Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 33

P281/13

 

Lord Brodie

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

in the cause

H H

Petitioner and Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Act: Bovey, QC, Winter;  Drummond Miller LLP (for Livingstone Browne, Solicitors, Glasgow)

Alt:  McKendrick;  Office of the Solicitor to the Advocate General

5 May 2015

Introduction

[1]        The petitioner and reclaimer is a Nigerian national.  She was born in 1989.  She married her husband in 2005.  On 14 November 2005 she entered the UK with a six-month visitor’s visa issued on 28 October 2005.  The petitioner’s husband had arrived in the UK in 2003 on a student visa and thereafter obtained a MBA in marketing.  He was granted a further visa which expired on 20 March 2008.  As a dependent of her husband, the petitioner had been granted an extension to her visa, also until 20 March 2008.

[2]        The petitioner and her husband have three children who were born in the UK in, respectively, 2006, 2007 and 2009.  Their daughter N, born in 2007, is significantly physically disabled by reason of neonatal ischaemic encephalopathy.  Her condition is one of quadriplegic cerebral palsy.

[3]        Notwithstanding expiry of her visa, the petitioner has continued to live in the United Kingdom, with her husband and children.  The two elder children attend primary school in Glasgow.  The school attended by N is a specialist school for disabled children.  She is in receipt of a variety of treatments in order to ameliorate her condition.

 

Procedural history
[4]        On 1 July 2010 the petitioner’s husband made a claim for asylum which was rejected by the respondent on 22 July 2010.  His appeal against that decision was rejected by the First-tier Tribunal (constituted by Immigration Judge Forbes) on 13 September 2010.  His appeal rights became exhausted on 29 September 2010.

[5]        On 9 March 2011 the petitioner claimed asylum in her own right, her husband and children therefore being dependants on her claim.  The petitioner claimed that she would be at risk of mistreatment by being forced into marriage or killed by relatives should she have to return to Nigeria.  She also claimed that the best interests of her children and their rights as guaranteed by article 8 of ECHR provided a lawful basis for her to remain in the United Kingdom.  The respondent refused the petitioner’s claim, certifying it under section 96 of the Nationality, Immigration and Asylum Act 2002 and thereby removing what would otherwise have been a right of appeal under section 82(1) of the 2002 Act.  The petitioner thereupon sought judicial review of the respondent’s decision to certify her claim.  That application was successful and the certification was reduced.  The petitioner accordingly appealed the refusal of her claim by the respondent.  That appeal was refused by the First-tier Tribunal (constituted by Judge of the First-tier Tribunal Bradshaw) on 10 September 2012.  The First-tier Tribunal (“FTT”) refused the petitioner’s appeal in relation to her fear of being at risk from relatives.  It also found that it would be proportionate to return the petitioner, her husband and children to Nigeria, having regard to the best interests of the children.  It is that finding which the petitioner has sought to challenge in subsequent proceedings.

[6]        The petitioner submitted grounds to the FTT for permission to appeal the determination of 10 September 2012 to the Upper Tribunal (“UT”), in terms of section 11(4)(a) of the Tribunals Courts and Enforcement Act 2007.  The FTT refused permission to appeal in a decision dated 4 October 2012.  The petitioner then submitted grounds for permission to appeal directly to the UT, in terms of section 11(4)(b) of the 2007 Act.  That application was refused by the UT in a decision dated 22 October 2012.

[7]        The petitioner then applied for judicial review of the decision of the UT refusing permission to appeal.   First orders in her petition were granted on 27 March 2013 with a procedural first hearing being assigned for 15 May 2013.  On 15 May 2013 the petition called before Lord Burns when the diet was continued until 23 May 2013 for the purpose of discussion of preliminary pleas with an estimated duration of one full day.  On 23 May 2013 the petition called before Lord Armstrong when it was continued.  On 18 June 2013 the petition was sisted “to await the comments of the Inner House” in the opinion which was reported as A v Secretary of State for the Home Department 2014 SC 1.   The sist having been recalled, on 3 December 2013, Lord Armstrong heard parties on the petition and answers.  He made avizandum.  On 14 February 2014 Lord Armstrong dismissed the petition.

[8]        The petitioner now reclaims against the interlocutor of 14 February 2014.

 

The statement of issues
[9]        As at the date of the procedural hearing in the present case on 15 May 2013 , Practice Note 1 of 2012 was in force.  That practice note provided that each party who was to be represented at a procedural first hearing was to exchange and lodge in process not later than two days before that hearing a short statement of issues and of the legal authorities on which he or she relied. The purpose of the statement of issues is to allow the matters in dispute and the most efficient means of their resolution to be identified.  Put short, a statement of issues is a party’s explanation of what his or her case is about.  It defines the parameters of any subsequent discussion.

[10]      A statement of issues was duly lodged on behalf of the petitioner.  It was set out in five paragraphs.  In paragraph 1 of the statement the central issue was stated as being whether the grounds in the petition identify a material error of law in the UT decision to refuse permission to appeal and whether that error constitutes a compelling reason in terms of Eba v Secretary of State for the Home Department 2012 SC (UKSC) 1 at paras 44 to 57.

[11]      In paragraphs 2 to 5 of the petitioner’s statement of issues there are set out four further issues as follows:

“2.       The first issue identified at paragraph 16 of the petition is whether the UT erred, by acting irrationally and perversely, in failing to sustain the ground that the FTT had erred in allowing the assessment of the petitioner’s daughter’s medical needs under Article 3 ECHR, (at paragraphs 309-314) to taint the assessment of the best interests of the child at paragraphs 348 onwards.  In particular whether there is a different question to be asked in relation to Article 8, ECHR cases concerning the best interests of the child where the child is suffering from a medical condition from that in relation to medical cases under Article 3, ECHR (see case law identified in paragraph 16 of the petition). 

 

3.         The second issue at paragraph 17 is whether the UT has operated on a misapprehension as the FTT makes reference to the previous Immigration Judge’s (Immigration Judge Forbes who heard the petitioner’s husband’s claim) decision at paragraphs 348-358 in relation to [N].  In particular whether the UT and FTT have erred in relying on the previous Immigration Judge’s decision when country information is relevant in assessing the best interests of the child and the previous Immigration Judge did not have the advantage of having sight of the up-to-date case law on the best interests of the child (see case law referred to in paragraph 17;  also see LD v Secretary of State for the Home Department (Article 8 – best interests of child) Zimbabwe [2011] Imm AR 99 for relevance of country conditions).

 

4.         The third issue at paragraph 18 is whether the UT has taken proper account of the country information on the situation the petitioner’s child would face on return, if so, whether adequate reasons have been given for finding it would still be in the best interests of the child to be returned to Nigeria, and if adequate reasons had been given, whether the decision to return the child to Nigeria is unreasonable in the light of the country information.

 

5.         A fourth issue at paragraph 19 divided into separate points is whether the correct approach has been taken in assessing the best interests of the child in relation to the points raised in this paragraph.  Reference is also made to the case law referred to in paragraph 19 of the petition”.

     

 

[12]      The separate points making up the fourth issue, as set out in statement 19 of the petition are contentions that the FTT made errors of law as follows:

(a)        By failing to take into account that weighty reasons are required to justify separating a child from a community in which he or she had grown up and lived for most of his or her life.

(b)        By failing to bear in mind that it is important when considering a child’s education to have regard not just to the evidence relating to any short-term disruption of current schooling that will be caused by any removal but also to that relating to  the impact on a child’s educational development, progress and opportunities in the broader sense.  The finding of the UT is perverse and irrational in failing to grant permission to appeal in light of the country information on the educational facilities in Nigeria.

(c)        By erring in law and failing to bear in mind that the interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and their educational welfare as part of the UK education system points strongly to a continued residence here as necessary to promote these interests.  The UT has not dealt with this point. 

(d)        By failing to bear in mind the factors pointing for and against the best interests of the child either staying or going must not be overlooked.  The FTT has overlooked factors in favour of the children remaining in the UK.  The FTT has failed to keep in mind the “overall” factors in assessing the best interests of the appellant’s children.

 

The grounds of appeal
[13]      The grounds of appeal aver that the Lord Ordinary erred in law in:

“(i) failing to hold that the FTT and UT had erred in their approach to the article 8 issues raised by the removal of N from the UK. The FTT had a great deal of evidence that the previous FTT had not had. It was irrational et separatim unreasonable simply (at para. 355) to adopt the reasoning of that tribunal on the issue of article 8. In particular the FTT does not make clear what balancing exercise is taking place. Insofar as the FTT itself carried out an assessment under article 8 (paragraphs 356 to 358) the FTT applied the approach for adults set out in Bensaid (UK) 2001 33 EHRR 10 which requires to be modified in respect of a child - ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at para 33.

 

(ii)  finding that LD v Secretary of State for the Home Department (article 8 best interests of child) Zimbabwe [2011] Imm AR 99 did not apply to the reclaimer’s children.  Neither the FTT or the UT directed themselves to determining whether the reasons given amounted to very weighty reasons for the removal of the reclaimer and her family. The reasons given did not amount to very weighty reasons in the light of the birth and length of residence of the children in the UK, and given the interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and their educational welfare as part of the UK education system point strongly to their continued residence here as necessary to promote these interests, together with the treatment being received by N. When balanced against other considerations, the FTT and UT have not shown that very weighty reasons are present. Birth, and in particular the circumstances in which a child is born, forms part of a child’s private life guaranteed by article 8 of the Convention.

 

(iii)  failing to hold that the FTT and the UT had erred in failing to apply section 55 of the  Borders Citizenship and Immigration Act 2009 which creates a statutory obligation to have regard to the need to safeguard and promote the welfare of the child. Safeguarding and promoting the welfare of the children includes preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’) ensuring children are growing up in circumstances consistent with effective care and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully. The FTT and UT reached decisions that no reasonable tribunal would have reached. The decisions of the FTT and UT were perverse, as it could not be said that N’s welfare would be safeguarded and promoted by returning her to Nigeria as this would impair both her health and development.

 

(iv) failing to hold that the FTT and the UT had erred by failing to recognise that where one is dealing with a child the normal high test applied in relation to article 3 ECHR ought to be modified and that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult – SQ (Pakistan) v Upper Tribunal (Immigration & Asylum Chamber) [2013] EWCA Civ 1251.  Had the FTT and UT had this in mind they would not have reached the same decision in light of the information before them. The FTT erred in applying the adult test for article 3. The FTT further erred (in para 348) in dealing separately with the issue of discrimination rather than with the child’s situation as a whole. The Lord Ordinary erred in not reversing the tribunals in this regard”.

 

 

The nature of this application for judicial review
[14]      This is an application for judicial review of a refusal by the UT to exercise its jurisdiction as conferred by section 11(4)(b) of the Tribunals, Courts and Enforcement Act 2007 to grant permission to appeal to the UT on a point of law arising from the decision of the FTT refusing the petitioner’s appeal.  A number of things flow from that.  Having regard to the terms of the grounds of appeal and the way in which the reclaiming motion was presented on behalf of the petitioner, we will spell these out before going further, albeit that doing so is no more than repeating what has been authoritatively discussed in a now familiar line of cases:  R (Cart) v Upper Tribunal [2012] 1 AC 66, Eba v Secretary of State for the Home Department supra and A v Secretary of State for the Home Department 2014 SC 1.

[15]      It is to be emphasised that what the court is concerned with here is an application for judicial review of the legality of the decision of the UT refusing permission to appeal;  it is not an appeal from the decision of the FTT refusing the petitioner’s appeal from the decision of the respondent.  Underlying this is a constitutional issue as to jurisdiction and accordingly competence and function.  It is the UT which has the statutory jurisdiction to determine appeals from the FTT and the jurisdiction, on a second application, to grant or refuse permission for such appeals.  This court has the more restricted jurisdiction of reviewing the legality of the UT’s decision on an application for permission.  Among the implications of that is a very simple one:  this court must begin its task by looking at the decision that the UT was asked to make.  An application for permission to appeal is made under reference to specific grounds.  It is the legality of a refusal of permission in respect of these specific grounds which is put in issue by the petitioner’s application for judicial review.  True, that proposition cannot be stated entirely without qualification.  Regard must be had to what was held in R v Secretary of State for the Home Department (ex p Robinson) [1998] QB 929 at 946: where there is a readily discernible point favourable to an applicant which has strong prospects of success in an appeal, then it would be for the UT to grant permission.  Nevertheless, it is the grounds presented to the UT on the application for permission which provide the framework for any consideration of the legality of the UT’s decision.  In the present case that framework was respected in the drafting of statements 16 to 19 of the petition and in the drafting of the statement of issues;  they essentially reiterate the proposed grounds of appeal to the UT.   The same cannot be said for the grounds of appeal to this court.  That is not only productive of inconvenience.  Embarking upon new lines of argument which were not put forward as proposed grounds of appeal to the UT risks confusion as to how the court should properly perform the function of judicial review in a case of this sort. 

[16]      The Court of Session has jurisdiction to entertain this petition because, with the refusal of permission by the UT, the petitioner has no other remedy available to her.  However, she has no other remedy because she has availed herself of and thereby exhausted her primary remedies: an administrative consideration of and reasoned decision on her application, a full appeal on the merits before a judicial decision-maker, and two applications for permission to appeal further with a view to correction of any error of law.  The matters which the petitioner has put in issue are of the greatest importance to her and her children and the petitioner is entitled to have them considered fully.  But, in a rational and proportionate system of decision-making, full consideration does not mean interminably repeated reconsideration.  As Lady Hale observed in Cart at para 41: “There must be a limit to the number of times a person can ask a judge to look at a question.”  Here it cannot be said that the petitioner’s case has not been considered.  Indeed, when concluding his submissions on behalf of the respondent, Mr McKendrick identified the hearing of the reclaiming motion as the ninth occasion when essentially the same contentions (whether put forward by the petitioner’s husband or by the petitioner) have been considered by relevant decision‑makers. The point that Mr McKendrick was seeking to make was that, given this repeated scrutiny, it was surprising that no one had appeared to have spotted what Mr Bovey QC, on behalf of the petitioner, had described as the compelling nature of the contentions advanced. That may be; this decision certainly comes at the end of a long series of decisions and must be seen in that light, but our point is a different one. The petitioner’s case had already been considered judicially on three occasions prior to her application for judicial review. That does not mean that the result of this process of judicial decision-making was necessarily the right one but it does mean that the respondent’s determination of the petitioner’s application for leave to remain has been examined by competent, and indeed specialist, judicial bodies, first in an unrestricted appeal and then, on two separate reviews of the petitioner’s complaint of error in point of law.

[17]      That what is challenged is a decision by a judge of the UT as to whether an applicant should be permitted a second appeal, does not mean that the supervisory jurisdiction of the Court of Session is excluded.  An argument to that effect failed in Eba, both in the Inner House and before the Supreme Court.  However, that the petitioner has already had an appeal to a professional judge results in the grounds upon which the Court of Session will exercise its jurisdiction being markedly different from what may be described as traditional judicial review grounds.  For the essentially pragmatic reasons discussed in Cart and adopted in Eba, where the challenge is to such a judicial decision, the supervisory jurisdiction is reserved for cases that are truly exceptional, and therefore rare.  That the Court of Session considers the UT to have made an error of law is not determinative;  a proportionate system must accommodate the possibility of a wrong decision having been made and it not being corrected.  What was decided in Eba is that if this court is to reduce the decision of the UT refusing permission to appeal, it must be satisfied of something else:  that either (a) the proposed appeal would raise some important point of principle or practice or (b) there is some other compelling reason justifying interference with that decision (the “second appeals test”).  It is the second appeals test that defines the scope of the supervisory jurisdiction in this category of cases.

[18]      Defining the parameters of the supervisory jurisdiction in this category of cases by reference to the second appeal test involves something more than simply adding an extra step in a process of reviewing the decision of the FTT on a first appeal.  It effectively mandates a different approach to decision-making than that adopted in the generality of cases of judicial review.  It has implications for the way in which a petition should be pled and, critically, it has consequences for the intensity with which review of the UT’s decision should be carried out.  The matter was addressed in the opinion of the court delivered by the Lord Justice Clerk in A v Secretary of State for the Home Department supra.  There, (at para 37), the Lord Justice Clerk noted the divergence of approach that had emerged in the Outer House as to the correct approach to the second appeals test.  On the one hand, there was the view that what was involved was “an expeditious and fairly summary process” of sifting out the exceptional strongly arguable appeal (A supra at para 39).  On the other hand there was the view that because of the potentially harmful and sometimes fatal consequences that may occur in asylum cases “any examination by a judge, at whatever level ...requires to be both detailed and very careful” (A supra at para 40).  The court in A disapproved the latter view and approved the former.   The Lord Justice Clerk concluded the opinion of the court  in these terms:

“[43] ... the court stresses that ... the court's role should be seen as a gate keeping or sifting one. The decision should proceed upon a petition which clearly and unequivocally avers not only a specific error on the part of the UT in refusing leave, but also either the important point of principle/practice not yet established (Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 Dyson LJ at para 18) or other compelling reason why an appeal should be allowed to proceed.  Before the petition progresses, the court should be able, quickly and without difficulty, to identify from the averments the point or reason advanced.

 

[44] As was said in JD (Congo) v Home Secretary [2012] 1 WLR 3273 (Sullivan LJ at para 23), no doubt the test must be sufficiently flexible to take into account the circumstances of the particular case. Nevertheless, as was stated in the same passage, the test is a ‘stringent one’.  It is designed to allow review only in rare and exceptional cases (see Cart Lady Hale at paras 23 and 31) in order to ensure that no ‘compelling injustice’ occurs (PR (Sri Lanka) v SSHD [2012] 1 WLR 73 Carnwarth LJ at para 6). The error normally requires to be one which ‘cries out for consideration’ (PR (Sri Lanka), Carnwath LJ at para 35), and not just potentially arguable, upon a reading of the petition. In so far as an oral hearing may be required, it should be relatively short and certainly last no more than an hour. The court's decision should be capable of succinct expression, at not much greater length than is currently employed by the UT itself, if refusing leave.”

 

 

[19]      It follows from what was said by the Lord Justice Clerk in A that a petition seeking judicial review of a decision by the UT refusing permission to appeal which does not clearly and unequivocally aver not only a specific error on the part of the UT in point of law when refusing permission, but also either the important point of principle or practice not yet established or the other compelling reason why an appeal should be allowed to proceed, will be irrelevant and accordingly fall to be dismissed.

 

Decision
Overview
[20]      When Mr Bovey opened his oral submissions in support of the reclaiming motion he conceded that he had not characterised the errors he maintained had been made by the FTT “in the Eba manner”.  He further accepted that the petitioner’s pleadings did not meet what the court in A v Secretary of State for the Home Department had said was required.  We would agree.  In her petition, and her statement of issues, the petitioner pays lip-service to the need to establish a compelling reason but that is as far as she goes towards meeting the requirements consequential on the adoption of the second appeals test as set out in A v Secretary of State for the Home Department.  Now it may be said that A was not advised until 6 June 2013, whereas first orders had been granted in this petition on 27 March 2013 and the statement of issues lodged by the petitioner presumably had been prepared prior to the first procedural hearing on 15 May 2013.  However, that does not explain why it was not thought necessary to amend in the light of the decision in A v Secretary of State for the Home Department when the opinion of the court in that case became available. The petition had, after all, been sisted on 18 June 2013 “to await the comments of the Inner House which are to be provided following discussion in the context of the reclaiming motion in [A v Secretary of State for the Home Department]”.  The hearing before Lord Armstrong after which the interlocutor of 14 February 2014 was pronounced did not take place until 3 December 2013.

[21]      The petition avers that the FTT made a number of material errors of law which were such that the UT’s failure to grant permission to appeal in respect of them, or some or other of them, constitutes a compelling reason for reducing the UT decision.  However, nowhere in the petition or statement of issues is it explained why it is contended that the particular supposed errors founded upon demonstrate a compelling reason or what exactly that compelling reason is.  All that appears in the petition is what is averred at statement 20: “That the grounds [that is the respects in which it is contended that the FTT made errors of law as set out in statements 16 to 19 of the petition] demonstrate that there is a compelling reason for the Court to reduce the decision of the UT refusing permission to appeal.”  The statement of issues similarly fails to direct itself as to what is the compelling reason and why it is legally compelling (cf PR (Sri Lanka) v Secretary of State for the Home Department supra at para 36).

[22]      Coming then to the petitioner’s grounds of appeal to this court, they do not address compelling reason in any way whatsoever;  they simply set out what are said to be the Lord Ordinary’s error in law in failing to hold that the FTT and UT had made a number of material errors.  Moreover, they present the court with an additional challenge in linking the points of criticism of the FTT made in the grounds of appeal to this court with the points of criticism of the FTT made in the proposed grounds of appeal to the UT.  While there is clearly an overlap, the points are not articulated in quite the same way or in the same order.  While grounds of appeal (i) to (iii) have a basis in one or other of the proposed grounds of appeal to the UT (as restated in the statement of issues), that is not the case with ground of appeal(iv).

[23]      Given these serious deficiencies, the question arose as to whether we should entertain the reclaiming motion at all.  Albeit with some hesitation, we decided that we would.  No pleading point had been taken on behalf of the respondent before the Lord Ordinary, nothing had been said at the procedural hearing in the Inner House and, although he put absence of compelling reason at the forefront of his submission that the reclaiming motion should be refused, Mr McKendrick did not insist on any such point before us.

[24]      We shall discuss parties’ submissions, as they are set out in their respective written arguments and developed orally, under the heads of the petitioner’s four grounds of appeal.

 

Ground of appeal (i)
[25]      We would see ground of appeal (i) as taking up the second issue in the petitioner’s statement of issues (proposed ground of appeal (ii) to the UT) with an elaboration which does not appear to have been argued before the Lord Ordinary, which is that the FTT had erred in applying the approach taken by the European Court of Human Rights in Bensaid whereas that it “had to be modified in respect of a child”, reference being made to ZH (Tanzania).

[26]      As developed in written and oral argument, the second issue was a criticism of how the FTT (as constituted by Judge Bradshaw) had made its assessment of the proportionality of the removal of N from the UK, given her health problems and what was known about the facilities for dealing with these problems in Nigeria. The particular criticisms were that Judge Bradshaw had simply adopted the reasoning in the determination by the FTT (as previously constituted by Judge Forbes) which had heard the petitioner’s husband’s application in 2010 and that Judge Bradshaw had failed to explain how he balanced the factors bearing on proportionality.  As Mr Bovey put it, although the evidence which had been put before Judge Bradshaw and which had not been available to Judge Forbes had been narrated at length in Judge Bradshaw’s determination, Judge Bradshaw had not said what he made of it, there was nothing in the way of analysis, Judge Bradshaw had simply abdicated responsibility for fact-finding to his predecessor, Judge Forbes.

[27]      We are not persuaded that Judge Bradshaw made any error of law in the way he utilised the findings of Judge Forbes in the earlier determination.  It is true that at paras 348 to 354 of Judge Bradshaw’s determination there are narrated a number of findings from the previous determination.  However, it is not true to say that he simply adopted them.  Rather, at para 355 Judge Bradshaw says that he agrees with the views of Judge Forbes, as narrated in the preceding paragraphs.  That was something that it was open to him to do.  Judge Bradshaw had before him other evidence about N’s medical condition which he said he had considered and which he summarised at paras 330 to 347 of his determination.  None of this material seems to have been disputed and Judge Bradshaw’s formulation “I noted” can be taken as his acceptance of the evidence which he then summarised.  Judge Bradshaw therefore had a basis upon which to agree with the previous findings.  Reading his determination as a whole, it appears to us that Judge Bradshaw was fully aware that he had heard additional evidence to that which had been led before Judge Forbes and that he had taken all of the evidence available to him into account. 

[28]      The decision in Bensaid v United Kingdom supra is referred to by Judge Bradshaw at para. 356 of his determination.  He relies on it for two purposes.  The first as authority for the proposition that treatment (or, conversely, the adverse consequences of an absence of treatment), may not be severe enough to result in a contravention of article 3 of the Convention but, nevertheless, bear on the issue as to whether article 8 is breached.  The second point that Judge Bradshaw takes from that decision is that the fact that an applicant’s circumstances in the event of him or her being removed from the United Kingdom would be less favourable than those enjoyed in the United Kingdom, is not a decisive factor in determining the proportionality of removal.  That latter proposition is supported by the decision in Bensaid, which involved the removal of a schizophrenic suffering from psychotic illness to Algeria.  However we understood Mr Bovey, to challenge its unqualified application where the person who would suffer the adverse consequences of a removal was a child.  Mr Bovey drew attention to what was said by Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department supra at para.33:

“In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration”.

 

[29]      The reference to ZH (Tanzania) in ground of appeal (i) is a way of making a point which, as we would see it, is sought to be made, albeit in slightly different ways, in grounds of appeal (ii), (iii) and, indeed, (iv) and that is that, given N’s significant disability, the inferior facilities for ameliorating that disability which are available in Nigeria, and the obligation on decision-makers to have regard to the best interests of a child as a primary consideration, the decision to remove the petitioner and her family from the United Kingdom must be regarded as disproportionate.  That may have been a strong argument but simply because it was not accepted by the FTT, does not of itself amount to an error of law.  Mr Bovey recognised that;  hence his close examination of the FTT’s determination with a view to finding an indication of a misdirection.  He did not say that the FTT was not entitled to rely on Bensaid, rather that the reliance had to be more nuanced, given that a child was involved.  At one point Mr Bovey suggested that the FTT’s determination failed to disclose the necessary anxious scrutiny.  In our opinion this approach with its intense review of the FTT’s reasoning is just what the court in A v Secretary of State for the Home Department said should not be adopted, when it is the second appeals test which is in issue.

[30]      This ground of appeal provides no basis for interfering with the decision of the Lord Ordinary.

 

Ground (ii)
[31]      This ground takes up point (a) in the fourth issue in the petitioner’s statement of issues (proposed ground of appeal 2(i) to the UT).  The premise upon which this criticism of the FTT is based is that “very weighty” reasons were required for the removal of the petitioner and her family from the UK.  The Lord Ordinary decided that there was no such requirement in the present case.  We agree.  There was no error by the FTT in this regard and therefore nothing which can amount to a compelling reason.

[32]      The petitioner’s argument that the FTT, and therefore the UT and the Lord Ordinary, made an error in law in this particular respect depends on an interpretation of what was said by Blake J in giving the decision of the UT in LD v Secretary of State for the Home Department (article 8 best interests of child) Zimbabwe [2011] Imm AR 99 at para 26.  What he said was this:

“Very weighty reasons are needed to justify separating a parent from a minor child or from the community in which he or she has grown up and lived for most of her life.”

 

There is no question of separating a parent from a minor child in the present case.  As for the proposition that very weighty reasons are needed to justify separating a child from the community in which she has grown up and lived for most of her life, one might quite readily agree with that if what is being put forward is a generalisation about what is reasonable or proportionate.  It is a different matter if the proposition is being put forward as a rule of law.  We note that Blake J described it as a “principle” but we doubt whether he was intending to enunciate a legal rule.  We would accept that a child’s residence in the United Kingdom for most or all of her life is a relevant circumstance pointing away from the proportionality of her removal, which circumstance may gain strength from the length of the residence, degree of integration in the community, extent of participation in education and precise immigration status.  That the children and one of their parents all have indefinite leave to remain, as was the case in LD, may be a very powerful circumstance.  However, that is as far as it goes.  Simply because the FTT in this case did not articulate its decision on proportionality in terms of “very weighty reasons” does not mean that it erred in law.

[33]      Both Mr Bovey and Mr McKendrick referred for their respective purposes to what appears in the judgment of Silber J in R (on the application of OA) v Secretary of State for the Home Department [2012] EWHC 3128.  The Lord Ordinary had also been referred to this judgment and had found support for his conclusion that a requirement for weighty reasons as mentioned in LD, was not applicable to the present case.  We do not see OA as capable of bearing the weight which has been sought to be put upon it.  In the relevant passage of his judgment, Silber J is quoting from a letter from the Secretary of State.  In that letter, there was reference to “the LD principle” and an assertion that the LD principle only applied to a “lawfully settled minor child or child from a community in which he or she has grown up...”.   We do not find anything in the judgment indicating that Silber J either endorsed or rejected what had been advanced in the letter from the Secretary of State.  It may be that “the LD principle”, with or without qualification by reference to the immigration status of the child in question, has achieved the status of an administrative rule of thumb, but nothing put before us would suggest anything more than that.  For present purposes the judgment in OA is neither here nor there.

[34]      This ground comes nowhere near demonstrating a legally compelling reason for reducing the refusal of permission with a view to reconsideration by the UT.

 

Ground of appeal (iii)
[35]      This ground makes a specific point arising from the terms of section 55(1)(a) of the Borders Citizenship and Immigration Act 2009 which requires the Secretary of State to make arrangements for ensuring that her functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.  It then asserts that the decisions of the FTT and UT were perverse in respectively making and not finding an error in law in a determination that no reasonable tribunal would have reached, as it could not be said that N’s welfare would be safeguarded and promoted by removing her to Nigeria.  Reference is made to what appears at paras 28 and 45 of the judgment of Wyn Williams J in R (On the application of TS) v Secretary of State for the Home Department [2011] Imm AR 164.  Although not specifically focused in this or any other ground of appeal, Mr Bovey also criticised the FTT for having “chopped up” or “compartmentalised” its decision-making, rather than approaching the proportionality assessment “holistically”.  The statement of issues does not articulate matters in quite this way;  section 55 of the 2009 Act is not mentioned there nor in statement 19 of the petition to which the statement of issues refers.  However, there is a reference to section 55 at statement 16 of the petition, the third issue in the statement of issues relates to whether adequate reasons were given for finding it in the best interests of N to be returned to Nigeria (proposed ground of appeal 1(iii) to the UT), and point (c) in the fourth issue is a contention that the FTT failed to bear in mind that the interests of minor children are a primary consideration (proposed ground of appeal 2(iii) to the UT).  Accordingly, while one might have wished a more precise correlation between the terms of the ground of appeal and what had gone before, we were prepared to consider the substance of what Mr Bovey had to say in support of this ground.

[36]      We did not understand the relevant law to be controversial.  Essentially it is to be found set out in the Opinion of Lady Hale in ZH (Tanzania) supra with which the majority of the UK Supreme Court concurred.  In paragraph 17 of her opinion Lady Hale said this:

“The starting point is, of course, that states are entitled to control the entry of aliens into their territory and their residence there.  Even if the alien has very strong residence status and a high degree of integration he cannot be equated with a national.  Article 8 does not give him an absolute right to remain.  However, if expulsion will interfere with the right to respect for family life, it must be necessary in a democratic society and proportionate to the legitimate aim pursued”.

 

In assessing the legality and proportionality of the state’s action in removing an individual, for the purposes of article 8 the circumstances of all family members, including the individual’s children must be considered as well as those of the individual herself:  Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115.  The United Kingdom has acceded to the United Nations Convention on the Rights of a Child of 1989.  Article 3(1) of the Convention provides:

“In all actions concerning children, whether undertaken by public or private social welfare, institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

 

An initial reservation by the United Kingdom in relation to immigration was thereafter lifted and Parliament enacted section 55 of the 2009 Act.  The effect of section 55 is that any decision made by the Secretary of State about immigration, asylum or removal which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be in “accordance with law” for the purposes of article 8(2) of the European Convention on Human Rights.  The effect of recent decisions in the European Court of Human Rights, including Uner v Netherlands (2006) 45 EHRR 421, is that national authorities are expected to apply article 3(1) of the UN Convention and to treat the best interests of the child as “a primary consideration”.  However, a primary consideration is not the same as the primary consideration:  ZH (Tanzania) supra at para.25.  Nor is it the determining consideration.  The important thing is that the decision-maker should identify and consider the best interests of any children first.  No other consideration should be treated as inherently more significant than the best interests of the children but the strength of other considerations may outweigh best interests and therefore permit decisions to be taken which are contrary to those best interests:  ZH (Tanzania) supra at para.26.

[37]      Mr Bovey took us through much of the relevant part of what is a long determination by the FTT.  He also referred to items of evidence which had been before the FTT relating to N’s medical condition and the expert report instructed on behalf of the petitioner as to facilities for medical care in Nigeria.  It was Mr Bovey’s submission that the FTT had failed to give consideration to the best interests of N at any stage in its determination.  According to Mr Bovey, it was apparent that the FTT had failed to carry out the careful examination of all relevant factors which was required when the interests of a child are involved in an article 8 assessment.  It accordingly erred in law.  We do not agree.  The FTT as constituted by Judge Bradshaw addressed the petitioner’s claim under reference to article 8 of the European Convention at paragraphs 315 to 358 of its determination.  It had previously noted, at para 242, the petitioner’s reliance on ZH (Tanzania).  Much of the discussion in the determination focuses on the circumstances of the petitioner’s three children, and, in particular, the difficulties associated with N’s disability.  At para 322 the immigration judge specifically states that he has taken section 55 of the 2009 Act into account and that he has given consideration to the best interests of the children which will be a primary concern.  The Lord Ordinary concluded that the contents of paras 315 to 358 of the FTT’s determination was indicative that the FTT took into account all factors which, on the evidence before it, were said to impinge on the best interests of the children.  We agree.  This ground accordingly must be rejected.

[38]      Mr Bovey’s criticism of the FTT included what he saw as its failure to carry out a careful consideration of all the relevant factors taken together and to show by its reasoning that every factor which might tell in favour of the petitioner had been taken into account. We return to a matter that we have already touched on.  Whatever may be said as to the merits of this intense level of scrutiny of administrative decision-making, it is no longer to the point once what is in issue is whether the second appeals test has been satisfied.

 

Ground of appeal (iv)
[39]      As was submitted on behalf of the respondent, this point was never argued before the Lord Ordinary.  It does not feature in the petition nor in the statement of issues. That was no doubt because it was not a point that the petitioner had proposed to take on appeal to the UT.  This ground is accordingly entirely irrelevant.

 

Disposal
[40]      The reclaiming motion is refused.  We reserve all questions of expenses.