Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 52

P203/15

OPINION OF LORD GLENNIE

In the Petition

JS

Petitioner;

for judicial review of a decision by the Upper Tribunal (Immigration and

Asylum Chamber) to refuse to grant the petitioner permission to appeal

Petitioner:  Jones;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

24 April 2015

Introduction
[1]        The petitioner is a national of Zimbabwe.  His father, who is or has been active in Zimbabwean politics as a member of the opposition MDC, now lives in the UK, having been granted indefinite leave to remain in September 2010.  The petitioner himself has been in the UK since 2000, when he was 12 years old.  He has committed a number of offences while in the UK.  Most recently, in July 2007 he was convicted of robbery and of having an imitation firearm with intent.  He was sentenced to 4½ years imprisonment for that offence and was also required to serve an additional 51 weeks in custody in respect of a suspended sentence for analogous offences committed earlier. 

[2]        On 16 April 2009 the Secretary of State decided to deport the petitioner.  After some delays, caused in part by his application having been lost, his application to have that deportation order revoked was refused.  The petitioner appealed to the First-tier Tribunal (“FTT”) against that refusal but that appeal was dismissed.  He then applied for permission to appeal to the Upper Tribunal (“UT”), but that application was refused by a judge of the FTT and again by a judge of the UT.  There is no appeal against a refusal by a judge of the UT to grant permission to appeal.  Accordingly, the petitioner brings this petition for judicial review of that refusal.  If successful, this would result in that refusal being reduced (or set aside) and the matter would go back to a single judge of the UT for a fresh determination of the application for permission to appeal – it would not necessarily result in permission to appeal to the UT being granted, since that would be a matter for the judge hearing the application afresh.

[3]        To be successful, an application for judicial review of the decision by a UT judge to refuse permission to appeal will not only have to show some error on the part of that judge making that refusal susceptible to judicial review on well-known principles; it will also have to pass what has become known as the Eba test (cf Eba v Advocate General [2012] SC (UKSC)) 29) by showing that the proposed appeal would raise some important point of principle or practice or that there is “some other compelling reason” to interfere with the decision refusing permission to appeal.  This test was adopted by analogy with the “second appeals” test applicable to substantive appeals under section 13 of the 2007 Act from decisions of the UT to the Court of Appeal in England and Wales and in Northern Ireland (Eba at para [22]), a test now applicable also to appeals from the UT to the Court of Session in Scotland.  The second limb of that test is that “there is some other compelling reason for the relevant appellate court to hear the appeal”.  That test is laid down in section 13(6) in relation to the grant or refusal of leave to appeal from the UT to the appellate court, so in cases to which that section is directly applicable it is clear there that the compelling reason must be a reason for the appellate court to hear the appeal.  The context here, where that test cannot be applied directly but (as is made clear in Eba) is applied by analogy is different.  Since the result of a decision in the petitioner’s favour will be that the matter is remitted to a judge of the UT for him (not this court) to determine whether or not permission to appeal to the UT should be granted, the relevant question must be whether there is “some other compelling reason” to require the refusal of leave to appeal to be reconsidered.  In many, perhaps most, cases that may involve a consideration of whether there is a compelling reason for the UT (as the relevant appellate court) to hear the appeal; but this will not necessarily be the only consideration.

Procedural first hearing
[4]        In accordance with the recent Practice Note No 2 of 2013 the petition was appointed to a procedural first hearing at which the question of whether the Eba test was satisfied could be considered.  The rationale behind this was discussed in SA v Secretary of State for the Home Department 2014 SC 1 at paras [32]-[34] and by Lord Brodie at paras 5]-[8] of his opinion in MUB v Secretary of State for the Home Department [2015] CSIH 9. 

[5]        At the procedural first hearing, Mr Jones for the petitioner sought to persuade me that the Eba test was satisfied and that I should appoint the case to a substantive first hearing for determination of the petition.  Having listened carefully to his argument, I concluded that the Eba test was not satisfied.  I therefore refused the petition.  I was asked to give my reasons in writing – hence this Opinion.

The Eba test
[6]        Mr Jones did not suggest that the appeal raised an important point of principle or practice; but he did argue that there were other compelling reasons why the application for permission to appeal should be sent back to the UT for reconsideration.  He put his arguments under two separate heads which I shall call, for convenience, “collapse of fair procedure” and “drastic consequences”.  Although the material relevant to these two heads of argument overlaps considerably, it is convenient to deal with them separately and in turn.

Collapse of fair procedure
[7]        Mr Jones’ first argument was that the UT judge had applied the wrong test in considering the application.  Instead of considering whether the decision of the FTT and the proposed appeal raised arguable points of law (the test for permission to appeal in terms of section 11 of the Tribunals, Courts and Enforcement Act 2007) the UT judge had, in many cases, simply decided the point in a manner adverse to the petitioner and thereby prevented the petitioner bringing these matters before the UT for a full hearing and determination.  Parliament had laid down a procedure in terms of which a person seeking to challenge an adverse decision of the FTT was afforded two opportunities of seeking permission to appeal, first by seeking to persuade a single judge of the FTT that the proposed appeal raised an arguable issue of law and, secondly, if unsuccessful at that stage, by seeking to persuade a single judge of the UT that the proposed appeal raised an arguable issue of law.  If the UT judge failed to ask himself the right question and, as a result, refused permission to appeal, that meant that the applicant have been deprived of one of his opportunities which Parliament had said that he should have.  That amounted to a collapse of fair procedure.

[8]        In support of that argument Mr Jones referred me to the decision of the UT judge.  He acknowledged that in certain paragraphs of that decision the UT judge had purported to apply the “arguability” test, though he questioned whether he had in fact done so.  However, in other paragraphs it was clear that , instead of deciding whether the proposed appeal raised an arguable point of law, he had in fact decided the point.  Thus, in connection with the petitioner’s article 8 argument based on his relationship with his fiancée (and mother of his child) and his two year old child and the effect that his removal to Zimbabwe would have on his family life, the UT judge did not simply consider whether there was an arguable point of law but stated that he found the tribunal’s consideration of these matters “to be free from legal error”.  The concluding paragraph of the decision refusing permission to appeal stated that the grounds of appeal “[did] not demonstrate any error of law in the First-tier Tribunal’s determination capable of affecting the outcome of the appeal.”

[9]        Judges are rightly cautioned about adopting an over-literal or over-syntactical approach to reasons given in any judgment or other form of judicial decision.  Such caution is appropriate particularly, in my view, to a statement which is only intended to be a summary of the reasons leading the judge to refuse permission to appeal.  The decision of the FTT runs to 35 pages and 108 paragraphs.  The grounds placed before the judge of the FTT in the application for permission to appeal ran to 11 pages and 32 paragraphs.  Those grounds were incorporated by reference into the grounds presented to the UT judge in support of the renewed application for permission to appeal, which grounds ran to a further three pages and included a further 15 paragraphs.  It was not incumbent upon the UT judge to consider each paragraph separately, nor to deal with the application for permission as though it were the hearing of the appeal itself.  His reasons must, of course, explain with sufficient clarity why he has refused permission to appeal, but they will be brief and, perhaps inevitably, not as precisely worded as would be expected from a full decision on the merits.  In short, it is wrong, in my opinion, to subject such reasons to a meticulous analysis of the words used rather than look to the substance of what the UT judge is saying.

[10]      In order to test his argument, I asked Mr Jones to show me the passages in the decision of the FTT relevant to the article 8 claim and the UT judge’s refusal of permission to appeal on that point.  It emerged clearly from that that the FTT had considered the closeness or otherwise of the family relationship in great detail.  It concluded that the relationship was not at all close.  In deciding that the family relationship did not weigh heavily against the removal of the petitioner to Zimbabwe, the FTT simply applied the appropriate legal test to the facts it found to be established.  The petitioner’s challenge to that part of its decision was, in effect, no more than a challenge to the fact findings made by the FTT.  On this point the proposed appeal did not raise any point of law, arguable or otherwise.  It may be that the UT judge should have said that the tribunal’s consideration of these matters did not raise any arguable point of law, or was not arguably wrong in law, but it is easy having considered the decision of the FTT to see that that is precisely what the UT judge must have meant.  In any event, whether this is what he meant or not, the fact is that the decision of the FTT on this article 8 claim does not give rise to any arguable point of law.  Mr Jones did not suggest that other passages in the decision of the FTT and the proposed grounds of appeal would advance his arguments if I was against him on the article 8 point.  This argument therefore fails.  The UT judge did not apply the wrong test and there has been no collapse of fair procedure.

[11]      This is sufficient to dispose of this first argument for the petitioner.  However, I should add this.  An Extra Division in EP v Secretary of State for the Home Department 2014 SC 706 held that it was not a “compelling reason” within the Eba test to say that the UT judge in refusing permission to appeal had asked himself the wrong question (“is this a good appeal” rather than “are there arguable grounds of appeal”): see particularly at para [31].  Mr Jones sought to distinguish this case by saying that the asking of the wrong question amounted here to a collapse of fair procedure.  With all due respect to the attractive way in which he put the point, that is simply re-labelling the same argument.  I am bound by the decision of the Extra Division on this point.  For my part I can see great force in an argument that, where the UT judge has simply failed to address the right test and thereby, in effect, deprived the applicant of one of his opportunities of satisfying the test for permission to appeal, the court should view this as a compelling reason for reducing the decision of the UT judge refusing permission to appeal and sending it back for a reconsideration of the application.  The Eba test expressly took into account the fact that by the time the matter came before the court on a petition for judicial review the applicant would already have had two opportunities of persuading a judge (viz a judge of the FTT and a judge of the UT) to grant leave.  Where the UT judge has not considered the application properly, for example because he has asked himself the wrong question, the applicant has not had those two opportunities.  I can see great force in the contention that that may be a compelling reason for sending the matter back for reconsideration.  In Jiaping Zhang [2014] CSIH 48, in the context of an application for leave to appeal a substantive decision of the UT to the Court of Session, where the second appeals test applies directly by statute, Lord Eassie held that the failure by both the FTT and the UT, in their substantive decisions, to deal in any substantive sense with certain parts of the applicant’s claim amounted to a compelling reason to grant leave to appeal: see paras [11]-[13].  As he put it, “the rationale for excluding judicial consideration at a further appellate level falls away”.  In that case, his grant of leave meant that there would be a full substantive appeal to the Court of Session.  In a case such as the present, by contrast, the consequence of deciding that there is a compelling reason to reduce the decision of the UT judge is simply that it goes back to another judge of the UT for fresh consideration.  That does not require excessive use of judicial time or resources.  Nor, so it seems to me, does it fall foul of the rationale behind the approach of the Supreme Court in Eba.  But I am bound on this matter by the decision of the Inner House in EP; and, even if I were not so bound, for reasons already stated I am satisfied that this case does not in fact give rise to that question.

Drastic consequences
[12]      Mr Jones submitted that in this case the consequence for the petitioner if he was sent back to Zimbabwe would be drastic.  Being the son of a person who is an active member of the MDC, he would be subjected to harassment and persecution.  The “truly dire consequences” of his removal, coupled with an error of law on the part of the FTT, could amount to “some other compelling reason” within the second limb of the Eba test.  He referred me to JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273, particularly at paragraphs 22 and 24-27.  He accepted, for this purpose, that he would not only have to show that there were likely to be such truly dire consequences but also that there was a good prospect of the appeal succeeding on the point of law sought to be raised.

[13]      By way of identifying the point of law relevant to this part of his argument, Mr Jones submitted that the FTT had erred (in para 56) in failing to recognise the distinction in treatment on arrival in Zimbabwe between voluntary and involuntary returnees, contrary to the relevant Country Guidance cases.  I am not persuaded that he is right that they did fail to recognise that distinction, despite what is said in para 56, since Mr Komorowski pointed out that at para 57(b) the FTT had in fact made remarks which were pertinent only to the case of involuntary returnees returning under escort.  They proceeded on the basis that as an involuntary returnee, returning under escort, he would be questioned by police on his arrival.  So even if there was a misstatement of the law in para 56, it does not seem to have affected their decision.  It is therefore unlikely that the petitioner can show that the proposed appeal raises an arguable point of law on which he has a good prospect of succeeding.

[14]      Be that as it may, it seems to me that this argument must fail for a different reason.  The only material upon which I was asked to find that there were potentially dire consequences to the petitioner of him being returned to Zimbabwe was that set out in the decision of the FTT, read, of course, in the context of the relevant Country Guidance cases which confirm the continuation, although possibly now at a reduced level, of political violence and intimidation in Zimbabwe.  The FTT went into this matter in considerable detail.  They noted that the petitioner’s father had returned to Zimbabwe voluntarily for about five days in the recent past without being subject to any harassment or intimidation.  They noted that other relatives continued to live in Zimbabwe without apparent harassment or intimidation on account of their relationship with the petitioner’s father.  Accordingly, they found that the petitioner had not made out any case that he would be subjected to such treatment if he returned to Zimbabwe.  The petitioner has no interest in politics and would be unlikely, on that account at least, to bring himself to the attention of the authorities; and the connection with his father is not shown to give rise to any likelihood that he will picked out for special treatment even if his involuntary return to Zimbabwe brought him on arrival to the attention of the authorities.  In those circumstances the petitioner has failed to make out his case under this head.

Disposal
[15]      It follows that the Eba test is not satisfied and the petition must be refused.

[16]      I should just add this.  It was, as I understood it, the joint motion of counsel that, if I had come to a different view and been in favour of the petitioner at this stage, I should appoint the petition to a substantive first hearing at which the petition would be decided on its merits.  That may be the sensible course in some cases.  But that course may not be necessary in all cases.  The question to be decided once the Eba test is satisfied is whether the UT judge refusing permission to appeal has erred in law or whether in some other way his decision falls to be reduced.  The focus is on the decision of the UT judge, not on the substantive decision of the FTT from whom the appeal is sought to be taken: SA at para [15].  The error of law on the part of the UT judge refusing permission to appeal will usually be simply that he failed to recognise that the proposed appeal raises an arguable point of law: see MUB per Lord McGhie at para [31].  A decision at the procedural first hearing in favour of the petitioner on the Eba test will usually involve a decision that the proposed appeal does indeed raise an arguable point of law.  Thus, the first limb of the second appeals test is that the proposed appeal raises “an important point of principle or practice”.  That important point must involve a point of law, since the UT’s appeal jurisdiction is confined to errors of law.  A finding that the first limb in Eba is satisfied therefore will usually (perhaps necessarily) mean that there is an arguable point of law and that the UT judge was wrong (in law) not to recognise that.  Similarly, the second limb of the second appeals test (“some other compelling reason”) can usually be satisfied only if, in the first place, it is arguable that the FTT has erred in law.  In that case too, a finding that that limb of the test is satisfied will usually (perhaps necessarily) involve a finding that there is an arguable point of law which the UT judge was wrong (in law) not to recognise.  In such cases it should not be necessary to appoint the case to a substantive first hearing.  Such a hearing would be a waste of time and expense; there will be nothing further to discuss.  The Practice Direction No 2 of 2013 does not require that a substantive first hearing be fixed.  In such cases, therefore, where I found the Eba test to be satisfied, I would need persuading at the procedural first hearing that I should not there and then grant the petition and reduce the decision of the UT judge refusing permission to appeal.