Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 28

P1376/15

OPINION OF LORD BOYD OF DUNCANSBY

In the petition of

CHENNAN FEI (AP)

Petitioner;

for

Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the Petitioner Permission to Appeal

Act:  Caskie;  Drummond Miller LLP

Alt:  Massro;  Office of the Advocate General

16 February 2016

[1]        This is the first of a series of permission hearings arising out of the presentation of some 62 petitions before the deadline of 22 December 2015 imposed by the transitional provisions following the coming into force of section 89 of the Courts Reform (Scotland) Act 2014.  This amended the Court of Session Act 1988 by introducing new sections 27A –27D.  The effect of these new sections is to bring in a time limit within which judicial review of administrative decisions may be brought before the court and provides that the petitioner must obtain the permission of the court to proceed. 

[2]        The court may only grant permission if it is satisfied that the petitioner has a sufficient interest in the subject matter and it has a real prospect of success.  Where, as here, the decision under review is one of the UT refusing leave to appeal from the FTT there is a further condition.  The court must be satisfied that the petition raises an important point of principle or practice or that there is some other compelling reason for allowing the application to proceed;  the Eba or second appeals test section 27B(3). 

The petition
[3]        The petitioner is a citizen of China.  She arrived in the UK as a dependant of her father on 7 March 2002 when aged 13.  She was granted leave to remain in a number of capacities until 30 November 2003 when she became an overstayer.  She made a further application for leave to remain in 2003 but that was refused on 14 December 2004.  It is apparent that she was unaware of her immigration status until she became an adult and applied for university.  She then applied for asylum on human rights grounds.  Her application was refused.  She appealed to the FTT but her appeal was dismissed.  The FTT refused her leave to appeal to the UT.  She sought leave from the UT to appeal but that was refused on 20 July 2015.  The petitioner seeks the permission of this court to judicially review that decision.  

[4]        The evidence before the FTT showed that the petitioner had formed a close friendship with an older woman whom she referred to as her godmother.  She now lived in the same house and they depended on each other.  She had not been back to China since she left.  Although she spoke Chinese she could not read or write the language.  Her home life was established in this country.  

[5]        It was accepted that the petitioner could not satisfy the Immigration Rules but she argued that she ought to be given leave to remain outside the rules on human rights grounds.  The FTT rejected the argument. 

[6]        The petitioner argues that the FTT made an error of law.  Having considered the issue of her private life established with the woman she called her godmother, the FTT referred to section 117B(4) of the Nationality, Immigration and Asylum Act 2002, and noted that little weight should be given to a private life established when the status is precarious.  At paragraph 71 the FTT accepted that little weight does not mean no weight.  The FTT judges then said this: 

“However the wording of paragraph 117B is, in our view decisive in assessing whether or not removal of the Appellant is proportionate to the legitimate aim being pursued namely the economic well-being of the country through the enforcement of immigration control.”

[7]        The argument for the petitioner is to the effect that the FTT failed to read section 117B properly and chose one element, the precariousness of the petitioner’s status at a time when the relationship with the godmother was formed, as the decisive element.  That was an error.  Section 117A directed the decision maker, in considering the public interest to have regard in particular to the public interest considerations listed in section 117B.  This was a not a new consideration.  It was one factor to be taken into account but it could never be the decisive factor. 

[8]        When faced with this ground of challenge to the FTT’s decision the UT had said that this amounted to no more than a disagreement.  The UT said that the FTT panel had given full and careful consideration to the article 8 claim and concluded that although the petitioner had established a private life the significance was outweighed by the public interest factors on the other side. 

[9]        The petitioner challenges the decision of the UT as being in itself an error of law essentially as I read it because it came to wrong decision on the ground of appeal.  She argues that it raises an important point of principle.  Although the case of Dube (sections 117 A – 117D) [2015] UKUT 00090 (IAC) indicated that sections 117 A – 117D are not a radical departure from prior jurisprudence they say that in the context of the procedure that a tribunal should follow and not the substance of the assessment.  Accordingly the Eba test was met. 

[10]      Having considered the petition, the supporting documents and the answers for the respondent I ordered an oral hearing and issued a note in the following terms: 

“I am minded to refuse permission.  There is no error of law.  The FTTJ was duty bound to have regard to all of the factors enumerated in s.117B including that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.  Even if there was an error of approach by saying that the factors in s117B were decisive it is difficult to see any other outcome to this appeal.  In any event the UT fully considered the point in their refusal. 

Further as the respondent points out in the answers the interpretation of the statutory provisions were fully considered in Secretary of State for the Home Department v Dube (ss117A – 117D) [2015] INLR 521.  No point of principle arises.  Accordingly the petition does not meet the test in section 28B(3)(c) of the 1988 Act.”

[11]      Mr Caskie, for the petitioner, and Mr Massaro, for the respondent, addressed me at the permission hearing.  It is not necessary to record their submissions – they amplified the points made in the petition and answers.  In support of his contention that an important point of principle arises Mr Caskie directed me to Dube at paragraphs 21, 23 and 25.  He submitted that Dube was concerned with the way in which a tribunal went about its decision and did not offer clear guidance on the interpretation of sections 117A – 117D.

The meaning of “real prospects of success”
[12]      As this was the first of a number of petitions that I was considering I indicated to parties that I would welcome being addressed on the meaning of “real prospects of success”.  I am grateful to counsel for their assistance. 

[13]      The meaning of the phrase was recently considered by Lady Wolffe in Ochiemhen v Secretary of State for the Home Department [2016] CSOH 20.  She conducted a careful and thorough analysis of the phrase and reviewed the authorities.  A number of these were also cited to me, in particular the observations of Lord Drummond Young in Carroll v Scottish Borders Council 2014 SLT 659 at paragraph 14 and a decision of the First Division in Hoseini v Secretary of State for the Home Department 2005 SLT 550.  

[14]      In the argument before me Mr Caskie commended the approach taken by Lady Wolffe in Ocheimhan while Mr Massaro argued for the position taken by the First Decision in Hoseini.  As he pointed out although the issue was whether leave should be granted for an appeal to the Inner House from a decision of the Immigration Appeal Tribunal the test was the same and it also involved immigration. 

[15]      I agree with Lady Wolffe that the language is clear.  She referred to the observations of Lord Woolf in Swain v Hillman [2001] 1 All ER 91 (at 92) considering a similar test in the English Civil Procedure Rules.  He said the words do not need amplification;  they speak for themselves (paragraph 37 of Ocheimhan).  There is a danger in my opinion in over analysing the clear words of a statute.  Having considered the matter I do not think I can usefully add much to the debate by conducting my own review of authority.  

[16]      My own conclusion is that the language of the test directs the court to the prospects of success rather than whether the case is stateable or arguable.  That is important.  Many things are arguable;  the ingenuity of counsel knows no bounds.  Focussing on arguability may inhibit the court in addressing the mischief that section 27B(2)(b) is designed to address;  the prevention of unmeritorious claims proceeding (see Lady Wolffe in Ocheimhan at paragraph 32).  In the immigration context, for example, the infelicitous use of a phrase or word in a decision letter or determination may give rise to an argument that there has been an error of law.  But it may have no real prospect of success because it is clear from a reading of the offending word or words in context that there is no error.  

[17]      The word “real” simply means genuine rather than fanciful or speculative.  It is not a high standard but the court must be satisfied that there is some prospects of success. 

Decision
[18]      I refused permission.  I do not accept that there is an error of law.  Looking first at the FTT’s decision, the FTT was carrying out a proportionality assessment.  It set out its conclusions on the evidence in paragraphs 56 to 72.  At paragraph 62 the FTT considers the guidance given by Lord Bingham in Razgar [2004] UKHL 27 in dealing with the final question of proportionality in article 8 cases.  They recognised that they should take into account other members of the petitioner’s family, following Bewoku-Betts v SSHD [2008] UKHL 39.  They had particular regard to the petitioner’s godmother.  At paragraph 64 the FTT adopts the approach in R v Nagre v SSHD [2013] EWHC 720 (Admin) and Gulahan (article 8 – new rules – correct approach) [2013] UKUT 640 (IAC).  In the ensuing paragraphs the FTT refers to all the factors that one would expect them to take into account in considering proportionality.  At paragraph 72 the FTT concludes, “On the totality of the evidence we are concluding that the interference with the appellant’s life is therefore proportionate to the legitimate public end sought to be achieved per Razgar.”  The panel continue that this was not a case where there were compelling circumstances. 

[19]      The UT fully considered the ground of appeal and engaged with the argument.  It concluded that it amounted to no more than a disagreement with the outcome.  In the UT’s assessment the FTT had weighed up all the factors.  In my opinion the UT’s findings on this matter are correct.  Accordingly the petitioner fails to meet the test in section 27B(3)(b).  

However, even if I am wrong on that matter I am satisfied that no point of principle arises.  In my opinion the statute is clear.  Insofar as it required further guidance and elucidation Dube provides that.  Mr Caskie sought to suggest that all that Dube did was to provide guidance on the way in which the tribunal should approach its task.  That is a narrow reading of the decision.  It is difficult to see what further guidance is required from the courts.  The petitioner also fails to meet section 27B(3)(c).