Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 54
P17/14	OPINION OF SHERIFF NMP MORRISON QC Sitting as a Temporary Judge in the Petition of M L Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 28 August 2013 ________________

Petitioner: Forrest; McGill & Co, Edinburgh

Respondent: Gill; Office of the Advocate General

20 March 2014

The issue

[1] The petitioner seeks judicial review of a refusal by the Upper Tribunal to give permission to appeal a decision of the First-tier Tribunal. The error of law which the petitioner alleges, as mentioned in paragraph 9.2 of the petition, is that the Upper Tribunal erred in holding that the First-tier Tribunal could not have reached any other conclusion than it did because the case of Qiu Yun Chen v Holder, 715 F.3d 207 (7^th Cir. 2013) was not placed before it and because the system of country guidance requires that decision makers in the immigration appellate system follow decisions in country guidance cases.

[2] The issue which the petitioner seeks to have this court consider is whether an inferior court is not bound by a decision of persuasive authority in circumstances where it is bound under a factually based precedent system by a decision which pre-dates that authority. That issue is stated in paragraph 3.1 of the petitioner's note of argument for the hearing before me and was confirmed by counsel for the petitioner as that which he wished to be considered at the first hearing.

[3] The question for me, at the procedural first hearing, was whether that issue passed the first limb of the test in Eba v Advocate General, 2012 SC(UKSC) 1, namely, that an important point of principle or practice is raised. That is because the Upper Tribunal's refusal of permission to appeal is an unappealable decision by virtue of section 13(1) and (8)(c) of the Tribunals, Courts and Enforcement Act 2007 and Eba decided the test to be applied in deciding whether such a decision is amenable to judicial review.

[4] In A v Secretary of State for the Home Department, 2013 SLT 11, the Second Division gave guidance about how to apply that test. In the case before me, counsel for the petitioner agreed with the following propositions that counsel for the respondent derived from that decision (the paragraph references are to the paragraphs in the opinion of the court). These were:-

(1) In a challenge to an unappealable decision of the Upper Tribunal, the court's role is a gate keeping or sifting role (para. [43]).

(2) The Eba test is a stringent one which is designed to allow review only in rare and exceptional cases in order to ensure that no compelling injustice occurs (para. [44]).

(3) The challenge must identify an error of law on the part of the Upper Tribunal in refusing leave to appeal and not an error of law on the part of the First-tier Tribunal in the original decision against which leave to appeal was sought (para. [15]).

(4) A petition seeking judicial review of an unappealable decision of the Upper Tribunal must clearly and unequivocally aver the specific error on the part of the Upper Tribunal (para. [43]).

(5) Such a specific error normally requires to be one which cries out for consideration, and is not just potentially arguable, upon a reading of the petition (para. [44]).

(6) The petition must also clearly and unequivocally aver either (i) the important point of principle or practice or (ii) the other compelling reason why the challenge should be allowed to proceed (para. [43]).

[5] I accept the submission of counsel for the respondent that there could be added the following propositions. For there to be an important point of principle or practice -

(1) The issue raised must "be one of general importance, not one confined to the petitioner's own facts and circumstances" (Eba, para. 48).

(2) The issue must be a point that has not yet been established (A, above, para. [43] following Uphill v BRB (Residuary) Ltd, [2005] 1WLR 2070, 2075, para. 18).

(3) Whether an established point of principle or practice has been properly applied in an individual case does not itself raise an important point of principle or practice (Uphill, para. 18).

Background

[6] The petitioner, born on 21 June 1985, is a citizen of China from Fujian Province where she lived until 2008. She came to the United Kingdom and found that she was pregnant following an alleged rape by a man in China. Her child was born in the United Kingdom. The petitioner worked illegally here after her visa expired in October 2009. She applied for asylum on 26 April 2013. One of the grounds for the petitioner not wishing to return to China, and a ground of appeal, was that she had a fear of persecution by reason of her membership of a particular social group, being a single woman in breach of the family planning regulations in China. Women in her position, it was claimed, could be subject to sterilisation. Her application for asylum was refused. She appealed to the First-tier Tribunal. It was accepted by the tribunal judge that, as a single parent with a child born out of wedlock, she would be in breach of China's family planning policy. The appeal was, however, refused. The judge, having considered the case and the country guidance case of AX (family planning scheme) China CG, [2012] UKUT 97, decided that there was not a reasonable degree of likelihood that the petitioner would suffer persecution on return to China. The case of Qiu was not brought to the attention of the tribunal.

[7] Application to that tribunal for permission to appeal to the Upper Tribunal was refused as was the application to the Upper Tribunal for permission to appeal. The reasons for refusal by the Upper Tribunal in its decision of 28 August 2013 included that (1) tribunal judges were required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence were adduced justifying their not doing so; and (2) it cannot be an error of law not to consider submissions, documents and arguments not placed before the Tribunal.

The submissions

[8] Counsel for the petitioner argued firstly that, although the decision in Qiu by the United States Court of Appeals for the Seventh Circuit was not legally binding, that decision was of persuasive authority because it reached a different conclusion from that in the country guidance determination of the United Kingdom Upper Tribunal in AX on the same subject, namely, that of forced sterilisation in China. It was accepted by counsel for the petitioner that the material before the US court was different material from that mentioned and relied on in the decision in AX. The error of the Upper Tribunal was that, because of the system of binding legal precedent, it did not matter that the First-tier Tribunal was not referred to the decision in Qiu, it was bound to consider it. The important point of principle was, therefore, whether or that the Tribunal was so bound.

[9] Counsel's second related point was that the factually based system of precedent in country guidance determinations was not absolute and the decision in Qiu should have been considered. Paragraph 12.2 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal of 2010 made no provision for departure from a country guidance case if it were inconsistent with a case which was of persuasive authority. Counsel said that he was attacking the factually based system of precedent in country guidance cases.

[10] Counsel for the respondent submitted that a decision of a court in a foreign jurisdiction could never be binding: Walker, The Scottish Legal System, 8^th edition, p. 457. A decision that was merely persuasive is certainly not binding, and cannot be a decision that must be considered; and a court could certainly not be bound to consider it if not referred to it. The decision in Qiu, in any event, was not a decision on a point of law, and was a case decided in a jurisdiction in which there was a statutory presumption that any requirement to limit reproduction was persecutory (AX, above at para. 141). Furthermore, Qiu did not decide that the petitioner in that case faced a substantial risk of sterilisation if removed to China but decided that the way the Board of Immigration Appeals dealt with the case deprived the Board's order, denying asylum, of a rational foundation, and sent the case back to the Board. Thus even if the decision were one that had to be considered, it was not even persuasive authority for any proposition. The doctrine of precedent was well-established and no point of principle or practice arose in this case.

[11] In relation to the attack on the factually based precedent system in the Immigration and Asylum Division of the Tribunals in country guidance determinations, counsel for the respondent referred to R (SG (Iraq)) v Secretary of State for the Home Department, [2013] 1 WLR 41, 55 in which Stanley Burnton, LJ, explained that the purpose of country guidance cases was to provide a reliable determination of the conditions in the country of origin of those who seek protection so as to determine whether or not there is a risk. Thus tribunal judges are required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so (para. 47 of his judgment). Paragraph 12.2 of the Tribunals' Practice Directions confirms the status of country guidance determinations. The Upper Tribunal Immigration and Asylum Chamber Guidance Note No.2 of 2011 at paragraphs 11 and 12 states that the judge will look at credible fresh evidence not considered in the country guidance case and that where country guidance has become outdated the First-tier Tribunal judge will have such credible fresh evidence. There was, therefore, well-established law about the nature of country guidance and a basis for departing from it. The case of DSG & Others (Afghan Sikhs: departure from CG) Afghanistan, [2013] UKUT 148, was an example of that. The place to seek to depart from or overturn country guidance was before the Tribunal. There was no important point of principle or practice.

Is there an important point of principle or practice here?

[12] I did not think that the issue which the petitioner sought to raise passed the Eba test.

[13] I agree with the submissions of counsel for the respondent. A decision of a foreign court is not legally binding. A fortiori, a decision of a foreign court which is merely persuasive is not one that is binding, is not bound to be considered and certainly not where it has not been referred to. In this instance a foreign court means one outside the United Kingdom. Even if the decision in Qiu were one to be considered as persuasive, it was not a decision that there was a substantial risk of compulsory sterilisation if returned to China but that the Board had not marshalled the literature on the issue; and the case was sent back to the Board. The doctrine of precedent in relation to decisions of foreign courts is well-established and no point of principle or practice in relation to it is raised in this case.

[14] This brings one to the second point, about country guidance determinations. While the tribunals are required to take country guidance determinations into account (R (SG), above), the rule is not rigid and country guidance may be departed from in appropriate circumstances as outlined in R (SG) (see, for example, the decision in DSG, above). The proper place to do that is with relevant evidential material placed before the tribunal. No point of principle or practice in relation to departing from country guidance on the basis of persuasive authority arises in this case because the tribunal cannot be bound to take account of a decision of any court anywhere even though not cited to it (as distinct from a decision which is legally binding upon it to follow) and cannot have its decision overturned merely because it did not do so; and because the issue is one of fact for which there is an established means of bringing new material before the tribunal. In my opinion, there is no important point of principle or practice about the effect of persuasive authority on country guidance determinations raised in this case.

[15] I stated at the end of the hearing that the issue sought to be raised by the petitioner did not pass the test. Counsel for the petitioner wished to see my reasons in writing. For the reasons stated above, I decided that the issue to be raised by the petitioner did not meet the first limb of the test in Eba. Accordingly, I now dismiss the petition.