Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2012] CSOH 68
P542/11	OPINION OF LORD BRODIE   in the Petition of   LM Petitioner   for   Judicial Review of a decision dated 16 August 2010 by the Upper Tribunal (Immigration and Asylum Chamber) to refuse the Petitioner permission to appeal   ­­­­­­­­­­­­­­­­­________________

 

 

Petitioner: Winter; Drummond Miller LLP

Respondent: Lindsay QC; Office of the Solicitor to the Advocate General

 

25 April 2012

 

Introduction

[1] The petitioner is a 65 year old widow. She is a citizen of Zimbabwe. She avers that she is HIV positive. She has recently suffered from cholera. Her home was deliberately destroyed by the Zimbabwean government as part of a policy directed against those they view as their opponents. The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland

[2] The petitioner has four daughters. Two live in Botswana. One lives in South Africa. The petitioner does not know the present whereabouts of any of these three. The petitioner also has a daughter who lives in Coatbridge ("the sponsor") together with the petitioner's grand-daughter. The sponsor has been granted asylum in the United Kingdom as a refugee from Zimbabwe. The sponsor has not lived in family with the petitioner since 1998. She has not visited her since 2001. At least between January 2009 and April 2010, she has, however, provided the petitioner with some financial support. The petitioner cared for her grand-daughter between 1999 and 2002. The petitioner has not lived with her grand-daughter since 2002.

[3] On 7 October 2009 the petitioner applied for entry clearance to settle in the United Kingdom with the sponsor. Entry clearance operates as advance leave to enter. The Entry Clearance Officer ("ECO"), acting on behalf of the respondent, refused the application on 9 October 2009. In refusing the application the ECO had concluded that the requirements of the Immigration Rules could not be complied with in the petitioner's case (the refugee family reunion provisions of the Rules not applying to the petitioner because she is not the spouse or child of the sponsor). He also considered and rejected representations on the appellant's behalf that the appellant's circumstances were so compelling and compassionate that she should in any event be granted leave exceptionally to settle in the United Kingdom.

[4] The petitioner appealed refusal of entry clearance in terms of section 82 (1) of the Nationality Immigration and Asylum Act 2002. Her position was that the decision of the ECO was unlawful in that it breached her rights under Article 8 of the European Convention on Human Rights; and that the ECO should have found there to be compelling and compassionate circumstances justifying allowance of entry clearance, as provided by Home Office policy. The appeal was heard by an Immigration Judge of the First-tier Tribunal (Immigration and Asylum Chamber) on 9 April 2010 and refused in terms of Determination and Reasons promulgated on 20 April 2010. The petitioner applied for permission to appeal the decision of the First-tier Tribunal on point of law to the Upper Tribunal, pursuant to section 11 of the Tribunals Courts and Enforcement Act 2007. Permission to appeal was refused by an Immigration Judge of the First-tier Tribunal in terms of Reasons for Decision dated 30 June 2010. A renewed application for permission was refused by a Senior Immigration Judge of the Upper Tribunal in terms of Notice of Decision dated 16 August 2010. The petitioner seeks judicial review of that Decision.

[5] The petition called before me for a first hearing on 15 December 2011. Answers had been lodged on behalf of the respondent. Mr Winter, Advocate, appeared on behalf of the petitioner. Mr Lindsay QC appeared on behalf of the respondent. Mr Winter's motion was for reduction of the Decision of the Upper Tribunal of 16 August 2010 and for a remit of the application for permission. It was his position that there had been material errors of law by the First-tier Tribunal in refusing the appeal against the ECO's decision not to grant entry clearance and that therefore the Upper Tribunal must be taken to have made an error in law in failing to grant permission to appeal. It was his submission that the Upper Tribunal's decision was amenable to judicial review. However, he accepted that, on the authority of the opinion of the Supreme Court in Eba v Advocate-General for Scotland 2011 SLT 768, the petitioner had to satisfy the "second-tier appeal test" of showing an important point of principle or practice or other compelling reason before this court should interfere. As his primary position Mr Lindsay invited me to sustain the respondent's third plea-in-law by finding that the decision of the First-tier tribunal was lawful and reasonable and that the orders sought in the petition should be refused. As a secondary position, in the event that I was not persuaded that the First-tier tribunal had made no error of law, he invited me to sustain the respondent's second plea-in-law which was that no important issue of principle or practice being raised in the position and there being no compelling reason, the orders sought should be refused.

 

Leave to enter and entry clearance: legal framework

Relevant rights and obligations

[6] As is provided by section 3 (1) of the Immigration Act 1971, where a person is not a British citizen (or a citizen of a member state of the European Union) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act. Section 3 (2) of the 1971 requires the Secretary of State to lay before Parliament from time to time statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter. These are the Immigration Rules. In MO (Nigeria) v Home Secretary, otherwise Odelola v Secretary of State for the Home Department, [2009] 1 WLR 1230, Lord Brown of Eaton-Under-Heywood (with whom Lord Hope expressly agreed) described the Immigration Rules in this way, at para 35 (supra 1340C):

"The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33 (5) of the 1971 Act provides that: 'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.' The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."

The Immigration Rules are not finally determinative of how the respondent will exercise the prerogative power of immigration control. Exceptionally, an applicant may be granted leave to enter on a basis which is outwith the policy articulated in the Rules. Not every relevant policy is to be found in the Rules. Some policies on asylum are expressed in Asylum Policy Instructions ("APIs") but relevant policies may be published other than by means of written policy statements, as was acknowledged on behalf of the respondent in the present case. On 17 March 1995, the then Minister, Nicholas Baker, said this in the House of Commons (Hansard 17.3.1995, col 1215):

"People recognised as refugees immediately become eligible to be joined by their spouse and minor children, provided that they have lived together as a family before the sponsor travelled to seek asylum. Families of refugees are not required to satisfy the maintenance and accommodation requirements that normally apply when families seek admission to join a sponsor here. Other dependent relatives may be admitted if there are compelling compassionate circumstances."

As is noted in paragraph 6 of the petition, the ministerial statement is set out in Macdonald's Immigration Law & Practice (8^th edition) para 12.197 fn 1, as is the information that the substance of the final sentence of the statement with its reference to the admission of dependent relatives other than spouses and children, where there are compelling compassionate circumstances, was formerly contained in the API on Family Reunion but that this API is no longer to be found on the Home Office website. The view is expressed that the continuing failure to publish the policy on family reunion is probably unlawful. That view is adopted in paragraph 11 of the petition. However, that is not something upon which I require to express an opinion. On behalf of the respondent, Mr Lindsay accepted that the ministerial statement of 17 March 1995 was part of the policy framework to which the ECO had had to have regard when called upon to exercise discretion on behalf of the respondent (it being Mr Lindsay's position that the ECO had done so). Thus, while not part of the Immigration Rules in a formal sense, the policy enunciated by way of the ministerial statement would appear to be accepted by the respondent as having much the same effect as if it were. As to the meaning of the expression "compelling compassionate circumstances" where it appears in the policy statement, Mr Winter accepted that it means, as explained by Sedley LJ in Miao v Secretary of State for the Home Department [2006] Imm AR 379 at 384, "reasons which would compel, not merely invite, an objective decision-maker to feel compassion".

[7] Mr Lindsay further accepted that irrespective of where he was located when he exercised his functions (here or in Zimbabwe), section 6 of the Human Rights Act 1998 required the ECO to act in a way which was not incompatible with the European Convention on Human Rights and, in particular, article 8.

Appeal on refusal

[8] An applicant who is refused entry clearance by not being granted leave to enter has a right of appeal in terms of section 82 of the Immigration and Asylum Act 2002. That appeal now goes to the First-tier Tribunal (Immigration and Asylum Chamber): the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, SI 2010/21. The available grounds of appeal are those set out in section 84 of the Immigration and Asylum Act 2002. They include that the decision is not in accordance with immigration rules, that the decision is unlawful under section 6 of the Human Rights Act 1998, that the decision is otherwise not in accordance with the law, and that the person taking the decision should have exercised differently a discretion conferred by the immigration rules. In terms of section 86 (3), the Tribunal must allow an appeal where a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including any immigration rules) or if a discretion exercised in making a decision should have been exercised differently. Otherwise the Tribunal must dismiss the appeal. As already touched on, in terms of section 11 of Tribunals Courts and Enforcement Act 2007 there is a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. However, this may be exercised only with permission granted, on an application by the party, by either the First-tier Tribunal or, in the event that the application to the First-tier Tribunal has been refused or not admitted, the Upper Tribunal: Tribunal Procedure (Upper Tribunal) Rules 2008 rule 21 (2). Thus, refusal of permission by the First-tier Tribunal does not preclude an application for permission to the Upper Tribunal but there can be no appeal without permission from one or the other.

Test for permission to appeal

[9] Mr Winter pointed to the absence of any statutory test by reference to which permission to appeal is to be granted. Rule 18(4)(a) of the Immigration and Asylum Appeals (Procedure) Rules 2003 had provided, in respect of an appeal to the then Immigration Appeal Tribunal on point of law:

"The Tribunal may grant permission to appeal only if it is satisfied that- (a) the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard."

In Hoseini v Secretary of State for the Home Department 2005 SLT 550, having noted the terms of rule 18(4)(a) that similar provision was made in the earlier rules of 2000 and that it was in line with the current terms of rule 52.3 (6) of the Civil Procedure Rules in England relating to permission to appeal, the Inner House adopted the same test for leave to appeal from the Immigration Appeal Tribunal to the Court of Session. Mr Winter noted that in AB Petitioner [2011] CSOH 205 Lord Hodge had accepted that the test to be applied by the Upper Tribunal when deciding whether to give permission to appeal was real prospect of success as referred to in Hoseini. Mr Winter questioned, however, whether that was indeed the correct position. The Immigration and Asylum Appeals (Procedure) Rules 2003 had been superseded by the Tribunal Procedure (Upper Tribunal) Rules 2008 but the 2008 Rules made no provision for the criterion to be applied by the Upper Tribunal when determining whether to grant permission to appeal in exercise of its jurisdiction under rule 21. This, submitted Mr Winter, meant that the best source of the applicable law was Guidance Note 2011 No 1: Permission to appeal to the UTIAC, issued by the Chamber President in July 2011 in terms of his power to make arrangements for the issuing of guidance on changes in the law and practice as they relate to the functions allocated to the chamber as conferred by paragraph 7 of Schedule 4 to the 2007 Act. Mr Winter drew my attention to paragraph 12 of the Guidance Note where there is this sentence: "It must always be recalled, however, that in dealing with applications for [permission to appeal] Judges are concerned only with whether there is an arguable error of law, not whether the error is made out"; and to paragraph 14 where the guidance is in these terms: "Whilst the existence of reasonable prospects of success is a relevant criterion to apply to the grant of permission, it is not a precondition for its grant. A point of law may be of such general importance as to justify the grant of leave even though the prospects of the appellant succeeding may not be substantial." In this state of the law Mr Winter commended to me as an appropriate threshold for grant of permission the test of probabilis causa litigandi discussed by Lord Macfadyen in The Scottish Ministers v Stirton 2006 SLT 306 at 314 para 28, with its adoption of what had been said by Moore -Bick LJ in Szepietowski v Director of Assets Recovery Agency [2007] EWCA Civ 766, [2008] Lloyd's Rep FC 10, as followed by Lord Glennie in The Scottish Ministers v Stirton 2008 SLT 505 at 509 para 13 (a "good arguable case" in the sense of "a case capable of being taken seriously, but not necessarily much more").

[10] Mr Lindsay's short answer to this part of Mr Winter's submissions was that it did not matter. The expressions "arguable" and "real prospect of success" were used interchangeably. They were different formulations of the same test rather than two separate tests.

[11] Interesting as Mr Winter's observations were, for the purposes of this application I am not persuaded that it matters how precisely the test for grant of permission to appeal to the Upper Tribunal should be formulated. Both the Judge of the First-tier Tribunal who refused permission to appeal on 30 June 2010 and the Judge of the Upper Tribunal who refused permission on 16 August 2010 held that the grounds of appeal failed to raise an arguable point of law. Arguability is the test put forward in the Guidance Note issued in 2011. It is accordingly difficult to see how it can be said that either of the Tribunal judges failed to follow what was understood to be the proper approach. However, while it is true that what I am required to consider is the legality of the decision of 16 August 2010 of the Upper Tribunal that it was not arguable that the Determination and Reasons promulgated on 20 April 2010 disclosed an error of law, the argument before me took the form of a full consideration as to whether the Determination of 20 April 2010 was indeed made under error of law. I was encouraged to come to a view on that and I have done so. Once one has gone that distance, questions of what is arguable or has real prospects of success or is capable of being taken seriously and the significance to be attached to any nuance of meaning associated with one formulation or another have been superseded by consideration of what is the subsequent issue: can any material error of law be demonstrated.

 

Parties' substantive submissions

The petitioner

[12] At the outset Mr Winter submitted that the First-tier tribunal had made six errors of law. First, it had been guilty of procedural impropriety in refusing an adjournment to allow the appellant to obtain a medical report with a view to demonstrating that the sponsor's depression was causally related to being separated from the petitioner. The second error was taking into account the irrelevant factor that the sponsor had failed to provide the petitioner with financial support. As appeared from the ministerial statement, families of refugees are not required to satisfy the maintenance and accommodation requirements which apply to other cases where leave to enter is sought by a member of the family of someone already resident in the United Kingdom. Moreover, the First-tier Tribunal should have had regard to the fact that the sponsor, as a refugee, was dependent on non-cash benefits and was simply not able to support the petitioner. The third error identified by Mr Winter was that having found that the petitioner did not enjoy family life with the sponsor, the First-tier Tribunal had failed to do what it should have done which was to go on to consider how refusal of entry clearance would impact on the petitioner's private life, as protected by Article 8. That Article 8 may be engaged by a refusal of entry clearance was demonstrated by a number of authorities: R (Ekinci) v Secretary of State for the Home Department [2004] Imm AR 15, SS (Malaysia) v Entry Clearance Officer Kuala Lumpar [2004] UKIAT 00091, Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420, ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 and VW (Uganda) v Secretary of State for the Home Department [2009] Imm AR436. Mr Winter also made reference to the decision of the European Court of Human Rights in Slivenko v Latvia (2004) 39 EHRR 24 for the distinction between private life and family life, and to Reed and Murdoch A Guide to Human Rights Law in Scotland (2^nd edit) paras 6.15 and 6.20, for the proposition that Article 8 might impose a positive obligation on the state in addition to a simply negative requirement to refrain from interference. As I have already indicated, the petition would seem to suggest that a point was being made about the ministerial statement or the adequacy of the publication of the policy on compelling compassionate circumstances. However, I took Mr Winter to depart from the contention that the First-tier Tribunal had made what would otherwise have been listed as the fourth error attributed to it. He accepted that, whatever may be said about the need for transparency in adopting and applying policy, here the petitioner's representative was aware of the policy and that it might provide a basis upon which the petitioner could be granted entry clearance. As appears from paragraph 19 of the First-tier Tribunal's Determination and Reasons the policy was specifically founded upon by the petitioner's representative and, as appears from paragraphs 33 to 37, the application of the policy to the circumstances of the petitioner was considered in some detail. Mr Winter adhered to his position that the First-tier Tribunal had made a fifth error of law which he said could be seen from the final sentence in paragraph 31 of the Determination and Reasons which is:

"In the interests of effective immigration control there is no reason why, in her circumstances, the appellant should succeed under Article 8 when she cannot do so under the Rules."

This was to equate the obligation not to contravene Article 8 of the European Convention with the respondent's statement of policy whereas where an appellant did not qualify for leave under the Rules but relied on Article 8, it was for the appellant authority, here the First-tier Tribunal, to decide whether the refusal of leave was, in the circumstances, unlawful as incompatible with the Convention right in question: Huang v Secretary of State for the Home Department [2007] 2AC 167. The sixth and final error on the part of the respondent alleged by Mr Winter was that the First-tier Tribunal had failed to have regard to all relevant circumstances, these being that the petitioner was elderly, that her home had been destroyed, that her daughter had required to flee as a political refugee, and that her grand-daughter with whom the petitioner had a special bond having looked after her between 1999 and 2002, had joined the sponsor in Scotland. The argument recorded at paragraph 13 of the Determination and Reasons had not been addressed. It was not good enough for the Tribunal simply to refer to the ECO's appraisal, which is what had been done in paragraph 37 of the Determination. Reference was made to Yousaf (Somalia) v Secretary of State for the Home Department [2008] EWCA Civ 394.

[13] Mr Winter advised me that it was at least possible that the decision of the Supreme Court in Eba v Advocate General supra might have to be revisited in that Lord Hope's reasoning in that case depended in part on the terms of Rule of the Court of Session 41.59 which makes provision for the test for permission to appeal a decision of the Upper Tribunal to the Court of Session in terms of section 13 (4) of the Tribunals Courts and Enforcement Act 2007. As Mr Winter further advised me, the question as to whether it was ultra vires to make RCS 41.59 in its terms was likely to be determined in a case set down for a hearing later in January 2012 (now reported as KP and MRK v Secretary of State for the Home Department [2012] CSIH 38). If the rule was found to be ultra vires that arguably might undermine the ratio in Eba. Be that as it may, on the current state of the law, Mr Winter recognised that I was bound by the Supreme Court's decision in Eba and that accordingly it was for the petitioner to demonstrate that an important point of principle or practice was involved or that there was some other compelling reason before this court should interfere. In an argument that reflected what had been put forward to Lord Hodge in AB Petitioner supra (to which he referred) Mr Winter submitted that the second leg of the test (other compelling reason) had been satisfied: the determination of the First-tier Tribunal had been so plainly wrong or perverse and the procedural irregularity so unfair that the Upper Tribunal's decision to refuse permission should reduced.

The respondent

[14] Mr Lindsay began by reminding me that his primary position was that I should find that the First-tier Tribunal had made no error in law and to uphold the respondent's third plea-in-law. On that basis it would not be necessary to enter into the test for judicial review of a decision of the Upper Tribunal which was enunciated in Eba v Advocate General supra. However, this was not a case disclosing "some important point of principle or practice" or "some other compelling reason", as these phrases were used by Lord Hope in Eba at para 48. Such a case was truly exceptional, as indicated by the English authorities on the second appeals criterion, discussed by Lord Hodge in AB Petitioner, which Mr Lindsay submitted should be followed: PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988, Uphill v BRB (Residuary) Limited [2005] 1 WLR 2070. Given the fact that Lord Hope was adopting an English test in Eba there would seem to be good reason to interpret it according to the established English criteria.

[15] As I have already mentioned, Mr Lindsay accepted that, however counter-intuitive it might seem, the petitioner, who had never set foot in Europe, had the rights guaranteed by Article 8 of the European Convention on Human Rights to respect for her private and family life and therefore the ECO, acting on behalf of the respondent, came under the obligation, imposed by section 6 of the Human Rights Act, as soon as the petitioner made her application for entry clearance in Zimbabwe, to accord respect to these rights and not to interfere with their exercise, except insofar as to do so was lawful and necessary. He further accepted that a refusal by the ECO to grant entry clearance could amount to such interference. Article 8 might therefore be engaged. However, where the family life under consideration was that as between a parent and an adult child, irrespective of which party was the more obviously dependent upon the other, something more than simply normal emotional ties was required in order establish a relationship such as to attract the protection of Article 8. There was no general presumption that family life was in fact being enjoyed. Consideration had to be had to the quality of the relationship in a particular instance. The matter was fact sensitive and therefore it was for the fact-finder to determine on a case-by-case basis. Mr Lindsay commended the discussion which is to be found in the opinion of Temporary Judge Beckett in SA v Secretary of State for the Home Department [2011] CSOH 162 at paras 70 to 74 and, in relation to how one should read the Immigration Judge's treatment of the matter in his Determination and Reasons he reminded me of what had been said by Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535 at paras 13 to 15.

[16] With that by way of preamble, Mr Lindsay provided his response to each of what Mr Winter had characterised as errors of law made by the First-tier Tribunal. First, it was said that the Tribunal had been guilty of procedural impropriety in refusing an adjournment, to allow the appellant to obtain a medical report with a view to demonstrating that the sponsor's depression was causally related to being separated from the petitioner. What the Tribunal had been asked to do was exercise its discretion to adjourn a hearing, as provided by rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, as amended. Rule 21 (1) (b) requires that the party applying for an adjournment must show good reason why adjournment is necessary. Rules 21 (3) (c) requires that the Tribunal must not adjourn a hearing on the application of a party in order to allow the party more time to produce evidence, unless satisfied that where a party had failed to comply with directions for production of evidence, he has provided a satisfactory explanation for that failure. Here the only explanation for the failure to provide a report in time had been the inactivity over a lengthy period of time of a person in the firm of solicitors acting for the petitioner. The Tribunal did not consider this a satisfactory explanation and it was entitled so to decide. Moreover, any error or procedural propriety will only be of significance if it is material, in other words if it has made a difference to the outcome. Reference was made to HA v Secretary of State for the Home Department 2010 SC 457. Here what was described as a medical report had subsequently been put before the Upper Tribunal. It was however no more than a letter from a general practitioner narrating that the sponsor had told the general practitioner that she was depressed because she was unable to see her mother. This was not a medical report. It did not address the question as to whether there was any causal connection between what the petitioner described as depression and the fact that her mother was in Zimbabwe. Thus, even if there had been some procedural impropriety, the petitioner had suffered no prejudice thereby and therefore it was not material. Second, in relation to financial dependency, Mr Winter had conceded that the First-tier Tribunal had understood and applied the relevant policy. Financial dependency was relevant to a consideration of the quality of family life. There was nothing to suggest tainting or contamination of the decision-making process. Third, as to impact on the petitioner's private, as opposed to family, life, this point had not been argued before the First-tier Tribunal or, on the application for permission, before the Upper Tribunal. Granted, it was for the Upper Tribunal to notice the availability of any obvious point of Convention law which had strong prospects of success: R v Secretary of State for the Home Department ex p Robinson [1998] QB 929, but here very similar considerations applied to private life as applied to family life. It could not be said that the petitioner's ties with the United Kingdom were such that she could not enjoy private life in Zimbabwe. Reference was made to the opinion of Lord Stewart in SKM Petitioner [2010] CSOH 172 at para 33 under reference to what Lord Bingham had said in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. Mr Winter's fourth point having been abandoned, Mr Lindsay moved to the fifth on which he offered two points of rebuttal. First, he did not accept Mr Winter's reading of paragraph 31 of the First-tier's Determination and Reasons. It had not equated the obligation not to contravene Article 8 of the European Convention with an application of the policy on family reunion. The Tribunal was doing no more than pointing to the need to maintain effective immigration control. That was a relevant factor when considering the Article 8 claim: Chikwamba v Secretary of State for the Home Department supra. Second, even if there had been an error on the part of the First-tier Tribunal on this point, it did not matter. The discussion in paragraph 31 is put forward in the event that the Tribunal is wrong in the conclusion expressed in the previous paragraph that Article 8 is engaged. The primary position is that set out in paragraph 30; what appears in paragraph 31 is only an esto position. Replying to Mr Winter's sixth criticism (failure to have regard to all relevant circumstances), Mr Lindsay reminded me, under reference to R (Iran) v Secretary of State for the Home Department supra, that it was not necessary to recite every piece of evidence in order to avoid the inference that something relevant has been left out of account. There was nothing in paragraphs 33 to 37 of the Determination to give grounds for concern. In substance this came to be a disagreement as to the weight to be attached to a particular factor. Unless it can be said that the view taken by the First-tier Tribunal was perverse then there is no error of law.

 

Discussion

[17] This is a case where the scope of judicial review falls to be determined by the test set out in Eba v Advocate General for Scotland. However, rather than exploring the implications of that at any length, the emphasis in the submissions on behalf of both parties was on the substantive issue: whether the determination by the First-tier Tribunal demonstrated a material error of law. Mr Lindsay described it as being his primary position that I should find that the First-tier Tribunal had made no error in law. I begin therefore by a consideration of that matter.

[18] As I have already indicated, I understood Mr Winter to depart from the contention that the First-tier tribunal had erred in respect a failure to apply the policy on compelling compassionate circumstances. That was an inevitable concession having regard to paragraphs 33, 34, 36 and 37 of the Determination and Reasons of 20 April 2010. That left five points, each of which Mr Winter characterised as an error of law on the part of the First-tier Tribunal.

[19] The first point was procedural impropriety in refusing an adjournment to allow the appellant to obtain a medical report. For the reasons given by Mr Lindsay I do not consider that there is any substance in this complaint. The First-tier Tribunal's power to adjourn the hearing is conferred by rule 21 of the 2005 Procedure Rules. The petitioner failed to comply with directions to produce evidence in time for the hearing. Rule 21 (3) (c) requires that the Tribunal must not adjourn a hearing on the application of a party in order to allow the party more time to produce evidence, unless satisfied that where a party had failed to comply with directions for production of evidence, he has provided a satisfactory explanation for that failure. The Tribunal took the view that no satisfactory explanation was provided, as it was entitled to do. The relevant Procedure Rule therefore directed that the Tribunal should not adjourn the hearing and that is what had happened. There was accordingly no procedural impropriety but, in any event, the refusal to adjourn cannot be said to have prejudiced the petitioner and therefore was not in any way material. The petitioner's representative wished the adjournment in order to have time to obtain evidence to support the contention that the sponsor was suffering a clinical depression by reason of being separated from the petitioner. It would appear that the source of that evidence would have been the sponsor's general practitioner. A letter from the general practitioner was subsequently obtained for the purpose of the application to the Upper Tribunal but it contained no more than a recitation of what the sponsor had told the general practitioner. I agree with Mr Lindsay that that could establish nothing beyond what was in any event contended by the sponsor before the First-tier Tribunal. The refusal to adjourn accordingly made no difference and cannot be used to impugn the First-tier Tribunal's Determination.

[20] The second point made by Mr Winter was that the First-tier Tribunal took into account the irrelevant factor that the sponsor had failed to provide the petitioner with financial support. The point was not pressed very strongly. It was readily apparent why. The Immigration Judge records the argument presented on behalf of the petitioner at paragraphs 11 to 20 of the Determination and Reasons of 20 April 2010. It was contended that a very strong bond existed between the petitioner and the sponsor and sponsor's daughter. It was contended that the petitioner's case was strengthened by the facts that the petitioner was living alone and that she was supported financially by the sponsor. Evidence was put before the Immigration Judge of money transfers by the sponsor to the petitioner. These were among the factors relied on for the proposition that refusal to permit entry was disproportionate and therefore in breach of Article 8. Moreover, that the petitioner "relied on support received from the sponsor" was part of what were said to be the compelling compassionate circumstances which should have led to the petitioner having been admitted to the United Kingdom. Given the approach taken on behalf of the petitioner, the Immigration Judge was obliged to have regard to such evidence as was adduced to support the proposition that the sponsor provided the petitioner with financial support. This the Immigration Judge did, concluding, at paragraph 29 of the Determination and Reasons that any financial dependency, if it amounted to that, had extended for little more than a year. Clearly, whether or not one relative provides another with financial support is an indicator of the intensity of family life and therefore relevant to any claim made under reference to Article 8. That is not to say that the absence of financial dependency will necessarily negative family life or even reduce its intensity, parties' means may preclude the provision of support, as I took Mr Winter's submission to emphasise, but where evidence of financial support is put forward in support of the proposition that the parties enjoyed family life, as was the case here, the Immigration Judge cannot be criticised for weighing what evidence he had in the balance. I see nothing in Mr Winter's second point.

[21] Mr Winter's next criticism is the somewhat subtle complaint that, in the context of the Article 8 claim, the Immigration Judge only considered the impact of refusal of entry clearance on "family" life and did not go on to consider its impact on "private" life. Now, I accept that Article 8 guarantees respect for both the individual's "private" life and his "family" life and that these are distinguishable spheres: Slivenko v Latvia supra at paras 95 to 97, R (Razgar) v Home Secretary supra at 383D. However, the two spheres overlap and where, as here, the petitioner's representative appears to have made nothing of the distinction, it appears to me that the Immigration Judge was entitled to proceed upon the basis that what refusal of entry clearance was said to interfere with was the family life enjoyed among the petitioner, the sponsor and the petitioner's granddaughter, as opposed to anything else. On that ground I would reject this criticism of the determination by the First-tier Tribunal but I would add that, having failed to persuade the Immigration Judge that there was "real and normal family life" (Determination para 31) which would be disrupted by the refusal of entry clearance, it is difficult to see how, on the evidence, it could be concluded that there could be relevant interference with "the network of personal, social and economic relations that make up the private life of every human being": Slivenko v Latvia supra at paras 96. Straitened as the petitioner's material circumstances may be, her private life is in Zimbabwe. Refusal of entry clearance to the United Kingdom does not interfere or otherwise adversely impact upon that private life. It may well be that the petitioner's material circumstances would be improved were she to be permitted to settle in the United Kingdom. That, however, of itself is not to the point, as was emphasised by Lord Stewart in SKM Petitioner supra at para 33:

"It is trite law that Article 8 does not guarantee the right of free movement or the right of settlement; as Lord Bingham of Cornhill said in Razgar supra at 381:

'If there is any doubt on this point, it should be dispelled. The Convention is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits.'"

[22] Pointing to paragraph 31 of the Determination, Mr Winter submitted, as his fifth point (his fourth having been abandoned), that the First-tier Tribunal had failed properly to consider the petitioner's claim that to have her family and private life respected by equating failure to qualify under the Immigration Rules with failure to demonstrate contravention of Article 8. Paragraph 31 of the Determination is in these terms:

"31 If I am wrong in that approach I consider that in the interests of a fair, effective and predictable system of immigration control the refusal is proportionate. The appellant cannot select the country in which she wishes to settle. The United Kingdom is entitled to set down conditions governing the entry of foreign nationals into its territory. In the interests of effective immigration control there is no reason why, in her circumstances, the appellant should succeed under Article 8 when she cannot do so under the Rules."

I do not read this passage as Mr Winter encouraged me to do, and I detect no error. Having noted the submissions on behalf of the petitioner at paragraphs 13 to 20, the Immigration Judge then considers the evidence, under reference to authority, at paragraphs 21 to 30. At paragraph 29 and again at paragraph 30 there is the conclusion that Article 8 is not engaged. At paragraph 31, the Immigration Judge turns to consider the issue of proportionality, on the assumption, which had not been established, that Article 8 is in fact engaged. As Mr Lindsay submitted, if there is an error disclosed in paragraph 31, it relates to proportionality and is therefore not material unless the conclusion that Article 8 is not engaged is displaced. However, I find no error in paragraph 31. Maintaining controls over immigration is a legitimate aim and therefore a relevant consideration when looking to proportionality: eg Chikwamba v Home Secretary supra at 1431. What appears in the first two sentences of paragraph 31 is accurate. In the final paragraph the Immigration Judge is merely saying that, in the circumstances the Article 8 claim is no more well founded than any alternative claim. I do not see there as being any question of the Immigration Judge simply deferring to the judgement of the ECO.

[23] The sixth and final error on the part of the respondent alleged by Mr Winter was that the First-tier Tribunal had failed to have regard to all the relevant compelling compassionate circumstances, which Mr Winter then went on to identify. I do not see this criticism as having been made out. As I read the Determination, all the circumstances mentioned by Mr Winter are referred to by the Immigration Judge. It cannot be said that they were not before the Tribunal and it cannot be said that they were not had regard to by the Immigration Judge. It is not necessary that there be a mechanical reiteration of facts and circumstances in a Determination in order to reassure the reader that everything relevant has been taken into account. As is often said, a Determination has to be read as a whole, and fairly. Having attempted to do that here I am satisfied that what everything relied on by the petitioner was taken into account.

[24] I have accordingly found none of Mr Winter's criticisms of the First-tier Tribunal to be well founded. It follows that I consider that the Upper Tribunal was fully entitled to refuse permission to appeal, however precisely one frames the permission to appeal test, and the respondent's third plea-in-law therefore falls to be sustained and the orders sought in the petition refused.

[25] It is neither necessary nor very useful for me to express any view on the brief submissions on each side of the bar on the scope of judicial review of decisions of the Upper Tribunal to refuse permission to appeal (the "second-tier appeal test" as enunciated in Eba). I would limit myself to recognising that whatever may be said about the decision of the Supreme Court and whether or not it may come to be revisited, Eba is binding on me and, having heard what I took to be full argument on the merits of the submission that the First-tier Tribunal had erred in law, I see no issue of principle or practice or other compelling reason as might justify reduction of the refusal to grant permission to appeal.

[26] I shall reserve all questions of expenses.