Light at the end of the tunnel

Joe Bryce — 

Court of Session upholds an application for judicial review of Upper Tribunal refusal of permission to appeal.

The Outer House of the Court of Session (equivalent to the Administrative Court) has upheld a judicial review of an Upper Tribunal refusal of permission to appeal. As far as is known to Scottish practitioners, this is the first successful such application on either side of the border since tribunal reorganization and the Supreme Court decision in Cart / Eba [2011] 3 WLR 107 and 149. Lord Glennie’s 20th March decision in Oke [2012] CSOH 50 is also important for its remittal to the Tribunal of an important question on the scope of Pankina. A very full and scholarly report is already published on Westlaw, and readers are referred to that for full details. The purpose of this blog is apprise practitioners generally of the broad outlines of this significant decision.

The petitioner had applied for leave to remain as a Tier 1 General Migrant. He was found to have insufficient points from self-employment because a first set of accounts did not bear to have been prepared by a certified accountant, as required by Policy Guidance, and a second confirmatory set of accounts was not supported by the petitioner’s signature of approval. The application was supported by extensive materials such as invoices and bank statements from which it would have been possible to cross-check the reliability of the information in the accounts. The petitioner appealed to the First-tier Tribunal and opted for papers-only disposal.

In dismissing the appeal, the Immigration Judge upheld the objection to the first set of accounts, without considering whether in terms of Pankina she might require to exercise discretion, and found the second set to be unreliable because in effect it duplicated the first. On that second issue she introduced a new consideration of her own to which the petitioner had never been invited to comment, since the refusal letter had questioned only the absence of a signature of approval, not the reliability of the accounts. At no point did the Judge consider the supplementary materials which potentially cross-checked the accounts, and indeed her determination betrayed no awareness of the existence of those materials, although they were certainly before her.

The FTT refused the petitioner’s application for permission to appeal on the grounds that Pankina had not decided that Policy Guidance was irrelevant. As Lord Glennie subsequently observed, that was rather to overlook the point, which was not that Policy Guidance was irrelevant but rather that it should not be treated as having the authority of binding law, unless it pre-existed the Immigration Rules which referred to it, which it had not. The critical decision, of course, was the renewed application to the UT itself. Senior Immigration Judge Gleeson refused the application while simply ignoring the principal submission being advanced by the petitioner, namely that in terms of Pankina the Judge was not bound by Policy Guidance to disregard either set of accounts when potentially persuasive cross-corroborative evidence had been available to her. The issue of the availability of such cross-corroboration was simply left unaddressed by the UT Judge.

Alan Caskie of the Murray Stable instructed by Jamie Kerr of Morton Fraser LLP applied for judicial review. In the subsequent hearing, counsel for the Home Office accepted that there was no requirement in the Policy Guidance for the second set of accounts to have been supported by the petitioner’s signature of approval. The Home Office argued that the requirement that the first set of accounts be produced by certified accountants was a procedural rather than substantive requirement of the Policy Guidance, and thus not exempted by Pankina from a requirement of strict compliance. In advancing that submission, the Home Office relied on the Administrative Court decision in R (English UK Limited) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin).

Lord Glennie noted that the Administrative Court in that case had been concerned with a demonstrably substantive requirement of the Policy Guidance, so that dicta relating to procedural requirements were necessarily obiter. Furthermore, those obiter dicta were at odds with the decisions in the two Upper Tribunal decisions in FA and AA (PBS: Effect of Pankina) Nigeria [2010] UKUT 00304 and CDS (PBS: “available” Article 8) Brazil [2010] UKUT 00305 (IAC).

The Home Office heavily relied on the dicta in PR (Sri Lanka) on the level of exceptionality required before an application for judicial review would meet the strict test imposed by the second appeal rule. Lord Glennie observed [57] that “the court must be careful not to let words of description become a kind of mantra, laying down a precise and restrictive test which would exclude almost every situation.” Earlier [9] he had specifically noted the observations of Dyson LJ in Uphill v BRB that an important point of principle or practice was an important point of principle or practice that has not yet been established. Lord Glennie held that the conflict in the caselaw on the applicability of Pankina style relaxation of the requirement of strict compliance with Policy Guidance to procedural as well as to substantive requirements was such a point. On the basis of that conclusion on its own, Lord Glennie was able to uphold the application.

However, although it was not strictly necessary for him to do so, Lord Glennie proceeded to consider the second wing of the second appeal test, and found that that too was made out. The FTT Judge’s reliance on the point of similarity between the first and second set of accounts was unfair, standing that no notice was given in the refusal letter of the respondent relying on the point, and no opportunity afforded to the petitioner to give an explanation for what might have been capable of innocent explanation. Indeed, the Court had before it an affidavit of the second accountant containing precisely such an explanation. “By opting for a written procedure, an applicant does not opt out of the requirements of fair procedure. [62]” Lord Glennie also had regard in this context to the complete failure of the UT Judge in refusing permission to appeal to have regard to the central tenets of the petitioner’s application, specifically the availability of potentially cross-corroborative evidence. There had been a fundamental collapse of fair procedure such as to constitute some other compelling reason for allowing the application for judicial review to proceed, irrespective of whether substantive / procedural Pankina point satisfied the first criterion of the second appeal rule.

Lord Glennie’s decision in Oke is in the opinion of this writer a decision of the first importance. There is first of all the significant point of the postulated distinction between procedural and substantive requirements of Policy Guidance in terms of Pankina. The proposition that the first has the force of binding law while the second does not appeared  unattractive to the Lord Ordinary. It is noted that by way of contrast the Court of Appeal (whose decisions are not binding in Scotland) said differently in The Queen (on behalf of New London College Ltd.) v SSHD [2012] EWCA Civ 51. It is understood that the Supreme Court will consider all these matters when it hears the appeal in Alvi & JCWI v SSHD, although the hearing date does not yet appear on the Supreme Court’s list of pending cases. For those in daily practice in PBS work, it is to be hoped that the proposition that there could be a hard and fast distinction between the substantive and procedural requirements of Policy Guidance such that each category would have a different legal effect will be repudiated. Such an approach would add a further layer of confusion and complexity in an area of immigration law already characterised by its opacity. For present purposes, however, the essential point is that there can be no serious argument that a legal issue which is currently pending before the Supreme Court meets the first limb of the Cart / Eba test.

For non-specialists, the significance of Lord Glennie’s decision is that it shows that tribunal reorganisation does not mean that slapdash tribunal decision-making is always and necessarily immune from the rule of law. No-one seriously doubts that there has been an improvement in recent years in the quality of immigration appellate decisions, or that the specialist expertise of the tribunal now merits a significant measure of judicial deference. However, the very efficiency which makes administrative tribunals so attractive as a mechanism for dispensing justice in the field of social welfare law dictates that there will also be some propensity towards carelessness that must ultimately be subject to control by the civil courts. It is anticipated that the Home Office will reclaim Lord Glennie’s decision to the Inner House (our Court of Appeal) and it will be fascinating to see how the role of the Court in supervising the Tribunal will be further defined. Meantime, enormous gratitude and respect to Alan and Jamie for showing us the light at the end of the tunnel.

Joe Bryce

Joe Bryce

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Joe Bryce is based at Murray Stable in Edinburgh. He has a long history of involvement with immigration and asylum law, was Founder & Project Manager of LSA's Refugee Legal Project (2001 - 2006) and is a Director of Renfrewshire Law Centre.

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