1. Introduction

The case of Saleemi and Others vs. Secretary of State for the Home Department ([2020] ScotCS CSIH_32) adjudicated by the Scottish Court of Session on June 10, 2020, represents a significant development in the realm of immigration law and judicial review procedures in Scotland. The appellants, comprising Asfandyar Saleemi, Muhammad Iqbal Saleemi, and Bushra Saleemi, challenged the refusal of permission to proceed with their petition for judicial review concerning a decision by the Upper Tribunal (UT). This case underscores critical issues related to the interpretation of immigration rules, the application of the European Convention on Human Rights (ECHR), and the procedural aspects of reclaiming motions under the Court of Session Act 1988.

2. Summary of the Judgment

The appellants sought to overturn the interlocutor's refusal to allow their petition for judicial review, which challenged the UT's decision denying permission to appeal the First-tier Tribunal (FTT)'s ruling. The core contention centered on whether the FTT and UT properly evaluated the appellants' eligibility under paragraph 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, particularly concerning the appellants' private life rights under Article 8 of the ECHR.

The Scottish Court of Session, delivered by Lord Brodie, ultimately granted permission for the appellants to proceed with their judicial review. The court found that the second part of the second appeals test was satisfied, as there was a substantial legal point concerning the treatment of the appellants' application that warranted further examination. The court highlighted potential procedural errors by the FTT and UT in assessing the reasonableness of expecting the first petitioner to return to Pakistan, given his status at the time of application.

3. Analysis

3.1 Precedents Cited

Two pivotal cases were referenced in the judgment:

• R (on the application of MA (Pakistan)) v Upper Tribunal [2016] 1 WLR 5093:

This case provided guidance on the appropriate approach tribunals should adopt when determining the reasonableness of expecting an individual to leave the UK. The Court of Appeal emphasized the importance of a "narrow approach," focusing solely on the child's circumstances without diluting the assessment with broader public interest factors.

• KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273:

The Supreme Court upheld the narrow approach endorsed in MA (Pakistan), reinforcing that tribunals must prioritize the best interests of the child when evaluating Article 8 rights related to private life.

These precedents were instrumental in shaping the court's perspective on the "second appeals test" and the necessity of a focused legal analysis devoid of extraneous public interest considerations.

3.2 Legal Reasoning

The court meticulously examined whether the Lord Ordinary had erroneously dismissed the appellants' prospects of success without adequately addressing the substantive legal issues. Central to this was the interpretation of the Immigration Rules and the ECHR guarantees.

The "second appeals test," derived from section 27B(3)(b) and (c) of the Court of Session Act 1988 and elucidated in Eba v Advocate General for Scotland (2012 SC (UKSC) 1), requires that an application for permission to appeal must demonstrate both a real prospect of success and either raise an important point of principle or present a compelling reason to proceed.

The court determined that the appellants had identified a potentially significant legal point concerning the timing of assessing the first petitioner's age—whether it should be considered at the date of application or the date of the hearing. This nuanced interpretation directly impacts the application of paragraph 276ADE(1)(iv) and section 117B(6) of the relevant immigration statutes.

By highlighting the possibility that the FTT and UT may have erred in applying a "wider approach" instead of the mandated "narrow approach," the court emphasized the importance of adhering strictly to the legislative intent and judicial precedents that prioritize the appellants' rights and status as minors at the time of application.

3.3 Impact

This judgment has profound implications for future immigration cases, particularly those involving applications based on private life rights under Article 8 of the ECHR. It reinforces the necessity for tribunals to apply a narrow, child-centric approach when assessing the reasonableness of expecting minors to leave the UK. By potentially correcting procedural oversights in previous tribunal decisions, the Saleemi case ensures greater protection for individuals whose private lives are significantly intertwined with their residency in the UK.

Furthermore, the case underscores the court's willingness to scrutinize and rectify procedural deficiencies in the judicial review process, thereby promoting fairness and adherence to legal standards within the immigration adjudication framework.

4. Complex Concepts Simplified

4.1 Second Appeals Test

The "second appeals test" is a two-part criterion used to determine whether an appeal should be granted permission to proceed. First, the applicant must show a real chance of success (prospect of success). Second, the appeal must either present an important legal principle or have a compelling reason to be heard even if the chances of success are slim.

4.2 Narrow vs. Wider Approach

A "narrow approach" focuses solely on the immediate circumstances of the applicant (e.g., the child's situation) without considering broader factors like parental immigration status or public interest. In contrast, a "wider approach" entails a more comprehensive analysis that includes these additional factors, potentially diluting the focus on the applicant's specific needs.

4.3 Article 8 of the ECHR

Article 8 protects an individual's right to respect for their private and family life. In immigration context, this can influence decisions about whether to allow someone to remain in a country based on the impact that removal would have on their private life.

4.4 Reclaiming Motion

A reclaiming motion is a legal procedure used to bring a case back before a higher court when permission to proceed with an appeal was previously denied. It essentially seeks to "reclaim" the right to have the case heard.

5. Conclusion

The Saleemi appeal serves as a pivotal reference point for immigration law, particularly in how tribunals assess the reasonableness of expecting minors to leave the UK. By emphasizing a narrow, child-centric approach and scrutinizing procedural adherence, the Scottish Court of Session reinforces the protective framework afforded by the ECHR to individuals in vulnerable positions.

This judgment not only rectifies potential misapplications of legal standards in prior tribunal decisions but also fortifies the principles governing judicial review and permission to appeal processes. Consequently, it ensures that future cases will be evaluated with a heightened awareness of the nuanced interplay between immigration control and human rights protections, ultimately fostering a more just and equitable legal system.