APPLICATION FOR LEAVE TO APPEAL BY IL UNDER THE TRIBUNALS, COURTS AND ENFOREMENT ACT 2007, SECTION 13 AGAINST A DECISION OF THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) DATED 22 JANUARY 2015
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 83
XA37/15
Lady Clark of Calton
OPINION OF LADY CLARK OF CALTON
in
the application for leave to appeal
by
IL
Applicant;
under the Tribunals, Courts and Enforcement Act 2007, Section 13 against a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 22 January 2015
Act: Lindsay, QC, Winter; Drummond Miller LLP (for MacGuire, Solicitors, Glasgow)
Alt: Komorowski; Office of the Advocate General
24 November 2015
Summary
[1] The applicant is a citizen of Pakistan. He was granted leave to enter the United Kingdom on 25 July 2006 with leave to remain until 10 August 2006. In July 2009 he married a British National. In July 2011 the applicant and his wife had a son. The applicant was granted limited leave to remain in the United Kingdom for a period of three years on 22 December 2011. Thereafter he was convicted of charges which libelled that on 9 and 12 November 2012, he made emergency calls to the police in which he claimed that bombs had been planted. The first call led to a full response from the police and intelligence services. Factory premises were evacuated and closed with a loss to the owners of £36,000. The second call was treated less seriously by the emergency services. The appellant pled guilty to the charges and received a total sentence of 18 months imprisonment.
[2] Thereafter the respondent decided to deport the appellant in terms of section 32 of the UK Borders Act 2007. An appeal to the First-tier Tribunal was dismissed on 18 July 2014. The applicant appealed to the Upper Tribunal (Immigration and Asylum Chamber) which dismissed the appeal in their determination and reasons dated 22 January 2015. In a decision dated 2 March 2015, the Upper Tribunal refused permission to appeal to the Court of Session.
[3] It was not disputed that the application for leave to appeal to this court is governed by Rule of Court 41.57(2). The applicant sought to rely on both limbs of the Rule of Court.
Important point of principle
[4] Counsel for the applicant submitted that there was a general point of importance. I interpret this generously as meaning that the proposed appeal would raise some important point of principle. The important point of principle which the applicant sought to rely on is:
“Whether what is said in MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 at paragraph 35 is still relevant when assessing exceptional circumstances under paragraph 398 of the Immigration Rules having regard to the fact that this imports a proportionality assessment.”
Counsel submitted that although MM predated the introduction of the new Immigration Rules, the factors identified at paragraph 35 remain relevant considerations when assessing whether or not a decision to deport is proportionate. It was submitted that both the First-tier Tribunal and the Upper Tribunal fell into the same error of law in that they failed to assess whether in light of the medical report stating that the applicant’s mental health issues had been resolved, and those issues being the cause of the applicant’s offending, whether it could still be said to be proportionate to deport the applicant.
[5] Counsel for the respondent submitted that no important point of principle arose from paragraph 35 of MM. In that paragraph, the court was considering the particular circumstances which applied in MM taking into account the particular level of risk of reoffending and the circumstances of the mental health condition of MM which was considered relevant to the risk of reoffending posed by MM.
[6] I note from the decision of the First-tier Tribunal that the judge considered the evidence available to him and made an assessment based upon the report of Dr Shenoy about the applicant’s medical condition. The judge made an assessment of the applicant’s risk of reoffending. The appeal from the First-tier Tribunal was not based on the absence of such an assessment but challenged the findings of the First-tier Tribunal and the reasoning. The Upper-tier Tribunal rejected this challenge and supported the approach of the First-tier Tribunal judge.
[7] I am satisfied that the general approach adopted by the First-tier Tribunal and approved by the Upper Tribunal was to take into account the evidence in the particular case bearing upon the applicant’s mental condition and history of offending and the risks of future offending and make an assessment of that. This was the approach adopted in MM. Obviously the conclusions in MM were fact dependant from the evidence of that particular case.
[8] I am unpersuaded that the application raises any point of principle for this court to determine.
Some other compelling reasons
[9] Counsel for the applicant submitted that there are errors of law which are plainly wrong and strongly arguable coupled with drastic consequences for the applicant as he would be separated from his British wife and child and family members who are all in the UK. Counsel submitted that “the errors leap off the page and there are very high prospects of success.”
There was criticism of the approach of the Upper Tribunal to consideration of the assessment and the relevant factors which were relevant thereto. There was criticism of the approach of the Tribunals to the assessment of risk and of the significance in the proportionality assessment of the absence of relatives of the applicant in Pakistan.
[10] Counsel for the respondent submitted that the grounds of appeal and alleged errors are without merit and that the separation of the applicant from his family in the circumstances is not a consequence of such severity as to potentially constitute compelling reason for hearing the appeal.
[11] In this case I am satisfied that a proportionality assessment was carried out and I am unable to identify any error of law which is strongly arguable. The criticisms made by counsel for the appellant appear to be no more than a reiteration of the submissions made to the tribunals about the nature of the assessment and weight to be given to certain evidence and factors.
[12] I am also satisfied that even if there were strong arguable grounds of appeal, there are no compelling reasons in the sense that has been interpreted in R (Cart) v Upper Tribunal [2012] 1 AC 663 Lord Dyson JSC at paragraph 131.
Decision
[13] For the reasons given, leave to appeal is refused.