SA and Others v Secretary of State for the Home Department [2018] CSIH 71

This is an appeal against a refusal of petition for judicial review of a decision of the Upper Tribunal. There are two issues. The first is whether the Lord Ordinary erred in his approach to the substantial merits of the case; specifically in relation to his interpretation of paragraph 276ADE(1) of the Immigration Rules and section 117B of the Nationality, Immigration and Asylum Act 2002. The court decided to await the outcome of the appeal from IT (Jamaica) v Secretary of State for the Home Department [2017] 1 WLR 240, which had been heard before the United Kingdom Supreme Court on 17 and 18 April 2018 and which had the potential to resolve this issue; being similar to that in MA (Pakistan) v Upper Tribunal [2016] 1 WLR 5093 (infra). The UK Supreme Court issued its judgment on 24 October 2018 (KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53) refusing the appeal in IT (Jamaica). The second issue is procedural, and is raised in a cross-appeal by the respondent. It is whether the Lord Ordinary erred in concluding that the second appeals test, as set out in Eba v Advocate General for Scotland 2012 SC (UKSC) 1, only applies at the stage of granting permission to proceed, under section 27B(3) of the Court of Session Act 1988.

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