Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 42

XA2/16

OPINION OF LORD BRODIE

in the application for leave to appeal under section 13(4) of the Tribunals, Courts and Enforcement Act 2007

of

THOMAS WAMBUA

Applicant;

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Applicant:  J Mitchell QC, Irvine;  McGill & Co

Respondent:  Webster;  Office of the Solicitor to the Advocate General

10 June 2016

Introduction

[1]        This is an application under section 13(4)(b) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal (“the UT”) dated 15 and promulgated 29 October 2015.  I have had the benefit of oral submissions made on 26 April and resumed on 24 May 2016 in addition to the notes of argument for the parties.  Mr Mitchell QC, representing the applicant supplemented this by a note of key issues lodged on 24 May 2016.

[2]        The applicant is Thomas Wambua.  He is a citizen of Kenya.  His date of birth is 22 December 1984.  He entered the UK on 23 August 2007 and currently lives in Perth.  He has a daughter, T, who was born in Scotland in 2011.  The mother of T is Ms K who is a citizen of the Czech Republic. T is accordingly also a citizen of the Czech Republic. The applicant and Ms K lived together but then separated.  Ms K has now married another man. T and Ms K live together with Ms K’s husband in Dundee. The applicant and Ms K remain on good terms. The applicant has contact with T.

[3]        The applicant has been entitled to be resident in the United Kingdom by virtue of a series of leave to enter visas until 6 October 2014.  On 29 September 2014 he applied for leave to remain. That application was refused by decision dated 14 January 2015.  He appealed that refusal both under reference to the Immigration Rules (which are not now relied on) and on the basis that to require him to remove himself from the UK was a disproportionate interference with his private and family life and therefore a contravention of his rights under article 8 of the European Convention on Human Rights.  The appeal was refused by the First Tier Tribunal (“the FTT”) in terms of decision dated and promulgated on 21 May 2015. On 4 August 2015 the FTT granted permission to appeal to the UT on the view that arguably insufficient consideration had been given to the best interests of T, bearing in mind that in the event of the applicant no longer being resident in the UK, his regular direct contact with T would not continue. The appeal to the UT was refused in terms of the decision of 15 October 2015.  An application for permission to appeal the decision of the UT, made in terms of section 13(4)(a) of the 2007 Act was refused by the UT on 24 November 2015.

Proposed grounds of appeal

[4]        In summary, what is proposed as the grounds of appeal are as follows:

1.   The UT erred as to the citizen status of Ms K and T in finding their immigration statuses to be “precarious rather than assured” – cf art 21 Treaty on the Functioning of the European Union, Case 48/75 Royer v Belgium [1976] 2 CMLR 619, Directive 2004/38/EC of the European Parliament and of the Council (the Citizenship Directive)

2.   The UT erred in its assessment of proportionality by –

1.         Attaching a less than primary-EU-status to the applicant’s child and carrying out a balancing of proportionality by reference to the removal of the appellant , there being only one family life between him and T cf Beoku-Betts v SSHD [2009] 1 AC 115

2.         Failing to have regard to T’s best interest in retaining direct contact when considering proportionality

3.          Balancing the effects on the child against “the need to maintain the Rules” as opposed to the need to maintain effective immigration control (which may be consistent with the grant of leave to remain outwith the Immigration Rules)

4.         Treating the “need to maintain the Rules” or in any event the need to maintain effective immigration control as inherently more significant than the best interests of the child

3.   The UT erred in its assessment of the best interests of the child by treating the need to maintain the Rules (being the only other factor, given that the applicant was in the UK lawfully). Moreover, the UT erred in asking itself the negative question as to whether there would be any negative effect on the child if she saw less of her father rather than the positive question what is in the child’s best interests.

4.   The UT has failed to take account of T’s right to regular direct contact with her father in terms of article 24 (3) of the Charter of Fundamental Rights of the European Union cf Case C-34/09 Ruis Zambrano v Office national d’emploi [2012] QB 265, Omotunde [2011] UKUT 00247.  The mere fact that it was not included in the appeal is not of itself a basis on which to refuse permission.

The issue

[5]        The right of appeal (with permission) conferred by section 13(1) of the 2007 Act is “on any point of law arising from a decision made by the Upper Tribunal”.  What amounts to error of law can be understood by reference to the decision in HA v Secretary of State for the Home Department 2008 SC 58.  However, by virtue of RCS 41.57 (2):

“Permission shall not be granted unless the court considers that - 

(a) the proposed appeal would raise some important point of principle; or

(b) there is some other compelling reason for the court to hear the appeal.”

Thus, subject to the minor and for the purposes of this application the apparently immaterial difference that RCS 41.57 does not currently contain a reference to an important point of practice, when deciding whether to grant permission this court is required to apply what was described in Eba v Advocate General 2012 SC (UKSC) 1, SA (Nigeria) v Secretary of State for the Home Department 2014 SC 1 and elsewhere, as the second appeals test (encapsulated in the note of argument for the respondent as requiring the identification of an error which “cries out for correction” - see SA at para 44). Thus, demonstrating an arguable material error in law is not enough; the proposed appeal must also either raise an important point of principle (in the sense of a point of principle which is yet to be established: Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 at para 18) or there must be some other compelling reason for the court to hear the appeal.  In this context, “compelling” means legally compelling (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 at para 36.  As for other compelling reason extreme consequences for an individual are not enough unless in combination with strongly arguable error of law (PR at para 36, JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273 paras 22 and 26);  where the second leg of the test is relied on the prospects of success must be very high (Uphill at para 24 (1)).

Rule 41.57 (2) criteria in the present case: the respective positions of parties

[6]        As meeting the important point of principle criterion the applicant puts forward the effect on the assessment of proportionality of T’s article 24(3) Charter right to direct contact (see Abdul (section 55 – Article 24 (3) Charter) [2016] UKUT 106).  As far as other compelling reason was concerned the applicant puts forward the submission that the best interests of T had not been correctly assessed at any stage of the applicant’s involvement with the immigration authorities (cf B (A Child) [2009] EWCA Civ 545 at para 14, and note section 55 of the Borders Citizenship and Immigration Act 2009 which imposes a duty on the respondent to ensure that immigration etc. functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom). Moreover, esto the effect of article 24(3) of the Charter is not to constitute an important point of principle, given that the decision in Abdul recognising that article 24(3) created a freestanding right to have contact post-dated the decision at issue in this appeal, the decision-maker and the FTT may be taken to have made a material error in law. That amounts to a further compelling reason to grant leave to appeal.

[7]        In opposing the application under reference to the point of principle leg of the second appeals test, the respondent points to the fact that any appeal in terms of section13(4) must be on a point of law arising from a decision made by the UT:  Application for leave by SB [2013] CSIH 89 at para 23, MBR v Secretary of State for the Home Department unreported 12 February 2013, as referred to in MBR (Iran) v Secretary of State for the Home Department 2013 SLT 1108.  The applicant had not founded on the Charter of Fundamental Rights of the European Union before the UT.  In any event it is submitted that article 24(3) should be construed in the light of the Explanations on the Charter included in the relevant issue of the Official Journal which indicates the limited effect of the right which is conferred by article 24(3).  On other compelling reason, the respondent submits that the UT had been correct in endorsing the finding that the status of Ms K was unclear but that that is not material in that the FTT had considered the best interests of T, predicating that consideration on the continued residence of Ms K and T in the UK and concluding that T’s best interests would be advanced by her residing with Ms K and having contact with the applicant but that the removal of the applicant from the UK would not be a disproportionate interference with that contact given that while contact would be reduced it would not be extinguished.

Decision

[8]        Before I can grant permission to appeal in relation to a particular ground I must be satisfied of the following (cumulative and progressively more stringent) points: (1) that the relevant proposed ground of appeal is stated in terms which are clear and specific; (2) that it is on point of law; (3) that it arises from a decision made by the Upper Tribunal; (4) that it is arguable with real prospects of success; and (5) that it meets one or other of the legs of the second appeals test.

[9]        As far as proposed grounds 1, 2, and 3, are concerned I have not been satisfied on what I have described as point (4) but even if my assessment in respect of one or another of these proposed grounds is wrong, I have not been satisfied in respect of point (5).

[10]      Proposed ground 1 avers that the UT erred as to the citizen status of Ms K and T in finding their immigration statuses to be “precarious rather than assured”.  That expression is taken from paragraph 17 of the UT determination which reflects the FTT’s statement at paragraph 33 of its determination that the permanence of Ms K’s status is contingent on her being able to satisfy the provisions of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), as amended.  Of that statement the UT observed, again at paragraph 17, that there was no legal error in finding that it is unclear whether Ms K will be able to satisfy the provisions of the regulations on which her status is contingent.  I agree. The argument before me was conducted by reference to the Citizenship Directive, which the 2006 Regulations were intended to transpose, rather the Regulations which were referred to before the Tribunal, but nothing turns on that.  The right of permanent residence conferred by article 16 of the Directive depends on an EU citizen having “resided legally” for a continuous period of five years in the host member state.  Precisely what “resided legally” means may not be entirely clear (although the most superficial of searches would indicate that question has been litigated:  eg Case C-529/11 Alarape and Tijani; and Joined Cases C-424/10 and C-425/11 Ziolkowski and Szeja) but Mr Mitchell accepted (correctly in my opinion having regard to recital (17) and article 7 of the Directive) that some content had to be given to “legally”.  It is therefore not enough for Ms K to have acquired a right of permanent residence under article 16 that she has resided in the UK for a continuous period of five years (as I had initially understood Mr Mitchell to submit), she must, for example, have been there as a worker.  In other words her precise status is fact sensitive.  However, interesting and difficult as the meaning of the article and its application may be, as Mr Webster submitted on behalf of the Secretary of State, that is of no consequence in the present case.  I agree with Mr Webster that it is apparent from the determinations that the Tribunal considered the question of where the best interests of T lay, predicated, as Mr Webster put it, on her residence in Scotland with Ms K and her husband, albeit subject to the accurate caveats that none of the family members were UK nationals and although Ms K was an EU citizen her right of permanent residence in the UK was uncertain.  It was recognised that T was likely to enjoy more benefit from regular and direct contact with the appellant than contact which was mainly indirect and only intermittently direct which would be the consequence of the appellant’s removal to Kenya (UT determination paragraph 14).  This was taken into account in determining the proportionality of applying a rule based system of immigration control in the circumstances of the case.  I do not see any of grounds 1, 2, or 3 as arguable with real prospects of success but even if that is wrong I do not see any of them as satisfying the second appeals test.

[11]      I would see ground 4 as requiring separate consideration.  It raises what I have designated as point (3): does the proposed ground of appeal arise from a decision made by the Upper Tribunal?  Point (3) reflects the terms of section 13(1) of the 2007 Act which provides that “For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision” (see also Application for leave to appeal by SB at para 23 and Secretary of State for Work and Pensions v Robertson 2016 SLT 52).

[12]      Ground 4 complains of a failure on the part of the UT to take account of T’s right to regular direct contact with her father in terms of article 24(3) of the Charter of Fundamental Rights of the European Union.  Article 24 (3) of the Charter provides: “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both of his or her parents, unless that is contrary to his or her interests”.  The preceding paragraphs of article 24 are in these terms:

“24      (1) Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

(2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”

[13]      Mr Mitchell’s argument in support of ground 4 was ambitious. On Mr Mitchell’s approach article 24(3) conferred a right on every EU citizen child, distinct from and additional to those conferred by the preceding paragraphs of article 24, to direct contact with both parents which was fundamental in nature and which could only be “trumped” by it being shown that contact would not be in the child’s best interests.  The right was discrete and free-standing: Abdul (section 55 – Article 24 (3) Charter) at paras 26 to 30.  Entirely properly, Mr Mitchell did not seek fully to develop his argument given the nature of the application which he was making but he took it far enough, under reference to paragraphs 12 to 14 of the application for leave to appeal, to indicate that it would be his contention that the UT had erred in failing to take as its starting point T’s rights under the Charter, these being rights which could not be subordinated to or qualified by considerations external to the child’s interests.  Now, to put it no higher, I would see difficulty with this line of argument, notwithstanding the support it gets from the dicta of the President of the Upper Tribunal Immigration and Asylum Chamber in Abdul.  As Mr Webster pointed out, it has to contend with the Explanations Relating to the Charter of Fundamental Rights (2007/C 303/02) Official Journal 14.12.2007 which suggest a much more limited construction of article 24(3) and, even if the paragraph were to be given the construction contended for Mr Mitchell, regard would have to be had to the terms of article 52(1) of the Charter and the observation at paragraph 43 of the judgment of the European Court of Justice (Fifth Chamber) in Boudjlida v Préfet des Pyrénées-Atlantiques Case C-249/13 that even fundamental rights do not constitute unfettered prerogatives and therefore may be restricted provided that the restrictions correspond to objectives of general interest and that they do not involve disproportionate and intolerable interference with the substance of the guaranteed rights .  However, that is not my current concern.  There was no mention whatsoever of the Charter before the UT (or the FTT), notwithstanding that it entered into force on 1 November 2009, and there was certainly no mention of a right such as Mr Mitchell now contends is conferred by article 24(3).  That is not a criticism.  It is simply a fact.  It has consequences for the jurisdiction of this court.

[14]      That the rights under article 24(3) point was not before the UT was freely acknowledged by Mr Mitchell.  At paragraph 14 of the application for leave to appeal it is also acknowledged but with a qualifying assertion:

“In failing to have regard to the appellant’s child’s right under article of 24(3) of the Charter to regular direct contact with her father, the Tribunal has erred in law. The mere fact that this point was not included in the appeal before the Tribunal is not of itself a basis on which to refuse permission: R v Immigration Appeal Tribunal [2000] INLR 389; Bulale v Secretary of State for the Home Department [2009] QC 536.”

I have considered the two decisions referred to in the application. Both refer to the line of authority associated with R v Secretary of State for the Home Department ex p Robinson [1998] QB 929 and circumstances where a court may allow a point to be taken which has not previously been identified by parties.  I do not see either decision as having direct application to the question as to whether this court has jurisdiction in terms of section 13(1) of the 2007 Act to entertain an appeal on ground 4.  This court only has jurisdiction in respect of a “point of law arising from a decision made by the Upper Tribunal”.  Here, the decision made by the UT was on the question raised in various articulations in the four grounds of appeal from the FTT and encapsulated by the grant of permission of 4 August 2015 as being whether the FTT had given insufficient consideration to the best interest of the child.  The proposed point of law is that the UT was bound to “have regard” to the child’s article 24(3) right, as it is put in paragraph 14 of the application for leave, “to the greatest extent possible”, and failed to do so.  As is acknowledged, the UT was not asked to have regard to any article 24(3) right.  Rather, it was encouraged to make its decision by reference to best interests considerations in assessing proportionality.  In paragraph 13 of the application for leave these considerations are expressly distinguished from the article 24(3) right consideration. The approach which, according to ground 4, it is now said the UT should have adopted is radically different from that which had been contended for when the appeal was argued before the UT and by reference to which the UT made its decision. Unsurprisingly, there is nothing in the UT’s reasoning about article 24(3).  Accordingly, while the ground 4 point is no doubt a point of law, it is a point of law in the abstract;  it does not arise from the particular decision of the UT which the applicant wishes to bring under appeal.  This court therefore does not have jurisdiction in respect of an appeal presented under ground 4.

[15]      Permission to appeal the decision of the UT of 15 October 2015 is accordingly refused.  All questions of expenses are reserved.