Chinese citizen’s application for permission for judicial review of immigration tribunal decision refused as petition had ‘no real prospect of success’

A Chinese citizen who sought judicial review of decision not to allow her to appeal against an immigration tribunal’s refusal of her application for leave to remain in the UK on human rights grounds has been dismissed.

A judge in the Court of Session refused permission after ruling that the petition did not have a “real prospect of success”.

Lord Boyd of Duncansby’s opinion came in what was the first of a series of permission hearings arising out of the presentation of some 62 petitions before the deadline of 22 December 2015 imposed by the transitional provisions following the coming into force of section 89 of the Courts Reform (Scotland) Act 2014.

The new legislation amended the Court of Session Act 1988 by introducing new sections 27A –27D, the effect of which was to bring in a time limit within which judicial review of administrative decisions may be brought before the court and provides that the petitioner must obtain the permission of the court to proceed.

The court may only grant permission if it is satisfied that the petitioner has a sufficient interest in the subject matter and it has a real prospect of success.

Where, as here, the decision under review was one of the UT refusing leave to appeal from the FTT, a further condition is that court must be satisfied that the petition raises an important point of principle or practice or that there is some other compelling reason for allowing the application to proceed.

The court heard that the petitioner Chennan Fei arrived in the UK as a dependant of her father in March 2002 when aged 13, and was granted leave to remain until November 2003 when she became an overstayer.

She made a further application for leave to remain in 2003 but that was refused in December 2004.

It was apparent that she was unaware of her immigration status until she became an adult and applied for university, when she then applied for asylum on human rights grounds, but her application was refused and an appeal to the First-Tier Tribunal (FTT) was also dismissed.

The FTT refused her leave to appeal to the Upper Tribunal (UT), after which she sought leave from the UT, but that was also refused in July 2015, and she then asked the Court of Session to judicially review that decision.

The evidence before the FTT showed that the petitioner had formed a “close friendship” with an older woman, whom she referred to as her “godmother”, with whom she now lived in the same house and that her home life was established in this country.

She had not been back to China since she left and although she spoke Chinese she could not read or write the language.

It was accepted that the petitioner could not satisfy the Immigration Rules, but she argued that she ought to be given leave to remain outside the rules on human rights grounds, an argument rejected by the FTT.

The petitioner argued that the FTT made an error of law, as, having considered the issue of her private life established with her godmother, the FTT referred to section 117B(4) of the Nationality, Immigration and Asylum Act 2002, and noted that “little weight” should be given to it when the status was “precarious”.

The argument for the petitioner was to the effect that the FTT failed to read section 117B properly and chose one element, the precariousness of the her status at a time when the relationship with the godmother was formed, as the “decisive element”.

However, the UT considered that the ground of challenge amounted to “no more than a disagreement” with the FTT’s decision.

The UT observed that the FTT panel had given full and careful consideration to the ECHR article 8 claim and concluded that although the petitioner had established a private life the significance was outweighed by public interest factors.

The petitioner challenged the decision of the UT as being in itself an “error of law” essentially because it came to “wrong decision” on the ground of appeal.

As this was the first of a number of petitions to be considered, Lord Boyd asked to be addressed on the meaning of “real prospects of success”, which was recently considered by Lady Wolffe in Ochiemhen v Secretary of State for the Home Department CSOH 20.

Lord Boyd agreed with Lady Wolffe that the language of the provision was “clear” and that the words did not need “amplification”.

He continued: “My own conclusion is that the language of the test directs the court to the prospects of success rather than whether the case is stateable or arguable. That is important.

“Many things are arguable; the ingenuity of counsel knows no bounds. Focussing on arguability may inhibit the court in addressing the mischief that section 27B(2)(b) is designed to address; the prevention of unmeritorious claims proceeding.

“The word ‘real’ simply means genuine rather than fanciful or speculative. It is not a high standard but the court must be satisfied that there is some prospects of success.”

The judge refused permission as he did not accept that there was an error of law.

In a written opinion, Lord Boyd of Duncansby said: “Looking first at the FTT’s decision, the FTT was carrying out a proportionality assessment…They recognised that they should take into account other members of the petitioner’s family… They had particular regard to the petitioner’s godmother.

“In the ensuing paragraphs the FTT refers to all the factors that one would expect them to take into account in considering proportionality…The panel continue that this was not a case where there were compelling circumstances.

“The UT fully considered the ground of appeal and engaged with the argument. It concluded that it amounted to no more than a disagreement with the outcome. In the UT’s assessment the FTT had weighed up all the factors. In my opinion the UT’s findings on this matter are correct. Accordingly the petitioner fails to meet the test in section 27B(3)(b).”