Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 86
P7/11	OPINION OF LORD BRODIE in the cause AKA Pursuer; for Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 September 2010 to refuse the petitioner's application for permission to appeal. ­­­­­­­­­­­­­­­­­________________

Petitioner: Drummond QC, McGuire; Drummond Miller LLP, Solicitors

Respondent: Webster; Office of the Advocate General

18 May 2012

Introduction
[1] The petitioner is AKA. She is national of Nigeria. She is 38 years old. She seeks judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 September 2010 to refuse her application for permission to appeal a determination of the First‑tier Tribunal promulgated on 20 July 2010 dismissing her appeal against refusal of asylum and humanitarian protection and her claim that removal from the United Kingdom would contravene the rights of her and her family as guaranteed by Article 8 of the European Convention on Human Rights. The respondent is the Secretary of State for the Home Department.

[2] The petitioner arrived in the United Kingdom on or about 27 April 2004. She was accompanied by her two elder daughters E, born on 4 June 2001 and M, born on 26 February 2003. She and her children then travelled to Dublin where she made an application for asylum on or about 20 May 2004. She remained in Dublin for approximately a month before returning to the United Kingdom without receiving a decision on the asylum claim. The petitioner's husband arrived in the United Kingdom on or about 27 May 2004. The petitioner, her husband and their two elder children held United Kingdom visitor visas valid from 3 February 2004 to 3 February 2006.

[3] The petitioner, her husband and two elder children have remained in the United Kingdom subsequent to 2004. Latterly they have been resident in Scotland. While in the United Kingdom the petitioner and her husband have had another two daughters O, born on 20 August 2004 and D, born on 30 November 2008. The petitioner's daughter, O, has learning difficulties and consequent special educational needs.

[4] In April 2010 the petitioner's husband came to the attention of the police and his immigration status became apparent to the relevant authorities. On 23 April 2010 the petitioner made an application for asylum. The application was refused by the respondent in a decision made on 4 June 2010. The petitioner appealed against the refusal of her claim for asylum to the First‑tier Tribunal and a hearing of that appeal took place before Immigration Judge Phillips on 5 July 2010. The petitioner's appeal was refused and a decision promulgated in terms of Determination and Reasons dated 20 July 2010 ("the Determination"). As appears from the Determination, the Immigration Judge accepted that the petitioner and her family had established private life in the United Kingdom but she concluded that their removal to Nigeria would be proportionate.

[5] The petitioner made an application to the First‑tier Tribunal for permission to appeal to the Upper Tribunal against the decision of the Immigration Judge. That application was refused in a decision dated 11 August 2010 made by Senior Immigration Judge King. The petitioner thereafter made a further application for permission to appeal, this time the application being made to the Upper Tribunal. That application was refused in terms of a decision dated 7 September 2010 made by Senior Immigration Judge Warr. The petitioner has no right of appeal against the decision of the Upper Tribunal to refuse her application for permission to appeal: Tribunals Courts and Enforcement Act 2007 Section 13(8)(c).

[6] The petition for judicial review came before me for a first hearing on 18 January 2012. The pursuer was represented by Miss Drummond QC and Mr McGuire, advocate. Mr Webster appeared for the respondent. Oral argument was presented under reference to detailed Notes of Argument which had been lodged by the parties, respectively numbered 14 and 15 of process, to which I refer. The hearing not having been completed on 18 January 2012, it was continued to a further diet which extended over 6, 7 and 8 March 2012.

Issues
[7] At the beginning of his submissions on behalf of the respondent, Mr Webster advised me that I had found myself in the "perfect storm" constituted by the convergence of the "two hot topics" in judicial review of refusals by the Upper Tribunal to grant permission to appeal in Immigration and Asylum cases: best interests of the child and the Eba test. Mixed and overwrought as Mr Webster's metaphors may have been, he accurately identified the issues which had been focused by Miss Drummond in the course of her submissions.

[8] Seeking to resist removal from the United Kingdom, on 23 April 2010 the petitioner had made a claim for asylum founding on fears for herself and her daughters by reason of her experience of having been raped during a robbery and fears that her daughters might be made subject to female genital mutilation by members of her husband's family. The Immigration Judge who constituted the First-tier Tribunal refused the petitioner's appeal against the respondent's rejection of her claims for asylum and humanitarian protection in terms of Immigration Rule 339C on the grounds that the petitioner had not demonstrated a well founded fear of persecution or a real risk of serious harm should she be required to return to Nigeria. In her applications for permission to appeal made to the First‑tier Tribunal and then to the Upper Tribunal the petitioner did not seek to revisit these findings by the Immigration Judge. Rather, permission was sought to argue that the Immigration Judge had erred in law in failing to have regard to the best interests of the petitioner's children, as a primary consideration, in the assessment of whether the removal of the petitioner from the United Kingdom with her children would contravene their rights to respect for private and family life as guaranteed by Article 8 of the European Convention on Human Rights. Miss Drummond encapsulated the point in this way in her Note of Argument:

"In a nutshell, the challenge is based on the failure of the Immigration Judge to properly consider the petitioner's claim in relation to her (and her children's) Article 8 ECHR rights to private life in the UK. The petitioner submits that the Immigration Judge failed to consider the best interests of the children as a primary consideration and to provide adequate reasons for her decision, and that the Upper Tribunal failed to recognise these errors."

[9] Miss Drummond accepted, however, that having regard to the decisions of the Supreme Court in Eba v Advocate General for Scotland [2011] WLR149 and R (Cart) v Upper Tribunal [2011] WLR107, to succeed in her application for judicial review it might not be enough for the petitioner to satisfy the court that the Immigration Judge constituting the First-tier Tribunal had made a material error of law in rejecting the petitioner's Article 8 claim and that therefore the Upper Tribunal had made an error of law in failing to recognise that the point the petitioner wished to advance on appeal to the Upper Tribunal was at least arguable. Miss Drummond's position was that in this case the Upper Tribunal had been plainly wrong and that whatever precisely was the restriction to be imposed on judicial review of unappealable decisions to refuse permission following Eba, it had never been the intention of the Supreme Court to exclude cases where there was a material error of law, far less where the Upper Tribunal's decision was plainly wrong.

[10] Miss Drummond's approach was first to develop her attack on the lawfulness of the First‑tier Tribunal's determination under reference to a full exposition of the relevant authority and then, having demonstrated, as she would submit, the strength of the petitioner's position, to argue that the First‑tier Tribunal was plainly wrong in relation to a material matter. The plainness and materiality of the error made for a compelling reason in terms of the second limb of the Eba Test and therefore, so the argument went, good grounds for the court concluding that the matter came within the scope of judicial review. Such an approach is, of course, good advocacy: first attempt to win over the court to the justice of the cause, and only once that has been done address any procedural or other technical hurdles which appear to stand in the way of justice being done. It is also, and in making this observation I mean no criticism whatsoever of Miss Drummond's excellent presentation under reference to a well drafted Note of Argument, lengthy advocacy. The court did not sit until noon of the first day of the hearing due to prior business, but it took the whole of the second day and an hour and a half of the third day before Miss Drummond completed what she wished to say. Mr Webster's submissions took a little over a day. Miss Drummond requested that she be allowed to respond in a second (and, as it proved, very short) speech. This is of course only to mention the time taken in argument once the first hearing had commenced. The petition was lodged with the Court of Session on 5 January 2011. Fifteen months had therefore passed from the date of commencement of proceedings until the conclusion of the first hearing. Thereafter time has been taken in preparing this opinion. In a case such as this, where the length of the family's residence in the United Kingdom is an obviously very relevant matter, such a significant passage of time is less than satisfactory. This takes me to the question asked rhetorically by Mr Webster at the outset of his submissions: the issues may well be (1) whether there was there a material error of law on the part of the First‑tier Tribunal; and (2) whether the petitioner passes the Eba Test, but is taking them in that order the correct approach? He suggested that it was not.

[11] I shall have more to say about Miss Drummond's submission that the First‑tier Tribunal made a material error of law but first, accepting the force of Mr Webster's rhetorical question, I shall look at the Eba Test, its evolution and its rationale.

The Eba Test
[12] The appeal from the Court of Session in Eba v Advocate General for Scotland supra was heard by the Supreme Court together with the appeals from the Court of Appeal in R (Cart) v Upper Tribunal and R (MR Pakistan) v Upper Tribunal. Judgment was given in the respective cases on the same day. Miss Drummond and Mr Webster were agreed that the judgment of the Court given by Lord Hope in Eba required to be read along with the five judgments in Cart. The leading judgment in Cart was given by Baroness Hale. There she traces the history whereby the principle of English law was established that unappealable decisions of inferior tribunals, including refusals of leave to appeal, were amenable to judicial review on all the usual grounds. She then describes the major reorganisation of tribunals into a unified structure which was effected by the Tribunals, Courts and Enforcement Act 2007 (see also the explanation given in the opinion of the court delivered by the Lord President when Eba was before the Inner House - 2010 SLT 1047 at 1049G to 1050K). Importantly, section 11(1)(2) of the 2007 Act conferred a right of 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", this right being exercisable only with the permission of either the First‑tier Tribunal or the Upper Tribunal. This restructuring of tribunals into what might be said to have the appearance of a distinct administrative court with specialist chambers and rights of appeal (see Sedley LJ in Cart v Upper Tribunal [2011] QB120 at 172, paragraph 42) raises a question as to whether as a matter of principle and policy there continues to be a justification for the continued exercise of an unrestricted supervisory jurisdiction by means of judicial review. As Lady Hale has it at paragraph 29 of her judgment:

"There is no express provision in the 2007 Act which makes any attempt to limit or remove the supervisory jurisdiction of the High Courts of England and Wales or Northern Ireland and the Court of Session in Scotland to review the decisions of the Upper Tribunal. It is nevertheless argued, and both the Divisional Court and the Court of Appeal held, in the light of the system introduced by the 2007 Act, that the exercise of that jurisdiction should be limited to certain exceptional cases."

[13] As Cart made its way through the Divisional Court, Court of Appeal and Supreme Court, it was held at each stage that when what was attacked was a refusal of permission to appeal from the First‑tier Tribunal to the Upper Tribunal, the scope of judicial review was limited to exceptional cases, albeit, as Lady Hale documents, the government achieved its success on varying grounds and despite rejection of its (changing) principal arguments. Lady Hale agreed that in applications of this sort the scope of the judicial review should be limited to the exceptional cases. These she identified by analogy with "the second‑tier appeals criteria". The second‑tier appeals criteria are statutory tests found, for example, in the English Civil Procedure Rules, rule (hereinafter "CPR r.") 52.13(2) which requires permission from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal. As Lady Hale observes (Cart at para 52), section 13(6) of the 2007 Act gave the Lord Chancellor power to prescribe the same criteria for the grant of permission to appeal from the Upper Tribunal to the Court of Appeal as applied to other second‑tier appeals to the Court of Appeal. These criteria are:

"Permission is not to be granted unless the Upper Tribunal or Court of Appeal considers:

(a) that the proposed appeal would raise some important point of principle or practice or

(b) that there is some other compelling reason for the [Court of Appeal] to hear the appeal".

[14] This was the position with which Lord Hope unhesitatingly aligned Scots Law when delivering the judgment of the Supreme Court in Eba.

[15] The reasons why the Supreme Court was persuaded to allow only restricted judicial review of refusals of permission to appeal are conveniently summarised in Lord Dyson's judgment in Cart at para 122 et seq (where he abbreviates the Upper Tribunal as "UT" and the 2007 Act as "the TCEA"):

"122. I accept that any restrictions call for justification. Prima facie, judicial review should be available to challenge the legality of decisions of public bodies. Authority is not needed (although much exists) to show that there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review. But the scope of judicial review should be no more (as well as no less) than proportionate and necessary for the maintaining of the rule of law. The status and functions of the UT to which I have already referred are important here.

123. In my view, there are three reasons why unrestricted judicial review of unappealable decisions of the UT is neither proportionate nor necessary for maintaining the rule of law. First, there is the status, nature and role of the UT to which I have already referred. Secondly, the TCEA gives those who wish to challenge the decision of a First‑tier Tribunal ("FTT") the opportunity to have the decision scrutinised on several occasions: first when the FTT decides whether or not to review its decision under section 9(1)(2); second, if the FTT decides not to review its decision, when it decides whether or not to grant permission to appeal to the UT under section 11(4)(a); third, if the FTT refuses permission to appeal, when the UT decides whether or not to grant permission to appeal under section 11(4)(b). The UT initially decides this on the papers. In certain categories of case, there is a right to renew the application at an oral hearing (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rule 22(3)(4); in any event, the UT has the power, if it considers it appropriate to do so, to hold an oral hearing to decide permission (ibid, rules 5(1) and 5(3)(g)).

124. The third reason involves the issue of resources. There is no doubt that immigration and asylum cases have presented huge problems for the justice system. The relevant history is summarised at paras 46 and 47 of Baroness Hale's JSC's judgment. It is singled out for particular mention in the 2004 White Paper as having caused 'so much difficulty for both the immigration appellate authorities and the courts'. The adoption of unrestricted judicial review of refusals of permission to appeal by the Upper Tribunal (Immigration and Asylum Chamber) would involve a return to the position under the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993 when the courts were inundated with unmeritorious applications for judicial review of refusals by the Immigration Appeal Tribunal of decisions of the special adjudicator. Parliament recognised the existence of the problem and sought to overcome it successively by enacting the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004: see para 21 of Baroness Hale JSC's judgement. It cannot have been intended by Parliament when it enacted the TCEA that there should, in effect, be a return to the situation that obtained before the 2002 Act...

125. One can readily sympathise with the argument that problems that are peculiar to the immigration and asylum cases should not determine the scope of judicial review in all other cases. It seems that the courts have not been inundated with unmeritorious applications for judicial review of the refusal of leave to appeal for other tribunals. But Sullivan LJ was right, for the reasons that he gave at paras 51 - 53 of his judgment in MR (Pakistan) [2010] EWHC 3558 (Admin), to hold that the same approach should be applied to permission decisions made by the Immigration and Asylum Chamber of the Upper Tribunal as they do to decisions made by other chambers. In the light of the unified tribunal structure created by TCEA, there should be a unified approach as to the grounds, if any, on which a judicial review of decisions of the UT can be sought. It would be contrary to the unifying purpose of the TCEA for a different approach to be adopted depending on the subject‑matter of the decision being appealed."

[16] As part of the court in Cart Lord Hope expressly agreed with Lord Dyson's reasoning as well as that of Baroness Hale and Lord Phillips. In aligning Scotland with England when giving the judgment of the Court in Eba he may be taken to have adopted Lord Dyson's reasons as well as the two factors which he refers to in para 47 of Eba: that the court should be slow to interfere with decisions lying within the expertise of specialist tribunals and that the second‑tier appeal test had been adopted in Scotland for the purpose of granting permission to appeal a decision of the Upper Tribunal to the Court of Session (by what is now Rule of Court 41.57, as substituted by SSI 2011/303).

At paras 48 and 49 of Eba Lord Hope continues as follows:

"48. So I would hold that the phrases 'some important point of principle or practice' and 'some other compelling reason', which restrict the scope for a second appeal, provide a benchmark for the court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, paras 17 and 24, per Dyson LJ and Cramp v Hastings Borough Council (Note) [2005] 4 All ER 1014, para 68, per Brooke LJ. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all.

49. I would leave it to the Court of Session to give such further guidance as may be needed as to how this analogy with the second appeals criterion should be applied in practice. But it may be helpful if I were to mention these points: (a) Lord Reid's observation in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 that if a statutory tribunal decides a question remitted to it for a decision without committing an error of law as to what that question is, it is as much entitled to decide that question wrongly as it is to decide it rightly remains the basic yardstick: see also West v Secretary of State for Scotland 1992 SC 385, 413, para 2. (b). The court must then distinguish between errors of law that raise an important issue of principle or practice, or reasons that are compelling and those that do not answer to this description. The question whether the application meets this test must depend on the facts of each case. It ought to be capable of being applied at the earliest possible stage, and certainly at the stage of the first hearing, as a matter of relevancy."

[17] Miss Drummond and Mr Webster took issue over what were the implications of the above passage and the English authorities referred to there (to which was added PR (Sri Lanka) v SSHD [2012] 1 WLR 73). Put shortly, it was Mr Webster's position that the court should give effect to Lord Hope's intention that the law of Scotland should be aligned with the law of England which was, as Lady Hale had said at para 31 of her judgment, that judicial review of a refusal of permission is only exercisable in "rare and exceptional cases": Cart at para 31. In identifying what was and what was not rare and exceptional, the court should follow the guidance provided by the English cases and in particular the cases of Uphill, Cramp and PR. Material error of law on the part of the First‑tier Tribunal, even if plain, was not in itself sufficient to bring the decision to refuse leave to appeal to the Upper Tribunal within the scope of judicial review. While not going the distance of asking me to disregard Eba, Miss Drummond both questioned how well the decision was founded and pointed to the scope that it gave to a Scottish court to distance itself from the position indicated by Uphill, Cramp and PR. Lord Hope had said that he would leave it to the Court of Session to give guidance on how the analogy with the second appeals' criterion should be applied. There was no requirement to follow English jurisprudence. Unlike in England, an applicant for judicial review in Scotland was entitled to have his application heard. The problem of the high volume of unmeritorious applications to the English High Court which very clearly influenced the court in Cart did not apply in Scotland. As Lord Hope had emphasised, the Court of Session has always exercised restraint in its approach to the review of decisions of expert tribunals. The second appeals criterion added little to that.

[18] Miss Drummond appeared to be suggesting that I should pick up the gauntlet laid down by Lord Hope at para 49 of his judgment in Eba. I rather doubt whether that is the role of a single Outer House judge. With a qualification to which I shall return, I see the force of the view expressed by Lord Glennie in Oluwasegun Olalekean Oke Petitioner [2012] CSOH 50 at para 11:

"It seems to me that any guidance by the Court of Session, particularly at Outer House level is likely to emerge not from some further statements of principle but simply from the accretion of cases illustrating applications of the test to the particular circumstances."

That said, I do see it as appropriate that I set out what I understand to be the effect of the decisions in Cart and Eba, in the light of submissions made to me by Miss Drummond and Mr Webster.

[19] It is clear from Eba that the Supreme Court intended that the scope of judicial review of permission to appeal refusals by the Upper Tribunal should be significantly restricted and that the result would be to "align" the Scots approach with that adopted in England in Cart. It is true that in unhesitatingly opting to follow the English approach, Lord Hope gave particular weight to the terms of what was then Rule of Court 41.59 (and is now Rule of Court 41.57), but I see that as having to do with the exact formulation of the criteria to be adopted. That there is such a rule (whether intra vires or ultra vires, as to which now see KP v Secretary of State for the Home Department [2012] CSIH 38) does not per se impact on the question as to whether the availability of judicial review on material error of law should in some way be restricted or circumscribed. Miss Drummond may very well have been correct when she said that Scotland does not have the problem of dealing with a very high number of unmeritorious applications which faces the High Court in England, but I do not see how that advances her position. It is not that the situation in the Court of Session is free from all difficulty. As is noted in para 38 of Lord Hope's judgment in Eba, it was the view of Lord Gill in his Report of the Scottish Civil Courts Review, vol 2, CHP 12, para 50, that petitions for judicial review in Scotland occupy a disproportionate amount of sitting days (and consequently a disproportionate amount of judicial time both on and off the bench.) The great majority of these petitions relate to asylum and immigration claims. The consideration, emphasised by Lord Phillips at para 89 in Cart, that where statute provides a structure under which a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted so as to ensure, in the interest of making the best use of judicial resources, that this does not result in a duplication of judicial process that cannot be justified by the bounds of the rule of law, applies to Scotland as it applies to England. The same may be said of Lady Hale's observations at para 47. In immigration and asylum cases there is every incentive to a party faced with an adverse decision to take every possible point and to make every possible application. As Lady Hale says, that is not a criticism. If a procedure is available whereby a party affected by an adverse immigration decision can postpone and perhaps by long postponement prevent, his removal from the United Kingdom, he can hardly be blamed for making use of that procedure. This is true for Scotland as well as for England and while it may be the case that the pressure on the Court of Session is very much less than the pressure on the High Court in England, what may have been a particularly English problem might become a Scottish problem were the Court of Session to appear to be a materially more friendly forum for applications of this sort than the English High Court: cf AB Petitioner [2011] CSOH 205 at para 20.

[20] Thus, Eba provides what is intended as a common approach to what is seen as a common problem. The Court of Session may not yet face being overwhelmed by applications for judicial review in immigration and asylum cases but, as Lady Hale put it at para 41 of Cart: "There must be a limit to the number of times a party can ask a judge to look at a question". I would reject Miss Drummond's submission that what is set out in Eba adds little to the traditional restraint shown by the Court of Session in opening up the decisions of specialist tribunals to judicial review. Such restraint manifests itself in a variety of ways, but it cannot be regarded as materially different from the respect shown to specialist decision makers in England: Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 15 to 17.

[21] Thus, while as a matter of generality, the scope of the supervisory jurisdiction of the Court of Session is not exactly the same as the scope of the judicial review jurisdiction exercised by the English High Court, it would seem clear that it was the intention of the Supreme Court that, in this one specific area, that of applications for judicial review of refusals of permission to appeal to the Upper Tribunal, the ambit of the two jurisdictions should be the same. Only where the proposed appeal raises an important point of principle or practice or where there is some other reason which is compelling, should the Court of Session, on the one hand, or the High Court, on the other, intervene. The exposition of this common test was given by Lord Dyson in Cart at paras 130 and 131:

"130. First, and obviously, it does not suffer from the defects of the two alternatives that I have rejected. Secondly, and positively, it ensures that errors on important point of principle or practice do not become fossilised within the UT system. An individual who has been unsuccessful before the FTT will be able to raise an important point of law in the courts if the UT refuses to grant permission to appeal to itself. As explained by the Court of Appeal in Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, it is not enough to point to a litigant's private interest in the correction of error in order to obtain permission for a second appeal. Permission will only be given where there is an element of general interest, which justifies the use of the court's scarce resources: see also Zuckerman on Civil Procedure 2^nd ed (2006), para 23.139. It follows that, if the law is clear and well established but arguably has not been properly applied in the particular case, it will be difficult to show that an important point of principle or practice would be raised by an appeal. The position might be different where it is arguable that, although the law is clear, the UT is systematically misapplying it: see, for example, Cramp v Hastings Borough Council [2005] 4 All ER 1014.

131. Thirdly, the second limb of the test ('some other compelling reason') would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Law LJ referred to at para 99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences."

Lord Hope was able to be somewhat more succinct in Eba at para 48:

"Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all."

[22] If then Eba effected a change in the extent to which it is open to the Court of Session to review a refusal of permission to appeal by the Upper Tribunal by importing the second-tier appeals test from England the question remains as to how that test is to be understood and how it is to be applied in the present case.

[23] Miss Drummond did not argue that the petitioner's application raised an important point of principle or practice. Rather, she relied on the second limb of the test: "other compelling reason", the compelling reason being that she had demonstrated, during the course of the four-day hearing, that the First-tier Tribunal had been "plainly wrong". The First-tier Tribunal being "plainly wrong", she reminded me, was one of the examples of other compelling reasons given by Lord Hope at para 48 of Eba. Being plainly wrong in the sense of being inconsistent with the authority of a higher court was also identified as an example of a compelling reason in Uphill v BRB (Residuary) Ltd supra, a leading case on the interpretation of CPR r. 52.13(2) which is referred to in Cart and Eba.

[24] Given the context, when Lord Hope used the expression "plainly wrong" he can only have meant "plainly wrong" in law. While it might be that "plainly wrong" is not very far from Lord Dyson's "strongly arguable that there has been an error of law which has caused truly drastic consequences", this was not Miss Drummond's position. She simply pointed to the words that Lord Hope had used and submitted that the First-tier Tribunal had been "wrong" and that this had been "plainly" so.

[25] Straightforward as Miss Drummond's approach undoubtedly was, it is not without difficulty. "Plainly wrong" can be seen as having a different meaning than "arguably wrong"; the assertion of wrongness is being made with a greater degree of confidence. However, it is more difficult to draw a distinction between a decision being "plainly wrong" in law and it being simply "wrong" in law. Once a decision is shown to be wrong in the sense that it proceeds upon a material error of law it would seem to be as wrong as it can be, at least in any relevant sense. On this approach, the second limb of the test which is described as excluding judicial review in all but "exceptional" cases, looks to be much the same as the former approach of review on material error of law which Eba appeared to be intent on displacing. It was this conclusion, which seemed to be the thrust of Miss Drummond's submission: that a plain error in law was sufficient to satisfy the second-tier appeal test, which prompted Mr Webster to observe that, if this was correct, then the lengthy judgments of the Supreme Court in Cart and Eba amounted to no more or less than what he described as "an exercise in judicial masochism". What I understood him to mean by that was that the application of much labour and learning had resulted in essentially no change in the law whatsoever. Notwithstanding all this effort, as Miss Drummond presented the effect of Eba, a demonstrated material error in law on the part of the First-tier Tribunal was still sufficient reason to justify an exercise of the supervisory jurisdiction by reducing the refusal of permission to appeal. That, submitted Mr Webster, could not be what the Supreme Court had meant. It was entirely inconsistent with Lady Hale's summary, at para 31 of Cart, of the successful secondary argument on behalf of the Secretary of State: "that judicial review is only exercisable in rare and exceptional cases." Plain error, submitted Mr Webster, even if detected at the stage of threshold consideration, was not enough. That was what Eba had decided. It was about time, said Mr Webster, that decision-makers grappled with the reality of that.

[26] Thus admonished by Mr Webster, I return to the question as to how the Eba test is to be understood and applied. In doing so, I see it as important to bear in mind the purpose of the English CPR r. 52.13 (2) on which the test is modelled, and the procedural context within which CPR r. 52.13 (2) is operated. The difficulty posed by the respective submissions of counsel may be as much a consequence of a mismatch between the test and the procedural stage at which it falls to be applied, as anything else. Eba is not just about importing a particular test, it is also about endorsing a particular approach to judicial decision-making which is to be adopted at a particular procedural stage and for a particular purpose.

[27] Mr Webster took issue with my characterising the second appeal test as a sifting mechanism. I would accept that he was right to do so. The familiar metaphor of sifting may work well enough when applied to the procedure for granting leave or permission for a first appeal. At that point there has only been one decision adverse to the would-be appellant. It would seem reasonable to recognise that the decision might have been wrong and that therefore there should be the possibility of an appeal, subject only to the "sifting out" of identifiably unmeritorious cases. The purpose of such a "sift" is to filter out the bad cases, allowing through cases that are only possibly good. A familiar Scottish example of such a mechanism is that provided for appeals against convictions on indictment by sections 106 and 107 of the Criminal Procedure (Scotland) Act 1995. There is a right of appeal against conviction and sentence subject to leave. Leave will be granted if a judge of the High Court considers the grounds of appeal relied on by the convicted person to be "arguable". Similarly, the test for permission to appeal from the First-tier Tribunal to the Upper Tribunal is "real prospect of success": AB Petitioner supra at para 13. That, "or some other compelling reason", is the test that the Civil Procedure Rules provides for a first appeal to the English Court of Appeal: CPR r. 52.3 (6), Cart supra at para 70. Such relatively generous criteria can be seen as encouraging or at least facilitating a first appeal, which, by being available, strengthens the administration of justice. Lord Phillips explains this in his judgment in Cart. At para 67 there is this:

"At the same time as making provision for the structure of the general court system, Parliament created tribunals to adjudicate on disputes in specialised areas and a number of specialist courts. A common theme can be identified in relation to most of these, as well as in relation to the general court system. The possibility of at least one appeal is desirable in order to address the possibility of error of law on the part of the court or tribunal first seised of the matter. Legislation dealing with the court system in general and with specialist courts and tribunals usually makes provision for appeals."

Lord Phillips continues at para 68:

"The private purpose was to correct an error, unfairness or wrong exercise of discretion leading to an unjust result. The public purpose was to ensure public confidence in the administration of justice and, in appropriate cases, to clarify and develop the law, practice and procedure and to help maintain the standards of first instance courts and tribunals."

Second-tier appeals (that is appeals in cases where there has already been an appeal) are another matter altogether. The test for permission is significantly tightened. CPR r. 52.13 (2) retains, at CPR r. 52.13 (2) (b), the longstop, "other compelling reason" for the Court of Appeal to hear it criterion, but the requirement of "real prospects of success" is replaced by the requirement that the appeal would raise some important point of principle or practice. Lord Phillips provides the reason for that at para 68 in Cart:

"Rights of appeal should be proportionate to the grounds of complaint and the subject matter of the dispute. More than one level of appeal would not normally be justified unless an important point of principle or practice was involved."

Similarly, in Uphill v BRB (Residuary) Ltd supra, at para 19, there is this quotation from the judgment of Brooke LJ in Iftakar Ahmed v Stanley A Coleman & Hill [2002] EWCA Civ 935:

"The restriction on second appeals is important because Parliament has made it clear that it wishes pre-trial disputes in civil litigation to be dealt with, on the whole, at a level lower than this court. It may be that judges in the courts below may make orders which judges in this court would not have made, but the philosophy of the Civil Procedure Rules is to confirm and bolster the authority of the judges in the lower courts."

The policy therefore is strongly to discourage a second appeal, while allowing for its possibility in the exceptional case. The second-tier appeal test reflects that. The metaphor of sifting as a reference to the filtering out of the unarguable cases is, as Mr Webster submitted, accordingly inappropriate. The metaphor that Mr Webster commended to me was that of a safety valve; generally the route of a second appeal is shut off, but the possibility of appeal is retained in order to accommodate the pressure of an important point of principle or practice or some other compelling reason. The safety valve metaphor is not Mr Webster's invention. As appears from para 6 in PR (Sri Lanka) v Secretary of State for the Home Department supra, the expression was used by Lord Woolf in the context of discussion of what became section 55 of the Access to Justice Act 1999. The proposed formulation of the second-tier appeal test would, he said, enable the Appeal Court to exercise its function "of first of all dealing with important points of principle and practice and also acting as a safety valve so as to ensure that no compelling injustice ... was done": Hansard (HL Debates), 28 January 1999, col 1242.

[28] Simple error of law on the part of a lower court or tribunal does not necessarily amount to a compelling injustice. That certainly would appear to be the opinion of Lord Brown of Eaton-under-Heywood who, at para 99 of Cart, speaking of refusals of permission to appeal to the Court of Appeal from the Upper Tribunal, said this:

"The second-tier approach expressly contemplates that some Upper Tribunal decisions, even though erroneous in point of law, will be refused leave to appeal on the basis that they raise no important point of principle or practice and that there is no other compelling reason to hear them. Understandably, it has never been suggested that, following refusal of leave to appeal on that basis, the underlying decision is nonetheless judicially reviewable for error of law".

Lord Brown continued, at para 100, in these terms:

"If, then, the rule of law allows certain errors of law in substantive decisions of the Upper Tribunal on appeal from the First-tier Tribunal to go uncorrected, why as a matter of principle should it not similarly allow this in respect of decisions of the Upper Tribunal refusing leave to appeal to itself from the First-tier Tribunal? True it is, of course, that the refusal of leave to appeal will have deprived the party refused of a second substantive hearing. Realistically, however, the very fact that he was refused leave to appeal to the Upper Tribunal (by both tribunals) tends to indicate the unlikelihood of there having been a genuinely arguable error of law in the first place. And certainly this situation calls no less for a proportionate answer to the question arising as to the required scope of the court's supervisory jurisdiction to safeguard the rule of law. The rule of law is weakened, not strengthened, if a disproportionate part of the courts' resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff."

Thus, the second-tier test risks excluding a well-founded appeal. Lord Brown accepts that risk because, as I understand it, at the stage of deciding whether a second appeal is to be permitted the concern is no longer to ensure that an error of law does not go uncorrected. That is the function of a first appeal. In a system where permission is required the function of a second appeal is different. The second appeal is essentially for the purpose of determining points of general importance. True, CPR r. 52.13 (2) (b) also provides, as Mr Webster submitted, the "safety valve" of "other compelling reason". But, as it was put in Uphill v BRB (Residuary) Ltd supra at para 19:

"'Compelling' is a very strong word. It emphasises the truly exceptional nature of the jurisdiction".

Thus, while I may have been wrong to describe the second-tier appeal test as a sifting mechanism, its function is similar to a sift to the extent that it acts as a means of control on access to the court. As such, it is not something which is designed to be deployed at a substantive hearing such as took place before me. If it is to achieve its gate-keeping purpose, it must be applied at an earlier stage in the procedure. At the risk of offering what is no more than a glimpse of the obvious, it is worth noting the procedural context in which the permission or leave requirements touched on in this opinion usually operate. Applications for permission to appeal to the English Court of Appeal may be dealt with by a single Lord Justice on paper, although where a refusal to grant permission has been made without a hearing, the applicant may require the matter to be considered at an oral hearing: Civil Procedure Rules Practice Direction (hereinafter "PD") 52 paras 4.11 and 4.13, Zuckerman On Civil Procedure (2nd edit) paras 23.83, 23.84, and 23.87. In England claims for judicial review may only be brought where the court has first granted permission to apply for judicial review: CPR r. 54.4, Lewis Judicial Remedies in Public Law (4^th edit) 9-042. Again, the High Court will normally deal with applications for permission on the papers without an oral hearing, although the claimant may renew the application at an oral hearing: r.54.12, PD 54A para 8.1, Lewis supra 9-003 and see Lord Phillips in Cart at para 93. As the present case demonstrates, the model of consideration on the papers with the possibility of review in the event of initial refusal is that followed by the First-tier and Upper Tribunals. Similarly, in a purely Scottish context, grant or refusal of leave to appeal against conviction or sentence may be determined by a single judge of the High Court of Justiciary simply on consideration of the papers, review by two or three judges (again on paper) being available in the event of "appeal to the second sift".

[29] The above procedures may be contrasted with the procedure presently adopted when considering a petition for judicial review in the Court of Session. As Miss Drummond reminded me, there is no requirement for leave or permission and therefore no gate-keeping function to be carried out. Other than in very clear exceptional cases a party seeking judicial review is entitled to present his case in full at a first hearing: EY v Secretary of State for the Home Department 2011 SC 388. That Lord Hope was alive to the significance of this appears from his opinion in Eba. He addresses the matter at para 49:

"Under the current rules a person who invokes the supervisory jurisdiction does not require permission to do so. But a petition for judicial review can be dismissed at the stage of a motion for a first order: Sokha v Secretary of State for the Home Department 1992 SLT 1049; Butt v Secretary of State for the Home Department 1995 GWD 16-905. As the law currently stands, the hurdle that a petitioner must cross for a motion for a first order to be granted is a low one: EY (Turkey) v Secretary of State for the Home Department 2011 SLT 508 : see para 28 above. I think that this is perfectly acceptable as the test for use in relation to applications to the supervisory jurisdiction of the Court of Session generally. But its application to that special category of cases where a petitioner seeks to bring unappealable decisions of the Upper Tribunal under review needs now to be reconsidered. ... The ever-increasing pressure on the court's business by applications for judicial review to which our attention has been drawn, together with the fact that the new tribunal structure requires that a more restrained approach be taken to judicial review of decisions of this kind, suggests that the Lord Ordinary to whom a petition is presented under 58.7 of the Rules of Court of Session for a first order for the review of an unappealable decision of the Upper Tribunal should be encouraged to consider the question whether there is an arguable case that the [second-tier appeals test] is satisfied before he or she decides whether or not a first order should be granted. It seems to me, with respect, that the approach which Lady Smith took to this issue in the Outer House when she declined to grant the petitioners' motion for first orders because she was not satisfied that an arguable case had been made out in EY (Turkey) v Secretary of State for the Home Department 2010 SLT 170, paras 12-14, has much to commend it, and that it would be appropriate for use in relation to cases falling within this special category."

This is to suggest an expeditious and fairly summary procedure which, of course, it would have to be, if the objective of saving judicial resources is to be achieved. I would see it as productive of an approach to judicial decision-making similar to that which is to be expected in a process which requires leave or permission as a precondition of access to the court; one very different from the sort of intensive review which, possibly as a spill-over from the technique of anxious scrutiny associated with claims for asylum, risks becoming the norm in all immigration cases.

[30] It appears to me evident from Lord Hope's opinion that the Eba test, the intended function of that test and the procedure to be adopted in applying it are inter-connected. Its wording is taken from CPR r. 52.13 (2). Its function is the same as that of CPR r. 52.13 (2): to close off the further litigation of all but cases raising an important point or being otherwise compelling. It is intended to be applied as CPR r. 52.13 (2) is applied: usually by a single judge on the papers (which will have been drafted with an eye to the relevant test), expeditiously and summarily, with the possibility of review of an initial refusal at a short oral hearing focusing on the threshold test. That is the context in which Lord Hope's use of the expression "plainly wrong" falls to be understood. It is being wrong in a way that is clearly evident on the sort of limited consideration to be expected in a procedure such as that outlined in para 49 of Eba.

[31] I would expect future petitions seeking judicial review of unappealable decisions of the Upper Tribunal refusing permission to appeal to that Tribunal to be dealt with in the way outlined by Lord Hope: an initial consideration by the Lord Ordinary of the application for first orders under reference to the papers (the petition, the determination of the First-tier Tribunal on the petitioner's appeal and the decisions of the First-tier and Upper Tribunals on the application for permission to appeal to the Upper Tribunal), with an oral hearing in the event of refusal to grant first orders, as would be required by RCS 58.7 (2). I would expect such hearings to be quite brief. Reasons for refusal would be required but they might be shortly stated. It is my doubt as to whether such a procedure would lead to an "accretion of cases illustrating applications of the test" that is sufficiently well known to yield general guidance that leads me to qualify what Lord Glennie said in Oluwasegun Olalekean Oke Petitioner supra at para 11. If they are to be influential in other cases, decisions must be reported in some way.

[32] Now, presentation of the petition in the present case and the grant of first orders pre-dated the issue of the judgment of the Supreme Court in Eba. It is therefore unsurprising that the procedure suggested by Lord Hope was not followed. Rather than a summary consideration of a petition framed with the second-tier appeal test in mind I heard full oral argument from senior counsel on one side and very experienced junior counsel on the other, not only on the second-tier appeal test but also on the substantive issue as to whether the First-tier Tribunal had made an error of law. It was Mr Webster's submission on behalf of the respondent, that on an application of Eba test this petition would not have merited a first hearing. On that view it was unnecessary to have heard the substantive argument. However, with no objection, I did hear the substantive argument. To that argument I now turn.

Article 8 and primacy of best interests of the child
The petitioner's contention
[33] Put shortly, Miss Drummond's position was as she had encapsulated it in her Note of Arguments: that the removal of the petitioner and her children from the United Kingdom would contravene their rights under Article 8 of the European Convention on Human Rights that their private life should not be interfered with, and that the First-tier Tribunal's decision that the necessary interference consequent on removal was not disproportionate, was reached under material error of law in that the Immigration Judge who constituted the First-tier Tribunal had failed to consider the best interests of the children as a primary consideration and to provide adequate reasons for her decision. That in making any decision which would involve the removal of a child from the United Kingdom, the decision-maker had to treat the best interests of the child as a primary consideration, identify what these best interests required and then assess whether the strength of any other consideration or the cumulative effect of other considerations outweighed the child's best interests, had been explained authoritatively in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2AC 166. The First-tier Tribunal had not followed that approach in coming to its conclusion on the proportionality of removal of the petitioner (unsurprisingly perhaps in that the judgment in ZH was issued some months after the determination by the First-tier Tribunal). That failure was a material error and the determination of the First-tier Tribunal was not in accordance with the law for the purpose of Article 8 (2) of the Convention: DS (Afghanistan) v Secretary of State for the Home Department [2011] INLR 389 at paras 82 and 88.

Primacy of child's best interests: the law

[34] I did not understand parties to be at issue as to the relevant law. Essentially, it is to be found set out in the judgment of Lady Hale in ZH. At para 17 she said this:

"The starting point is, of course, that states are entitled to control the entry of aliens into their territory and their residence there. Even if the alien has a very strong residence status and a high degree of integration he cannot be equated with a national. Article 8 does not give him an absolute right to remain. However, if expulsion will interfere with the right to respect for family life, it must be necessary in a democratic society and proportionate to the legitimate aim pursued."

At that point Lady Hale was considering the position of the long-settled resident alien who has committed some crime and who faces deportation, but, as she explained at para 18, the starting point is the same in the ordinary immigration context. In that context, while the prevention of disorder and crime may be relevant, usually the legitimate aim of the state in removing the individual is likely to be the need to control immigration in the interests of the economic well-being of the country.

[35] In assessing the legality and proportionality of the state's action in removing an individual for the purposes of Article 8 the circumstances of all family members, including the individual's children must be considered as well as those of the individual: Beoku-Betts v Secretary of State [2009] 1 AC 115.

[36] The United Kingdom has acceded to the United Nations Convention on the Rights of the Child of 1989. Article 3.1 of the UN Convention provides:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

An initial reservation by the United Kingdom in relation to immigration was thereafter lifted, and in 2009 Parliament enacted section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act") which has come into force and which provides that arrangements must be made to ensure that immigration functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. That means that any decision about immigration, asylum or removal which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with law" for the purposes of Article 8(2). The effect of recent decisions of the European Court of Human Rights, including Uner v The Netherlands (2006) 45 EHRR 421, is that national authorities are expected to apply Article 3.1 of the UN Convention and treat the best interests of the child as "a primary consideration". However, a primary consideration is not the same as the primary consideration: ZH para 25. Nor is it the determining consideration. The important thing is that the decision-maker should identify and consider the best interests of any children first. No other consideration can be treated as inherently more significant than the best interests of the children but the strength of other considerations might outweigh best interests and therefore permit a decision to be taken which is contrary to those best interests: ZH para 26. There will be cases where the individual's immigration history, including any deception that the individual has practised and the fact that a relationship has been entered into when the precarious status of the individual has been known to the parties may be taken into account. However, children are not to have their parents' conduct held against them: ZH, Lady Hale at para 33 and Lord Hope at para 44.

[37] Lords Brown and Mance simply agreed with Lady Hale's judgment. Lords Hope and Kerr also expressly agreed with Lady Hale but issued concurring judgments. Agreeing with what was said by Lord Drummond Young in ME Petitioner [2012] CSOH 20 at para 21, I would see Lord Kerr as giving greater weight to best interests of the child ("Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.": para 46) than does Lady Hale. Again agreeing with Lord Drummond Young, as Lady Hale has the support of the majority of the court it is her approach that must be followed.

First-tier Tribunal's treatment of Article 8 claim

[38] The Immigration Judge's discussion of the petitioner's Article 8 appears in paragraphs 67 to 79 of the Determination:

"67. In determining the article 8 claims of the appellant and her dependants I make the following findings on the evidence before me. The appellant and her dependents have been in the United Kingdom since about May 2004. The threshold required to establish private life is not high and I find that there is credible evidence supporting the claim to have established private life. I find that if the family is removed to Nigeria this will interfere with the private life established in the United Kingdom. Given the length of residence I find that the threshold required to engage article 8 has been reached. The removal would however be lawful since I have dismissed the asylum and humanitarian protection claims. The issue falling for determination therefore is proportionality in terms of article 8(2).

68. When carrying out an examination [of] proportionality I have to take account of all the evidence and carry out a balancing exercise.

69. The appellant claims to be suffering ill-health however no supporting medical evidence has been provided. At screening in May 2010 she stated that she was not on medication. There is no evidence that any condition that she has would be aggravated by return to Nigeria. The evidence does not indicate that she would be unable to obtain medical treatment in Nigeria. She was offered a place on a summer school at Glasgow Caledonian University commencing on 21 June 2010 and has applied to follow a course entitled Nursing Studies. This tends to demonstrate that she had not been advised that her health problems would prevent her from attending an undergraduate degree course at University. Although the appellant claims to have suffered problems since the rape in Nigeria her claimed problems are not supported by medical evidence or evidence of psychiatric involvement.

70. The appellant's daughter [O] has been identified as suffering from problems. The appellant claims that her daughters do not speak her language however the NHS letter of 22 April 2008 states that English is the second language for the family. Evidence has been provided that [O] commenced receiving support in March 2008 when she was almost four years of age. It is clear from the reports that [O] had been assessed as requiring additional support in her education and attends a non‑mainstream school. The reports from the school demonstrate that she is making good progress and do not indicate ongoing medical treatment or concerns regarding her physical health.

71. No medical evidence has been provided demonstrating that any of the appellant's daughters are currently undergoing medical treatment or that they are considered unfit to travel. The witness states that he has no health problems.

72. Having considered all the evidence I find that the appellant's circumstances and those of her children are not those of the appellant in N [2005] UKHL 31. The appellant was not granted entry for the purposes of medical treatment. The appellant and her children have received medical treatment and her children have been educated because they have presented themselves for treatment/education. They have had no legitimate

expectation that this would continue. The appellant thought from informal advice that she could obtain indefinite leave on the basis of pregnancy and five years residence. She consulted the CAB and was informed that this was not correct. The fact that the family moved in 2007 demonstrates that they knew that they were at risk of detection and removal.

73. Evidence has been provided by way of school reports for the appellant's [two elder] daughters. ...Both attend school regularly and there is evidence that they are well supported at home in their studies.

74. The family have not been settled since their arrival. The appellant took her two [elder] children with her to Dublin but then returned to London. The parents have always known that, having arrived as visitors and overstayed, they were present in the United Kingdom unlawfully. They have known that the witness has been working without permission and using false documents, having tried but failed to obtain permission to stay under the Highly Skilled Migrant Programme. The appellant and the witness were willing and able and in fact did disrupt the education of their eldest child by moving from Leicester to Glasgow in 2007 when the witness feared that he may be detected by Immigration Officers as he was working illegally. Although the family have lived in Glasgow since 2007 the eldest daughter has not attended the same school throughout that period. There is evidence from schools and evidence of an application to attend University but only the evidence of a Pastor in addition in support of private life. The Pastor states that the appellant and witness are adaptable to their circumstances. In and out of church they act with integrity and honesty. The Pastor does not demonstrate any detailed knowledge of the appellant's circumstances or family history. It is not clear from the letter that he knows of the immigration status of the family. It is however in the appellant's favour that the Pastor has been willing to provide a testimonial on her behalf.

75. The background evidence, which I accept, demonstrates that education, is available in Nigeria. The appellant and her husband are educated people and the appellant as a teacher and the witness can reasonably be considered to be competent parents who will be able to access the educational facilities available. All of the children are at the early stages in their education and can reasonably be expected to adapt as they have adapted in the past to changes in their lives brought about by their parents. The fact that the education system in Nigeria may not be the same as that in the United Kingdom does not necessarily engage in article 8. Further evidence of the differential position is required. The fact that the appellant's daughter has special educational needs is not in itself sufficient to render removal disproportionate although this is a factor, which I have taken into account.

76. Evidence has been provided to demonstrate that the witness has worked in the United Kingdom and maintained a tenancy. If returned to Nigeria both the appellant and witness have work records there, the appellant as a teacher and the witness as a cashier in a bank and both are educated. The appellant's mother, who has assisted her before, remains in Nigeria.

77. I have to weigh in the balance the Immigration Rules and the fact that following Razgar decisions taken pursuant to the lawful operation of immigration control are generally to be considered to be proportionate. I have considered the case of Beoku-Betts carefully and find that this can be distinguished on its facts. The claims are not based on family life. The appellant and her dependents will be returned as a family group. I have set out above my consideration of the impact upon the dependents of return to Nigeria. The appellant and her children have not been in the United Kingdom for seven years. At the time of detection they had been in the United Kingdom for about six years and have not remained settled in one area throughout that time. I note however and take into account in the balancing exercise the submission that previously Home Office applied a seven year concession in favour of children.

78. Finally, carrying out the appropriate balancing exercise of weighing up all the evidence in the round and taking an even handed approach I find that in all the circumstances the decision to remove the appellant and dependents is proportionate to the legitimate aim of immigration control.

79. I find that the reasons for refusal are generally well founded. Having looked at all the evidence independently and having made the findings set out above I have come to the same or similar conclusions as the respondent."`

Submissions for the petitioner

[39] Miss Drummond undertook a detailed analysis of the Determination in order to demonstrate that the Immigration Judge had not approached Article 8 in a manner that was consistent with Lady Hale's judgment in ZH. The Immigration Judge had failed to consider the "best interests" of the petitioner's children in reaching her decision on the Article 8. Nowhere in the determination had the Immigration Judge mentioned the best interests of any of the children. Nowhere had she assessed the best interests of the children as a distinct stage of inquiry. Further, she had failed to consider the best interests of the children as a primary consideration. She had failed to make clear in emphatic terms the primacy of this consideration. She had failed to treat it as a factor which should be treated as pivotal or to the fore, as a high ranking matter only to be displaced if there were strong countervailing factors. The Immigration Judge had referred to O's special educational needs as "a factor" only, indicating that it was something that she had simply weighed in the balance rather than assessing as part of a distinct inquiry into where O's best interests lay. In addition, the Immigration Judge had taken into account the conduct of the petitioner in moving the children and in remaining in the United Kingdom unlawfully as part of the overall assessment. No attempt had been made to consider the children's best interests separately from those of the petitioner. No attempt had been made to avoid visiting criticisms of the petitioner's actions upon the children. No mention had been made of section 55 of the 2009 Act. That, submitted Miss Drummond, was in itself an error of law and an indication that the proper approach had not been adopted. Where the best interests of the children as a primary consideration have been taken into account, the court will expect that that will be stated expressly: HS v Secretary of State for the Home Department 2011 SC 324 at paras 13 to 16, AK v Secretary of State for the Home Department 2011 SC 332 at paras 11 and 12.

[40] In relation to the particular circumstances of the petitioner's children Miss Drummond criticised the Immigration Judge for failing to mention that two of the children were born in the United Kingdom and had lived all of their lives there. The two elder children had lived in the United Kingdom for some 6 years. They had arrived when they were very young. They had spent all their formative educational years here. They have never returned to Nigeria. The Immigration Judge had stated that the fact that schooling in Nigeria may not be the same as in the United Kingdom does not necessarily engage Article 8 and that further evidence of the difference was required, suggesting that this was something that she had considered as being of little, if any, relevance. No attempt had been made to request further information on schooling in Nigeria which might have provided the further information the Judge considered was required: cf Tinzaray v Secretary of State for the Home Department [2011] EWHC 1850.

[41] Miss Drummond submitted that even if the Immigration Judge had considered the best interests of the children as a distinct inquiry and as a primary consideration (which she disputed), the Immigration Judge had failed to provide proper and adequate reasons as to what was in their best interests or for her conclusion that the removal of the petitioner and her dependents was proportionate to the legitimate aim of immigration control. The Immigration Judge had not explained whether it was in the best interests of the children that they should be removed to Nigeria and what weighty reasons existed to separate the children from the community in which they had grown up. O was now aged 7. She had acute learning difficulties and difficulty in speaking such that she could not attend mainstream education. She received a package of treatment: she has been attending a special needs school since August 2009 and speech and language therapy since the beginning of March 2008. The petitioner had submitted to the First-tier Tribunal that if O were to attend school in Nigeria she would not receive the same level of care as she was currently enjoying. This would have a devastating effect on O and lead to regression in her learning abilities. It was Miss Drummond's submission that particularly weighty reasons would require to exist before a child with special educational needs is separated from the community in which she has grown up in and lived for her entire life. The Immigration Judge had not explained what these weighty considerations were.

[42] It was Miss Drummond's submission that in refusing permission to appeal the Upper Tribunal had itself failed to identify the proper approach to be followed and had failed to recognise that the Immigration Judge had erred in law. This was compounded by the Upper Tribunal stating that the Immigration Judge had directed herself by reference to Uner v Netherlands supra whereas the Immigration Judge made no reference to Uner in her decision. Insofar as the Upper Tribunal had proceeded on the basis that the Immigration Judge had directed herself by reference to Uner, it had proceeded on an error of fact.

Submissions for the respondent
[43] In Mr Webster's submission Miss Drummond's criticism of the determination of the First-tier Tribunal related to form rather than to substance. Notwithstanding what had been said in HS v Secretary of State for the Home Department supra it was nothing to the point that there had been a failure to mention section 55 of the 2009 Act or to use the phrase "best interests of the child" if the Immigration Judge had in fact had regard to the relevant factors and had avoided the mischief of visiting the sins of the parents on the children by considering best interests as a discrete factor. Best interests of children, while a factor to be looked at distinctly, was simply a sub-set of proportionality, it was not the only or conclusive consideration. The legitimate interest of the state in maintaining control over immigration was a weighty consideration which would only be outweighed in exceptional circumstances: R (Razgar) v Secretary of State for the Home Department [2004] 2AC (HL) 368 at para 20, Huang v Secretary of State for the Home Department [2007] 2 AC 167 at para 20, ZH at para 17. There was simply no justification for a duty on the respondent or the First-tier Tribunal to investigate matters where the evidence was otherwise inadequate. ZH is not authority for the existence of such a duty: AM v Secretary of State for the Home Department [2012] CSOH 24. Inquiry of the parent would usually be enough. In any event, it has not been established what material difference such investigation would have made in the present case. The petitioner does not address this by averment. The case of removal of a young child is different from the case of removal of an older youth who has greater experience of and integration within a local community: Maslov v Austria [2009] INLR 47 at para 75. It is not just a matter of the passage of time. The removal of an infant raises a different question of proportionality than the removal of a teenager. When it comes to a balancing of relevant circumstances the best interests of any children is a factor which must be considered along with the other circumstances, but it is a solecism to say that what will promote best interests need always be dealt with as a first step in the balancing process. It may be permissible to remove a child even where its best interests would indicate that it remain in the United Kingdom. In contrast to what was the position in ZH, here the children are not British nationals. Moving to adequacy of reasoning, Mr Webster submitted that a decision letter need not say very much as long as it is apparent that the decision-maker has had regard to the best interests of any children. Even if the Immigration Judge is taken to have erred in this matter, before she could obtain reduction of the determination the petitioner would have to demonstrate that had the matter been considered properly, a different decision would have been reached: HS v Secretary of State for the Home Department supra at para 17.

[44] In Mr Webster's submission the determination by the First-tier Tribunal, properly understood, disclosed no error of law, or at least no material error. At para 67 of the Determination, the Immigration Judge has recognised that removal of the petitioner's family from the United Kingdom would interfere with the private life of family members and that therefore the threshold required to engage Article 8 had been reached. She then correctly directed herself in terms of Lord Bingham's five-stage test in R (Razgar) v Secretary of State for the Home Department supra. In considering whether the Immigration Judge had considered the children's welfare, as she was admittedly required to do in terms of section 55 of the 2009 Act, and therefore whether her determination that removal of the children was lawful, regard had to be had to the whole of the Determination. As appears from paras 70 and 73 of the Determination, the very first thing the Immigration Judge did was to look at the children's welfare. Para 74 is not an example of visiting the sins of the parents on the children; it is simply a record of what happened. Admittedly, in para 75 it is not said in express terms what would be in the best interests of the children but it is nevertheless implicitly accepted that it would be in their best interests to remain in the United Kingdom. Best interests must be considered as a distinct issue. They are the factor which provides the starting point to a consideration of the issue of proportionality, but it is not a factor that has exceptional weight, it can be balanced by the importance of controlling immigration: cf ME Petitioner supra at para 13. That is how the Immigration Judge approached her decision-making at paras 67 to 77 of the Determination, beginning with the welfare of the children. In so doing she had recognised the previous seven-year concession in favour of children. She had had regard to the actual period spent in the United Kingdom. She had had regard to the age of the children. Finally, at para 78, she had carried out the balancing exercise to determine the proportionality of enforcing immigration control. Unlike in ZH, nationality was not an issue. If there had been any error, it was in failing to state expressly what were the best interests of the children, but it was not a material error in that the relevant aspects of best interests, the children's health and education, had been considered in terms which implicitly recognised that the general provision for health and education is probably better in the United Kingdom than in Nigeria. When, at para 75, the Immigration Judge says that "further evidence of the differential position is required" she means that further evidence of the specific nature of the differences in the educational systems as between the two countries would be required before the petitioner could win the argument on proportionality. It is not said that the Immigration Judge did not have regard to the relevant Country of Origin report. As a member of what was a specialist tribunal she is to be assumed to be familiar with such reports. The situation here was far removed from that in Tinzaray v Secretary of State for the Home Department supra. While the assessment of proportionality is one of judgment and not onus, the onus of establishing her claim still rests on the petitioner. All the Immigration Judge was saying at para 75 was that if the petitioner wished to rely on specialities as to the difference in educational provision it was a matter for her to demonstrate them. It was not for the First-tier Tribunal to make inquiry as to the factual position in Nigeria. How, asked Mr Webster rhetorically, would it do so? Moreover, it is not said that there was any information which, had it been had regard to, would have made a difference to the final decision. It might be said that para 75 contained an invitation to make fresh representations but in that case there was no need for judicial review. Mr Webster accepted that there was no specific reference in the First-tier Tribunal's determination to the decision in Uner but that does not mean that the Upper Tribunal made an error in this respect. By its reference to Uner the Upper Tribunal was to be understood as saying that the Immigration Judge had had regard to what appears in Uner.

[45] While Mr Webster's position was that there had been no material error of law in the present case, he submitted that in any event the very fact that he had been able to present a coherent defence of the First-tier Tribunal's determination meant that the petitioner's attack on the Upper Tribunal's refusal of permission was not "Eba-proof".

Discussion
[46] Prior to the decision in Eba, having heard a full argument on an application for judicial review of an unappealable decision of the Upper Tribunal to refuse permission to appeal I would have seen it as my duty to reach a view on whether, in my opinion, the First-tier Tribunal had made a material error in law and, on the basis of that view either reduce the Upper Tribunal's decision to refuse permission to appeal or, alternatively, dismiss the petition. In so doing I would of course, in substance if not in form, be deciding on the merits of the appeal, something, as was observed by Lord Glennie in Oluwasegun Olalekan Oke Petitioner supra at para 11, which is reserved to the Upper Tribunal and courts having an appellate jurisdiction in respect of decisions of the Upper Tribunal. Post Eba, notwithstanding the fact that I have heard full argument on the substantial question, I do not consider myself obliged to come to a conclusion on the question. Indeed I would see Eba as deflecting me away from that question in favour of the anterior question as to whether the matter focused by the petition comes within the scope of the supervisory jurisdiction, as redefined in this particular area by the second-tier appeals test. Where it is the second limb of that test which is relied on, as here, I would see my function as being one of taking an overview of the substantive argument rather than weighing it in the manner which might be necessary in order to determine the question one way or the other. On that approach I would immediately acknowledge that the petitioner had quite a strong argument before the First-tier Tribunal to the effect that the adverse impact on her children consequent on removal from the United Kingdom made that removal disproportionate for the purposes of Article 8. I further acknowledge that, notwithstanding the outcome of the balancing exercise carried out by the Immigration Judge who constituted the First-tier Tribunal, given that the Immigration Judge's decision preceded ZH and therefore did not reflect the re-calibration of the appropriate decision-making process authoritatively laid down in that case, it was arguable (as Miss Drummond argued before me) that the Immigration Judge should be taken to have misdirected herself in law. However, having heard Mr Webster in reply to Miss Drummond, it does not appear to me that the outcome of that argument, in the sense of how it would be determined by the Upper Tribunal, was a foregone conclusion or something close to a foregone conclusion. In other words, having heard both sides of the argument and seen that clearly there was something to be said both for and against, I am unable to conclude that the determination by the First-tier Tribunal was plainly wrong. Indeed, were it necessary for me to do so, I would incline to the view that the Immigration Judge was not plainly wrong. There was force in Mr Webster's submission that the very fact that he had been able to present a coherent defence to Miss Drummond's attack on the Determination pointed to it not being plainly wrong. Accordingly, the petitioner does not meet the second limb of the Eba test and therefore what she seeks to challenge is not within the scope of judicial review.

Decision

[47] I shall therefore sustain the fourth plea-in-law for the respondent and dismiss the petition. I reserve all questions of expenses.