High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background

(i)        In response to the first ground, which criticised Immigration Judge Gillespie for not questioning the applicant in respect of the content of police and medical documents, it was held that the Applicant’s legal representatives had the documents and so her Counsel had ‘every opportunity to put the matters to the Appellant’.

(ii)       That the second, third and fourth grounds merely challenged the weight given to evidence and findings of the Judge, all of which were open to him to reach.

(iii)      That the fifth ground (wherein it was alleged that the Judge had failed to assess the applicant’s Art8 rights) was rejected as the judgment referred to his specific consideration of same.

(iv)      Consequently it was found that none of the grounds disclosed ‘an arguable error of law’. 

Grounds of Challenge

(i)                 that the FTT Judge relied on documents which the applicant firstly argued should have been excluded from his decision making process; and secondly, which the applicant did not have ‘the opportunity to reply in evidence to the content of the documents’;

(ii)              that the FTT Judge failed to consider the applicant’s Art 8 rights;

(iii)            that there are ‘compelling reasons’ to review the applicant’s case before the UT; and

(iv)            that the failure to permit the appeal to proceed breaches the applicant’s human rights in respect of her right to a fair hearing and her right to a private and family life. 

Submissions

“As to the first ground, as explained by Designated Immigration Judge McClure the police documents, medical records and statement of [GP] were adduced in evidence and the Appellant's counsel had the opportunity of questioning the Appellant about them.”

The applicant submitted that this conclusion was wrong since no decision was made by the Judge about whether the documents should be admitted when this issue was raised by the applicant. Therefore the applicant was unable to respond to the allegations contained therein because the evidence was not put to her.

“(a)   The adoption of the second-tier appeals criteria recognises ‘that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected ...  It is capable of encompassing the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the new consequences for the individual’ [per Baroness Hale, para 57 of Cart].

(b)    However, ‘there is, at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system’ [per Lord Phillips, para 2 of Cart].

(c)     The second limb of the test (‘some other compelling reason’) would enable the Court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be ‘some other compelling reason’ because it will depend on the particular circumstances of the case.  But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para 99 as ‘a wholly exceptional collapse of fair procedure’ or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences” (para 131 of Cart).

(d)    The court must distinguish between errors of law that raise an important issue of principle or practice, or reasons that are compelling, and those that do not answer to this description.  The question whether the application meets this test must depend on the facts of each case (para 49b of Eba).”

“… exercising the power of judicial review, the judges must pay due regard to the fact that, even where the due administration of justice is at stake, resources are limited.  Where statute provides a structure under which a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted so as to ensure, in the interest of making the best use of judicial resources, that this does not result in a duplication of judicial process that cannot be justified by the demands of the rule of law.”

“the question of whether the application meets the test must depend on the facts of each case.  It ought to be capable of being applied at the earliest possible stage, and certainly at the stage of the first hearing, as a matter of relevancy”. 

Discussion

“[131]... the second limb of the test (“some other compelling reason”) would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice but which cries out for consideration by the court if the UT refuses to do so.  Care should be exercised in giving examples of what might be “some other compelling reason” because it will depend on the particular circumstances of the case.  But, they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at paragraph 99 as “a wholly exceptional collapse of the procedure” or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences.”

“Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception.  The prospects of success should normally be “very high”, or (as it was put in Cart para 131) the test should be one which “cries out” for consideration by the court.  The exception might apply where the first decision was “perverse or otherwise plainly wrong”, for example because inconsistent with authority of a higher court.  Alternatively, a procedural failure in the Upper Tribunal might make it “plainly unjust” to refuse a party a further appeal, since that might, in effect “deny him a right of appeal altogether”.  In Cart, Lord Dyson … characterised such a case as involving “a wholly exceptional collapse of fair procedure (para 131).  Similarly, Lord Hope in Eba referred to cases where it was “clear that the decision was perverse or plainly wrong” or where, “due to some procedural irregularity, the petitioner had not had a fair hearing at all.

It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual.  However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test.  In other words, “compelling” means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments.”