M.U.B. AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 9
P325/13
Lord Brodie
Lady Clark of Calton
Lord McGhie
OPINION OF LORD BRODIE
in the reclaiming motion
by
MUB
Petitioner and reclaimer;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Caskie; Drummond Miller LLP
Alt: Pirie; Office of the Advocate General
30 January 2015
Introduction
[1] This is a reclaiming motion against the dismissal by the Temporary Lord Ordinary (Sheriff Arthurson QC) of a petition for judicial review of the refusal by the Upper Tribunal (Immigration and Asylum Chamber) of an application by the petitioner and reclaimer for permission to appeal a determination by the First‑tier Tribunal. It raises the issue of how what has become known as “the Eba test” (otherwise “the second appeals test”) should be applied.
[2] The petitioner and reclaimer is a citizen of Pakistan. He is a Christian. He entered the United Kingdom on 21 April 2012 on a visitor’s visa, together with his wife and children. He claimed asylum on 27 April 2012 founding on fear of persecution by reason of his religious beliefs. His claim was considered by the respondent, the Secretary of State for the Home Department, as comprehending a claim for humanitarian protection of himself, his wife and his children by reference to article 8 of the European Convention on Human Rights. The claim was refused by the respondent in terms of decision letter dated 8 June 2012. The reclaimer appealed this refusal. His appeal was heard by the First‑tier Tribunal on 31 August 2012. It was refused in terms of determination and reasons dated 19 September 2012. The reclaimer applied to the First‑tier Tribunal for permission to appeal to the Upper Tribunal. His application was refused by the First‑tier Tribunal in terms of decision dated 15 October 2012. He renewed his application for permission to appeal to the Upper Tribunal. His renewed application was refused by the Upper Tribunal in terms of decision dated 22 November 2012. It is in respect of that decision of 22 November 2012 that the reclaimer now seeks judicial review. The remedy sought is reduction of the decision of the Upper Tribunal refusing permission to appeal as unlawful. In the event of reduction being granted the reclaimer’s application for permission would require to be remitted to the Upper Tribunal for consideration and determination.
The nature of the decision under review
[3] The refusal of permission which the reclaimer seeks to challenge was made by the Upper Tribunal in exercise of a jurisdiction conferred by section 11 (4) (b) of the Tribunals, Courts and Enforcement Act 2007.
[4] Section 11 (2) of the 2007 Act grants any party to a case a right of appeal with the permission either of the First‑tier Tribunal or the Upper Tribunal. The right of appeal is on any point of law arising from a decision made by the First‑tier Tribunal other than an excluded decision: section 11 (1). Appeal is to the Upper Tribunal. Permission “may be given” by the First‑tier Tribunal or the Upper Tribunal: section 11 (4). No more specific statutory criterion applies. In the course of argument before this court, counsel described the test to be applied by the Upper Tribunal in determining whether to grant permission to appeal as arguable error of law. That is consistent with what appears in Guidance Note 2011 No. 1 Permission to appeal to UTIAC (amended September 2013 and July 2014) issued by the President of the Immigration and Asylum Chamber in terms of his powers under paragraph 7 of Schedule 4 to the 2007 Act, and in particular paragraph 12 of that Note. Consideration of the full terms of the Guidance Note indicates that exercise of the section 11 (4) jurisdiction with a view to the grant of permission only where it is appropriate to do so, is a more nuanced matter than concentration on arguability and arguability alone might suggest, but arguability is what was referred to by counsel before us and determining whether the proposed point is arguable provides an acceptable shorthand for the nature of the Upper Tribunal’s task when considering an application for permission to appeal.
Procedure in the application for judicial review
[5] The reclaimer’s application for judicial review has fallen to be determined in what can be regarded as a period of procedural transition.
[6] One of the transitional elements is how the second appeals’ test adopted in Eba v Advocate General 2012 SC (UKSC) 1 as a means of restricting the scope of judicial review of, for example, a refusal of permission by the Upper Tribunal, should be applied. A difference of view and consequential divergence of approach had emerged in the Outer House. That was only authoritatively resolved in the opinion of the court, delivered by the Lord Justice Clerk, in SA v Secretary of State for the Home Department 2014 SC 1, which was advised on 6 June 2013.
[7] Another element in transition has been the scope of the procedural first hearing which now requires to be held in terms of the relevant practice note in any case where the immigration or asylum status of an individual is in question. First orders in the reclaimer’s petition were granted on 2 April 2013. The practice note which governed the procedural hearing in this case was accordingly Court of Session Practice Note No. 1 of 2012 which had effect from 4 February 2013. When the present petition came before Lord Boyd of Duncansby for a first procedural hearing on 29 May 2014, the respondent moved the court to determine her first plea‑in‑law which was to the effect that (having regard to the Eba test) review of the Upper Tribunal’s decision fell outside the court’s supervisory jurisdiction and that the petition should therefore be dismissed. Lord Boyd refused that motion. He ordered that there should be a first hearing restricted to considering the respondent’s first plea‑in‑law (the matter which came before the Temporary Lord Ordinary on 13 November 2013 and which is the subject of this reclaiming motion). Lord Boyd expressed the opinion that the practice note did not contemplate substantive arguments on relevancy at the stage of a procedural hearing. Moreover, he observed that the divergence in approach in the Outer House, which had not then been resolved, made it difficult to apply the Eba test at what essentially was a procedural hearing. The reasoning in Lord Boyd’s opinion, now reported as B Petr 2013 SLT 990, was endorsed by the court in SA (supra at paragraph [32]). However, the court added, at paragraph [34], that it might be considered whether the practice note should be amended to make clear whether (or not) the Eba test can be considered as a preliminary issue at a procedural first hearing.
[8] The suggestion made in SA has been addressed. Practice Note No. 1 of 2012 has been replaced, as from 24 September 2013, by Practice Note No. 2 of 2013. Paragraph 11 of this practice note provides that in cases relating to an unappealable decision of the Upper Tribunal practitioners should be prepared, at a procedural first hearing, to address the Lord Ordinary on whether the Eba test is met.
The Eba test
[9] When the petition called before the Temporary Lord Ordinary for the first hearing ordered by Lord Boyd, parties were agreed that having regard to the decision in SA, the relevant test as to whether a relevant decision was amenable to judicial review could be expressed in the following proposition:
Judicial review of a refusal by the Upper Tribunal to grant permission to appeal to itself from a decision of the First–tier Tribunal should not be granted unless (a) the proposed appeal would raise some important point of principle or practice or (b) there is some other compelling reason justifying interference with that decision.
That remained the position before this court. Parties were also agreed that the respondent’s note of argument accurately set out a number of subsidiary propositions relating to the test.
[10] We pause to note that, for the reasons discussed in Eba and its companion case in the Supreme Court, R (Cart) v Upper Tribunal and Anor [2012] 1 AC 663, whereas the test to be applied by the Upper Tribunal in determining an application for permission to appeal is the relatively modest hurdle of arguability, once the Upper Tribunal, in exercise of its statutory jurisdiction, has refused permission, a party seeking reduction of that decision by way of judicial review must satisfy a different and altogether more stringent test if he is to succeed. While in either case there must be what is identified as a material error of law, at the stage of judicial review the supposed error will normally require to be one which “cries out for consideration”, rather than just potentially arguable, and that must be apparent simply upon a reading of the petition: SA supra at paragraph [44]. The effect of Eba was to remove certain decisions, of which a refusal by the Upper Tribunal of permission to appeal is an example, from the general category of decisions which are amenable to judicial review on the ground of error of law and nothing more (variously described as “simple” or “traditional” or “orthodox” error of law) and to place such decisions in a category where judicial review remains available but only for rare and exceptional cases where, in addition to an identified error of law, the petitioner can demonstrate some important general point of principle or practice which requires to be addressed by way of appeal or, in the absence of such a general point, some other reason for allowing an appeal to the Upper Tribunal, specific to him or his case, which can properly be described as compelling: SA supra at paragraph [35].
The error of law founded on by the reclaimer
[11] It is the reclaimer’s contention that the First‑tier Tribunal erred in law in its consideration of his appeal. Although the matter is not very well focused in the petition and was not presented precisely in this way before the Temporary Lord Ordinary, only one supposed error was relied on before this court and that was that the First‑tier Tribunal had failed to consider the impact on the best interests of the children of their being required to return to a country where they would face discrimination by reason of their being identified as Christians. This was ground 1 in the application for leave to appeal which was submitted to the Upper Tribunal. Paragraph 3 of the application was in these terms:
“The FTT concluded that the children would return with their parents and that provided a substantial answer to the best interest question [§150], removal not involving any family separation. No assessment was made of the children’s return to a milieu that is discriminatory towards Christians and Christian children and whether that was in their best interests.”
After references to passages in the Country of Origin Information Report, paragraph 6 of the application concluded:
“In the light of the above, one tenable view must be that Christian children of prominent Christians, such as the appellant, would live in a discriminatory environment which would not be conducive to their best interests. Whether or not that would be sufficient to outweigh immigration control and other factors is a distinct exercise that could only be addressed once a full and complete analysis of the best interests of the child is complete. Leave to appeal to consider those factors is accordingly sought.”
Thus, the propositions that the reclaimer set himself to establish, as they came to be formulated before this court, were: (1) that the Upper Tribunal had acted unlawfully in refusing permission to appeal in that the refusal proceeded on an error of law on the part of the Upper Tribunal in failing to recognise that the First‑tier Tribunal had left out of account a material consideration (the likely adverse effects of growing up in an environment where they as Christians would be discriminated against) when evaluating where the best interests of the reclaimer’s children lay as part of the overall article 8 assessment; and (2) either that the appeal which it was proposed to advance before the Upper Tribunal on that point would raise some important point of principle or practice, or that there was some other compelling reason justifying interference with the decision to refuse permission.
The argument
[12] Counsel adopted their respective written notes of argument which they supplemented by oral submissions.
[13] Mr Caskie, who appeared on behalf of the reclaimer, acknowledged that the main issue before the First‑tier Tribunal had been the claim for asylum by reason of the risk of persecution faced by the reclaimer and his family if they were returned to Pakistan. Part of the evidence bearing on that issue had been evidence of routine discrimination against Christians in Pakistan. Mr Caskie’s criticism of the immigration judge constituting the First‑tier Tribunal was that she had allowed herself to become so distracted by the main issue that she had failed to realise the importance of evidence bearing on that issue, in the separate context of consideration of the best interests of the children. Contrary to the reading of the First‑tier Tribunal’s determination which had been adopted by the Temporary Lord Ordinary, there was no reference there whatsoever to the evidence of routine discrimination falling short of persecution when it came to consider the best interests of the children in the context of humanitarian protection, whereas that should have been taken into account as part of the balancing of factors when assessing the proportionality of forcing the family to return to Pakistan. That, submitted Mr Caskie, amounted to a material error of law on the part of the First‑tier Tribunal which the Upper Tribunal should have recognised as arguable on the application being made to it for permission to appeal. In not so recognising it and consequently refusing permission, the Upper Tribunal itself became guilty of an error of law and thereby susceptible to the supervisory jurisdiction of the Court of Session because refusal had prevented an important point of principle or practice being considered by the Upper Tribunal on appeal.
[14] It appeared to me that Mr Caskie did not find it entirely easy to articulate why his identified material error of law on the part of the First‑tier Tribunal came within the first limb of the Eba test. His first attempt was to say that a failure to appreciate that where there was a negative refugee finding in respect of certain factual material, it was nevertheless necessary to have regard to that material in coming to a best interests of children assessment, could be said to be qualitatively different from a simple failure to take into account a material consideration. While suggesting that the failure on the part of the First‑tier Tribunal in this case was by no means uncommon, he accepted however that in the present application he was not making a case of systematic failure raising a general point of practice. He then formulated his important point of principle or practice point as one arising from the fact that different judges had sequentially got the same point wrong in the same case. He described this as “vertical failure”. As I understood Mr Caskie’s submission, it came to be that because an error was repeated, albeit in one case, that could be said to raise an important point of principle or practice.
[15] Although he did not much elaborate, Mr Caskie also relied on the second limb of the Eba test: other compelling reason justifying interference with the decision to refuse permission. The adverse consequence for the reclaimer’s children of being sent back to Pakistan, although not amounting to such a risk of persecution to justify a grant of asylum, was significant; it amounted to a life subject to endemic discrimination. Mr Caskie accepted that “compelling” in the second limb of the Eba test meant “legally compelling, rather than compelling, perhaps, from a political or emotional point of view”: PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 at paragraph 36. However, he submitted, it was necessary to have regard to what immediately followed that passage: “although such considerations may exceptionally add weight to the legal arguments”.
[16] It was Mr Caskie’s motion that the refusal of permission to appeal should be reduced and the case sent back to the Upper Tribunal for reconsideration with appropriate guidance from this court.
[17] As had been the case before the Temporary Lord Ordinary, before us Mr Pirie, for the respondent, maintained the argument that there had been no arguable error in law on the part of the First‑tier Tribunal and certainly no error of such materiality as would have justified the Upper Tribunal in allowing an appeal to proceed. He explained that it was necessary to advance that contention because the second limb of the Eba test required consideration of the prospects of success and therefore the strength of the proposed argument on error of law. Only if there can be said to be high prospects of success for the argument that, arguably, the First‑tier Tribunal made a material error of law, and that therefore the Upper Tribunal should have allowed an appeal to proceed, can the second, other compelling reason, limb of the Eba test be met: Eba supra at paragraph [48], SA supra at paragraph [35], PR (Sri Lanka) supra at paragraph 35, JD (Congo) v Home Secretary [2012] 1 WLR 3273 at paragraph 32 and Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070. Mr Pirie further argued that whatever assessment was made of his prospects of success, the reclaimer failed the Eba test: he could demonstrate no compelling reason; the proposed appeal raised no important point of principle or practice.
[18] Rather than good prospects of success in demonstrating a material error of law, Mr Pirie submitted that the reclaimer in fact had poor prospects. The First‑tier Tribunal’s determination should be read as indicating that the impact of discrimination short of persecution on the best interests of the children had been taken into account by the immigration judge. Where a relevant point is not expressly mentioned by a specialist tribunal, the court should be slow to infer that it has simply been ignored: MA (Somalia) v Secretary of State for the Home Department [2011] Imm AR 292 at paragraph 45. Moreover, a decision need only refer to the main issues in dispute: South Bucks District Council v Porter [2004] 1 WLR 1953 at paragraph 36. As appeared from paragraph 144 of the First‑tier Tribunal’s determination, article 8 of the Convention and best interests of the children had been referred to only briefly when submissions were made on behalf of the reclaimer. One cannot expect a lengthy discussion of an issue or issues not regarded as important by the parties and, accordingly, one should not readily infer that the matter had not been taken into account by the immigration judge, particularly when a reading of the determination discloses numerous references to it. Discrimination and the Country of Origin Information Report which includes a discussion of discrimination are referred to at paragraphs 26, 48, 70, 97, 102, 105, 106, 108, 119, and 121 of the First‑tier Tribunal’s determination. In addition the immigration judge adopted what the respondent had written at paragraphs 94, 101 and 102 of the decision letter. The consideration at paragraph 94 of that letter is preceded by a finding, at paragraph 92, that whereas the reclaimer had described the Christian community in Pakistan as deprived and subject to discrimination, this did not accord with the reclaimer’s own circumstances. At paragraph 100 of the First‑tier Tribunal’s determination the immigration judge stated that she had given careful consideration to all of the evidence including the objective evidence. That, Mr Pirie submitted, was evidently so. However, irrespective of what might be said about the reclaimer’s prospects of success, it was Mr Pirie’s position that the reclaimer’s case did not meet the Eba test. For other compelling reason the reclaimer founded on the likelihood of the children facing religious discrimination on their return to Pakistan. It was hard to regard that as a compelling reason when the reclaimer did not make anything of it before the First‑tier Tribunal, but in any event this was not a case where there was a fear of “extreme” consequences: cf JD (Congo) supra at paragraph 32 and EP v Secretary of State for the Home Department [2014] CSIH 30 at paragraph [29]. The first limb of the Eba test had not been relied on before the Temporary Lord Ordinary and had not been made out before this court. If “vertical failure” sufficed then the Eba test would be deprived of all effect. What was relied on here was no more than an alleged failure to take into account a material consideration. No general point of principle or practice arose which might have application beyond this particular case. It was not a question as to whether the risk of discrimination should be taken into account when making the article 8 assessment but, rather, whether it had been.
Decision
[19] Mr Caskie very frankly acknowledged that the submission that he had advanced to this court was not the submission that he had advanced to the Temporary Lord Ordinary. The arguments deployed before the Lord Ordinary may have more closely reflected what appears in the petition than those heard by this court, but while the First‑tier Tribunal’s supposed failure to have regard to the evidence on discrimination not amounting to persecution when considering the best interests of the children was founded on before the Temporary Lord Ordinary, it was not then argued that this came within the first limb of the Eba test. The second limb had been founded on before the Lord Ordinary but the supposedly compelling reason was a different one from that founded on before this court. Accordingly, while the court was prepared to entertain and consider Mr Caskie’s submission to us that we should allow the reclaiming motion, he was not in a position to say that the Lord Ordinary was wrong in deciding as he had. It is probably unnecessary to observe that another court might have been less generous in the face of Mr Caskie’s changes of tack; and with good reason. The fluidity of Mr Caskie’s approach does not sit easily with the requirement, enunciated by the Lord Justice-Clerk in SA supra at paragraph [43], that the court’s decision in cases such as this should proceed upon a petition which clearly and unequivocally avers not only a specific error on the part of the Upper Tribunal in refusing leave, but also either the important point of principle or practice not yet established or the other compelling reason why an appeal should be allowed to proceed.
[20] It is sufficient for disposal of this case by refusing the reclaiming motion, to say that Mr Caskie failed to identify either an important point of principle or practice or a compelling reason within the meaning of the Eba test. In my opinion the court can reach that conclusion even assuming that the immigration judge is to be taken to have made a material error in law in respect of which the Upper Tribunal might have appropriately granted permission to appeal.
[21] It was perhaps significant that Mr Caskie was unable to cite any authority in relation to what he described as “vertical failure”. As I understood the concept, it is no more or less than the repeated making of what is alleged to be the same mistake as to the proper application of the law in the particular case. It is different from what Mr Caskie at one stage seemed to be hinting at, or at least what I understood Mr Caskie to be hinting at, which was a general or systemic error of interpretation of the law or the adoption of an inexpedient practice, present in the case under consideration but present also in many other cases, which required to be remedied by an authoritative decision of the Upper Tribunal or perhaps on subsequent appeal from the Upper Tribunal. Ex hypothesi, a “vertical failure” arises no later than the Upper Tribunal’s refusal of permission and is constituted by the First‑tier Tribunal falling into an alleged material error of law when considering an appeal and then, first the First‑tier Tribunal and then the Upper Tribunal failing to detect the error on a repeated application for permission to appeal. That is what must have occurred in every case of this sort, in other words in every case where it is proposed to subject a refusal of permission to judicial review. The whole rationale of Eba is that in an appellate system fully compliant with the rule of law there may be errors that go uncorrected. Rather than a proper application of the Eba test, Mr Caskie’s “vertical failure” approach would seem to be an attempt to subvert it.
[22] It may have been implicit in what he had to say about what he submitted was the error on the part of the First‑tier Tribunal, but Mr Caskie did not explicitly rely on high prospects of success, as Mr Pirie submitted it was incumbent upon him to do. In order to meet the second limb of the Eba test he relied, in addition to the supposed error of law on the part of the First‑tier Tribunal, on the severity of the consequences which the reclaimer’s children are likely to face on their return to Pakistan; together, so he submitted, they constitute other compelling reason justifying interference with the decision to refuse permission. I do not agree. I shall have to return to the supposed error of law but, again, assuming such an error to have been made, one only comes to the second limb of Eba where any such error raises no important point of principle or practice. The second limb is intended to accommodate truly exceptional circumstances which are specific to the case under consideration. Extreme consequences for an individual or members of a family are potentially relevant but such matters do not constitute a free‑standing test. That is the context in which Carnwath LJ, as he then was, in PR (Sri Lanka) supra at paragraph 35, said that “compelling” in the second limb of the second appeals test means legally compelling rather than, for example, emotionally compelling. Here, a real risk of persecution had been rejected. True, there was general evidence from the Country of Origin Information Report pointing to instances of discrimination against Christians in Pakistan, but there had been no accepted specific evidence relating to the reclaimer’s children. Moreover, while not wishing to minimise the adverse cumulative effects of repeated discrimination, agreeing with Mr Pirie, we do not see these to be what Carnwath LJ in PR (Sri Lanka) or Sullivan LJ in JD (Congo) were referring to as “extreme consequences”. Standing back, this is simply not a rare and exceptional case which cries out for further consideration: cf SA supra at paragraph [44].
[23] Mr Pirie invited us to consider the case on a rather different basis and that was to concentrate on the weakness of the reclaimer’s contention that the First‑tier Tribunal had made a material error of law. On authority, at least in respect of the second limb of the Eba test, he argued that it was for the reclaimer to demonstrate very high prospects of success, which the reclaimer could not do. That of course led him into a consideration of the reclaimer’s case of material error. While the court attempted to persuade him to address it on the assumption that there had been a material error with a view to exploring whether there might be a more expeditious route to resolution of the question as to whether the decision of the Upper Tribunal was one that came within the ambit of the supervisory jurisdiction of the Court of Session, Mr Pirie was unwilling to be drawn down this path. I understand why. While it is clear from the authorities that while something exceptional is required, “some other compelling reason” is an amorphous concept, not always easy to get to grips with, whereas it will usually require high prospects of success as a component part. If that can be shown to be absent then it can be strongly argued that the second limb of the Eba test cannot be met but that of course requires consideration of what is put forward as the relevant error. That will almost inevitably mean a detailed examination of the criticisms made of the First‑tier Tribunal’s decision of the sort that application of the Eba test was intended to by‑pass. Certainly, that is what occurred here, both in the Outer House and in the Inner House.
[24] I must therefore turn, albeit briefly, to what was said about the supposed material error of law on the part of the First‑tier Tribunal. It seems clear that little was made of the consequences of discrimination short of persecution at the hearing before the immigration judge. Significantly, the argument advanced to this court was not even hinted at in the first application for permission to appeal, that is the application made to the First‑tier Tribunal. At that stage the whole focus was on the contention that the applicant’s risk or persecution entitled him to asylum. It is not disputed that when considering the interests of the children the First‑tier Tribunal required to have regard to all relevant factors identifiable from the evidence, including factors not relied on explicitly. However, the argument that it was obviously necessary to have regard to the risk of discrimination gives rise to the corollary that if it was obviously necessary to do so the court should be slow to assume that the First‑tier Tribunal did not. The primary reason for a reasoned judgment is to let the parties see how the judge has dealt with their main contentions. It is not necessary for a judge to deal in detail with matters which were not put in issue. Mr Caskie urged the court to read the determination of the First‑tier Tribunal as showing that the immigration judge had concentrated on the evidence of discrimination as an aspect of persecution and forgotten all about it when she came to consider the best interests of the children. I have not been persuaded to do so. Rather, having regard to the passages in the determination referred to by Mr Pirie, I am unable to conclude that the immigration judge failed to give adequate consideration to discrimination as an aspect of the life the children would lead in Pakistan.
[25] I would accordingly move your Ladyship and Lordship that the court refuse the reclaiming motion.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 9
P325/13
Lord Brodie
Lady Clark of Calton
Lord McGhie
OPINION OF LADY CLARK OF CALTON
in the reclaiming motion
by
MUB
Petitioner and reclaimer;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Caskie; Drummond Miller LLP
Alt: Pirie; Office of the Advocate General
30 January 2015
[26] I have had the opportunity to read the opinion of his Lordship in the chair and I concur that this court refuse the reclaiming motion. I do so for the reasons set out by his Lordship in the chair in paragraphs 19 and 20 of his opinion.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 9
P325/13
Lord Brodie
Lady Clark of Calton
Lord McGhie
OPINION OF LORD McGHIE
in the reclaiming motion
by
MUB
Petitioner and reclaimer;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Caskie; Drummond Miller LLP
Alt: Pirie; Office of the Advocate General
30 January 2015
[27] I have had the advantage of reading Lord Brodie’s opinion in draft. I agree with his conclusions and gratefully adopt his material dealing with the facts of this case and the background to the application of the Eba test. However, one aspect of the second limb of that test, described in broad terms as that of “prospects of success”, seems to me worth further comment. The Court understood counsel to be agreed that for the purposes of the second limb of the Eba test it was necessary to demonstrate a legal argument which had “good prospects of success”. It also appeared that they were agreed that the relevant success was the prospect of showing that the UT decision to refuse permission to appeal was wrong. I am not persuaded that this is an appropriate approach to the Eba test.
[28] The Eba test imposes a higher hurdle than a routine judicial review. Unless the Court is persuaded that there is a basis upon which a particular application might get over that hurdle it would be unnecessary to consider the weight of arguments directed at demonstrating an error in law. I, accordingly, support Lord Brodie’s approach in this case [para 20] of proceeding on the basis of an assumption that the immigration judge be taken to have made a material error in law in respect of which the Upper Tribunal (“UT”) might appropriately have granted permission to appeal. This approach allows the focus of the procedural first hearing to be on the arguments advanced in support of the proposition that there are special circumstances amounting to a compelling reason.
[29] It may be that this will not prove to be the most efficient course in every case. However, it will be the responsibility of the drafter of the petition to set out clearly what is contended for by way of compelling reason and, if that is done, it should usually be possible to see whether the matter can be dealt with by assuming good prospects of success on the legal argument and considering only the proposed special compelling features or whether some other approach is required. Broadly speaking, if the court is satisfied that there may be a sound basis for the assertion of special circumstances it will have to consider what procedure to adopt to explore the legal issues. My observations relate only to the Court’s consideration of the prospects of success of the legal argument. It is an issue which I would not expect to arise unless and until special circumstances capable of amounting to compelling reason had been identified.
[30] At the debate before us there was some discussion of the meaning of “success” in the context of the application of the second limb of the test but, for reasons discussed above, the issue did not arise sharply. Counsel appeared to be agreed that the prospects of success to be considered were the prospects of persuading the judicial review court that the UT should have allowed an appeal to proceed and that this did not require consideration of the prospects of the appeal itself. That contention would be consistent with the normal focus of a judicial review. It is the decision to refuse leave to appeal which is under challenge. This was stressed by the Court in SA v Secretary of State 2014 SC 1, at para [15].
[31] In the absence of full discussion, I hesitate to express a concluded view but it seems to me that when considering prospects of success there is a risk of confusion of two separate issues. In any judicial review it is necessary to identify the error in the decision being reviewed. The Court in SA v Secretary of State was pointing to the need to be able to identify an error on the part of the UT “before the guidance in Eba v Advocate General comes into play.” As discussed by Lord Brodie, at para [4], the error of the UT can be expressed in shorthand form as failure to recognise an arguable material error by the First-tier Tribunal (“FTT”). But in cases arising out of the Tribunal appeals system, the guidance in Eba does come into play and it becomes necessary to go further and show that the circumstances meet the Eba test. Although there may be cases – and SA v Secretary of State might have been an example - where the most efficient way to proceed would be to look first at the legal basis of the challenge to the UT decision, I am persuaded, as indicated above, that it will normally be appropriate to consider the Eba test first. If the petition can be seen to fail the Eba test it will be unnecessary to determine whether there was any arguable error in the decision of the UT.
[32] It is clear that the test has been adopted for reasons of policy and that a robust test is required. On considering the various dicta bearing directly on the test, it can be said that references to prospects of success are not wholly unambiguous. While it is certainly logical to contend that the relevant success is the setting aside of the decision complained of, the wider context is the “second appeals test” and, for the purposes of the second limb of the Eba test it seems to me to be necessary to give direct consideration to the prospects of success of an appeal to the UT, rather than the prospects of success in showing that the UT ought to have granted leave for such appeal. The former is the more important question. The distinction may rarely matter in practical terms but I think it important, if possible, to have a test which avoids an over- technical approach to legal issues.
[33] It is unnecessary to review the relevant dicta at length. In Eba itself, the well known observations of Lord Hope at para [48], were made in the context of considering a basis for restricting “the scope for a second appeal”. In other words the context was the substantive appeal, not the test to be applied to the UT decision to refuse to allow such appeal. The Supreme Court, in Eba and in Cart, determined that the “second appeals test” was an appropriate one in the context of judicial review and Lord Hope, again at para [48], cited with approval the dicta of Lord Dyson when sitting in the Court of Appeal in Uphill v BRB (Residuary)Ltd [2005] 1 WLR 2070. At para [24] in that case Lord Dyson said, of the compelling reason test:
“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. …. Anything less than very good prospects of success on an appeal will rarely suffice.”
[34] For completeness, I acknowledge that in EP v Secretary of State the only discussion of relevant success did relate to the challenge to the decision of the UT in refusing permission to appeal. However, the point was not sharply in issue and, in delivering the opinion of the Court, Lady Smith stressed in general terms that one did not even reach the question of whether the UT erred in law until the Eba hurdle had been overcome: para [32].
[35] It may not be easy to draw any meaningful distinction between arguments in support of setting aside the decision to refuse leave to appeal and arguments directed at the success of a substantive appeal. In this context, “arguable” has always been accepted as requiring realistic prospects of success. However, I consider that it should be recognised explicitly that there is no need to attempt such distinction and that, for the purposes of application of the Eba test, the relevant prospects must be the prospects of the appeal to the UT being successful. If the court is not persuaded that there are good prospects of having the decision of the FTT changed, it will be hard to be satisfied that there is a compelling reason to interfere with the decision of the UT. A test based on having to persuade a court that there are good prospects of success in persuading another decision making body that there is a good arguable point, would seem to me to have little practical purpose.
[36] However, I need do no more in the present case than agree that the reclaiming motion must be refused.