Ampersand Advocates is proud to hear of the appointments of Giles Reid, Michael Way and Shane Dundas to the panel of Standing Junior Juniors to the Office of the Advocate General for Scotland. They join fellow stable members Ross Anderson, Graham Maciver, Usman Tariq, and Jamie Gardiner who are Standing Junior Counsel to OAG.
Lord Doherty rejected Interim Orders sought by 75 Petitioners on the illegality of proroguing Parliament and interim interdict against UK ministers to prorogue and made no comment on whether the Petitioners have a prima facie case, preferring to wait until the Substantive hearing.
The case was due to be heard at a Substantive hearing on 6th September, but was ‘overtaken by events’ by the Queen’s Order in Council to prorogue Parliament, leading to the request for interim interdict. Following today’s decision, the Substantive hearing has been brought forward to Tuesday, 3rd September 2019, due to the interests of justice and the public interest.
Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.
Opinion of Lord Doherty here.
Summary of arguments at the Interim Interdict hearing can be found on the Scottish Council of Law Reporting website here.
Following an urgent hearing on Thursday 29 August 2019, Lord Doherty has rejected Interim Orders sought by 75 Petitioners on the illegality of proroguing Parliament and interim interdict against UK ministers to prorogue and made no comment on whether the Petitioners have a prima facie case, preferring to wait until the Substantive hearing.
The case was due to be heard at a Substantive hearing on 6th September, but was ‘overtaken by events’ by the Queen’s Order in Council to prorogue Parliament, leading to the request for interim interdict. Following today’s decision, the Substantive hearing has been brought forward to Tuesday, 3rd September 2019, due to the interests of justice and the public interest.
Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.
Opinion of Lord Doherty here.
Summary of arguments at the Interim Interdict hearing can be found on the Scottish Council of Law Reporting website here.
Case comment by Michael Way, Advocate
Lord Woolman rejects police officer’s claim that refusing him medical retirement, while misconduct proceedings were ongoing against him, was irrational
Facts
The petitioner was a serving police constable of over 25 years’ service. He became signed off from work in April 2017 with various medical problems, including hyperthyroidism, which causes his hormone levels to fluctuate and includes symptoms of agitation, anxiety and depression.
In 2017, the petitioner received a summary conviction for sexual assault, stemming from incidents in late 2016. A £500 fine was imposed. The petitioner’s name was placed on the Sex Offenders’ Register.
In May 2018 the petitioner applied for retirement on the grounds of permanent disablement. The SPA refused this request and recommended redeployment within the police service. The petitioner took steps to challenge the decision, but the SPA withdrew the decision and undertook to retake it.
In August 2018 the decision under challenge in these proceedings was made. The SPA refused the application because there were live misconduct proceedings pending against him. It was the Interim Chief Officer’s view that, “on public policy grounds police officers should not be granted medical discharges whilst there are live misconduct proceedings against them, as he concluded that there could be a loss of public confidence in the service if police officers were seen to be evading misconduct proceedings by exiting the service on medical discharges before those proceedings had concluded.”
Subsequently, medical opinions concluded that the petitioner was mentally unfit to take part in disciplinary proceedings. Disciplinary proceedings are currently suspended.
Issues
In analysing the decision, the Court identified 3 key issues:
Decision
The Lord Ordinary dismissed the petition (at [38]). His reasoning on the issues was as follows.
Issue 1 – Did the SPA take into account irrelevant material?
This issue is considered at [22]-[24]. The Lord Ordinary disagreed with the petitioner’s contention that the SPA erred by assessing the misconduct as serious, ignoring the compassionate circumstances, and implying that the petitioner was trying to evade the disciplinary proceedings. On the contrary, the existence of misconduct proceedings was a relevant and important factor (at [24]).
Issue 2 – Was the decision irrational?
The petitioner advanced several grounds which led inevitably to the conclusion that the decision was irrational. The first group were dealt with at [27]-[28]:
(A) The petitioner’s mental condition renders him unable to face proceedings.
(B) He should not be required to remain in the police service when he will never be able to fulfil his duties.
(C) His career and pension entitlement should not be left indefinitely in limbo.
(D) There was no question of evasion on the part of the petitioner, who is in wretched condition and does not have the mental capacity to exercise a conscious choice in this matter.
The Lord Ordinary considered that these factors were based on the subsequent medical evidence and were not properly before the decision-maker.
The petitioner advanced a further argument. Police officers can only be stripped of their pension, when in receipt of it, for a very serious criminal conviction or a conviction certified by the Secretary of State as “gravely injurious to the interests of the State” or liable to lead to a serious loss of confidence in the public service (at [29]).
The petitioner argued that if he had retired immediately after committing the offences, he would have kept his pension. The offending was at the lower end of the spectrum of seriousness. It would be inequitable if, by pleading not guilty and standing trial, he risked losing his full pension rights.
The Lord Ordinary considered this to be a “powerful argument, persuasively presented” (at {31]). However, his Lordship did not consider that it met the test of irrationality: “a sensible person could have arrived at the same decision” (at [32]).
Issue 3 – Did the SPA fetter is discretion?
This issue turned on whether the SPA had adopted a blanket approach of refusing to grant a medical discharge to any officer while disciplinary proceedings were outstanding. The decision letter stated that it had given “careful consideration of all the circumstances” but then relied on a public policy decision (at [34]).
The Lord Ordinary considered that there was “no foundation for holding that the SPA did not consider all the circumstances of the petitioner’s case” but simply that the SPA considered “public policy as tipping the balance” (at [36]).
Analysis
Despite the powerful and persuasive submissions advanced by senior counsel for the petitioner, and the likely harsh consequences that will follow the petition’s refusal, the Lord Ordinary concluded that the decision was within the range of reasonable responses from the decision maker.
This decision reinforces the difficulty that can arise when challenging administrative decision-making on the grounds of irrationality. It is not enough simply that the decision is harsh or is one that the Court might disagree with; the absurdity has to leap off the page.
Representation
Ampersand’s Craig Sandison QC appeared as senior counsel for the petitioner.
Case comment by Michael Way, Advocate
Lady Wise allows immigration ‘fresh claim’ judicial review
Facts
The petitioner was a national of the India. He sought judicial review of the Home Office’s decision to refuse to accept his further submission as a fresh claim, under Immigration Rule 353.
The petitioner had entered the UK as a visitor in 2006 and overstayed. He formed a relationship with a British national in 2010 and they would go on to marry in 2013. After their marriage, the petitioner applied to regularise his immigration status on the basis of this relationship. This application was refused and an appeal to the First-tier Tribunal was unsuccessful. The petitioner then made further submissions to the Home Office in August 2017, which were swiftly rejected.
This case concerned further submissions made in October 2017. The Home Office again swiftly rejected the submissions. What set these further submissions apart were that they included an expert report from an Indian advocate (“Expert Report”), as well as references to the Home Office’s Country Information and Guidance on India (“Country Guidance”), highlighting issues of gender discrimination and violence that women can face.
Issues
The petitioner’s central contention was that given his wife’s health and work status, alongside the difficulties obtaining a visa and other cultural difficulties, there would be insurmountable obstacles for them to have to move to India as a couple. The Home Office refusal letter had failed to even acknowledge the Expert Report and made only scant reference to the Country Guidance. This was said to be a material error. The petitioner contended that there had been a failure to consider the further submissions with the requisite “anxious scrutiny”.
The respondent’s position was that any failure to properly demonstrate consideration of the Expert Report and the Country Guidance was not a material error. It was not an error to fail to demonstrate consideration of material that would not have been created a realistic prospect in front of an immigration judge. The respondent contended that there was nothing in the new material that would have led to a different conclusion.
The questions for the Court were therefore:
Decision
Lady Wise allowed the petition and reduced the Home Office’s decision (at [25]). Her ladyship concluded that the failure to give any proper consideration to the new documentation was a material error.
The respondent had, quite fairly, conceded that there was nothing to demonstrate that the Home Office had given substantive consideration to the new documents. The error was, in effect, conceded. On the question of materiality, Lady Wise was satisfied, however, that had the documents been properly scrutinised that “the outcome may not have been the same on the issue of insurmountable obstacles” (at [21]). The error was, therefore, material.
This was because the Expert Report would have been admissible evidence in the Tribunal and could not be dismissed as “simply implausible” (at [20]). The Expert was qualified to give his opinion on visa and social welfare requirements in India. Moreover, his comments on the treatment of women in Indian society largely echoed the Country Guidance. An Immigration judge would have required to give this all careful consideration – in particular the Home Office’s own Country Guidance (at [20]).
The respondent further argued that, even if the Expert report could be accepted and it would not be possible for the petitioner’s wife to go with him to India, the decision letter had considered the article 8 implications of the petitioner being removed and his wife remaining. The petitioner accepted that he would have to demonstrate “exceptional circumstances” for an article 8 claim to succeed in those circumstances. Lady Wise, however, did not consider that that there was “any discernible conclusion” on the proportionality of such an option and she could not be satisfied that an article 8 claim would necessarily fail (at [22]). However, given the conclusion at [21] it was not necessary to reach “any definitive conclusion on this point” (at [23]).
Analysis
This is a not atypical example about how the Court will deal with a judicial review following a refusal of further submissions under Immigration Rule 353. The requirement for “anxious scrutiny” means that there is generally scope of a petitioner to argue that, when the Home Office has rejected their claim, they have not had the benefit of the requisite standard of decision-making care.
Where, on the face of the decision, there has been a failure to consider potentially relevant material, as in this case, all the respondent can sensibly argue is that the error was immaterial. In the circumstances, Lady Wise appeared to be content to give the benefit of the doubt to the petitioner.
Representation
Ampersand’s Graham Maciver appeared for the respondent.
Case comment by Michael Way, Advocate:
Lord Pentland refuses judicial review in “foreign criminal” deportation case
Facts
The petitioner was a national of the Gambia. He sought judicial review of an Upper Tribunal (“UT”) decision to refuse him permission to appeal against a decision of the First-tier Tribunal (“FTT”).
The petitioner was 39 years old. His claim was that he had been granted refugee status in Italy in 2008. However, he had subsequently received drug-related convictions in Sweden in January 2012 and July 2013, resulting in 4-month and 24-month sentences of imprisonment. He was deported from Sweden in 2013 and banned from re-entering for 10 years.
Having left Sweden, the petitioner appears to have travelled from the Gambia through Senegal and Spain to the Republic of Ireland. He claimed asylum in Ireland. He appealed the initial rejection, but left for the UK before his appeal was heard.
Ultimately, the petitioner was detained by police in the UK in May 2016. His Swedish convictions were discovered. The Home Office issued a deportation order some 15 months later. The petitioner responded by making a human rights claim and applying to transfer his refugee status from Italy to the UK. The petitioner’s claims were rejected by the Home Office and so he appealed to the FTT.
Issues
There were two broad attacks on the FTT’s decision. First, the FTT had arguably erred in finding that the petitioner did not have refugee status in Italy. Moreover, it was incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status. Second, the FTT had arguably erred by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007. The UT had adopted these errors in refusing permission.
The questions for the Court were therefore:
Decision
Lord Pentland was not with the petitioner on any of the questions. The petition was refused (at [29]).
The Court found that the issue of the petitioner’s alleged refugee status was a factual finding which was “amply supported by the evidence before the FTT” (at [18]). The FTT judge had made sustained adverse criticism of the petitioner’s credibility (see {12]-[17]). He did not accept any of the documents produced were genuine and gave reasons for disbelieving anything the petitioner said in support of his case (at [17]). No error arose.
Neither was it incumbent, in the circumstances, for the Home Office to verify the petitioner’s refugee status documentation. Such a duty may arise where it would be “simple and straightforward” to verify, the documents were crucial and were said to come from an otherwise unimpeachable source. Lord Pentland upheld the respondent’s submission that in this case verification would have been “far from straightforward” (at [20]). This point fell to be rejected.
As to the erroneous label of “foreign criminal”, this was dismissed by Lord Pentland as being a “purely technical and theoretical” point (at [28]). The FTT judge had “complied with the Guidance in substance and in spirit”. The court noted the significance of Guidance to the effect that those convicted of sentences in the UK and those convicted abroad should be treated alike in order to give proper effect to Article 8 ECHR (at [25]). The UT was entitled to refuse leave and no error arose.
Analysis
This decision will be welcomed by the Home Office. It provides a reminder that the Court will be slow to entertain technical or theoretical errors in such circumstances.
The case also demonstrates the difficulties that petitioners face where they have been fixed with an adverse credibility finding in the FTT. Having been found incredible, even otherwise objective evidence supportive of your case can be rejected where you are the primary source of the information.
Once Counsel is involved at the stage of a judicial review the damage may be too severe to rehabilitate even a once promising claim. Agents should bear in mind that Counsel can be instructed to appear in the FTT. While nothing can be guaranteed, by front loading the preparation, such difficulties further down the line may be avoided.
Representation
Ampersand’s Graham Maciver appeared for the respondent.
