OUTER HOUSE, COURT OF SESSION
[2015] CSOH 25
P249/14
OPINION OF LORD WOOLMAN
In the petition of
MARTIN MICHAEL MENDY
Petitioner;
for
Judicial Review
Petitioner: Caskie; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
27 February 2015
- [1]Mr Mendy entered this country in November 2006 on a fiancé visa.It expired in May 2007.He did not however return to Gambia, and on 7 November 2007 Edinburgh Sheriff Court sentenced him to 2 months’ imprisonment for drugs offences.He returned to Gambia in 2008. His fiancé married him there in July 2010.
- [2]In March 2011, Mr Mendy was issued with a spouse visa and he re-entered the UK in April 2011.On 23 November 2011, he was arrested and taken into custody for drugs offences.On 12 February 2013 he was sentenced to 2 years’ imprisonment for being concerned in the supply of a controlled drug. In July of that year he was served with a Deportation Order.
- [3]He appealed to the First-Tier Tribunal (“FTT”) on the basis that deportation would breach his article 8 rights. The FTT refused his application on 18 November 2013. It made factual findings adverse to the petitioner’s assertion in relation to his article 8 rights. In particular, it found that there was no credible evidence that Mr Mendy had been together with his wife for a very long time. It considered it likely that the couple had in fact only cohabited for a small part of the 7 years of their relationship (para 49).
- [4]Mr Mendy sought leave to appeal that decision to the Upper Tribunal (“UT”).The five grounds of appeal are directed to the reasons (or absence of reasons) for the findings in fact made by the FTT. In a short decision, the UT held that the grounds “do not demonstrate any error of law in the First-Tier Tribunal’s determination.”
- [5]In the present petition for judicial review, Mr Mendy seeks to have that decision quashed on the basis that the UT applied the wrong test – it should have directed its mind to whether there had been an arguable error of law. Accordingly, Mr Mendy had not received a fair hearing.
- [6]I begin by observing that I would be slow to hold that the absence of one word necessarily vitiates the UT’s decision. It is a specialist tribunal and well aware of the test it must apply in considering applications for leave to appeal. The reference to ‘arguable’ in the earlier part of its decision signals that that approach was clearly in its mind.
- [7]But even if there was an error in law, that is not enough for the petitioner to succeed.As Mr Caskie accepts, the Eba test is a high and formidable one: Eba v Advocate General for Scotland 2012 (UKSC) 1.In EP v Secretary of State for the Home Department [2014] CSIH 30, the Extra Division considered the same argument on the question of law – whether the UT had mistakenly applied the wrong test.It held that unless there was some important point of principle or practice or other compelling reason, the application should be refused.
- [8]In this case Mr Caskie contends that there is such a compelling reason.He argued that Mr Mendy and his wife will face dire and drastic consequences if he returns to Gambia. It will fracture their marriage and terminate his relationship with her wider family.
- [9]Standing the factual findings made at first instance, the UT was entitled to reject that submission. Further I hold that even if the FTT re-addressed the question, Mr Mendy has very low prospects of success.
- [10]Accordingly, I consider that the Eba test is not satisfied.I shall sustain the respondent’s first plea-in-law, repel the petitioner’s plea in law, and dismiss the petition.
