ML v Secretary of State for the Home Department

For Judicial Review of decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 28 August 2013

[2] The issue which the petitioner seeks to have this court consider is whether an inferior court is not bound by a decision of persuasive authority in circumstances where it is bound under a factually based precedent system by a decision which pre-dates that authority. That issue is stated in paragraph 3.1 of the petitioner's note of argument for the hearing before me and was confirmed by counsel for the petitioner as that which he wished to be considered at the first hearing.

[3] The question for me, at the procedural first hearing, was whether that issue passed the first limb of the test in Eba v Advocate General , 2012 SC(UKSC) 1, namely, that an important point of principle or practice is raised. That is because the Upper Tribunal's refusal of permission to appeal is an unappealable decision by virtue of section 13(1) and (8)(c) of the Tribunals, Courts and Enforcement Act 2007 and Eba decided the test to be applied in deciding whether such a decision is amenable to judicial review.

[4] In A v Secretary of State for the Home Department , 2013 SLT 11 , the Second Division gave guidance about how to apply that test. In the case before me, counsel for the petitioner agreed with the following propositions that counsel for the respondent derived from that decision (the paragraph references are to the paragraphs in the opinion of the court). These were:-

(1) In a challenge to an unappealable decision of the Upper Tribunal, the court's role is a gate keeping or sifting role (para. [43]).