Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 91
	OPINION OF LORD TYRE in the Petition of AY (AP) Petitioner; for Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 19 September 2013 refusing leave to appeal against a decision of the First-tier Tribunal ________________

Petitioner: Byrne; Drummond Miller LLP

Respondent (Secretary of State for the Home Department): J MacGregor; Office of the Solicitor to the Advocate General

24 April 2014

Introduction

[1] The petitioner seeks judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 19 September 2013 refusing leave to appeal to itself against a decision of the First-tier Tribunal. The petition came before me on 24 April 2014 for a procedural first hearing. Having considered the parties' notes of argument and the submissions of counsel, I was not satisfied that the test in Eba v Advocate General 2012 SC (UKSC) 1 for challenging an unappealable refusal of leave by the Upper Tribunal was satisfied. I gave my reasons in an ex tempore judgment and dismissed the petition. As the petitioner has reclaimed against dismissal of the petition, I now provide a note of my reasons. In doing so, I bear in mind the observation of the Court in SA v Secretary of State for the Home Department 2014 SC 1 at paragraph 44 that my decision "...should be capable of succinct expression, at not much greater length than is currently employed by the UT itself, if refusing leave".

Decision of the First-tier Tribunal

[2] The petitioner is a national of Iran born on 21 October 1986. He entered the United Kingdom illegally on 4 May 2013 and sought asylum on the ground that he was a Christian convert at risk of persecution if returned to Iran. His application was refused and he appealed to the First-tier Tribunal.

[3] The immigration judge (Scobbie) accepted the petitioner's evidence that he had converted to Christianity, that he had been a member of a house Church group, and that he had witnessed the arrest by plain-clothes policemen of some of his fellow members, including a man named Ahmad who had introduced the petitioner to the group. The judge did not, however, accept as credible the petitioner's evidence that the authorities were aware that he had been a member of the group and had ascertained his home address. The judge further found that the petitioner was an "ordinary convert", as opposed to a leader or evangelist, and as such did not, in accordance with the relevant country guidance, have a well-founded fear of persecution. The appeal was dismissed.

Applications for leave to appeal

[4] The petitioner applied to the First-tier Tribunal for leave to appeal to the Upper Tribunal. In his application for leave, the petitioner took issue with the immigration judge's adverse finding on credibility noted above. He submitted that it was not clear why the judge had formed this opinion. The petitioner's particular complaint was that the judge had failed to take into account an answer given by the petitioner during his asylum interview (at question 85) to the effect that Ahmad had at times given him a lift to meetings. The inference to which this answer was said to give rise was that Ahmad might have known where he lived and might therefore have informed the authorities. It is not suggested that the answer was mentioned by anyone during the hearing before the First-tier Tribunal.

[5] The application for leave came before a different immigration judge (Blandy) who refused it for inter alia the following reasons:

"The grounds of the application, in essence, firstly challenge the reasons given by the Judge for rejecting the evidence of the appellant that he had been identified by the authorities as a Christian convert or that his house had been raided by the authorities. I do not consider that this is arguable. Whilst the Judge found much of the appellant's case to be credible, I find that he gave entirely adequate reasons in paragraphs 68 to 72 inclusive for rejecting the evidence of the appellant on that issue. It is clear that he considered the appellant's case in relation to that issue but rejected it. The grounds simply seek to dispute the findings of fact made by the Judge on that issue. I consider that they were findings which were open to him on the basis of the evidence before him."

[6] The petitioner then applied to the Upper Tribunal for leave to appeal on the same grounds, with a criticism added of Judge Blandy for having found that the ground of appeal simply sought to dispute findings in fact, when in fact the point was that Judge Scobbie had failed to consider material in the petitioner's asylum interview which, had it been considered, "would have resolved credibility issues raised by the Judge".

[7] The Upper Tribunal (Judge McKee) refused leave to appeal for the following reasons:

"The application has already been refused, for cogent and sustainable reasons, by Judge Blandy. The renewed application directly to the Upper Tribunal re-submits the same grounds of appeal. But for the reasons already given by Judge Blandy, it was plainly open to Judge Scobbie on the evidence not to believe that the appellant is known to the Iranian authorities as a convert to Christianity, and to conclude that he would not be questioned about anything on return save his illegal exit."

Argument for petitioner

[8] Counsel for the petitioner relied in his submission upon the "compelling reasons" limb of the Eba test. It was contended that the compelling reason in the present case was that the decision of the Upper Tribunal was plainly wrong and cried out for re-consideration. What distinguished this case from others was that the immigration judge's findings on credibility had been almost entirely favourable to the petitioner. His only adverse findings had been based on assumptions by him which would have been shown to be wrong had he had regard to the answer to question 85 in the asylum interview. Counsel submitted that the Upper Tribunal had erred in law:

• by adopting the reasoning of Judge Blandy and by failing to appreciate that the petitioner's particularised complaint had not been addressed by him;
• by itself failing to address that particularised complaint;
• by failing to apply the correct test of arguability and instead adopting a review of the rationality of the First-Tier Tribunal's decision; and
• by failing to give proper and adequate reasons for its decision to refuse leave.

Decision

[9] The role of the court at this stage of proceedings is a gatekeeping or sifting one (SA at paragraph 43). Arguability is not sufficient to meet the Eba test. Nor, although it is necessary for the petitioner to aver an error of law on the part of the Upper Tribunal, is that of itself sufficient: more is required by way of a compelling reason to allow the appeal to proceed. The test is designed to allow review only in rare and exceptional cases in order to ensure that no "compelling injustice" occurs (SA at paragraph 44).

[10] In assessing whether an error of law has been made by the Upper Tribunal in the present case, it is necessary to read its decision along with that of Judge Blandy, whose reasons for refusing leave were largely adopted by the Upper Tribunal. In my opinion, no error of law is disclosed in the reasoning of either tribunal. I reject the petitioner's submission that the Upper Tribunal has wrongly applied a rationality test; the reference to "cogent and sustainable reasons" is a means of expressing the Upper Tribunal's adoption of Judge Blandy's reasons. I respectfully agree with the view of Judge Blandy, adopted by the Upper Tribunal, that the petitioner was simply seeking to dispute the findings of fact made by the judge. The correctness of that assessment is not called into question, in my opinion, by the absence of any specific reference in the decision of either tribunal to the petitioner's particularised complaint. Given the debatable evidential value of a single answer given by the petitioner in the course of his asylum interview and the absence of any reference to it at the tribunal hearing, I do not consider that the Upper Tribunal was under any duty to address this matter specifically and it did not, in my view, commit any error of law in not doing so. The reasons given by the Upper Tribunal, including those adopted from the decision of Judge Blandy, were proper and adequate and left the petitioner in no doubt as to the reasons why leave had been refused.

[11] Even if I had held that the Upper Tribunal erred in law in failing to deal expressly with the petitioner's particularised complaint regarding the asylum interview answer, I would not have been persuaded that this amounted to a compelling reason why an appeal should be allowed to proceed. I reject the petitioner's assertion (at paragraph 12 of the petition) that his answer, i.e. that Ahmad had given him a lift on occasions, was such a compelling and persuasive adminicle of evidence that it demonstrated that the rejection of his claim for asylum had been "plainly wrong". In my view its significance falls far short of that description. At best for the petitioner, the judge failed to have regard to an adminicle of evidence to which he might or might not have attached weight, and which might or might not have affected his assessment in relation to the matters upon which he did not find the petitioner to be credible. That does not, in my opinion, come close to giving rise to concern that a "compelling injustice" has occurred in this case.

[12] For these reasons I dismissed the petition.