Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 195
P440/13	OPINION OF LORD BANNATYNE in the Petition of AR (F.C.) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: McKendrick; Office of The Advocate General

18 December 2013

Introduction

[1] A first hearing called before me on 15 November 2013. Mr Winter, advocate appeared on behalf of the petitioner and Mr McKendrick, advocate appeared on behalf of the respondent. The petition challenged the decision of the Upper Tribunal ("the UT") dated 5 March 2012 refusing permission to appeal against a decision of the First Tier Tribunal ("the FTT") promulgated on 23 December 2011.

Background

[2] The petitioner is an Iranian national. He first claimed asylum on the basis of his involvement with the KDPI when he appealed against a removal direction decision, dated 11 March 2002. His appeal was refused by Adjudicator Campbell, in a decision promulgated on 30 October 2002. The adjudicator made adverse findings in relation to the petitioner's credibility. Contrary to the claimed fear which apparently supported his claim for asylum, the petitioner returned to reside in Iran and began to run his own business.

[3] The petitioner returned to the United Kingdom in 2010 and was refused asylum by the UKBA and his appeal against this decision was refused by the FTT, by way of a decision of Judge Scobbie promulgated on 18 November 2010, which decision was unsuccessfully appealed to the UT. Judge Scobbie made adverse findings in relation to the petitioner's credibility. In particular he found at paragraphs 67 and 68:

"I do not consider the Appellant a credible witness. I did not accept his account and specifically, I did not accept that the Appellant got into trouble with the authorities in Iran for KDPI activities. I did not accept that he had been imprisoned or escaped. In these circumstances, the Appellant does not have a well founded fear of persecution in Iran and his asylum claim fails."

[4] Thereafter, further submissions were made on 1 August 2011 and this application was refused on 15 September 2011. The petitioner appealed this decision to the FTT and there was a hearing before FTTJ Murray on 6 December 2011.

[5] The petitioner's claim before FTTJ Scobbie and FTTJ Murray is conveniently summarised at paragraph 7 of the decision of FTTJ Murray and was as follows:

"He opened his own garage business in R in 2004. The appellant's brother was killed and the appellant began co-operating with the KDPI again on 21 March 2006. One of his cousins, who is a member of the KDPI, asked the appellant if he would give the party some money and if the party could borrow his car and if he would provide spare parts for the party's cars. The appellant gave him money and lent him his car and gave him some car parts. His car was used by the party on 4 occasions. The appellant was arrested on 5 June 2006 as his car had been found in the possession of KDPI members. The appellant was taken to the E detention centre. He was detained for 3 months. He was tortured mentally and physically. He was then taken to the Revolutionary Court in M. He was sent to prison and was told that he would be detained for 6 years. He was badly treated while in prison. The appellant's father died on 5 July 2010 and the appellant asked for temporary release from prison. His brother stood as his surety and gave over the title deeds to his house. The appellant was released on 19 July 2010 for 10 days. The appellant's brother and brother-in-law arranged for the appellant to leave Iran. They told him that if he returned to prison he would be executed. The appellant left with an agent, first staying with his brother in R for 10 days and then hiding in M for 2 days before going to Tabriz. On the way to Tabriz the appellant's brother-in-law was killed at a temporary checkpoint. The appellant left Iran on 7 August 2010 travelling by lorry to the United Kingdom where he arrived on 19 August 2010. The appellant is afraid to return to Iran as he thinks he will be killed because he absconded and because of his history with the authorities."

[6] Before FTTJ Murray three witnesses were led who had not been led before FTTJ Scobbie. For the purposes of the issues before this court only two of these were of any relevance, namely: Mr EM and Mr SJ. The former witness's evidence is summarised at paragraph 21 of FTTJ Murray's determination:

"The Presenting Officer questioned the witness who stated that he met the appellant in 2005 when he took his car into his garage for repair. He said he had a white jeep and in 2006 when he did not see the appellant at the garage he asked about him and was told that he was in trouble because of his political activities. He was asked the names of the other people in the garage and he said that their names were KS and HR. He said that the appellant had told him that he was part of a political family but he did not tell him anything about his own political activities. The witness was asked why the appellant will be in danger if he returns to Iran and he said that people like the appellant are executed in Iran or are given life imprisonment and that anyone who carries out political activities against the regime is in danger."

[7] The latter's evidence is summarised at paragraph 24 of FTTJ Murray's determination and was this:

"The Presenting Officer questioned this witness who stated that he met the appellant when he was in M prison and they were both in the same wing. He said that they were both political prisoners. He said the walls of the cells were cream and the uniforms were silvery and the scales of justice were on the prisoner's clothes. He was asked if he ever spoke to the appellant and he said that they used to pass the time of day but they were not allowed to speak to each other and he only saw him during breaks."

[8] In his consideration of the issues before him FTTJ Murray took as his starting point the determination of FTTJ Scobbie and noted that he did not find the appellant to be credible (see: paragraph 51 of his determination). In approaching his determination in this way he followed the principles in Devaseelan 2002 UKIAT 00702. No issue was taken with the approach adopted by FTTJ Murray. He went on between paragraphs 57 and 60 of his determination to consider the evidence of Mr M and Mr J and found in summary that little weight could be given to the evidence of these two witnesses. At paragraph 59 he found as follows:

"I find that there is nothing in the additional evidence which would persuade me to change the previous decision"

The petitioner's appeal was refused by FTTJ Murray in a decision promulgated on 23 December 2011.

[9] The petitioner sought permission to appeal that decision to the UT from the FTT. It was contended that the treatment by FTTJ Murray of J's evidence had no rational basis and was perverse; it was contended that he had erred in law by failing to engage with the relevant evidence of a credible witness, namely M and failed to engage with relevant evidence of a credible KDPI representative.

[10] The FTT judge refused permission finding that:

"3. Contrary to the grounds, the weight to be attached to the evidence of a witness was a matter for the FTTJ. The FTTJ acknowledged that two of the witnesses had been found credible in respect of their own asylum claims, but given their lack of personal knowledge of the Appellant's political activities, she attached little weight to their evidence. This finding was open to the FTTJ on the evidence before her, notwithstanding that the witnesses' had met the Appellant in Iran and he was known to them; matters which the FTTJ took into account. The FTTJ gave cogent reasons for attaching little weight to the evidence of the KDPI representative at paragraph 56".

[11] Thereafter the petitioner sought permission to appeal from the UT on substantially similar grounds

[12] The UT judge refused permission to appeal to the UT and in doing so gave the following reasons:

"Contrary to what the grounds assert, the FTTJ gave sound and intelligible reasons for deciding very little weight could be placed on the evidence of the 3 witnesses; see paras 56-61

Absent special features (and there were none in this case), the question of what weight to attach the evidence of witnesses is a matter for the FTT judge."

The petition

[13] The petitioner has lodged a petition for Judicial Review of the UT decision refusing permission to appeal. At paragraph 11 of the petition it is averred that:

"...the UT erred by failing to grant permission to appeal to the UT in terms of the grounds for permission that were before it. The UT held that the FTT gave sound and intelligible reasons for deciding very little weight could be placed on the evidence of the 3 witnesses. The UT finds that the question of what weight to attach the evidence of witnesses is a matter for the FTT. However when credibility findings can be interfered with was dealt with in HA v Secretary of State for the Home Department 2008 SC 458 at paragraph 17 per Lord Macfadyen; see also SS (Iran) v Secretary of State for the Home Department [2010] CSIH 72 at paragraph 13 per Lord Carloway). That in light of the foregoing, the UT has failed to take account that in certain circumstances the findings of the FTT can be interfered with in terms of HA, supra and SS, supra. The grounds indicate that the findings in relation to the evidence of the witnesses are irrational."

[14] It was contended in the petition that the FTT had incorrectly approached the evidence of the witnesses J and M by effectively compartmentalising their evidence; irrationally found that certain topics had been rehearsed by the petitioner and J and failed to take account of relevant matters when considering the evidence of M. The UT it was asserted when considering permission to appeal had also wrongly failed to consider these matters.

The submissions on behalf of the petitioner

[15] Mr Winter's position at the outset of the oral argument before me was that the central question in the review was as foreshadowed in the petition, namely this: had the UT correctly assessed when it could interfere with credibility findings?

[16] He directed the court's attention to HA v The Secretary of State for the Home Department 2008 SC 458 which he submitted contained a useful summary of the proper approach to this issue. The court at paragraph 17 of its opinion gave the following guidance as to the approach to this issue:

"[17] In light of the cases cited to us it is convenient at this stage to formulate some propositions about the circumstances in which an immigration judge's decision on a matter of credibility or plausibility may be held to disclose an error of law. The credibility of an asylum-seeker's account is primarily a question of fact, and the determination of that question of fact has been entrusted by Parliament to the immigration judge (Esen, para 21). This court may not interfere with the immigration judge's decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion (Reid, per Lord Clyde, p41H). But if the immigration judge's decision on credibility discloses an error of law falling within the range identified by Lord Clyde in the passage quoted above from Reid, that error is open to correction by this court. If a decision on credibility is one which depends for its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation (Wani v Secretary of State for the Home Department, para 24, quoted with approval in HK, para 30). A bare assertion of incredibility or implausibility may disclose error of law; an immigration judge must give reasons for his decisions on credibility and plausibility (Esen, para 21). In reaching conclusions on credibility and plausibility an immigration judge may draw on his common sense and his ability, as a practical and informed person, to identify what is, and what is not, plausible (Wani, p 883L, quoted with approval in HK, para 30, and in Esen, para 21). Credibility, however, is an issue to be handled with great care and sensitivity to cultural differences (Esen, para 21), and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose culture and customs are very different from those in the United Kingdom (HK, para 29). There will be cases where actions which may appear implausible if judged by domestic standards may not merit rejection on that ground when considered within the context of the asylum-seeker's social and cultural background (Wani, p 883I, quoted with approval in HK, para 30). An immigration judge's decision on credibility or implausibility may, we conclude, disclose an error of law if, on examination of the reasons given for his decision, it appears either that he has failed to take into account the relevant consideration that the probability of the asylum-seeker's narrative may be affected by its cultural context, or has failed to explain the part played in his decision by consideration of that context, or has based his conclusion on speculation or conjecture."

[17] It was his position that the decision of the FTT in relation to the issue of the credibility of the said two witnesses was based on conjecture or speculation. This was a feature which the UT should have taken account of and it had failed to do so. He submitted that the UT had then failed to approach this matter in the appropriate manner in that it had incorrectly assessed when it could interfere with a FTT decision on credibility.

[18] Beyond that Mr Winter referred to Asif v The Secretary of State for the Home Department 2002 SC 182 at paragraph 16 where the court observed with respect to making a judgement in immigration cases relative to credibility that:

"...it is very difficult to see that it [a decision as to credibility] can be made without reference to the ordinary tests of consistency and inconsistency, always applied with due sensitivity."

[19] He submitted that the FTT had failed to have regard to consistency. Thereafter the UT had failed to take account of that mistake and to understand that such a mistake was of a type justifying interfering with credibility findings.

[20] Moving on he took the court to Butt v Secretary of State for the Home Department 2005 SLT 865 and to the opinion of Lord Glennie at paragraph 9 where he referred to the observations of Sedley LJ who had noted that in:

"Minister for Immigration and Multicultural Affairs v Ramalingam the Federal Court had adopted the approach of Drummond J in Than Phat Ma v Billings, at (1996) 71 FCR, p 436...unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.'"

[21] Mr Winter submitted that here the FTT had failed to follow this approach in that the FTTJ had compartmentalised his consideration of the evidence of J and M. The UT had then wrongly failed to take account of this and wrongly held that an error in law of this type was a matter which it could not consider.

[22] During the course of oral argument before me Mr Winter abandoned this submission regarding the Upper Tribunals approach to credibility. He altered his position in that he came to accept that on a fair reading of the FTT's determination it had not made adverse credibility findings regarding J and M. Rather its findings regarding these two witnesses turned on the weight which the FTT was prepared to give to their evidence. Nevertheless his position was that the FTT's findings as regards the weight which should be attached to their evidence were perverse or plainly wrong and that for broadly the same reasons he had advanced relative to credibility. He maintained that if the UT had approached the matter in the correct way there was a basis upon which it should have granted permission to appeal.

[23] Mr Winter then turned to the test which he required to satisfy to be successful in the judicial review and submitted this: the points raised in his argument as above set out represented compelling reasons which satisfied the second appeal test in Eba v Secretary of State for the Home Department 2012 SC (UKSC) 1. At paragraph 48 Lord Hope of Craighead set out the test as follows:

"[48] So I would hold that the phrases 'some important point of principle or practice' and 'some other compelling reason', which restrict the scope for a second appeal, provide a benchmark for the court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint (see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd, per Dyson LJ, paras 17, 24; Cramp v Hastings Borough Council, per Brooke LJ, para 68). Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all."

[24] Mr Winter submitted that the decision of the UT for the reasons he had advanced was perverse or plainly wrong and thus met the second leg of the test.

[25] Mr Winter also submitted that guidance with respect to understanding the second limb of the second tier test could be found in the judgment of Carnwath LJ in PR (Sri Lanka) v The Secretary of State for the Home Department [2012] 1 WLR 2070, who at page 77 refers to the judgement of Dyson LJ in Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 at paragraph 24 when he said this:

"[1] A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at [3] below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPRR 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals."

[26] Mr Winter submitted that there were here very high prospects of success for the reasons he had earlier advanced.

[27] Mr Winter contended that in order to constitute a perverse or plainly wrong decision, it was enough to demonstrate a material error of law. He did not accept that such an error of law could go uncorrected on a proper application of the Eba test. He did, however, refer me to Regina (Cart) v Upper Tribunal [2012] 1 AC 663 and to the opinion of Lord Browne of Eaton-under-Haywood at paragraphs 99 and 100. In this section of his opinion his Lordship states that the "second tier appeals approach expressly contemplates" that some UT decisions might go uncorrected even though erroneous in law. However, Mr Winter went on to contend that this was not necessarily the approach which had been adopted by the whole court and pointed out that Lord Philips of Worth Matravers at paragraph 95, Lord Hope of Craighead at paragraph 96, Lord Clarke of Stone-cum-Ebony at paragraph 104 and Lord Dyson at paragraph 134 tended to align themselves with the reasons given by Baroness Hale as opposed to those given by Lord Browne.

[28] Lastly Mr Winter tentatively submitted under reference to the opinion of Lord Stewart in AHC [2012] CSOH 147 at paragraph 55 to 59 that a slightly less demanding standard, than that set forth in Eba, might be applied in cases, such as the present one, where there had only been one level of judicial consideration. He accepted that there had been contrary opinions to that expressed by Lord Stewart by other Outer House judges and he referred me to the opinion of Lord Armstrong in EP petitioner [2013] CSOH 99 at paragraph 41. He submitted that the petitioner clearly met any such lower test.

[29] Mr Winter at paragraph 10 of his petition had set forth a second line of argument which in summary was to this effect: anxious scrutiny had not been exercised in terms of assessing whether the petitioner would be questioned about his asylum claim and how the Iranian authorities would react to the answers the petitioner gave and that he would accordingly be at real risk on his return. However, he did not insist upon this argument.

[30] For these reasons he moved that I should grant the relief sought in the petition.

Reply for the respondent

[31] Mr McKendrick turned first to look at what he described as the Eba/Cart test. He directed my attention to the following authorities: SA v Secretary of State for the Home Department [2013] CSIH 62 paragraphs 15 and 39-44; R (Cart) v Upper Tribunal at paragraph 131; and PR (Sri Lanka) v Secretary of State for the Home Department at paragraphs 35 and 36. From the foregoing he took the following points: this court was not concerned with whether the First Tier Tribunal had erred in law (see SA v Secretary of State for the Home Department paragraph 15). A material error of law of the UT was not enough to grant jurisdiction to this court (see: paragraph 39 SA v Secretary of State for the Home Department). The test of compelling issue requires a legally compelling issue (see: PR (Sri Lanka) v Secretary of State for the Home Department paragraph 36). Extreme consequences for an individual do not of themselves amount to a compelling issue (see: PR (Sri Lanka) v Secretary of State for the Home Department paragraph 36). In order to meet the compelling issue test wholly exceptional circumstances or truly drastic results have to be shown (see: R (Cart) v Upper Tribunal at paragraph 131).

[32] He then turned to examine the instant case in light of the various propositions he had stated. He began by noting that the petitioner had abandoned his position that the UT had not properly recognised when it could interfere with credibility findings and that what was now contended was that the decision of the UT was perverse or plainly wrong regarding its approach to the issue of the weight which the FTT had applied to the evidence of J and M. His position regarding this new line was first that it came nowhere near passing the very high hurdle set by the Eba/Cart test. He contended that even if the UT had incorrectly approached the issue of when it could interfere with a decision on weight this could not be described as a truly drastic or wholly exceptional error and this court accordingly did not have jurisdiction.

[33] With respect to IJ Murray's decision Mr McKendrick highlighted the following: it was clear from paragraph 4 that the FTT had at the front of its mind that the petitioner had to demonstrate substantial risks of persecution on his return to Iran because of his political opinions.

[34] He referred to paragraph 10 of the determination where the petitioner's evidence was dealt with by the FTT and pointed to two short sections thereof: first where this is noted:

"He (the petitioner) said he did not tell Mr J anything about his own political activities."

[35] He secondly referred to this:

"He (the petitioner) was asked how often he spoke to this man (Mr J) and he said that they were not allowed to speak freely to each other but he had passed the time of day with him."

[36] He then went on to note that before the FTT there were five witnesses to fact and that a complaint was made by the petitioner only in relation to the treatment of two of these, namely J and M.

[37] As regards Mr M he pointed to paragraph 21 of the determination where this is said:

"He (Mr M) said that the appellant had told him that he was part of a political family but he did not tell him anything about his own political activities."

[38] He then turned to paragraph 50 where the FTT said this:

"I have considered all of the evidence on file, the oral evidence given at the hearing and the submissions of both parties."

[39] He submitted that paragraph 50 demonstrated that the FTT had taken a holistic approach.

[40] Turning to paragraph 51 the FTT had referred to the case of Devaseelan and he submitted it had correctly applied Devaseelan. As I have earlier said there was no argument on behalf of the petitioner that the FTT had wrongly approached Devaseelan.

[41] He then turned to look at paragraphs 53 to 60 of the determination where the issues of credibility and weight were dealt with. He submitted that on a proper reading of the determination the issues regarding credibility related to the petitioner and his wife. At 57 to 60 there was thereafter consideration of the evidence of J and M. In the course of the discussion within these paragraphs it was clear he submitted, on a proper reading, that the FTT had decided not to give much weight to the evidence of these two witnesses and that within that discussion the FTT had set out proper reasons for reaching this view. He submitted that the approach of the FTT to the issue of the weight to be attached to the evidence of these witnesses was entirely proper.

[42] Turning to the decision of the UT which was challenged he first noted that the said decision was taken on the basis of a consideration of the issues of the weight which had been applied to the evidence of these two witnesses. He submitted that that was clearly a correct approach as the basis of the FTT's decision regarding these witnesses' evidence was based on the weight which it had decided to attach to it.

[43] He went on to submit that none of the factors that were set out at paragraph 17 in the case of HA v Secretary of State for the Home Department and which would entitle the UT to consider the FTT's findings regarding the issue of weight were present in the instant case. He submitted that that on its own was sufficient to show that there was no error of law in the way that the UT had approached this matter. He noted that the UT had specifically recognised that special features could justify interference with the findings of the FTT but went on to state that there were none. He submitted that this could not be faulted.

[44] He submitted that it could not be said that the UT had acted plainly wrongly or perversely.

[45] He went on to argue that it was not perhaps surprising that nothing could be found in this case to support the petitioner's position. He pointed out that no less than five courts had looked at this case. There was a background of eleven years where for significant reasons the petitioner had been found to be incredible and not be at serious risk of harm on his return to Iran. In that context he particularly noted that despite saying that he was at risk of harm in 2002 he had nevertheless returned to Iran where he had lived and worked openly and had remained for a large number of years.

[46] Lastly he reminded the court that all of the judges who looked at this matter had been specialist judges and that this court should be slow for that reason to interfere with the decision of the UT. In support of this he referred to TR and NR v Secretary of State for the Home Department 2009 [CSIH] 77 at paragraph 16.

[47] In summary his position was this: there was no error of law on the part of the UT and esto there was the Eba/Cart test had not been met.

Discussion

[48] In terms of the argument presented to me two questions required to be answered: (1) Has there been any error of law on the part of the UT? and (2) If there is applying the test in Eba v Secretary of State for the Home Department has the court jurisdiction to consider the lawfulness of the decision under review?

[49] Before turning to examine in detail these questions I would wish to make certain general observations. It is important to remember first that what this court is not doing is this: seeking to identify an error of law on the part of the FTT. Rather the task in the first place is to identify whether there is an error of law on the part of the UT in refusing permission to appeal, which then brings into play a second issue: whether such an error meets the test in Eba v Secretary of State for the Home Department (see: SA v Secretary of State for the Home Department paragraph 15).

[50] Secondly as is implicit in what I have above said an error of law is of itself insufficient to give this court jurisdiction. The foregoing is clear from the opinion of the court at paragraph 31 in SA v Secretary of State for the Home Department, where it refers to the decision of Lord Hope at paragraph 49(c) of Eba v Secretary of State for the Home Department. There Lord Hope justifies this approach on a pragmatic basis. His approach appears to me to echo almost exactly the approach of Lord Browne of Eaton-under-Heywood, to which I was referred, as set out at paragraphs 99 and 100 in R (Cart) v Upper Tribunal. Both of their Lordships in my view are accepting that certain errors of law of the UT will go uncorrected.

[51] That this is a correct understanding appears to be supported by reference to first what Lord Phillips of Worth Matravers said at paragraph 92 in Cart:

"Having considered, however, the judgment of Baroness Hale JSC, who has great experience in this field, and those of other members of the court, I have been persuaded that there is, at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance (my emphasis) slip through the system."

[52] Secondly, at paragraph 131 Lord Dyson, who was the architect starting with Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 of the choice of the second tier appeals criteria, said:

"Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at paragraph 99 as "a wholly exceptional collapse of fair procedure" or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences (my emphasis)."

[53] In my view it is implicit in both of the above passages that certain errors of law will go uncorrected.

[54] Overall, I believe the approach urged upon me by Mr Winter namely: that it was sufficient to demonstrate a material error of law for the court to have jurisdiction and therefore that Lord Browne's position is not the correct one is not sustainable. I believe that Mr Winter's contention is clearly inconsistent with the above observations and with the general thinking of the courts in developing the basis for the second tier appeals criteria in Eba, Cart and SA.

[55] Thirdly it is perhaps convenient at this point to consider Mr Winter's contention based on Lord Stewart's opinion at paragraph 55 in AHC v Secretary of State for the Home Department to the effect that the instant case was not truly a second appeals case and that therefore a less demanding standard than that set out in Eba/Cart should be applied. I am satisfied that the second appeals criteria as set out in the foregoing cases should apply. With respect to this issue I would respectfully disagree with the opinion of Lord Stewart. I have had the benefit of reading the opinion of Lord Doherty in Nabeel Yusuf Khan [2013] CSOH 84 where he considers this particular point at paragraphs 43 to 45 and where he concludes by disagreeing with Lord Stewart's observations. I believe that Lord Doherty's reasoning is cogent and persuasive. I prefer his views on this issue to those of Lord Stewart. I also note the observations of Lord Armstrong at paragraph 41 in EP petitioner which reinforces my view that the second appeals criteria should be applied in the case before me. I accordingly for these reasons reject the argument put forward by Mr Winter on this issue.

[56] Fourthly in considering the question of what is a compelling issue I believe that Mr McKendrick was correct in submitting that what was required was a legally compelling issue. Carnwath LJ giving the opinion of the court in PR (Sri Lanka) v Secretary of State for the Home Department at paragraph 36 says this:

"It is true that Baroness Hale and Lord Dyson JJSC in the Cart case acknowledge the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words 'compelling' means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

[57] Fifthly it was not argued by Mr Winter that the instant case could satisfy the first limb of the second appeal criteria, namely: that it raised an important point, principle or practice. In his submissions before me it was his position that the petitioner satisfied the second limb of the test which is: some other compelling reason. As to what could amount to such a compelling reason guidance is given at paragraph 131 of Cart in the opinion of Dyson LJC who says this:

"'Some other compelling reason' would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. [Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at paragraph 99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences." (my emphasis)]

[58] Having set out the above principles which in my judgement require to be followed in consideration of the issues before me I turn to the first question which I earlier posed, namely: is there an identifiable error of law? It seems to me that the answer to that question is a clear no.

[59] Mr Winter in the course of his submissions to me abandoned his argument that the UT had not properly recognised when it could interfere with the credibility findings of the FTT. In so doing I believe he was undoubtedly correct. His complaint as foreshadowed in the petition and elaborated before me related to only how the evidence of two witnesses, namely J and M, had been treated by the FTT. When read fairly as a whole the determination of the FTT regarding the evidence of these two witnesses is not based on considerations of credibility. Rather, the FTT found their evidence, in light of the issues before it, of little weight (see: in particular at paragraphs 57 to 61).

[60] I first observe that the UT in its decision correctly identifies that the issue before it is the weight given by the FTT to the evidence of J and M and the FTT's assessment and reasoning with respect to this issue.

[61] The UT considers the relevant parts of the FTT's determination on this issue, namely paragraphs 56 to 61 thereof.

[62] The UT considers whether any reasons were given by the FTT for that decision and holds that it did. It goes on to consider what these reasons were and holds that they were: "sound and intelligible reasons for deciding very little weight could be placed on the evidence are given".

[63] These reasons are, so far as M is concerned:

"His evidence is that he knew the appellant as he was a customer at his garage in Iran. Part of his evidence is that he was not told by the appellant anything about his, the appellant's, political activities although he was told that the appellant was a member of a political family. This witness knows nothing of the appellant's political activities in Iran and his evidence therefore can be given little weight." (see: para 57)

[64] In relation to J the reasons are:

"This witness knows nothing of the appellant's political activities in Iran...I am giving little weight to Mr J's statement. In the last paragraph of his statement he states that he is 100% sure that the appellant will be executed if he is returned to Iran. He states that [the petitioner] is a higher profile activist than he was, but he can only know this if this is what the appellant told him." (see: para 58)

[65] Thereafter the FTT's reasoning on the issue of the weight to be attached to the evidence of these two witnesses is summarised at paragraph 60:

"I understand that Mr M and Mr J were found to be credible relating to their own asylum claims but their lack of personal knowledge of the appellant's political activities means that their evidence is worth very little."

These are plainly sound and intelligible reasons as held by the UT. Having regard to the evidence given by the petitioner and by these two witnesses the conclusions which the FTT reached as regards the weight to be attached to this evidence it was entitled to reach. I can identify no defect in the reasoning put forward by the FTT on this issue. Accordingly there appears to be no error in law in the decision of the UT that the FTT had put forward sound and intelligible reasons for its findings on the weight to be attached to this evidence.

[66] In the reasons for its decision the UT goes on to say: "Absent special features... the question of what weight to attach to the evidence of witnesses is a matter for the FTT judge." Thus the UT expressly recognises the exception on the basis of special features, namely: the broad type of features identified by the court in HA at paragraph 17 which although dealing with issues of credibility and plausibility can in my judgment in large part be read over to findings on weight at first instance.

[67] It is clear from the foregoing that the UT has not approached the issue before it on the basis that in no circumstances could it interfere with a decision on weight, which in light of the said observations in HA would have been an erroneous approach. Rather it has clearly recognised that where there are special features a decision at first instance on the weight to be attached to evidence could justify interference.

[68] The UT has then gone on to consider whether there were such features which would then justify it granting permission. It has held that there were none. It appears to me that that decision is unimpeachable: the FTT has given reasons for its decision as to the weight which it had attached to the evidence of these witnesses; those reasons are both sound and intelligible. It is not stateable, that the FTT taking the view that little weight can be attached to the evidence of these witnesses, where they had little personal knowledge of the petitioner's political activities, was not sound and intelligible. Such reasons are patently sound and intelligible where the core issue before the FTT was the petitioner's political activities.

[69] I cannot detect any error of law in the decision of the UT. Rather the UT has applied the proper approach to the issue before it and its decision appears well reasoned and legally sound.

[70] It very much appears to me, that in the end of the day, the petitioner's argument comes to no more than this: he disagrees with the decision of the FTT on the weight to be attached to certain evidence and he disagrees with the UT's unwillingness to allow an appeal on that issue where there are no circumstances of the type set out in paragraph 17 of HA present in the decision of the FTT. In those circumstances his application must fail.

[71] Even if I were wrong in my conclusion that there was no error of law I would in any event have held that the second question which I posed earlier should be answered in the negative.

[72] I do not believe that an error of law of the type contended on behalf of the petitioner meets the second appeal criteria.

[73] Such an error could not be said to be an arguable error of law as explained by Dyson LJ at paragraph 131 in Cart to which I earlier in this opinion made reference.

[74] Nor does such an error come within what Lord Hope says in Eba at paragraph 48 about the second limb of the second appeal test:

"would include circumstances where it was clear that the decision was plainly wrong or where due to some procedural irregularity, the petitioner had not had a fair hearing at all." (my emphasis)

[75] Looking to what is said by Lord Dyson and Lord Hope as to what might amount to a compelling reason the very strong language used by both of their Lordships it appear to me is noteworthy. It is not just a collapse of fair procedure that the court is looking for but a wholly exceptional collapse of fair procedure. It is not a case where it is arguable that there has been an error of law but one which is strongly arguable and the result produced has to have truly drastic consequences. The decision must not just be wrong but plainly wrong and it is not enough for the appellant not to have had a fair hearing but it must amount to not having a fair hearing at all. It appears to me that the language used in these examples illustrates the very high level at which the bar is set where a petitioner is seeking to judicially review a decision of the UT as he is here. It emphasises as said by Lord Dyson in Uphill v BRB (Residuary) Ltd at para 19 "the truly exceptional nature of the jurisdiction".

[76] The issue in this case, namely: the weight attached by the FTT to the evidence of J and M could it seems to me not amount to such an arguable error of law.

[77] There is nothing in the arguments advanced before me that would justify a conclusion that such an error could amount to a compelling reason as defined by Lord Dyson and Lord Hope. An error of law of the type which the petitioner sought to contend had occurred in this case does not meet the threshold as laid down in Cart and Eba. On no sound understanding could such an error of law be said to cry out for consideration by the court. It appears to me that an error of law of this type is precisely one, which having regard to the said test, would not meet the high hurdle set. There are, so far as I can find, no compelling features legal or otherwise in this case. Lord Dyson in Uphill v BRB (Residuary) Ltd at paragraph 24 observes that "a good starting point (in considering whether a compelling reason is advanced) will almost always be a consideration of the prospects of success." I believe it cannot be said that the petitioner has very good prospects of success in an appeal against the FTT's decision. On the contrary, in my view, prospects are poor in that the context of such an appeal would be: the petitioner having been held not to be credible at no less than three hearings where there is an unimpeachable finding that the witnesses J and M "lack personal knowledge of the appellant's political activities" the core issue before the FTT. I am accordingly satisfied applying the test in Eba and Cart to the particular circumstances of this case, that the test is not satisfied.

Disposal
[78] For the foregoing reasons I repel the petitioner's pleas-in-law and sustain the respondent's third and fourth pleas-in-law and refuse the petition. I have reserved all questions of expenses in that I was not addressed on that matter.