possible, or logical, or jurisprudentially sound.

[14]      The point was not raised in the grounds of appeal to the UT: but, according to Mr Caskie, the point is a human-rights, Robinson-obvious point, one that the UT should have taken on its own motion, but didn’t; and that was where the UT fell into error [R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 at 945–946 per Lord Woolf MR; R v Immigration Appeal Tribunal ex parte Shen [2000] INLR 389 at §§ 27―30].  When Mr Caskie got the papers, the point “leapt off the page” at him.  The point is an important one of principle, he says, applicable to a large number of similar claims, a point never before decided.

[15]      Moving to his “compelling reasons”, Mr Caskie submits that you have to have a clear irregularity in the decision-making, either error of law or process error, coupled with drastic or very serious consequences before you can have a “compelling reason”: but what makes a reason compelling is the combination of the irregularity and the gravity of the consequences [ML (Guinea) v Secretary of State for the Home Department [2014] EWCA Civ 459 at § 6].

[16]      The UT judge made two errors which, though not amounting to points of principle, do, when coupled with the drastic consequences, amount to “compelling reasons”, or so I am told.  Both errors reside in the UT judge’s dismissal of ground of appeal no. 2, described by the UT judge as a (mere) “disagreement” with the FTT judge’s factual conclusions.  What the FTT judge found was that the petitioner had failed to discharge the burden of showing that family life exists, concluding that “[t]here is no family life” [grounds of appeal in 6/2 of process, page 3, ground 2; UT decision 6/1 of process, second paragraph; FTT decision 6/5 of process, §§ 7, 16, 17, 32].  The first error, according to Mr Caskie, consists in putting matters the wrong way round: there is no burden of showing that family life exists between parents and children, grandparents and grandchildren.  Between and among such persons family life in the article 8 ECHR sense is to be presumed in the absence of contrary evidence [Marckx v Belgium (A/31) (1979-80) 2 EHRR 330 at §§ 45, 46].  The second error, according to Mr Caskie, consists in leaving out of account (in determining the existence of family life) a material factor, namely the close familial ties and interdependence that existed before the petitioner came to the United Kingdom.  The consequences of these errors are very serious for the petitioner.  She has vascular dementia.  She does not know what day of the week it is.  She cannot leave the house without support.  Mr Caskie cites JD (Congo) at paragraph 27 but I do not follow―possibly my fault―how that case supports the petitioner [JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327].

[17]      The reply by Mr MacIver for the respondent was brief and to the point.  Since I agree with most of his submission I shall incorporate it in my decision rather than rehearsing it separately.

Analysis and decision

[18]      No note of argument has been presented for the petitioner and I have to piece together what I believe her case to be.  The petitioner has not attempted to secure entry clearance from India as an “adult dependent parent”.  The petitioner does not meet the requirements of the Immigration Rules appendix FM (family members) including paragraph EX. 1 (exceptions to certain eligibility requirements) or of rule 276ADE (private life).  She entered the United Kingdom in October 2012 as a visitor with no intention of returning to India and therefore in contravention of her visa conditions.  She now apparently seeks leave to remain “outside the rules” on the basis of “exceptional circumstances” which mean that her removal would constitute a violation of article 8 ECHR [6/5 of process, § 5].  This is how article 8 ECHR enters the discussion, as the FTT judge explained under reference to MF (Nigeria) and MS (India) [6/5 of process, § 5; MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544; MS (India) v Secretary of State for the Home Department [2013] CSIH 52].  Current immigration policy as expressed in the Immigration Directorate Instructions (9 July 2012) paragraph 3.2.7d is:

“’Exceptional’ does not mean ‘unusual’ or ‘unique’.  Whilst all cases are to some extent unique, those unique factors do not make them exceptional.  For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin.  Instead ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.  That is likely to be the case only very rarely”.

The “new” exceptional circumstances approach to the Razgar test has the approval of the Court of Appeal for both deportation and immigration decisions [FM (Nigeria) at §§ 40―44].  In a case like the present petitioner’s I should have thought that there is an argument for applying the test at the date of first contravention, being, in this case, at the date of entry.  Were that to be done this petitioner would emphatically fail the test.  However, that point has not been argued.

[19]      Looking at the matter broadly, I agree with Mr MacIver for the respondent that the host state’s positive obligation to respect family life in terms of article 8 ECHR does not generally extend to reuniting families separated, as in this case, by voluntary relocation; and that declining to facilitate family reunification “outside the rules” does not generally constitute article 8 ECHR “interference”. 

[20]      Mr Caskie’s “important point of principle” submission, presented though it was with, if I may say so, characteristic verve, is wrong in every department in my opinion.  I disagree with the proposition―which is what I think the petitioner’s argument amounts to―that, where a claimant’s primary submission is rejected, it is illogical and unsound in law to deal with alternative or contingent or dependent or derivative cases, heads of claim, points, arguments, exceptions and defences on a hypothetical basis or, as the petition puts it, “on an esto basis” [cf.  Hogan v Highland Regional Council 1995 SC 1; Little v Glen [2014] CSIH 99].  In any event, contrary to Mr Caskie’s submission, the FTT judge did not conduct the Razgar stage (5) proportionality balancing exercise leaving “family life” out of the equation.  She carried out the exercise on the assumption that the ties and support enjoyed by the petitioner in the United Kingdom do amount to “family life” and weighed that family life in the balance [FTT decision 6/5 of process, §§ 19, 25, 27, 31, 32].  Supposing it to be the case, contrary to the foregoing, that is on an esto basis as Scots lawyers call it (the vestige, I speculate, of some long-forgotten scholastic formula esto quod signifying “let it be the case that”)―and I say this without intended irony―supposing it to be the case that Mr Caskie’s point is an arguable one, I reject the submission that it is Robinson-obvious.  If the point were to have been taken it should have been taken in the grounds of appeal to the UT.  The UT judge cannot be faulted for failing to spot it; and there was no error of law on the part of the UT judge in not addressing it.  In any event, as the petitioner accepts, the point is a contingent one [petition, stat.  21]: unless there is family life, or unless, should I say, there ought to have been a finding of family life by the FTT judge properly directing herself as to the law, the point is an academic one, not apt for litiscontestation, however interesting from a theoretical point of view.  In my opinion―see the next paragraph―it cannot be said that there ought to have been a finding of “family life” within the meaning of article 8 ECHR.  Since the contingency does not eventuate, the “important point” is a non-starter.

[21]      The FTT judge did properly direct herself as to whether or not family life might exist.  “Family life” in the Marckx sense has a focused meaning: it signifies the ties between near blood relations which the Belgian law on illegitimacy, at the time, treated as being of lesser social, economic or emotional value and deprived of legal expression.  In immigration cases, contrary to Mr Caskie’s submission, “[t]here is no presumption that a person has a family life, even with the members of a person's immediate family” [Kugathas v Secretary of State for the Home Department [2003] INLR 170 at § 24 per Arden LJ].  The FTT judge had regard to the applicable law [FTT decision 6/5 of process, § 15].

[22]      Applying the accepted test the FTT judge asked herself whether the existing relationship with family members in the United Kingdom “goes beyond normal emotional ties” [FTT decision 6/5 of process, §§ 15―18].  She took into account the Indian dimension so far as relevant to that exercise, that is so far as demonstrating something more than “normal emotional ties” with the individuals now in the United Kingdom.  The FTT judge gave weight to the following considerations among others: the absence of evidence that the petitioner requires help with personal care; the fact that the petitioner does not require financial support; the fact that the petitioner lived in India while her son lived in the United Kingdom for several years from 2006; the absence of evidence that the petitioner had a “family life” in India with her daughter-in-law and grandchildren before they joined her son in the United Kingdom in 2010; the fact that after the departure of her daughter-in-law and grandchildren the petitioner lived on her own in India before coming to the United Kingdom.  The FTT judge was not satisfied that “such assistance and companionship as [the petitioner] currently receives in the UK amounts to family life” [FTT decision 6/5 of process, §§ 16 and 17].

[23]      Drawing the threads together, I reject Mr Caskie’s argument that the FTT judge erred by applying the wrong test and by leaving relevant material out of account.  That being so I also reject his submission that the UT judge erred in law in dismissing ground of appeal no. 2 as a “factual disagreement”.  The point is not even arguable.  On the footing that the FTT judge was entitled to answer the stage (5) Razgar question on a hypothetical basis, as I hold that she was, then, even assuming “family life”, the “interference” entailed in removing the petitioner is proportionate.  The petitioner does not challenge this conclusion on its merits and it is now unchallengeable.  The petition must fail.

[24]      Further, I agree with Mr MacIver that JD (Congo) is a more authoritative guide to the meaning of “other compelling reason” than ML (Guinea); and I also agree that the petitioner’s case falls a long way short of demonstrating, even arguably, a compelling reason as that concept should be understood since JD (Congo)  [JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327; ML (Guinea) v Secretary of State for the Home Department [2014] EWCA Civ 459]. 

Disposal

[25]      Disposing of this petition in the way I have should not necessarily be taken to mean that I lack sympathy on a human level with the petitioner and her family: but the question I have to decide is a legal one.  My conclusion is that the petitioner does not present an arguable case for meeting the Eba test referred to above.  Accordingly I have sustained the respondent’s second plea-in-law and refused the petition, etcetera, all as set out in my interlocutor of 27 November 2014.  There is only one thing to add. A perplexing thing about this application is that the voice of the petitioner is barely heard.  There is nothing to say whether she personally wishes to, or thinks she needs to remain in the United Kingdom. She is a comparatively wealthy woman, and, according to the account reportedly given by her son to Dr Stuart Ritchie: “She cannot manager [sic] her finances and requires assistance in this area.”  If I am wrong in my disposal of the petition and if, ultimately, the petitioner is to stay in Scotland, consideration should be given to making a financial guardianship order.