Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 88

P6/15

OPINION OF LORD PENTLAND

In the Petition of

DE

Petitioner;

for

Judicial Review of a decision of the Upper Tribunal to refuse permission to appeal to itself, dated 24^th March 2014. 

Petitioner: Byrne: Drummond Miller LLP

Respondent:  McIlvride QC: Office of the Advocate General

7 July 2015

[1]        In this petition for judicial review the petitioner, a citizen of the Philippines, seeks reduction of a decision of the Upper Tribunal issued on 24 March 2014.  By that decision the judge of the Upper Tribunal refused permission to appeal against a decision of the First‑tier Tribunal of 27 January 2014.  The case came before me for determination at a first hearing. 

[2]        The factual and procedural background may be summarised as follows.  The petitioner's daughter came from the Philippines to the United Kingdom in October 2006 on a work permit visa, leaving her two children in the care of their father and the petitioner.  In 2012 the daughter was granted indefinite leave to remain;  in January 2013 she was naturalised as a British citizen.  The daughter's husband came to this country in July 2007;  the parties' two children remained in the care of the petitioner in the Philippines. 

[3]        In August 2009 the petitioner entered the United Kingdom with a six month visitor's visa.  She brought the children with her.  The children were granted indefinite leave to remain as dependents of their mother.

[4]        The children have now become British citizens, as has their father.  The family lives together in Glasgow, another child having been born in this country. 

[5]        Between 2009 and 2010 the petitioner visited the family from the Philippines on a visitor's visa.  In July 2011 she again visited the United Kingdom.  At about that time she was diagnosed with cervical cancer for which she received treatment, including a hysterectomy. 

[6]        On 10 February 2012 the petitioner applied for indefinite leave to remain in the United Kingdom.  She relied on her family circumstances and on the fact that she was extremely unwell, having been diagnosed with cancer.  Her application stated that she depended on her family in the United Kingdom to take care of her physically and emotionally. 

[7]        On 24 July 2012 the Secretary of State refused the petitioner's application for indefinite leave to remain.  The decision notice went on to say that it was, however, accepted that the petitioner was in a genuine relationship and, therefore, following certain changes to the Immigration Rules she had been granted leave to remain for a period of 12 months exceptionally outside the rules. 

[8]        The Secretary of State has power to grant leave to enter or remain in the United Kingdom outside the Immigration Rules and it is this power that was exercised in the case of the petitioner by way of the decision issued on 24 July 2012.  In this context guidance has explained that ‘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.  The definition of exceptional circumstances is designed to deal with cases where a hardship resulting from removal from the United Kingdom would be disproportionate to the objective of maintaining consistent control over immigration policy; in such a case removal would amount to a breach of article 8 (MS v Secretary of State for the Home Department [2013] CSIH 52).

[9]        In anticipation of the expiry of the grant of leave to remain on 23 July 2013, the petitioner made a further application on 4 July 2013.  She submitted that her article 8 rights had become stronger due to her increased integration into the family in Glasgow and she requested that she should be granted permission to remain for a period longer than 12 months.  By the time of this application the petitioner's health had improved, the cancer treatment having been successful and the petitioner having been told to attend for annual check-ups.  It was not submitted that she required to live with her daughter in Glasgow because of her diagnosis of cancer. 

[10]      On 24 September 2013 the petitioner's renewed application was refused under the Immigration Rules and article 8.  On this occasion the decision notice stated that the Secretary of State did not consider that there were exceptional circumstances sufficient to justify granting leave to remain outside the requirements of the rules.

[11]      The petitioner appealed against the decision to the First‑tier Tribunal.  She submitted that, following the grant of leave to remain for 12 months, her article 8 rights had strengthened.  It was said to be inconsistent to refuse her further leave to remain. 

[12]      The judge of the First‑tier Tribunal conducted a careful evaluation of the petitioner's case in the context of her article 8 rights.  From the terms of his judgment it is clear that he understood the basis and grounds of the appeal.  For example, he referred in paragraph 8 to the emphasis placed by the petitioner on the decision in July 2012 to grant her temporary leave to remain.  With regard to the petitioner's article 8 claim, the immigration judge said this in paragraph 15: 

“(b)  Family life exists for the appellant in the UK because her only daughter, her son-in-law and her three grandchildren are in the UK;  but the appellant is an independent adult.  The appellant lived an independent life in the Philippines.  She brought her daughter up there and she cared for her grandchildren there between 2007 and 2009.  Between 2009 and 2011, the appellant lived an independent life in the Philippines and was able to travel between the UK and the Philippines, maintaining contact with her daughter, her son-in-law and her grandchildren by lengthy visits to the UK.

(c)  All that has changed is that the appellant suffered from a serious illness in 2011.  A copy of the appellant’s application for leave to remain in the UK is reproduced in the appellant’s first inventory of productions.  It can be seen from that application that the appellant advanced arguments in terms of the then Immigration Rules and in terms of Article 8 of the 1950 Convention.  The respondent granted leave to remain for a period of 12 months but quite clearly did so rejecting the arguments advanced in relation to the Immigration Rules (and so rejecting the assertion that the appellant lived alone outside the UK in the most exceptional circumstances) and rejected the argument that the refusal and removal would amount to a disproportionate breach to the right to respect for family life, but granted 12 months limited leave to remain in the UK, relying on the appellant’s medical condition.”

[13]      The petitioner then sought permission to appeal to the Upper Tribunal.  This was refused by a different immigration judge of the First-tier Tribunal.  The reasons for refusal of permission rejected as being without merit the contention that the petitioner had a legitimate expectation of being granted further leave to remain on the basis of the previous 12 month grant. 

[14]      The petitioner then applied to the Upper Tribunal for permission to appeal.  This is the decision that is challenged in the present petition.  It was in the following terms: 

“1.  For some unexplained reason the grounds seeking permission to appeal assert that the appellant had a legitimate expectation that she would be granted further leave to remain on the basis of a genuine relationship given that she had initially been granted such leave.  The application which led to her being granted leave to remain on an exceptional basis was made on the basis of her relationships with her child, extended family and her health.  At no point is there any mention of her having a ‘genuine relationship’.  The application for further leave to remain made clear that it was assumed by the applicant that the ‘genuine relationship’ referred to the relationship between the appellant and her daughter and other extended family members.  The First-tier Tribunal judge plainly considered the whole of the appellant’s family circumstances including her health in reaching his decision. 

2.  It is plain that the appellant was granted discretionary leave on the basis of her family and health.  The appellant’s representatives, in their grounds seeking permission to appeal, appear to be attempting to place a gloss on the grant of discretionary leave to remain which is not there. 

3.  The First-tier Tribunal judge carefully considered the whole of the appellant’s circumstances and reached a decision well within the range of permissible decisions.  On the basis of the evidence before the judge those were conclusions he was entitled to draw;  they are not perverse or irrational.

4.  There is no arguable identifiable error of law.”   

[15]      When the petition came before the Lord Ordinary for a procedural first hearing he decided that there appeared to be a compelling case that the First‑tier and Upper Tribunals had gone wrong.  He repelled the respondent's plea to the competency of the petition and allowed a substantive first hearing.  The effect of the Lord Ordinary's decision is that the merits of the petition are for me to decide (M, Petitioner 2014 SLT 851).

[16]      On behalf of the petitioner, it was submitted that the Upper Tribunal had missed the point of her grounds of appeal against the decision made in September 2013 to refuse her leave to remain in the United Kingdom.  The reason for allowing the petitioner leave to remain for 12 months could not be said to have been because of her illness.  That much was clear from the decision notice of 24 July 2012;  it made no mention of her medical condition, but referred merely to the petitioner being in a genuine relationship.  The First‑tier and Upper Tribunals had misunderstood the basis on which the petitioner had been granted exceptional leave to remain for 12 months;  they had assumed that it was because of her medical condition, but such an assumption was not justified.  One had to have regard to the literal wording of the decision notice (which had not been amended) and not read into it more than it said.  The focus of the appeal against the decision of the First‑tier Tribunal was that since the petitioner had been granted leave to remain in the United Kingdom because of her genuine family relationships and circumstances, such leave should have been extended in 2013;  by that time her case for being allowed to stay had only grown stronger.  The Secretary of State acted inconsistently in refusing the petitioner’s application.  The appeal was at least arguable and the Upper Tribunal had erred in law in refusing permission to appeal.

[17]      In my opinion, the petitioner's submissions are unsound and must be rejected.  They depend on an unrealistically narrow and unduly literal reading of the decision notice of 24 July 2012.  The acceptance that the petitioner was in a genuine relationship cannot, on any reasonable view, have been the determining basis of the finding that her circumstances were exceptional.  Whilst the reference to a genuine relationship is somewhat opaque, the existence of a family relationship can only have been a starting point in the consideration of whether, in the whole circumstances, the petitioner should exceptionally be allowed to remain for 12 months; in other words, it was a necessary pre-condition for article 8 being held to have been engaged.  She had applied for indefinite leave to remain because she was dependent on her daughter and extended family for support during her cancer treatment.  The application for indefinite leave was refused, but she was permitted to remain for 12 months outside the Immigration Rules because her circumstances were considered to be exceptional.  The only feature of her case that could, on any realistic view of matters, have been regarded as exceptional was her illness and her need for family support during treatment for it.  That is how an informed reader, knowing of the grounds of the application, would inevitably have understood the decision notice (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at 348).

[18]      It follows that the First‑tier Tribunal judge was correct in what he stated in paragraph 15(c) of his judgment:  the Secretary of State had indeed rejected the petitioner's application for leave to remain indefinitely in the United Kingdom on the basis that there would be no disproportionate interference with her article 8 rights;  and instead had granted 12 months limited leave to remain relying on her medical condition.  There is no other sensible way to read the decision notice of 24 July 2012. 

[19]      It also follows that the petitioner cannot have had any reasonable expectation that she would be granted further leave to remain in this country at the end of the 12 months. 

[20]      When it comes to the decision of the Upper Tribunal to refuse permission to appeal, there was no error of law.  The Upper Tribunal judge did not misapprehend the petitioner's grounds of appeal or anything that had gone before in the history of the case.  He correctly understood the basis of the petitioner's application for indefinite leave to remain, the fact that her application had been refused, the decision to grant leave for 12 months for exceptional reasons and the grounds upon which the latter decision was taken.  It was clearly right for the Upper Tribunal judge to state that leave to remain for 12 months was granted on the basis of the petitioner's family and health.  The Upper Tribunal was well-founded in holding that the First-tier Tribunal had correctly appreciated why the petitioner had been granted exceptional leave to remain in the United Kingdom for a limited period.  In the circumstances, the Upper Tribunal judge was, in my view, entitled to conclude (and was correct in concluding) that there was no identifiable error of law in the reasoning or the decision of the First‑tier Tribunal and accordingly to refuse permission to appeal.  Even if there was an error on the part of the First-tier Tribunal of the type alleged by the petitioner (and in my view there was none), I fail to see how any such mistake could be said to have materially affected the outcome of the appeal.  There was abundant material to support the view that the petitioner’s article 8 rights would not be infringed by refusing to allow her to remain in the United Kingdom as at July 2013;  the facts and circumstances bearing on that view of matters are fully set out and considered in the determination made by the First‑tier Tribunal.

[21]      Since there was no material error of law in the decision of the Upper Tribunal, I must refuse the petition.  I shall do so by sustaining the respondent's second plea-in-law and refusing the petitioner's pleas.  I shall reserve all questions as to expenses.