Scottish Court of Session Decisions

 

 

OUTER HOUSE, COURT OF SESSION   [2013] CSOH 93
P735/12	OPINION OF LORD BOYD OF DUNCANSBY   in the Petition   MT   Petitioner;   For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 June 2011 to refuse the Petitioner's application for leave to appeal   ________________

 

Petitioner: Devlin, Drummond Miller LLP

Respondent: Gill, Office of the Advocate General

 

13 June 2013

 

[1] This is a petition for judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 June 2011 refusing the petitioner leave to appeal against a determination of the First Tier Tribunal dated 31 March 2011.

[2] The petitioner is a national of Iran. He was born on 11 September 1984. He left Iran on either 26 or 27 December 2010 and travelled to Turkey. He then travelled on to the United Kingdom arriving here on 13 January 2011 and claimed asylum on the same date. His application was refused on 9 February 2011. The petitioner appealed to the FTT.

[3] According to the petitioner he was arrested on two occasions in Iran between December 2008 and January 2009. He claimed that on the first occasion he had been stopped by the Morality Police because of his hairstyle. On the second occasion he was arrested because he was wearing a t-shirt that had an image of Michael Jackson on the front of it. On each occasion he was taken to the police station and forced to give an undertaking that he would not engage in the offensive behaviour again. He canvassed for Mr Musavi prior to the June 2009 Presidential election. According to him following the election on 13 June 2009 he and his friend S had joined a silent march from Enghelab Square to Azadi. On arrival at Azadi Square the marchers had been fired upon by the Basij and a number of them had been killed. The petitioner and his friend had managed to escape and had returned home. The petitioner attended further demonstrations on 25, 26, 27 and 30 June 2009 but on these occasions had not experienced any difficulties. He had attended a further demonstration on Ashura Day. According to the petitioner on that occasion he was filmed. His family home had been raided by the police on 21 January 2010 while he was at his brother's factory. His father had told him that a friend of his would pick him up from the factory. This friend had taken him to a villa in Noor where he had stayed for 9 or 10 months. He decided to leave Iran because his family home continued to be raided by the police. An agent had arranged for his travel to the United Kingdom.

[4] The matter came before me on a first hearing on Friday 26 October 2012. Having heard Mr Devlin for the petitioner Mr Gill for the respondent moved me to adjourn to another date in order that he could take instructions. Since it was clear that we would in any event not finish that day I agreed to an adjournment.

[5] The grounds for the judicial review are set out in paragraphs 7 to 12.

"7. That the Immigration Judge erred in law at paragraph 15 of her determination in that (i) she made a finding for which there was no evidence; (ii) she failed to take account of all relevant considerations; (iii) she failed to give adequate and comprehensible reasons; and (iv) she made an assessment of the weight to be attributed to behaviour to which section 8 of the Asylum and Immigration Act (Treatment of Claimants, etc) Act 2004 (allegedly) applied, in isolation from the rest of the evidence.

 

At paragraph 15, the Immigration Judge said this:

 

15 ...The Appellant arrived in the UK without using a passport. He did claim asylum on arrival however. His lack of passport on arrival does not indicate that he would necessarily have claimed asylum as soon as he arrived: he appeared to do so only because he was uplifted by the Police on arrival. This is not the action of a genuine asylum seeker, and in the circumstances, his actions have seriously damaged his credibility.

 

That there was no evidence before the Immigration Judge to show that the Petitioner only claimed asylum because he was uplifted by the Police, nor was there any evidence before her from which this could reasonably be inferred. Hence, the finding has no legal validity.

 

Separatim the Immigration Judge failed to take account of all relevant considerations. In particular, she failed to consider whether the Petitioner had a reasonable opportunity to make his claim before his arrest.

 

The only sub-section of section 8 of the 2004 Act that could have applied to the Petitioner's case is section 8(6). This provides as follows:

 

(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless -

 

(a) he had no reasonable opportunity to make the claim before the arrest, or

 

(b) the claim relies wholly on matters arising after the arrest.

 

At no point did the Immigration Judge consider whether the Petitioner had a reasonable opportunity to make his claim before he was arrested.

 

The Petitioner claimed that he was arrested shortly after he had gotten off the third lorry and was running along the motor way (Asylum Interview Record, Qu.89). The clear implication is that he did not have a reasonable opportunity to make his claim before he was arrested.

 

Had the Immigration Judge considered whether the Petitioner had had a reasonable opportunity to make his claim, she may well have concluded that section 8(6) did not apply, and that consequently there was nothing in the Petitioner's behaviour that required to be regarded as damaging his credibility.

 

It follows that she erred in law.

 

Esto section 8(6) did apply (which is denied) the Immigration Judge failed to give adequate and comprehensible reasons for her finding that the Petitioner's actions "seriously damaged his credibility".

 

The informed reader is left in real and substantial doubts as to the reasons for which the Immigration Judge reached that conclusion and what were the material considerations taken into account in reaching it. In short, the informed reader really cannot understand her thought processes in reaching that conclusion.

 

Separatim the Immigration Judge erred in law in that assessed the weight to be attributed to the behaviour to which section 8(6) allegedly applied, in isolation from rest of the evidence (see, SM (Section 8: Judge's process) Iran [2005] UKAIT 00116, at paragraph 10).

 

8. That the Immigration Judge erred in law at paragraph 17 of her determination in that she made findings that were based on speculation and conjecture.

 

At paragraph 17 of her determination, the Immigration Judge observed that:

 

"17. ...None of the Appellant's family was arrested by the authorities. Although the Appellant had been detained before by the authorities according to his evidence, they did not have the address of his factory, only his house and shop. They did not make inquiries of family members about other likely places where he might be. No other family member was interrogated about him. S did not know the address of his factory. Accordingly, the Appellant knew that he was safe there, even if it were true that the authorities had arrested S. The appellant said that his brother maintained ownership of the factory after the Appellant had left. Clearly the authorities had no continuing interest in the appellant or more likely they never had any interest in him in the first place. It is well-known that the Iranian authorities will seek to target family members in order to flush out the family members they are in fact seeking. The appellant's own documents, at page 6/3 of his bundle, confirms this to be the case.

 

The Immigration Judge's findings anent the fact that none of the Petitioner's family members were arrested or interrogated and his brother maintained ownership of the factory, depend for their validity on the proposition that the Iranian authorities would likely have arrested or interrogated the Petitioner's family members and confiscated his brother's factory. Those propositions are not supported by the documents at page 6/3 of the Petitioner's bundle. Indeed, it is not supported by any sufficient evidence. It cannot be inferred from the mere fact that there are incidences of persecution or harassment of family members, that the authorities persecute or harass the families of all persons in whom they have no interest - irrespective of the degree of prominence of that person or his level of political involvement. The Immigration Judge's findings are therefore based on conjecture and speculation. As such, they have no legal validity (see, HA v Secretary of State for the Home Department 2008 SC 58, at page 64).

 

Separatim the Immigration Judge's finding anent the fact that the authorities did not have the address of the factory is one that depends for its validity on the propositions that (i) the Petitioner would have been asked to provide the address of the factory when he was initially arrested, or would have volunteered to do so; and, (ii) that information would have been available to the authorities. The Petitioner claimed that he had been arrested by the Morality Police (Asylum Interview Record, Qu. 35). At no stage did he claim that he had volunteered the address of the factory or that he had been asked for it. There is no logical basis for inferring that the Petitioner would have been likely to give the address of the factory, and no evidence that the Morality Police extract every known address at which a suspect may be found. Nor was there any evidence to show that the Morality Police routinely shared the details they had obtained with the Etallet. It follows that the propositions on which the validity of the Immigration Judge's findings depend are not supported by any or any sufficient evidence, but are based on conjecture or speculation. As such they have no legal validity.

 

9. The Immigration Judge erred in law at paragraph 18 of her determination in that (i) made a finding that was based on speculation or conjecture; and, (ii) made a finding that no reasonable Immigration Judge, properly instructing herself in the relevant law, would have made.

 

At paragraph 18, the Immigration Judge said this:

 

18. I do not accept that S was arrested and detained. It seems to have been some time after all the incidents took place. There is no indication that the appellant or S had been doing anything untoward at any of the demonstrations that would cause them to come more particularly than any other person to the adverse attention of the authorities. Many people canvassed before the election and to have been canvassing outside S's shop before the election would not have caused any adverse problems, otherwise they would have been detained while canvassing and not a considerable time later.

 

The Immigration Judge's findings anent the time that had passed since all the incidents took place is one that depends for its validity on the acceptances of the proposition that the Iranian authorities would have acted sooner if they had any interest in him or in the Petitioner. The time that had passed since the last demonstration was less than one month. The proposition that the authorities would have acted in less than a month if they had an interest in someone, was not supported by any, or any sufficient evidence, but was based on conjecture or speculation. Hence, the Immigration Judge's finding has no legal validity (see, HA, op cit).

 

Separatim, the Immigration Judge erred in law in so far as she drew an adverse inference from the fact that the Petitioner and S had not been doing anything untoward at any of the demonstrations.

 

In SB (risk on return - illegal exit) Iran CG [2009] UKAIT 00053, the Asylum and Immigration Tribunal held that Persons who are likely to be perceived by the authorities in Iran as being actively associated with protests against the June 12 election results may face a real risk of persecution or ill treatment, although much will depend on the particular circumstances.

 

Following SB there is no need to show that a person was doing something untoward at the demonstrations against the 12 June 2009 election results. All that is required is that they are likely to be perceived as being actively associated with the protests.

 

It follows that the Immigration Judge erred in law in so far as she drew an adverse inference from the fact that the Petitioner and S had not been doing anything untoward at any of the demonstrations.

 

10. That the Immigration Judge erred in law at paragraph 19 of her determination in that she (i) made a finding that was based on speculation or conjecture; and, (ii) failed to take account of all relevant considerations.

 

At paragraph 19, the Immigration Judge said this:

 

19 ...That the appellant felt safe at the factory and that his father was able to phone on the land line the day of the apparent raid on the house, indicates that there was no surveillance of the Appellant's house or family. That he feels he can still phone his family on their landline from the UK indicates that there is little to fear for the Appellant or his family.

 

The Immigration Judge's findings anent the father's ability to phone on the land line on the day of the raid and the Petitioner's ability to telephone his family on their landline, depend for their validity on the proposition that the Iranian authorities would have conducted telephone surveillance of the Petitioner from the day of the raid until the present. The proposition that the Iranian authorities conducted telephone surveillance of every person they sought to arrest over the demonstrations against the 12 June 2009 election results - whatever their prominence - as well as their families, is not supported by any or sufficient evidence, but is based on speculation and conjecture.

 

Separatim the Immigration Judge failed to take account of all relevant considerations in making the said findings. In particular, she failed to take account of the degree of prominence of the Petitioner or the level of his political involvement.

 

As the Upper Tribunal held in BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) - albeit in a slightly different context - "it is important to consider the level of political involvement before considering...priority that the Iranian regime would give to tracing him".

 

Had the Immigration Judge taken account of the degree of prominence of the Petitioner or the level of his political involvement, she might well have reached a different conclusion about the father's ability to phone on the land line on the day of the raid and the Petitioner's ability to telephone his family on their landline.

 

By failing to take account of this consideration, she erred in law.

 

The Immigration Judge went on at paragraph 19 of her determination, to say this:

 

19 ...Even if the appellant went to stay in the villa of his father's friend (which I do not accept occurred), he was safe there and had no need to come to the UK...

 

It cannot be reasonably inferred from the mere fact the Petitioner delayed in leaving Iran that he was of no interest to the authorities. Consideration must be given to whether his ostensible safety was due to the absence of risk or to his ability to successfully avoid the authorities.

 

The petitioner attributed his ability to remain at his father's friend's villa without detection to the fact that he was in hiding and only left the villa at night (Asylum Interview Record, Qus.79 to 83). As put Canadian Federal Court put it in Sabaratnam v Canada (Minister of Employment and Immigration) [1992] FCJ No.901, "A person hiding from his persecutor can hardly be said to be experiencing no problem".

 

The Immigration Judge failed to give any consideration to whether the Petitioner's ostensible safety was attributable in whole or in part to the fact that he was in hiding. By failing to do so, the Immigration Judge erred in law (see, Noune v Secretary of State for the Home Department [2000] EWCA Civ 306, per Scheimann LJ at paragraph 28(4)(b)).

 

11. That the Immigration Judge erred in law at paragraph 21 of her determination in that she relied upon the interview record, notwithstanding that the Petitioner's Agent's request for the interview to be tape-recorded had not been complied with, and the Petitioner had raised objections to the interpretation immediately thereafter.

 

12. That the impugned findings in paragraph 15 and 17 to 19 and 21 cannot be disentangled from the rest of the findings. Hence, the conclusion reached by the Immigration Judge at paragraph 22 of her determination cannot be maintained.

 

Esto the impugned findings could be disentangled, they demonstrably exerted a substantial influence of the conclusion reached by the Judge of the First Tier Tribunal (R v Lewisham London Borough Council ex p Shell UK Ltd [1988] 1 All ER 938, per Neill LJ at page 951j to 952a).

 

To put it another way, they plainly coloured the Judge's approach to the credibility of the Petitioner's claim that he had been involved in the Mousavi campaign and had the political profile in Iran as claimed (see, Hamden v Secretary of State for the Home Department [2006] ScotCS CSIH 57, per Lord Carloway at paragraphs [13] and 16). Hence, the conclusion reached by the Immigration Judge at paragraph 22 of her determination cannot be maintained."

 

[6] At the hearing Mr Devlin informed me that the ground of appeal contained in paragraph 11 of the petition was no longer insisted upon.

Mr Devlin began his submissions by referring me to the second tier appeals test; that the issue raised was one of general importance or practice or there was some other compelling reason for granting the petition. Mr Devlin was relying on the second leg of the test - that was that there was some other compelling reason for hearing the petition. He referred me to Eba v The Advocate General for Scotland 2012 SC (SC1) and in particular to the passage of Lord Hope at paragraph 48. Lord Hope had said that the second leg of the test would include circumstances where it was clear that the decision was perverse or plainly wrong. He invited me to adopt the same approach. Mr Devlin referred me to the case of Uphill v BRB (Residuary) Limited 2005 1 WLR 2070 and in particular to paragraphs 17 and 24 where elucidation is given on the phrase "some other compelling reason". He noted however that Uphill was a negligence case in the County Court. In R (Cart) v The Upper Tribunal (Public Law Project Intervening) 2011 3 WLR 107 the Supreme Court had adopted the second tier appeals test for applications for judicial review of unappealable decisions of the Upper Tribunal. Mr Devlin referred me to paragraphs 57 and 131 where Baroness Hale and Lord Dyson respectively referred to the test as allowing for petitions where there were particularly drastic consequences for the individual. He further referred me to the cases of PR (Sri Lanka) and others v The Secretary of State for the Home Department 2012 1 WLR 2012 and JD (Congo) and others v The Secretary of State for the Home Department 2012 EWCA Civ 327 both cases in the Court of Appeal and both considering the application of the phrase "some other compelling reason" in the context of asylum cases. What arose from these cases was that what was required was a strongly arguable error of law or a sufficiently serious legal basis for challenging the UT decision. The risk of serious harm to an asylum seeker could not, of itself, constitute a sufficiently compelling reason but it was not immaterial. The court can take it into account in determining whether an argument in favour of an error of law is sufficiently strong or serious to justify overturning the decision of the UT. In determining whether there is some other compelling reason the court must first consider whether there is a clear or plain error of law. If so the court must consider whether the error provides a sufficient basis for overturning the UT. An error will provide a sufficient basis for overturning the UT decision if and only if they appear strongly arguable. In determining whether it is strongly arguable the court must have regard not only to the merits of the argument but also to the risk to the asylum seeker if the decision is wrong. The correct approach in Scotland Mr Devlin submitted is to be found in the judgment of Lady Clark of Calton in BM 2012 CSOH 142 and in particular to the passage at paragraph 20 where she concluded:

"I am of the opinion however that if a judge concludes that a decision going to the heart of the merits of the case is perverse or plainly wrong in a situation relating to the petitioner's own facts and circumstances that seems a compelling reason for me giving a remedy in the situation where the potential consequences of enforced return to the country of origin for example involved risk of death or injury."

 

In this case Mr Devlin submitted that there are clear errors of law which go to the root of the decision making process.

[7] These submissions were made at the hearing on 26 October. At the adjourned hearing, and in reply to Mr Gill, Mr Devlin made comprehensive submissions which changed the emphasis of his approach. In essence he argued that the nature of judicial review in Scotland had not changed as a result of the decisions in Cart and Eba. The issue was whether or not there were errors of law which are immune to scrutiny. When considering the options before the Supreme Court in Cart Baroness Hale considered that had the courts in social security cases paid the same restraint as in asylum cases it might not have been necessary to introduce the new procedures (paragraph 50). He used that observation as a starting point for a submission that the court had the same powers as before. There was no reason to exercise deference to the UT as the issue was one in which the court is as well placed as the UT to determine. He sought to gain further support for this argument from the observations of Lord Dyson in Cart at paragraphs 112 and 113 where he dealt with the strength of the case for retaining unrestricted judicial review. That submission was however immediately undermined when Mr Devlin took me to paragraph 115 where Lord Dyson then observed that despite the apparent strength of the case for retaining judicial review he could not accept this argument; the Tribunals, Courts and Enforcement Act 2007 had made a major change to the order of things. Undeterred Mr Devlin then went on to Lord Hope's observations in paragraph 48 of Eba and contended that they did not support the thesis that there was now in Scotland a wholly new stringent test. The reference to Uphill by Lord Hope in that paragraph was merely an illustration as to how the second appeal test might operate in Scotland.

[8] Turning to the individual grounds in the petition Mr Devlin expanded on the proposition in paragraph 7 of the petition by referring me to paragraph 16 of the immigration judge's decision. In that paragraph the immigration judge states that the first issue is the date of the demonstration when the petitioner said that he saw people being killed by the authorities and had left the scene with his friend. The petitioner had said at his interview that this happened on 13 June 2009 but the evidence of killings by the authorities at a demonstration is a week later on 20 June. In oral evidence the petitioner had denied that he had even seen the people being shot and killed, only that he had heard about it from other demonstrators. The immigration judge noted that up until this point the evidence was that he had seen these incidents himself. The immigration judge continues:

"It appears that he was clearly backtracking, having been caught out in the reasons for the refusal letter. I do not accept that the appellant was aware of the shootings, or that they were not reported immediately following the election. His position has radically altered from saying he saw the shootings to saying he heard about them. Either he saw them or he did not. I do not accept that there were any shootings on 13 June 2009."

 

It was suggested in the course of argument that the change of position came about as a result of the wrong date for the killings at the demonstration being put to the petitioner in the course of the hearing before the immigration judge. As Mr Gill conceded that might have been a serious consideration. In that situation the petitioner might very well have been tempted to dissemble in the face of an assertion of fact by a person in authority which later turned out to be wrong. However during the adjournment Mr Gill produced the immigration judge's note and it was clear that the change of position noted by the immigration judge came about unprompted. That was not challenged by Mr Devlin. Accordingly I say no more about it.

[9] However Mr Devlin submitted that this change of position should be put in context. It only related to one demonstration out of five that took place at the time and it only related to one of the reasons given by the immigration judge for her decision.

[10] More importantly perhaps under this ground of appeal is the issue of the immigration judge's treatment of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (the 2004 Act). Mr Devlin said that the petitioner had been brought into this country in the back of a lorry. He had no reasonable opportunity until the lorry was stopped by the police on the motorway to make a claim for asylum. On a proper analysis of paragraph 15 the immigration judge had not considered whether or not section 8 did apply. There was no evidential basis to say that the petitioner would not have claimed asylum. He referred me to the case of JT (Cameroon) v The Secretary of State for the Home Department 2009 1 WLR 1411 where the Court of Appeal held that on a true construction, although section 8 factors should be taken into account in assessing credibility and were capable of changing it, the section did not dictate that relevant damage to credibility inevitably resulted. Accordingly section 8(1) is to be read as if the qualifying word "potentially" was there. Mr Devlin also submitted that section 8 does not affect the general process of deriving facts from evidence; SM (section 8 - Judges Process) Iran [2005] Imm AR 673 (Immigration Appeal Tribunal). Accordingly Mr Devlin submitted that the immigration judge erred in her application of section 8. Even if section 8(6) did not apply she failed to give adequate or compelling reasons as to why this seriously damaged his credibility.

[11] At paragraph 17 of the decision letter the immigration judge sought to draw certain inferences from the fact that no other members of the family were arrested by the authorities, they did not have the factory where he worked watched and they made no other enquiries of the family members as to the whereabouts of the petitioner. She says that it is well known that the Iranian authorities will seek to target family members in order to flush out the member that they are seeking.

[12] Mr Devlin submitted that the immigration judge appeared to consider it incredible that the authorities would not have been able to find the petitioner at the factory if they had had a real wish to detain him. From this and the fact that no family member had been arrested she had drawn the inference that the authorities cannot have a continuing interest in the petitioner. There was no sufficient evidence to justify this conclusion. At no stage had the petitioner said that he had volunteered the factory address. There was no evidence that he had been asked for it when arrested nor that the family would have told the authorities the address of the factory. Mr Devlin further submitted that in paragraph 17 of the decision letter the immigration judge drew inferences of fact that were not justified specifically that none of the petitioner's family members were arrested. He submitted that in order to adopt a contradictory position it must be based on evidence or on rational inference. If it is not the tribunal will have erred in law: HA v The Secretary of State for the Home Department 2008 SC 58 at paragraph 17. He further submitted that conjecture was not a substitute for evidence and referred me to the case of Lopez-Reys v The Immigration and Naturalization Service 79 F 3d 908 (9^TH Circuit 1987). A repressive regime may well act in a way that defied logical analysis: Abdul Omar Suleyman v The Secretary of State for the Home Department 16242 (1998). In Wani v The Secretary of State for the Home Department 2005 SLT 875 Lord Brodie had observed:

"I consider that the common sense, rationality, practical experience and general information to be imputed to a reasonable adjudicator are of only very limited use when it comes to making judgments about the likely behaviour of the Sudanese security forces given the terms of the CIPU report."

 

He continued, "I cannot avoid the conclusion that for all that appears in his reasoning what the adjudicator did was to engage in speculation." A similar point had been made by Keane LJ in Y v Secretary of State for the Home Department 2006 EWCA Civ 1223 at paragraph 25.

[13] At paragraph 18 the immigration judge did not accept that the petitioner's friend S had been arrested. There was no evidence that either he or the petitioner had been doing anything untoward at the demonstration that would bring them to the attention of the authorities more than any other person. To be canvasing for Mousavi outside the shop during the election could not have caused any adverse reaction otherwise they would have been arrested then and not a considerable time later. Mr Devlin asked where was the evidence that the authorities would act with haste and dispatch? They may do so if a person was prominent and not with a low level protestor. He referred me to the case of SB (Risk on return - illegal exit) Iran CG 2009 (UKAIT) 00053, a country guidance case which sets out amongst other things the risk factors following events in Iran in the aftermath of the elections of 12 June 2009. The court noted that persons who were likely to be perceived by the authorities in Iran as being actively associated with protects against the June 12 election results may well face a real risk of persecution or ill treatment although much will depend on the circumstances.

[14] So far as paragraph 19 was concerned the immigration judge held that the fact that the petitioner felt safe at the factory and his father had been able to phone him on the landline indicated no surveillance of the petitioner's home or family. That he feels that he can still phone his family on the landline from the United Kingdom indicated little to fear for the petitioner or his family in Iran. The immigration judge draws an inference that because the petitioner is able to stay at his father's friend's house he is not at risk. The petitioner's position is that he was in hiding. He only left the villa at night. Mr Devlin submitted that it did not follow that because he was in hiding he was not at risk.

[15] Finally Mr Devlin submitted that a decision that proceeded from these findings could not be maintained. If the findings could not be disentangled then that was an end to the matter. There was a clear error of law and the whole substrata collapses: Lewisham London Borough Council ex parte Shell UK Limited 1988 1 AER 908 at page 951G-H and Hamden 2006 CSIH 57 at paragraphs 13 and 15. The reason that the findings could not be disentangled Mr Devlin submitted was that the issue of credibility is central to the whole decision. Even if he was wrong about that it was clear he submitted that the findings had exercised a strong influence on the issue of credibility. Accordingly he submitted that there was an error of law. The consequences of getting the decision wrong were serious. Accordingly he submitted it passed the Eba test.

[16] For the respondents Mr Gill submitted that the test for judicial review was set out in Cart and Eba. Notwithstanding the subject matter it was not the conventional test. That was true even if it meant that errors of law go uncorrected. Lord Brodie's approach in A v The Secretary of State for the Home Department 2012 SLT 1075 was correct. At paragraph 19 he said:

"It is clear from Eba that the Supreme Court intended the scope of judicial review of permission to appeal refusals of the Upper Tribunal should be significantly restricted and that the result would be to align the Scots approach with that adopted in England in Cart. I"

 

[17] It was a necessary part of the test adopted that there need be very high prospects of success: see Dyson LJ as he then was in Uphill at paragraphs 17 and 24. The compelling reason meant one that was legally compelling and did not refer to the possible consequences for the individual though such considerations would exceptionally add weight to the legal arguments: PR (Sri Lanka), Carnwath LJ (as he then was) in giving judgment of the court at paragraph 36. In that case it was accepted that the appellant had been the subject of torture (paragraph 49). Yet that was not found to be a compelling reason. It had been submitted that on the authority of JD (Congo) (paragraphs 26 and 27) a compelling reason meant a "strongly arguable error of law" or "a sufficiently serious legal basis for challenging the UT's decision". However Mr Gill submitted that there must be both a strongly arguable error of law and a compelling reason (paragraph 26). Mr Gill submitted that the case of BM founded on by the petitioner was wrongly decided. There the Lord Ordinary had in effect applied the law as it stood before Eba and Cart. It was not consistent with Eba. In particular she was wrong to take issue with Lord Brodie's description in A of the nature of the exercises equivalent to a sift. Mr Gill submitted that there had to be a strongly arguable error of law but that was only one factor. Other factors may include the consequences for the individual but these had to be truly drastic. The question was whether this was a case which cried out for determination by a court. In this case there was no compelling reason. The petitioner had not been able to point to drastic consequences. Accordingly the petition was not competent and I should sustain the first plea-in-law for the respondents.

[18] Mr Gill then turned to the substantive merits on the assumption that I was not persuaded that the Eba test was met. In essence he submitted that this was an argument about findings in fact. The credibility of an asylum seeker's account is primarily a question of fact for the immigration judge. The court could not interfere with the decision simply because on the evidence it might have come to a different conclusion: HA v Secretary of State at paragraph 17. As the court had made clear in that passage however there were circumstances in which it would be right for the court to interfere. In this case however the immigration judge's decision did not fall foul of these circumstances. Fundamental to the immigration judge's findings was her assessment of the petitioner's credibility. He accepted that in her application of section 8 of the 2004 Act there was an error of law. However he contended that this was not a material error. It was clear that when the Upper Tribunal judge came to consider the point he was alive to the possibility that there may indeed be an error of law. He referred me to paragraph 2 of the Upper Tribunal judge's decision of 7 June 2011 in which he stated that:

"A reading of all her findings make it plain that the reasons for her adverse credibility (sic) (presumably 'findings of') were not based on the appellant's method of entry. There are several other compelling reasons for her rejection of the appellant's account."

 

[19] The Upper Tribunal judge's approach was correct. The immigration judge made particular adverse comments about the petitioner's credibility at paragraph 16 where initially the petitioner had said that he saw people being killed by the authorities on 13 June 2009. In oral evidence he denied that he had seen people being shot and killed, only that he had heard about it from demonstrators. At paragraph 21 the immigration judge commented that Mr McGowan who had appeared for the petitioner at the FTT hearing had suggested that the petitioner had an appalling memory and could be vague. She had gone on to say however that this could not excuse all of his changes in his account. In addition the petitioner had added to his lack of credibility by blaming the interpreter at his interview for being an Afghan and not interpreting correctly.

[20] The correct approach Mr Gill submitted was not to regard section 8 of the 2007 Act as a starting point on a decision on credibility. The task of the fact finder was to look at the evidence in the round; SM (section 8 - judges process) Iran paragraphs 9 and 10. In this case it was clear from a reading of the findings as a whole that that was what the immigration judge had done.

[21] So far as Mr Devlin's criticism of paragraph 17 of the decision was concerned the judge was entitled to use common sense. In relation to her comments about Iranian authorities using family members to flush out those they are seeking he submitted that Mr Devlin was wrong to say there was no evidence. He pointed to an Amnesty International document which had been part of the bundle before the immigration judge. So far as Lord Brodie's observations in Wani were concerned he submitted that the key point in that case was absence of information making it difficult to apply a common sense and rational approach to judgments about the likely behaviour of the Sudanese security forces. In this case however there was information before the immigration judge to support her reasoning.

[22] Turning to paragraph 18 of the petition Mr Gill submitted that there was no error of law. It was reasonable to infer that the petitioner's friend had not been arrested and detained. SB had nothing to say on risk of arrest but concerned risk of return. In the end this was a factual matter - whether or not the immigration judge accepted that his friend had been arrested or not.

[23] No issue had been taken with paragraph 19 of the immigration judge's decision in the application for leave to appeal to the Upper Tribunal. Accordingly Mr Gill made no submission on that issue.

[24] Mr Gill invited me to sustain the first plea-in-law. If I was against him on that I should sustain the second plea-in-law for the respondent.

 

Discussion

[25] It is perhaps surprising that after Cart and Eba and the adoption of what is on the face of it a straightforward test for the exercise of the supervisory jurisdiction of this court that there should still be so much debate as to how these decisions should be interpreted. Mr Devlin's submissions, particularly in reply to Mr Gill, failed to appreciate the nature of the change brought about by the 2007 Act and the significance of the decisions of the Supreme Court in Cart and Eba.

[26] As to the nature of the change in the structure of the tribunal system brought about by Part 1 of the 2007 Act these are described in detail in the opinion of Baroness Hale. In particular, she describes (at paras 25 and 26) the role of the UT and the major innovation which it has brought about in the tribunal system. Lord Dyson also acknowledges this in his opinion, noting and endorsing the view in the Leggatt report, whose recommendations formed the basis for the 2007 Act, that the changes demanded a reappraisal of the scope of judicial review (para 120). The first of Lord Dyson's reasons for concluding that unrestricted judicial review of unappealable decisions of the UT was neither proportionate nor necessary for maintaining the rule of law is the stature, nature and role of the UT (paragraph 123).

[27] Turning to the decision in Cart the Supreme Court was faced with three alternative models for the scope of judicial review of unappealable decision of the UT. These were described as the "exceptional circumstances" approach, the" status quo" and the "second- tier appeals" criteria. In adopting the second tier appeals criteria the court rejected the status quo despite powerful arguments advanced in its favour (see Baroness Hale at para 45 and Lord Dyson at paras 112 and 115). The Court was also clear that in adopting this test they were setting a deliberately high standard. Baroness Hale said that it allowed for the important point of principle applications "and the compelling reasons presented by the extremity of the consequences for the individual" (para 57). Lord Phillips had initially been in favour of treating the new two-tier tribunal system as wholly self-sufficient but had been persuaded of the need for some overall judicial supervision "in order to guard against the risk that errors of law of real significance slip through the system" (para 92). Lord Brown said "The second-tier appeals approach expressly contemplates that some Upper Tribunal decisions, even though erroneous in point of law, will be refused leave to appeal..." (para 99). Lord Clarke said that the test would allow for the court to deal with cases where something has gone seriously wrong (para 104). Lord Dyson said:

"Thirdly, the second limb of the test ("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 or 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 para 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." (paragraph 131)

 

It is also clear that the Supreme Court expected that the court would consider whether the second-tier test had been met in the application for judicial review in England at the application stage and that it would be a streamlined, largely paper exercise; see Lord Phillips at para 93, Lord Clarke at para 106 and Lord Dyson at para 132. This expectation of how the issue of jurisdiction should be dealt with gives an indication that the court expects that it should be plain from a paper exercise that the test is met. It is of course true that we do not have in Scotland, as yet at any rate, a procedure for seeking leave to bring a petition for judicial review. We are a long way in Scotland from being able to deal with the second tier appeals test in an expeditious manner.

[28] The Supreme Court was, of course, adopting the tried and tested rule of civil procedure in England. The true meaning and effect of that rule was considered by the Court of Appeal in Uphill. It was intended by that court to be cited in future cases (para 16). The decision of the court was given by Dyson LJ as he then was. In considering the question he noted that the principle embodied in the rule was the need for certainty, reasonable expense and proportionality (para 17). In considering what is meant by "some other compelling reason" Dyson LJ noted that "Compelling" is a very strong word. It emphasises the truly exceptional nature of the jurisdiction" (para 19). The Court set out, at paragraph 24 an elucidation of what was meant by "other compelling reason".

"(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 CPR r 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.

 

(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

 

(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether."

 

Further guidance on what is meant by compelling in the contest of asylum cases can be found in the decision of the Court of Appeal in PR Sri Lanka where Carnwath LJ as he then was giving the opinion of the court said that "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" (para 36). In JD Congo Sullivan LJ giving the decision of the Court of Appeal said that this did not mean that extreme consequences for the individual were irrelevant merely that "absent a sufficiently serious legal basis for challenging the UT's decision, extreme consequences would not suffice" (para 26). The Court in JD Congo noted that the threshold for a second appeal must be greater than for an ordinary appeal. How much greater would depend on the circumstances of the case including the extremity of the consequences for the individual. Just as there was no reason to apply a different test to applications for permission to appeal from decisions of the Immigration and Asylum Chamber of the UT "so also there is no reason to minimise the significance of the consequences of a decision in the immigration and asylum field merely because legal errors in that field are often capable of having dire consequences for appellants" (para 27).

[29] Turning to Eba it is clear that it was the intention of the Supreme Court that second-tier appeals test should apply to petitions for judicial review to unappealable decisions of the UT in Scotland; Lord Hope at paragraphs 47 and 48. Lord Hope noted that such a test is in harmony with the common law principle of restraint. As to what was meant by "some other compelling reason" he specifically referred to the decisions in Uphill at paras 17 and 24. He continued:

"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."

 

He leaves the procedure to be adopted to the Court of Session but does make some observations as to how this might work in practice. He endorses as a model the approach by Lady Smith in EY v Secretary of State for the Home Department 2010 SLT 170 when she declined to grant first orders because she was not satisfied that an arguable case had been made out although that was subsequently disapproved of by the Inner House ( 2011 SC 388).

[30] So far as the application of the second-tier test in this court is concerned two cases from the Outer House were cited to me. In A, Lord Brodie analysed the jurisprudence in some detail. He concluded that the intention of the Supreme Court in Eba was to significantly restrict the scope of judicial review of permission to appeal refusals by the UT (para 19). Although the scope of the supervisory jurisdiction of the Court of Session was not exactly the same as the judicial review jurisdiction exercised by the High Court it was clear that in this one area the ambit of the two jurisdictions should be the same (para 21). He considered that simple error of law on the part of a lower court or tribunal does not necessarily amount to a compelling injustice. He drew attention to Lord Brown's opinion in Cart (at paras 99 and 100) and concluded that this would mean that a well-founded appeal may be excluded. He described the "compelling reasons" part of the test as a "safety valve" (para 28). At paragraph 30 Lord Brodie considered that the intended function of the test and the procedure to be adopted are interconnected. He concluded that what Lord Hope meant by the expression of plainly wrong was "wrong in a way that is clearly evident on the sort of limited consideration to be expected in a procedure such as that outlined in [para 49 of Lord Hope's judgement in Eba]" (para 30). He then goes on to outline the procedure which he expects would be followed in future. In essence he contemplates a largely paper exercise with the application for first orders and a short oral hearing in the event of refusal to grant these orders (para 31).

[31] Lady Clark of Calton considered Lord Brodie's opinion in A in the case of BM and reached a different conclusion. She drew attention to the potential harmful and sometimes fatal consequences which may occur in asylum cases and considered that an examination by a judge whether on paper or not at whatever level requires to be both detailed and very careful. She noted that at present in Scotland we do not have a paper exercise designed to be carried out by judges and that the assistance of counsel is often critical in assisting the judge to a proper conclusion. She described it as an onerous task (para 19). She concluded, "I am of the opinion, however, that if a judge concludes that a decision going to the heart of the merits of the case is perverse or plainly wrong in a situation relating to the petitioner's own facts and circumstances that seems a compelling reason to me for giving a remedy in the situation where the potential consequences of enforced return to the country of origin for example involve risk of death or injury" (para 20).

[32] With respect to Lady Clark of Calton I prefer Lord Brodie's analysis and agree with almost everything he says. However with respect I am not sure that he is correct when he says that what Lord Hope meant by the expression plainly wrong is wrong in the way which would be clearly evident from the sort of limited exercise he contemplated. The words "perverse or plainly wrong" which one finds in Lord Hope's opinion at paragraph 48 are clearly lifted from the judgement in Uphill at paragraph 24. Accordingly in my opinion what Lord Hope has in mind when he repeats these words is the elucidation on the phrase "some other compelling reason" in Uphill. It would therefore be wrong to see these words in isolation from the rest of what the Court of Appeal says in Uphill.

[33] It is I think important to make that point because there has been a tendency to rely on Lord Hope's words as if this is the test without regard to the context in which they were used. There is also a tendency to drop the word perverse leaving the test as whether the decision is plainly wrong. I do not think that Lord Hope intended the words to be read disjunctively. They should be read together. However the result of this legerdemain is that the court is faced with an argument that some other compelling reason has the same meaning as plain error of law. Ergo nothing has changed. The petitioner has escaped from the rigours of the second tier appeals test.

[34] That said I agree with Lord Brodie that the question of whether or not a case raises some general point of principle or practice or there is some other compelling reason to hear the petition should ordinarily be capable of being determined by the kind of limited procedure that he suggests.

[35] Drawing these matters together I am driven to the following conclusions. First, the adoption of the second tier appeals test is plainly meant to be a restriction on the jurisdiction of this court to entertain petitions for judicial review against unappealable decisions of the UT. In adopting this test it is clear that the Supreme Court had regard to the altered relationships between the courts and the tribunals brought about by the 2007 Act. The creation of the UT with an appellate jurisdiction from the FTT is of particular significance. The second-tier test respects the role of the UT and gives effect to the principle of certainty, reasonable expense and proportionality. Moreover, this is not a mere tweaking of the court's supervisory jurisdiction. The intention is that the vast majority of immigration and asylum cases will be dealt with in the tribunal system. It will only be exceptionally that this court will be required to intervene. Lord Brodie's description of the test as allowing a safety valve is well made.

[36] Secondly "some other compelling reason" is a robust and stringent test. Various judges have used different words in an attempt elucidate the phrase. These have included "very high prospects of success", "strongly arguable", "legally compelling", "a sufficiently serious legal basis" and "perverse and plainly wrong". These should be seen not as an attempt to rewrite the second limb of the test but should be read within the context of decisions which have emphasised the truly exceptional nature of the jurisdiction.

[37] Thirdly it should be possible to readily identify in the petition, with such other papers as may be lodged along with it, the point of principle or practice or the other compelling reason for invoking the supervisory jurisdiction of this court. I would endorse the suggestion made by Lord Brodie that it should be possible to do this at the stage at which the petitioner seeks first orders.

[38] Fourthly it is right that in dealing with asylum cases it is necessary to bear in mind that there are potentially very serious consequences for the individual if the system gets a decision wrong and a genuine claimant is returned to a country where his freedom and safety, including in some cases life, may be at risk. How serious these consequences are will depend on the individual circumstances. Courts at all levels require to give such cases anxious scrutiny. Primarily these are matters for the FTT and UT. They are a relevant factor for this court in applying the second-tier appeal test but only once a sufficiently serious legal basis for a challenge has been identified. There may be some cases where the court will wish to exercise particular care and a degree of flexibility may be required. However such considerations should not become an excuse for indecision and inertia. At some point the judicial process has to stop with a clear decision. In all but a few exceptional cases the end point is the UT.

[39] So how should these considerations apply to this case?

[40] Mr Gill concedes that the immigration judge was in error in her approach to section 8 of the 2004 Act. Section 8(1) provides that a deciding authority shall take account as damaging the claimant's credibility, of any behaviour to which the section applies.

[41] Paragraph 15 of the immigration judge's decision is somewhat confused. The petition proceeds on the basis that only section 8(6) could apply in this case. This provision applies to the failure of a claimant to make an asylum claim before being arrested under an immigration provision unless he had no reasonable opportunity to make the claim before the arrest. In this case the petitioner came in to the country concealed in a lorry. The lorry was stopped on the motorway and the petitioner was arrested as he was running away along the motorway. He claimed asylum on arrest. The petition avers that the immigration judge failed to consider whether or not the petitioner had a reasonable opportunity to make his claim before his arrest.

[42] However paragraph 15 appears to proceed on the basis of the petitioner's lack of passport and his failure to claim asylum on arrival. She notes, "His lack of a passport on arrival does not indicate that he would necessarily have claimed asylum as soon as he arrived. He appeared to do so only because he was uplifted by the police on arrival. This is not the action of a genuine asylum seeker, and in the circumstances, his actions have seriously damaged his credibility." It may be that the immigration judge had in mind section 8(3(a) which relates to a failure to produce a passport without a reasonable explanation. If so, she does not say that. Nor in any event does she consider whether there would be a reasonable explanation. Further, no reason is given for her conclusion that his actions have seriously damaged his credibility as opposed to simply damaging his credibility.

[43] Accordingly I agree with Mr Gill that there is an obvious error of law. The irony is that if the immigration judge had not approached this issue through the prism of section 8 there was material there from which she might have drawn adverse conclusions. As it is her failure to give reasons for her decision and failure to consider any reasonable explanation renders her conclusion in paragraph 15 at best worthless. The question is whether or not it is a compelling reason to allow this petition.

[44] I should say that I consider that this is the only error of law that I can detect.

[45] It is clear that the petitioner's credibility is central to the issues before the FTT. However paragraph 15 does not stand alone. The immigration judge makes serious criticisms of the petitioner's credibility in paragraphs 16 and 21. These are reasoned and factually based.

[46] The starting point for a consideration of whether there are compelling reasons for considering the petition must be the reasons given by the UT for refusing leave to appeal. It is after all that decision, rather than the decision of the FTT, which would be quashed if the petition were granted. Paragraph 2 of the reasons notes as follows:

"It may or may not be the case that the appellant would have claimed asylum had he not been apprehended on the motorway by the police after his illegal entry. However the Immigration Judge was obliged to consider section 8 of the Act. A reading of all her findings makes it plain that the reasons for her adverse credibility (sic) (surely "findings of") were not based on that appellant's method of entry. There are several other compelling reasons for her rejection of the appellant's account."

 

It is clear that the Upper Tribunal judge considered the whole of the judgement. He found as he was entitled to do that the adverse findings of credibility were not based solely on section 8. Indeed looking at paragraphs 16 and to a lesser extent paragraph 21 of the FTT decision it is right to characterise the reasons as compelling.

[47] Accordingly while there is an arguable error of law it is not one which I consider has strong prospects of success. Given that conclusion I do not consider that the issue of possible consequences for the petitioner arises. I note in passing however that at present if his account is correct what he would be faced with is possible arrest at some point on return to Iran.

[48] Accordingly I consider that there are no compelling reasons for granting this petition and I therefore sustain the respondent's first plea in law.

[49] That is sufficient to dispose of this petition but I will make some brief remarks about the remaining grounds of appeal. In so doing I should say that I agree entirely with the approach taken by Mr Gill that at the heart of this case is the issue of the petitioner's credibility. In many ways the other issues raised by Mr Devlin are in my opinion make weights to the main argument.

[50] It is said that paragraph 17 of the immigration judge's decision is based on conjecture and speculation. I do not agree. It is not conjecture to consider it odd that if the authorities were genuinely looking for the petitioner they would at the very least have made inquiries with the family. It is not the question of arrest that is at the heart of the immigration judge's reasoning, it is the lack of interrogation or questioning of family members. It is also incorrect to say that there was no evidence. There was.

[51] In para 18 the immigration judge said that she did not accept that the petitioner's friend S had been arrested. It is based on the fact that at the demonstrations they the petitioner and S were not doing anything that would have particularly brought them to the attention of the authorities more particularly than any other person. If they were going to be arrested for canvassing for Mousavi they would have been arrested at the time. It seems to me these are reasonable inferences for the immigration judge to draw, and they were essentially for her to make. In my opinion Mr Devlin is in error when he says that following SB there is no need to show that a person was doing something untoward at the demonstrations following the election results. SB deals with the risk on return. However in para 18 the immigration judge is not dealing with return to Iran but whether S was arrested or detained.

[52] Mr Gill submitted that no issue had been taken with para 19 in the petitioner's application for leave to appeal. The issue there was whether or not the petitioner's ability to phone home on a landline from this country meant that he had little to fear. The petition sets out the complaint - that the immigration judge's reasoning is based on the proposition that the Iranian authorities conducted telephone surveillance of every person they sought to arrest over the demonstrations against the election results. That, I consider to be an overstatement of the immigration judge's position. The issue is whether he felt safe phoning home on a landline. That is not dependent on whether or not every landline of every person of interest to the Iranian authorities in the aftermath of the elections of June 2009 is kept under surveillance. So far as the comment that the petitioner was safe at his father's villa and therefore had no need to come to the UK I agree with Mr Devlin that such a comment is misplaced. However it should be seen in context. In the next sentence the immigration judge says that she finds that the petitioner was in any event safe in Tehran. In any event since these matters were not raised before the UT the petitioner cannot now rely on them as grounds of appeal.

[53] The final matter is that the impugned findings in paragraphs 15 to 17 and 19 to 21 cannot be disentangled from the rest of her findings. Given my observations on the other grounds of appeal, that issue is no longer relevant..

[54] For all these reasons this petition falls to be dismissed. I reserve the question of expenses.