Scottish Court of Session Decisions

 

 

OUTER HOUSE, COURT OF SESSION   [2013] CSOH 99
P227/13	OPINION OF LORD ARMSTRONG   in Petition of   E P   Petitioner;   For judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 27 April 2012   ________________

 

Petitioner: Winter; Drummond Miller LLP, Edinburgh

Respondent: Pirie; Office of the Advocate General

 

21 June 2013

 

Introduction

[1] The pursuer is a Zimbabwean national who was born on 12 February 1972. He arrived in the UK on 8 February 1999 and was granted 6 months leave to enter. He was subsequently granted leave to remain as a student until 31 October 2001, but then outstayed his leave. On 20 April 2007, at Crawley Magistrates Court, he was convicted of driving with excess alcohol, driving while disqualified and two counts of resisting arrest. On 14 May 2007, he was sentenced to a period of imprisonment of 3 months and 20 days and deportation was recommended. On 16 July 2007 he claimed asylum. His claim was refused and, after an unsuccessful appeal, he was served with a deportation order on 28 February 2008. Following further submissions on his behalf, the UK Borders Agency, by letter dated 16 November 2011, refused to revoke the deportation order. The further submissions made on his behalf were to the effect that inter alia if removed to Zimbabwe he would be unable to demonstrate support and loyalty to the ZANU-PF regime, that he had been in the UK for over 10 years, that he was married in Glasgow on 10 June 2011 and that he had a daughter who was born in the UK on 13 December 2010.

[2] The petitioner appealed to the First Tier Tribunal (Immigration and Asylum Chamber) ("the FTT"). By decision, dated 10 February 2012, his appeal was refused. The pursuer sought permission from the FTT to appeal to the Upper Tribunal (Immigration and Asylum Chamber) ("the UT"). By decision, dated 29 February 2012, permission was refused. The petitioner then sought permission from the UT, directly, to appeal against the decision of the FTT dated 10 February 2012. By decision dated 27 April 2012, the UT refused permission to appeal. Because such a decision is an excluded decision in terms of the Tribunals, Courts and Enforcement Act 2007, section 13, there is no right of appeal against it. The petitioner now seeks judicial review of that decision.

[3] The matter came before me at a continued procedural hearing at which I was urged on behalf of the respondent to sustain his first plea in law to the effect that, as a matter of relevancy, the issues raised in the petition fell outwith the supervisory jurisdiction of this court and that the petition should therefore be dismissed. The parties were agreed that the issues to be raised before me should be determined at this preliminary stage. The matter had been continued on the basis that a full day would be required for the hearing. In the event, a further half day was required in addition.

 

The test

[4] In Eba v Advocate General 2012 SC (UKSC) 1, the Supreme Court held that, consistent with the decision in R (Cart) v Upper Tribunal [2012] 1 AC 663, the second‑tier appeals criteria provide the benchmark to be applied in the exercise of this court's supervisory jurisdiction in relation to unappealable decisions of the UT. The exceptional nature of the criteria is encapsulated in the tests described in the phrases "some important point of principle and practice" and "some other compelling reason". As it was put by Lord Hope DPSC in Eba:

"[48] Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural regulatory, the petitioner had not had a fair hearing at all."

 

Further authoritative judicial guidance requires to be noted:

Per Baroness Hale JSC in Cart, at paragraph 57:

"57. ...the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case..."

 

Per Lord Hope DPSC in Eba, at paragraph [49]:

"(b) 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. 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."

 

Per Lord Brown, in Cart at paragraphs 99, 100:

 

"99. ...The second-tier appeals approach expressly contemplates that some Upper Tribunal decisions, even though erroneous in point of law, will be refused leave to appeal on the basis that they raise no important point of principle or practice and that there is no other compelling reason to hear them.
100. If, then, the rule of law allows certain errors of law in substantive decisions of the Upper Tribunal on appeal from the First-Tier Tribunal to go uncorrected, why as a matter of principle should it not similarly allow this in respect of decisions of the Upper Tribunal refusing leave to appeal to itself from the First-tier Tribunal? True it is, of course, that the refusal of leave to appeal will have deprived the party refused of a second substantive hearing. Realistically, however, the very fact that he was refused leave to appeal to the Upper Tribunal (by both tribunals) tends to indicate the unlikelihood of there having been a genuinely arguable error of law in the first place. And certainly this situation calls no less for a proportionate answer to the question arising as to the required scope of the court's supervisory jurisdiction to safeguard the rule of law. The rule of law is weakened, not strengthened, if a disproportionate part of the courts' resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff."

 

Per Lord Dyson JCS in Cart at paragraph 131:

 

"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 principal 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... '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."

 

Per Carnwath LJ in PR (Sri Lanka) v Home Secretary [2012] 1 WLR 73, at paragraphs 33, 35:

"33. .... The alternative 'compelling reasons' test, the wording proposed by senior judges, was to be an 'exceptional' remedy, a 'safety valve'. ...
35. Judicial guidance in the leading case of Uphill (Uphill v BRB (Residuary) Ltd [2005] 3 All ER 264, CA) emphasised the narrowness of the exception. The prospects of success should normally be 'very high', or (as it was put in the Cart case...) the case should be one which should be one which 'cries out' for consideration by the court."

 

Per Dyson LJ in Uphill, at paragraphs 19 and 20:

"19. ... 'Compelling' is a very strong word. It emphasises the truly exceptional nature of the jurisdiction...

24. (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice...

(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to the appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose for example that the judge did not allow the appellant to present his or her case. In such a situation the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether."

 

 

Per Lord Brodie in A v Secretary of State for the Home Department [2012] SLT 1075 at 1083L:

"The policy therefore is strongly to discourage a second appeal, while allowing for its possibility in the exceptional case. The second-tier appeal test reflects that. The metaphor of sifting as a reference to the filtering out of the unarguable cases is... accordingly inappropriate. The metaphor... commended to me was that of a safety valve; generally the route of a second appeal is shut off, but the possibility of appeal is retained in order to accommodate the pressure of an important point of principle or practice or some other compelling reason."

 

And at 1085E:

"It appears to me evident from Lord Hope's opinion that the Eba test, the intended function of that test and the procedure to be adopted in applying it are interconnected. Its wording is taken from CPR 52.13(2). Its function is the same as that of CPR 52.13(2): to close off the further litigation of all but cases raising an important point or being otherwise compelling. It is intended to be applied as CPR 52.13(2) as applied: usually by a single judge on the papers (which will have been drafted with an eye to the relevant test), expeditiously and summarily, with the possibility of review of an initial refusal at a short oral hearing focusing on the threshold test. That is the context in which Lord Hope's use of the expression 'plainly wrong' falls to be understood. It is being wrong in a way that is clearly evident on the sort of limited consideration to be expected in a procedure such as that outlined in para. 49 of Eba."

 

Per Lord Hope DPSC in Eba, at paragraph [47]:

"[47] ...the court should be slow to interfere with decisions that lie within the expertise of specialist tribunals."

 

 

[5] I was also referred to DMK [2012] CSOH 25 (paragraphs 27. 28, 29, 32 and 33) and DB [2012] CSOH 82 (paragraphs 8 and 12) as further examples of recognition by this court that the threshold for consideration under the supervisory jurisdiction is a high one. In A and others [2012] NIQB 86, Treacy J, at paragraph [44], summarised the position as follows:

 

 

"Applicants in immigration cases have a well-developed appeal structure available to them comprising the initial Home Office evaluation, one guaranteed tier of appeal and the further right of appeal if the test of appeal is satisfied. This is a tailor made scheme where each tier is experienced and specialised in this sphere of law. The circumstances in which permission to appeal refusals by the specialist Upper Tribunal could appropriately come before the judicial review court should, in light of the guidance in Cart, be exceedingly rare."

 

 

The grounds for review

[6] The failings which it was said ought to be ascribed to the UT, as set out in the petition as amended, at paragraphs 8 - 11, are five in number. In brief it was asserted that the UT:

1. failed to ask the correct question, that is, whether there was an arguable error of law as opposed to an error of law;

2. reached an irrational finding by failing to accept that the FTT had failed, in carrying out the proportionality assessment necessary under article 8 of the European Convention on Human Rights, to address the correct questions in the correct order, that is by taking the best interests of the children concerned as a primary consideration prior to determining whether those interests were outweighed by other considerations, and had taken into account irrelevant considerations such as the former immigration history of the petitioner and his wife and the petitioner's previous criminal convictions;

3. arrived at an irrational finding by failing to accept that the FTT had reached an unreasonable decision in relation to whether family life was established between the petitioner, his wife, his child and his step-child;

4. reached an irrational decision by failing to accept that the FTT had erred by finding that the removal of the petitioner would not have a major impact on his child and his step‑child in circumstances where it was incumbent on it to consider how family life might develop in the future; and

5. reached an irrational decision by failing to accept that the FTT had failed properly to assess the petitioner's relationships with his wife and step-daughter as part of his private life.

 

The FTT reasons

[7] The FTT took article 8 considerations into account in paragraphs [85] - [92]. The petitioner was not believed by the FTT. It was satisfied that he would "advance any pretext that he could to remain in this country and to tell whatever story he thought might tide him over difficulties confronting him in that process." (paragraph (85)). He had a bad immigration history and a significant criminal record. When considering the petitioner's family life, the FTT noted that the preponderance of the evidence came from the petitioner whom it regarded as having little, if any, credibility. He was "pretty well wholly unconvincing." (paragraph 87). His evidence appeared to be inconsistent and contradictory. The FTT concluded on the evidence before it that the relationship between the petitioner and his partner "whatever it might be" was very considerably less than that claimed. It concluded that the claim (of family life) was opportunistic and entered into with a view to improving his immigration claim.

[8] At paragraph [88], the FTT stated:

"Having taken a view on what the evidence before us consisted of, we then sought to apply the authorities to us. Although not cited before us, the recent case of MK (Best Interests of Child) India [2011] UKUT 00475 (IAC) was to the forefront of our consideration. We considered that as a first element we had to look at what the best interests of the two children might be, and then, having reached a conclusion on that, ought to proceed to the balancing exercise of article 8. The purpose of this procedure, as explained by the Upper Tribunal, would be to avoid contamination of the interests of the child with other factors of the child such as the immigration history of any of its parents."

 

 

[9] At paragraph [89], in relation to the petitioner's claimed natural child, the FTT stated:

"We concluded that the part that her biological father (the petitioner) played was, on the evidence, limited. We concluded that the principal witnesses in this connection were not to be relied upon, and concluded that each was tainted as a witness by self-interest in the matter."

 

 

[10] At paragraph [90], the FTT stated:

 

 

"...we considered that the appellant on the limited evidence before us was a person of a least mixed character, and that contact with him raised issues as to whether such contact would truly benefit either of the children. In our finding this was an element which required to go into the assessment of the best interests of the child."

 

 

Submissions for the respondent

[11] The respondent's position was that on a proper appreciation of the relevant case law, the petitioner's case did not fall within the court's supervisory jurisdiction. The issues raised by the petitioner were summarised as error of law, failure properly to apply certain article 8 criteria and the making of unreasonable findings. In determining whether the high threshold of the second-tier appeals criteria had been reached it was necessary to bear in mind that even if there had been a material error of law, that was not in itself sufficient. Further, in circumstances where the case had already been decided by a specialist tribunal and appeal against that decision had been considered by two tiers of tribunal, a restrained approach was called for.

[12] It was not said for the petitioner that the FTT had failed to exercise its jurisdiction, or had overstepped its jurisdiction, or had followed procedure unfair at common law, or prohibited by statute, regulation or procedural rule, or that it had made a decision inconsistent with the authority of a higher court. This was not a case, therefore, which demonstrated a wholly exceptional collapse of procedure.

[13] In relation to the case made at paragraph 8 of the petition, as amended, that the UT had erred by considering whether there was an error of law, rather than an arguable error of law, the matter should be viewed as one relating to a simple misdirection in law. On the authorities, that was not sufficient to meet the threshold.

[14] If it was to be viewed as a procedural issue, it could not be categorised as a wholly exceptional collapse of procedure, nor could it be said that due to a procedural irregularity the pursuer had not had a fair hearing at all. In that regard, under reference to KP and MK v Secretary of State for the Home Department [2012] CSIH 38, at paragraphs [20] - [21], [23], if the effect of the misdirection was to restrict the petitioner's right of appeal, it was properly to be considered as a matter of substance rather than a procedure.

[15] In any event the argument did not have "very high prospects of success".

[16] In circumstances where the decision of an expert tribunal, charged with administering a complex area of law in challenging circumstances, is under appeal, the decision should be respected unless it is quite clear that there has been a misdirection in law. Where a relevant point is not expressly mentioned by such a tribunal, the court should be slow to infer that it has not been taken into account. (MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, per Sir John Dyson SCJ at paragraphs [43] - [45]). In Entry Clearance Officer, Mumbai v MH (India) [2007] EWCA Civ 113, Sedley LJ, stated:

"28. ...... Appellate courts... should be prepared to give immigration judges credit for knowing their job even if their written determinations are imperfectly expressed."

 

 

[17] The true issue is whether the tribunal in fact asked itself the correct question (SR (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 460).

[18] It was appropriate to have regard to the relevant documents. In the last sentence in its decision, dated 29 February 2012, refusing permission to appeal to the UT, the FTT stated: "The grounds disclose no arguable error of law". The grounds of appeal submitted on behalf of the petitioner in his application to the UT for permission to appeal, themselves contained no reference to the phrase "arguable error of law". That was perhaps unsurprising as the test is trite and reference to it unnecessary.

[19] Whether the wrong test was in fact applied was a matter of inference. In that regard, it was not enough to draw an adverse inference simply because a particular word was missing from the decision. The reasons given by the UT, in its decision dated 27 April 2012, were equally referable to an arguable point of law as to a point of law. Where there was a need to give credit to the specialist tribunal for knowing its job and where the test is trite, the contrary inference, that the correct test was applied, should be favoured. The FTT had already decided expressly that there was no arguable error of law. In any event, the last sentence of the decision of the UT was to the effect that following a full and thorough balancing exercise there was no apparent error. In that context, any distinction between an apparent error and an arguable error was de minimis.

[20] As regards the alleged failings by the FTT in relation to article 8 considerations and the assessment of family life, the FTT had not erred in its approach, either in relevantly taking into account the facts before it or in its reasoning. The UT had been entitled to take that view.

[21] In paragraph 11 of the petition, it was asserted that the UT had reached an irrational finding by failing to sustain the submission that the FTT had failed to assess the pursuer's relationship with his wife, child and step-child as part of his private life. That point had not been taken before the FTT. On the authority of Uphill per Dyson LJ at paragraph 24(2), it was submitted that while such an assertion might provide a reason for giving permission to appeal but it was not a compelling because the petitioner had contributed to the court's mistake.

[22] In considering any prospects of success, it had to be borne in mind that they required to be "very high" (PR (Sri Lanka) per Carnwath LJ at paragraph 35). An assessment of the substantive arguments should be conducted as an overview rather than by weighing them in the manner necessary in order to determine them one way or the other (A v Secretary of State for the Home Department, per Lord Brodie at paragraph [46]). Here the prospects of success could not be said to be in the category "very high".

[23] The case did not offer compelling reasons in the sense of the proper meaning to be applied to the term in this context:

It did not present a matter of general importance, (A v Secretary of State for the

HomeDepartment, per Lord Brodie at paragraph [28]).

There was no legally compelling issue, (PR (Sri Lanka), per Carnwath LJ at

paragraph [36]).

The case did not have the appearance of something having gone seriously wrong, (Cart, per Lord Clarke at paragraph [104]).

The circumstances did not "cry out" for consideration by the court, (Cart, per Lord Dyson JSC at paragraph [131]).

It was not an exceptional case requiring the operation of the "safety valve", (PR (Sri Lanka), per Carnwath LJ at paragraph [33].

[24] In short, the case did not fall within the exceedingly rare circumstances in which permission to appeal refusal by the UT could appropriately come before the court for judicial review, as envisaged by Treacy J in A and others at paragraph [44]. Put another way, if the instant case was appropriate for review under the supervisory jurisdiction, it was difficult to envisage a case which would not meet the threshold.

 

Submissions for the petitioner

[25] The position for the petitioner was that there were compelling reasons justifying the exercise of the supervisory jurisdiction.

[26] There were important principles which underlay the genesis of the second-tier appeals test.

In Eba, Lord Hope stated at paragraph [8]:

" On the one hand there is the rule of law, which is the basis of which the entire system of judicial review rests. ...On the other hand there is the principle of finality. There is obvious merit in achieving finality at the tribunal level in the delivery of administrative justice."

 

In Cart, Lady Hale JSC stated at paragraph [37]:
"Both tribunals and the courts are there to do Parliament's bidding. But we all make mistakes. No one is infallible. The question is, what machinery is necessary and proportionate to keep such mistakes to a minimum?"

And at paragraph [41], she stated:

"There must be a limit to the number of times a party can ask a judge to look at a question."

 

At paragraph [57], she stated:

"...the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal or permission to appeal to itself. It would recognise 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 a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual."

 

 

[27] It was asserted that the instant case is not a true second appeal. There had been only one substantive decision in the case and only one decision by the UT. In view of the high threshold of the second-tier appeals criteria, it was important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals. Reference was made to PR (Sri Lanka) at paragraph 8(1) and to AHC (AP) [2012] CSOH 147, per Lord Stewart at paragraphs [55] - [60].

[28] As to whether the petitioner could point to compelling reasons, emphasis was placed on the requirement of anxious scrutiny. There were dangers in determining whether the high threshold had been met on the limited form of assessment envisaged by Lord Hope in Eba at paragraph [49]. Reference was made to BM (AP) [2012] CSOH 142 at paragraphs [19], [20], AHC (AP) at paragraph [2] and S v Secretary of State for the Home Department [2013] CSOH 43, at paragraphs [16] and [18]. It was submitted that a limited consideration to determine whether the second appeals criteria were met, such as envisaged by Lord Hope in Eba, would not be appropriate in every case. Whether a more comprehensive process was necessary would depend on the circumstances of the particular case. It was said that support for that view was to be found in PR (Sri Lanka) at paragraph [36] per Carnwath LJ:

 

"It is true that Baroness Hale and Lord Dyson JJSC in the Cart case 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."

 

 

[29] Following the guidance set out in that dictum, I accept that the matters which give rise to the need for anxious scrutiny may add weight to the legal arguments but that, equally, the possible extreme consequences for the individual concerned cannot themselves be determinative of the issue currently under consideration.

[30] In relation to the scale of the necessary assessment process to be carried out by the court, the argument went further and pointed to the possibility of the necessity of what in effect would be a full hearing on the merits of the petition in order to determine whether the second-tier appeals criteria were satisfied. It was submitted that a limited hearing on relevancy would not always sufficiently ventilate the issues at large so as to allow justice to be done .

[31] As to whether an error was of the magnitude necessary to satisfy the test, it was submitted that it must necessarily be the case that where a tribunal misdirects itself in law, that must "cry out" for consideration by a superior court. The argument was that any misdirection in law would be perverse or plainly wrong and therefore amount to a compelling reason. Perversity, although representing a very high hurdle and a demanding concept, embraced decisions that were unreasonable in the Wednesbury sense, (R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982, at paragraph [11]). Since a misdirection in law fell within Wednesbury unreasonableness, it must also be perverse. In any event, it was the role of the court to correct errors of law including the propounding of the wrong test on some legal question, (MA (Somalia) per Sir John Dyson at paragraphs [43], [44]).

[32] As to whether the case demonstrated prospects of success, reference was made to Hoseini v Secretary of State for the Home Department [2005] SLT 550 per Lord President Cullen at paragraph [5]:

 

"We are content to proceed on the footing that applications for leave to appeal must generally show something of the nature probabilis causa in relation to a genuine point of law which is of some practical consequence."

 

 

[33] As to what is meant by probabilis causa litigandi, the test is "not exacting", (The Scottish Ministers v Stirton [2006] SLT 306, per Lord Macfadyen at paragraph [28]), and was synonymous with the phrase "good arguable case" (The Scottish Ministers v Stirton [2008] SLT 505, per Lord Glennie, at paragraph [13]).

[34] In relation to the first issue raised in the petition, namely the asserted misdirection in law by the UT in relation to the correct question to be asked, there was no distinction to be drawn between a procedural error and a substantive error (Boddington v British Transport Police [1999] 2 AC (HL) 143, per Lord Irvine at {158], [159]). All that mattered was whether or not the error of law was material. If it was, the decision should not stand. In that regard, I was referred to the case of S, a decision of Lord Glennie on all fours with the instant case on this point, and in particular to paragraphs 9, 10, 11, 12, 15 and 16 of his opinion. The issue as identified by Lord Glennie was whether the UT judge rather than focusing on whether there was an arguable point of law, concentrated instead on how that point was likely to be resolved. His approach was to scrutinise the reasons given for the decision, taking account of the assumption that the decision maker understood the task he was carrying out, with a view to determining whether in fact the judge had lost sight of the question which ought to have been asked.

[35] As regards, the second issue raised, concerning the order of reasoning applied in making the proportionality assessment required by article 8, I was referred to the guidance offered by the Supreme Court in the cases of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, at paragraphs 26, 33, 44 and 46, and H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338, at paragraphs 15, 33, 34, 100, 144 and 153. Seven propositions were advanced.

1. In making the proportionality assessment necessary under article 8, the interests of the child are a primary consideration (ZH, at paragraph 26)

2. That means that the correct questions must be addressed in the correct orderly manner to ensure that the best interest principle is not undermined when there are other compelling considerations at play (ZH, at paragraph 33).

3. Although the best interests of the child can be outweighed by the cumulative effect of other considerations, no other considerations are inherently more significant (ZH, at paragraph 26).

4. What is in the child's best interest should customarily dictate the outcome of the case and it will require considerations of substantial moment to permit a different result (ZH, at paragraph 46).

5. The child is not to be blamed or held responsible for the parent's conduct (ZH, at paragraph 44).

6. There is no substitute for a careful examination of all the relevant factors (H(H), at paragraph 34)

7. It is important to have a clear assessment of the child's circumstances and of what is in its best interests before asking whether these interests are outweighed by other factors (HH, at paragraph [144]).

 

[36] It was submitted that the FTT had failed in these respects and that its failure had been overlooked by the UT.

[37] As regards the third issue, that the UT failed to hold that the FTT had reached an unreasonable decision as to whether family life was established, it was to be noted that while an interference with family life must be real if it is to engage article 8(1), the threshold of engagement is not a specially high one (AG (Eritrea) v Secretary of State for the Home Department [2008] 2 All ER 28, per Sedley LJ at paragraph [28]), and further that, from birth, a child has a bond with his parents which amounts to "family life", which remains in existence despite voluntary separation (Ghising v The Secretary of State for the Home Department [2012] UKUT 00160 (IAC) at paragraph [50]). See also Sen v Netherlands [2003] 36 EHRR 7 at H3(a)).

[38] As regards the fourth issue, to the effect that the UT failed to hold that the FTT reached an unreasonable decision by failing to address how family life might develop in the future, I was referred to Peart v Secretary of State for the Home Department [2012] EWCA Civ 568, at paragraph [15], for the proposition that such an assessment is necessary in order to decide what is in a child's best interest.

[39] As to the fifth issue relating to the assessment of private life, while it was accepted that the point had not been raised before the FTT, it was submitted that relevant relationships which fall outwith the core family require to be examined under that head (Slivenko v Latvia [2004] 39 EHRR 24 at H8; Niemitz v Germany [1993] 16 EHRR 97 at paragraphs [29], [30].

[40] The respondent's submissions were summarised as follows:

1. Since the instant case was not a true second appeal, the stringent criteria set out in Eba should not apply. A lesser threshold was appropriate;

2. The error on the part of the UT in failing to consider whether there was an arguable error of law was sufficiently material as to require correction;

3. The test as to whether there were sufficient prospects of success was met where there was probabilis causa in relation to a genuine point of law with a practical consequence;

4. If the higher threshold, consistent with Eba and Cart, was to be applied, then perversity, sufficient to amount to a compelling reason, was demonstrated by misdirection in law and Wednesbury unreasonableness; and

5. It is integral to the rule of law that, in circumstances where no system is infallible, superior courts should allow such errors to be corrected.

 

Discussion

[41] I do not accept that this case is not a true second appeals case. I am satisfied that it is one to which the second appeals criteria should apply. Although, for the petitioner, I was urged to the contrary, the history of the matter is that there has been a substantive hearing and that, just as in Eba and Cart, there have been two subsequent appeals, each at a different tier of the tribunal and both of which have failed. In these circumstances, the guidance set out in Eba and Cart should be followed. Within that guidance I note, in particular, the requirement of a restrained approach (Eba at paragraph [49]; Cart at paragraph 57) and the requirement that a court should be slow to interfere with a decision within the expertise of a specialised tribunal (Eba at paragraph [47]).

[42] It was submitted to me that the need for anxious scrutiny was inconsistent with the sort of limited assessment, as to whether the criteria were satisfied, envisaged in the case law. I am not persuaded by that approach. What is required, for the purposes of anxious scrutiny, is that every factor which might tell in favour of an applicant is properly taken into account. Where all the relevant information is before the court, the assessment desiderated in the conduct of the second-tier appeals approach need not preclude that. I note, however, in passing that there is a balance to be struck. As stated by Carnwath LJ in YH v Secretary of State for the Home Department [2010] EWCA Civ 116 at paragraph 24:

 

"Anxious scrutiny may work both ways. The case of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies."

 

 

[43] As to the more general point that the issue raised before me could not properly be resolved without an assessment of the case equivalent to that which would be carried out at a first hearing, I do not agree. It is clear from Eba that the strain put in place on the judicial system by the ever increasing volume of applications for judicial review was a material factor in the reasoning of the Supreme Court in Eba and Cart. Proportionality is an issue. While I accept, therefore, that the extremity of the consequences for the individual may contribute to compelling reasons, nevertheless, the correct approach to the issue before me must be a restrained one as envisaged by Lord Hope in Eba at paragraph [49](d).

[44] I was referred to several authorities which predate Eba and Cart as guidance in determining, particularly in relation to the concepts of perversity and prospects of success, whether the grounds stated comprise sufficiently compelling reasons to satisfy the relevant criteria. I do not consider such cases to be of assistance. The decisions in Eba and Cart have, to a considerable extent, changed the legal landscape and the language to be found within these decisions must be considered in that light. If there is guidance to be taken into account as to the application of the second tier appeals approach, whether as to the definition of particular terms used in these decisions or otherwise, that guidance should best be taken from cases which post-date Eba and Cart.

[45] As to the level of the prospects of success relevant to the test, I note what was said in PR (Sri Lanka) by Carnwath LJ at paragraph [35]:

 

"The prospects of success should commonly be 'very high'..."

 

[46] In relation to the issue of whether the UT asked the wrong question, I do not accept the submission for the petitioner that any misdirection in law must necessarily render the case appropriate for further review. Such a position is clearly inconsistent with the thinking underlying Eba and Cart. The answer to the proposition advanced is to be found in Cart, per Lord Brown JSC at paragraphs 99, 100 (see paragraph [4] ante).

[47] As to whether a misdirection in law is considered a substantive or a procedural matter, I do not consider the case of Bonnington to be in point. The context of that decision concerned issues of criminal jurisdiction relative to an allegedly unlawful bylaw and ultra vires acts pursuant to it. KY on the other hand is authority for the proposition that a provision which has the effect of restricting a right of appeal does not fall within the category of practice and procedure. The relevance of the argument arises from the observations of Dyson J in Uphill at paragraph [24](3) to the effect that even if the prospects of success in a given case were not very high there might nevertheless be a compelling reason to grant permission to appeal where the court was satisfied that there was good reason for believing that the hearing was tainted by severe procedural irregularity so as to render the first appeal unfair. If indeed it was the intention to characterise a misdirection in law of the sort relied upon in this case as a procedural irregularity, I do not accept the analogy.

[48] In any event, the approach I prefer is that favoured by Lord Glennie, at paragraph [11], in the case of S:

 

"11. It has been said in many different contexts that reasons given by a decision maker should not be scrutinised as though they were written down in a statute. They should be read sensibly to try to understand what reasoning process has been undertaken. They should also be read against the background of an initial assumption that the decision maker was aware of the task which he was meant to be carrying out. Thus, it must be assumed that (the decision maker) was aware that the question to be asked and answered by him was: has the appellant raised a question of law sufficiently arguable to justify the giving of permission to appeal to the UT? But against this background, it is still necessary to read what is said in the reasons; and if it appears from the reasons that the judge has lost sight of the question he was meant to be asking, the court should not be deflected from reaching that conclusion and granting an appropriate remedy."

 

 

[49] In that context, whether the word "arguable" appears in the text of the reasons is not necessarily determinative. The issue is not whether the UT "went through the right motions" but whether it asked itself the right question (See SR (Iran) per Sedley LJ at paragraph [5]).

[50] On a consideration of the reasons stated by the UT, I favour the submissions for the respondent. In my opinion, having regard to the whole facts and circumstances, it cannot be said that the assertion that the UT did in fact lose sight of the correct question to be asked and therefore misdirected self in law, has very high prospects of success.

[51] In relation to the second issue raised, concerning the order of reasoning in the necessary consideration of the best interests of the child relative to other factors, I am not persuaded that the criticisms directed towards the UT are merited. There is a need to have regard to the whole circumstances of the case. In H v Lord Advocate 2012 SLT 799, at paragraph [51], Lord Hope DPSC stated:

"[51] The intellectual exercise which this principle requires is not to be seen as dictated to in a mechanistic way without regard to the context. In ZH, at p.185, para.44, I said that the starting point was to assess whether the children's best interests were outweighed by the strength of any other considerations but I agree with Lord Judge that this does not require the decision taker always to examine the interest of the children at the very beginning of the exercise."

 

 

In H (H), Lord Mance, at paragraph 100 said:

 

 

"100. Under article 8 of the European Convention on Human Rights, the ultimate substantive issue, where a right to respect for family life is engaged, is where there exists factor(s) within article 8.2 outweighing that right. It is likely to be helpful at some point to address the issue specifically in those terms. But I do not think that any particular starting point or order can or should be imposed in the way in which courts address such an issue in the context of extradition. On this I agree with Lord Judge CJ (para 126) and Lord Wilson JSC: para 155. So long as it is clear that the issue has in substance been addressed and answered, that is what matters, rather than how or in what order the judge has expressed him or herself."

 

 

Lord Judge, at paragraph 126, having drawn the analogy of the hierarchy of matters to be considered in the sentencing process following criminal conviction, stated:

 

 

"126. ..... In the end what of course matters, whatever starting point may have been taken, is that all the considerations should have been carefully evaluated and a fair balance struck between them."

 

 

Lord Wilson JSC, at paragraph 153, said:

 

"153. ..... In ZH... Baroness Hale of Richmond JSC said: 'In making the proportionality assessment under article 8, the best interests of the child must be of primary consideration. This means that they must be considered first.' With great respect, I do not consider that Baroness Hale JSC's second sentence follows logically from her first. Nor do I discern any greater logic in a conclusion that, in answering the question 'does A outweigh B?', attention must first be given to B rather than to A. In my view a judge is entitled to decide for himself how to approach this path."

 

 

[52] It is clear that although the best interest of the child must be the primary consideration, they can be outweighed by the cumulative effect of other considerations. It can be said that in this case the countervailing considerations included the need to maintain firm and fair immigration control, coupled with the petitioner's very bad immigration history and his significant criminal record. (See ZH, per Baroness Hale JSC at 33).

[53] In any event, I find that the FTT did in fact adopt the "orderly manner" contended for on behalf of the petitioner. Paragraph [88] of the decision, dated 10 February 2012, (see paragraph (8) ante), indicates that the FTT did indeed direct itself appropriately. Its stated reasoning does not suggest to me anything other than that the FTT duly followed its own direction.

[54] As regards the third issue, I am not persuaded that the UT reached an irrational finding. The FTT was entitled to form an adverse view of the petitioner's credibility and to take that into account when assessing the appropriate weight to be given to the true level of family life, as existing, as opposed to that claimed.

[55] In relation to the fourth issue relating to the need to consider how family life might develop, it would appear that no evidence was presented to the FTT in that regard. Given the findings on family life, as existing, it is perhaps not surprising that in the absence of any suggested indication of the direction of possible future development of family life, no findings specific to that topic were made. In that context, I do not accept that the FTT decision is susceptible to criticism or that in that regard, the subsequent decision of the UT was irrational .

[56] In relation to the final issue, on the suggested failure to assess private life, I note that the issue was not raised before the FTT. On that basis, having regard to the authority cited to me, I do not regard the point as one which should contribute to my assessment of whether there are in this case compelling reasons.

 

Decision

[57] In the event, I find the decision of the FTT to be fully and carefully reasoned. Moreover, it was submitted for the respondent that the fact that a coherent defence could be and was presented against the attack on the decision in issue, pointed to it not being plainly wrong. I find that there is some force in that.

[58] This case cannot be said to have a part to play in establishing an important point of principle.

[59] Even if, contrary to my decision, I had found that the prospects of success of appeal to the UT were very good, I would not have considered that to be an adequately compelling reason. I would regard errors of the type alleged in this petition as ones of the character considered by Lord Brown, in Cart at paragraph 99, to be those which the second-tier appeals criteria were designed to exclude from further consideration.

[60] I am persuaded by the respondent's submission that the case that there are compelling reasons is not made out and that to allow this petition to proceed would be to offend against the necessary restrained approach to judicial review of such refusal decisions.

[61] The petitioner has not met the second limb of the Eba test. Having applied that test to the particular circumstances of this case and taking into account the matters considered and the prior judicial considerations, my decision is that it is not satisfied. That being so, what the petitioner now seeks to challenge is not susceptible to judicial review.

[62] I shall sustain the respondent's first plea in law, repel his second plea in law and repel the pleas in law for the petitioner to the effect of dismissing the petition. I shall reserve, meantime, all questions of expenses.