Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 17
P747/11	OPINION OF LADY DORRIAN in the Petition of A. K. Petitioner ­­­­­­­­­­­­­­­­­________________

Pursuer: Forrest; Drummond Miller W.S.

Defender: McIlvride; Office of the Advocate General

25 January 2012

[1] The petitioner is an Afghan national born on 8 February 1992. He entered the UK on or about 1 May 2007 as an illegal entrant, and claimed asylum. He had claimed to be a Pakistani national named U. or U.K. Subsequently, he claimed that he was in fact A.K., an Afghan national under the age of 18. His asylum claim was refused and an appeal against refusal was dismissed in a decision of Immigration Judge Ward, promulgated on 31 August 2007. He claimed that his father had been a member of Hezbi-Islami, members of which organisation subsequently sought to recruit the petitioner against his will. He hid from them and went to Pakistan where he remained with an uncle, but he was traced there and further attempts to recruit him were made. He claims that, being afraid for his life, he sought to escape and did so via arrangements made by his mother and uncle. In rejecting the claim Immigration Judge Ward concluded that the petitioner was over the age of 18 and from Pakistan, not Afghanistan. Having explained his reasons for reaching these conclusions Immigration Judge Ward went on to say "However, even if I had taken the view that the appellant came from Afghanistan I would not have believed his version of events either." He did not believe that if the appellant had indeed come from Afghanistan he would have been given advice to claim that he was from Pakistan. He did not believe the version of events which the petitioner claimed led him to leave Afghanistan, nor did he believe that the Hezbi-Islami would be interested in the appellant to such an extent that they would follow him. He did not believe that the appellant's uncle, who lived in a refugee camp and had an unskilled job breaking wood and repairing mud huts, would have been able to give him approximately $10,000 to allow him to escape from Pakistan. He noted that the appellant travelled through a number of different countries before coming to the United Kingdom, including Greece, France and Italy, without making a claim for asylum in any of those places. He concluded that it was the appellant's intention to come to the UK, not because of fear of persecution, but for other reasons. He found that the appellant had numerous opportunities to claim asylum elsewhere and failed to do so which, along with his original claim to be a Pakistani national with a different name, were all found to be factors damaging his credibility.

[2] Following this determination the petitioner attended the Afghanistan Embassy where he was issued with an Afghan passport. It is now accepted that he is a national of Afghanistan, born on 8 February 1992. He was granted discretionary leave to remain as an unaccompanied minor and his asylum and humanitarian protection claims were dismissed without an appeal being pursued. On 5 August 2009 he applied for further leave to remain on asylum, humanitarian protection and human rights grounds. This was refused and he appealed to the First-Tier Tribunal on asylum and human rights grounds.

[3] The basis of his claim before the First-Tier Tribunal was a well founded fear of persecution on account of imputed political opinion, again based on the fact that his father fought for Hezbi-Islami and that that organisation had repeatedly tried to recruit him. The alleged circumstances of his hiding from them and travelling to his uncle's in Pakistan were also relied upon again.

[4] In refusing the claim, Immigration Judge McGavin noted "This is materially the same claim which was before the previous Immigration Judge and which he determined was not credible". In argument before Immigration Judge McGavin it was submitted that the original refusal was heavily predicated on the erroneous age assessment and the conclusion that the petitioner came from Pakistan. Immigration Judge McGavin proceeded on the basis that "my fundamental obligation is to independently decide this appeal on its own individual merits, bearing in the mind that the determination of Immigration Judge Ward is generally to be regarded as an authoritative determination of the issues of fact before him". She then notes Immigration Judge Ward's comment that even had he believed the petitioner on the grounds of nationality and age he would have disbelieved his account for other reasons. She concluded that, given that finding, there was no room for her to revisit the claim simply because age and nationality were now accepted. Application for permission to appeal was refused by the Upper Tribunal on the basis that the proposed grounds of appeal related to the treatment by the Immigration Judge of findings in an earlier determination and were thus a challenge to the Immigration Judge's factual findings. Those findings being properly, intelligibly and adequately reasoned it was determined that there was no identifiable or arguable error of law on the part of the First-Tier Tribunal.

[5] In this petition for judicial review it was accepted that the starting point for Immigration Judge McGavin to make her assessment was the determination made by Immigration Judge Ward. She required to consider whether the factual findings made by Immigration Judge Ward were tainted by his conclusions on nationality and age. In the petition it is stated "The real question for Immigration Judge McGavin was whether Immigration Judge Ward's rejection of the petitioner's account of his experiences in Afghanistan was a pure esto element to his decision or was not. If it was a pure esto element to the decision it is accepted that Immigration Judge McGavin proceeded properly." The petition then analyses the original decision with a view to establishing that the decision of Immigration Judge Ward to reject the claim was so bound up with his findings on age and nationality as to be fundamentally influenced by those findings. It was argued that the level of interest by Afghan insurgent groups forcibly recruiting the young is now recognised in the Afghanistan Country of Origin Report of November 2010. That information was available to Immigration Judge McGavin, although not to Immigration Judge Ward. Immigration Judge Ward's finding that the level of interest alleged to be shown by those seeking to persecute the appellant was implausible would have been materially affected by his conclusion as to the age of the appellant. It was therefore open to Immigration Judge McGavin to revisit this issue in light of the knowledge that insurgents recruit children and young teenagers. The adverse findings in relation to the uncle and the failure to claim asylum elsewhere are matters which would have been reduced in weight had the petitioner been recognised as a child at the time. It was argued that in failing to revisit the earlier decision, Immigration Judge McGavin fell into error of law.

[6] Counsel for the respondent invited me to refuse the petition. He pointed out that at the second appeal the Immigration Judge had heard evidence from the petitioner, so although she did not consider that she was able to open up the decision of Immigration Judge Ward, she only did so after hearing the evidence which the petitioner had to offer. In addition, at that hearing the appellant was represented by the same person as at the first hearing, and of course all parties were aware of the outcome of the first hearing. The tribunal in question is a specialist tribunal and the second immigration judge followed the guidelines relating to second hearings which had been given in Devaseelan v Secretary of State for the Home Department 2003 Imm AR 1. It had been open to the petitioner to make further and additional submissions at the second hearing but he did not do so. No error of law had been identified.

[7] Even if an error had been identified, the decision here was an unappealable decision of the kind which came under consideration in the case of Eba v Advocate General for Scotland 2011 SC 70. It was clear from paragraphs 33-36 that there was a stringent test for identifying circumstances in which such cases were amenable to judicial review. Review was only available where there was an important point of principle or practice or where there was some other compelling reason. It was apparent from paragraphs 33-36 of the opinion of the court that the test involved was a high one. The resort to other compelling reasons was an exceptional test designed to deal with situations where there had been a total collapse of procedure. An error of law not leading to an issue of principle or practice; or a decision which is poorly reasoned or even factually wrong; or which takes a flawed procedural approach will not suffice unless the proceedings are thereby vitiated. That cannot be said to be the case here. The exceptional nature of the "compelling reasons" test was also considered in PR (Sri Lanka) v Secretary of State for the Home Department (2011) EWCA Civ 988 and Uphill v BRB (Residuary) Limited [2005] EWCA Civ 60.

[8] Counsel for the petitioner recognised that the decision of the Upper Tribunal, which he sought to challenge, was an unappealable decision amenable to judicial review only if the court was satisfied that it raised some important point of principle or practice, or if there were some other compelling reason why the court should exercise its supervisory jurisdiction (Eba). In recognition of the hurdle placed in his way by that decision he attempted to classify this case as one of a collapse of fair procedure. It was said that Immigration Judge McGavin had not applied the correct principles in dealing with a second or subsequent appeal, and that, in failing to recognise this, the Senior Immigration Judge left out of account material matters. It was suggested that the endorsement of such a practice by the court would undermine the rule of law and that the failure of the Senior Immigration Judge was procedurally improper to an extent that amounted to a compelling reason for the purposes of the test in Eba. It was conceded that no point of principle or practice arose in this case. The argument rather was that there was a serious procedural irregularity which amounted to a compelling reason.

[9] I do not agree. The arguments in this case have to be looked at against the background that Immigration Judge McGavin also heard evidence from the petitioner. It was open to him to lead evidence to seek to explain why, by reason of his age, the matters referred to by the first Immigration Judge should not be thought to yield the inferences taken from them. He had an ample opportunity to explain that the factors relied on by the first Immigration Judge had been a symptom of his youth. It is made clear in the guidelines on procedure in second appeals set out in Devaseelan, that the first adjudicator's determination stands as an assessment of the claim that the appellant was then making at the time of that determination. It is not binding on the second adjudicator and at the hearing before the second adjudicator it may be built upon, possibly leading to a different result. Appellants are entitled to ask a second adjudicator to consider arguments on issues that were not or could not be raised before the first adjudicator, or evidence that was not or could not have been presented to the first adjudicator. It is therefore an important consideration that in reaching a decision the second adjudicator listened to evidence from, and arguments for, the petitioner. There is no material before her which could have led her reasonably to take the view that his age made a significant difference to the first Immigration Judge's findings on credibility. The only arguments which appear to have been advanced were that the mere fact of his age and nationality being established were said to vitiate the original decision. Having regard to the observations made by Immigration Judge Ward as to what the position would have been had he accepted the age and nationality, this argument cannot be sustained.

[10] In any event the issue arising does not, in my view meet the test in Eba. It is conceded that there is no issue of principle or practice arising. No issue of general importance arises; the issue is one which is restricted to the present petitioner. He cannot therefore bring himself within the first part of the test in Eba. As to the issue of a compelling reason, it is my understanding that what amounts to a compelling reason arises in circumstances where, for example, a decision was perverse or plainly wrong, or where the effect of a procedural irregularity was such that the petitioner had not had a fair hearing at all (See Eba paragraph 48). As was observed in PR (Sri Lanka), the "compelling reasons" test is "designed to be an exceptional remedy, a 'safety vale'". The narrowness of the exception was emphasised in the case of Uphill , where the court, using language similar to that subsequently applied in Eba, referred to circumstances which were "plainly unjust or which might deny a party a right of appeal altogether." In Uphill the court observed "compelling is a very strong word. It emphasises the truly exceptional nature of the jurisdiction." I do not consider that any procedural unfairness has been established in the present case and I am satisfied that the test in Eba has not been met. It follows that the appeal must be refused.