Woman fails in judicial review over decision not to grant her leave to remain in UK



Court of Session Outer House
Court of Session Outer House

of the expiration of her grant of leave to remain in July 2013 the petitioner made another application for permission to stay for longer than a year based on her article 8 rights, which she said were stronger because of her increased integration into her family life in Glasgow. She had recovered from her cancer by this time.

Her application was refused, with the Secretary of State’s decision stating there were no exceptional circumstances this time.

She appealed to the First-tier Tribunal. The immigration judge noted that the appellant had had an independent life in the Philippines and that her family life was dependent on her daughter, son-in-law and grandchildren, whom she had previously seen while travelling back and forth between the UK and the Philippines for long holidays – making it unlikely her article 8 rights would be infringed if she were to return to the Philippines. He also noted the Secretary of State had rejected arguments advanced on the basis of the Immigration Rules but had allowed the appellant to stay as an exception to them because of her health circumstances. Her appeal was refused and so too was permission to appeal to the Upper-tier Tribunal.

The Upper Tribunal itself then refused her permission to appeal to it.

On behalf of the petitioner in the present case it was argued the basis for her appeal had been misunderstood as relating to her illness by the immigration tribunals; that the focus of her appeal from the First-tier Tribunal was that her relationship with her family was stronger; that the Upper Tribunal erred in law in refusing her permission to appeal; and that the Secretary of State had acted inconsistently in refusing the application.

In his opinion, Lord Pentland said the petitioner’s submissions were unsound and should be rejected. He said the exception granted her could not have been a result of her genuine relationship with her family except on an “unduly” literal interpretation of the decision notice. Rather, it was her illness that made her circumstances exceptional.

The judge said: “The only feature of her case that could, on any realistic view of matters, have been regarded as exceptional was her illness and her need for family support during treatment for it. That is how an informed reader, knowing of the grounds of the application, would inevitably have understood the decision notice (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at 348).”

He went on to explain why the Upper-tier Tribunal had not erred in law. The Upper Tribunal judge had correctly concluded there were no errors of law in the decision or reasoning of the First-tier Tribunal and even if there had been, they would not have been material.

Lord Pentland said: “There was abundant material to support the view that the petitioner’s article 8 rights would not be infringed by refusing to allow her to remain in the United Kingdom as at July 2013; the facts and circumstances bearing on that view of matters are fully set out and considered in the determination made by the First-tier Tribunal.”

He concluded: “Since there was no material error of law in the decision of the Upper Tribunal, I must refuse the petition. I shall do so by sustaining the respondent’s second plea-in-law and refusing the petitioner’s pleas. I shall reserve all questions as to expenses.”

© Scottish Legal News Ltd 2020