MDRIK VALABAIGI (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MDRIK VALABAIGI (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] ScotCS CSOH_85 (15 September 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_85.html Cite as: 2020 GWD 32-414, [2020] CSOH 85, [2020] ScotCS CSOH_85

[1] In this petition for judicial review, the petitioner seeks reduction of a decision dated

2 July 2019 of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”). By that

decision, the UT refused permission to appeal to itself against a decision of the First Tier

Tribunal (“the FTT”) dated 10 April 2019. Permission to proceed with this petition was

given under section 27B(3) of the Court of Session Act, 1988 on 31 December 2019. A full

[2] The petitioner is a citizen of Iran. He arrived in the United Kingdom on 27 March

2014 and immediately claimed asylum. He asserted that he was at real risk of persecution

by the Iranian authorities because he was suspected of supporting a Kurdish political party,

PJAK. In particular, he claimed that such suspicion arose as the result of an incident in

February 2014 when he was compelled to give a lift in his taxi to members of PJAK. The

Secretary of State refused his asylum claim on 24 February 2015. The petitioner appealed to

the FTT which dismissed his appeal on 30 September 2015. In its decision of 30 September

2015, the FTT did not find the petitioner to be a credible witness and rejected the evidence he

gave in support of his claim. He was refused permission to appeal to the UT and became

[3] Thereafter, on 12 December 2017, the petitioner made further submissions to the

Secretary of State. Those further submissions relied upon substantially the same factual

material as had previously been rejected by the FTT in its decision of 30 September 2015.

The main addition to the further submissions involved production by the petitioner of what

he claimed was an arrest warrant issued by the Iranian authorities, together with further

witness evidence in connection with that document. In particular, he produced an

authentication report from an expert in Iranian law dated 2 August 2017 (produced as 6/1 of

process in this petition). On 4 December 2018 the Secretary of State again refused the

petitioner’s asylum claim as set out within his further submissions but granted the petitioner

a right of appeal. The petitioner appealed to the FTT. Before the FTT he produced a further

authentication report from the expert dated 23 January 2019 (produced as 6/2 of process in

this petition). On 11 April 2019, the FTT dismissed his appeal. The petitioner sought

permission from the FTT to appeal to the UT. Such permission was refused by the FTT on

14 May 2019. The petitioner then sought permission from the UT to appeal to the UT. The

[4] The proposed Grounds of Appeal to the UT (6/6 of process) contained two

substantive challenges to the decision of the FTT. The first of these (Ground (i) /

paragraph 3.1) was that the FTT had erred in finding material inconsistencies in the

evidence given by the petitioner and by two of his supporting (non-expert) witnesses, and in

concluding that the petitioner had given a vague and contradictory account of the

circumstances in which the warrant was obtained. The petitioner does not now challenge

the UT’s refusal to give leave on that ground. The second proposed challenge (Ground (ii))

was that the FTT had not accorded sufficient weight to the expert’s report and had failed to

take account of relevant evidence of the expert. It is only the UT’s decision in relation to

[5] Paragraph 3.2 of the proposed Grounds of Appeal gave further specification of

“3.2 Expert Evidence: Insufficient weight has been given to what he says. He is an

expert who at page 2 of his report dated 23/1/19 explains why it may not be unusual

for a warrant to have been issued so long after the event. No account is taken of this

point and in so far as it materially influenced the judge’s conclusions she has erred

[6] In refusing leave to appeal on both Grounds, the UT gave the following reasons (6/7

“1. The grounds assert that the judge should have attached greater weight to some

of the material before him and should have attached less weight to other

material. However, the weight to be attached to the evidence is a matter for the

2. In an earlier appeal, the appellant had not been found to be credible.

3. The judge gave full and detailed consideration to the evidence of the appellant

and his witnesses. He gave detailed consideration to the arrest warrant, its late

production and provenance. Material discrepancies were found. Paragraphs 34

to 45 provide compelling reasons for rejecting the appellant’s account.”

[7] Mr Winter, for the petitioner, submitted that in refusing to give leave to advance the

argument set out in paragraph 3.2 of the Grounds, the UT had erred in law by failing to give

adequate reasons for such refusal. He submitted that there were arguable errors of law by

the FTT in its treatment of both authentication reports. Although paragraph 3.2 of the

proposed Grounds made express reference only to the FTT’s treatment of the second of the

authentication reports (dated 23 January 2019), paragraph 3.2 was habile to cover the FTT’s

treatment of both that report and the earlier one of 2 August 2017. Even if that was too

broad a reading of paragraph 3.2, the FTT’s error in relation to the first authentication report

was an obvious one which should be allowed to be argued pursuant to R v Secretary of State

for the Home Department ex parte Robinson [1998] QB 929. Alternatively, even if the error of

law was not “obvious” in the Robinson sense, this court should exercise an inherent

discretion to allow the point to be taken now by analogy to the power of an appellate court

under section 13 of the Tribunals, Courts and Enforcement Act 2007 to allow, on appeal, a

point which was not argued before the lower court. In the context of appeals from the UT,

that power was discussed in RJG v Secretary of State for the Home Department [2016] EWCA

Civ 1042 at paragraph [51] under reference to the case of Miskovic v Secretary of State for Work

[8] In relation to the authentication report of 2 August 2017 (6/1 of process), Mr Winter

submitted that the FTT had plainly misunderstood the evidence of the expert at

paragraph 21 on page 4. That paragraph was in the following terms:

That is normal practice to my knowledge; the court has the right to write down the

There are no specific reasons mentioned on this arrest warrant. A Revolutionary

Court could issue a summons, warrant or arrest warrant for these reasons:

2- Religion, dogma, (other opinions about Islam or other ideologies)

3- Any crime where Islam or the Quran is mentioned (alcoholic drinks, drugs,

4- Crimes against internal and external security, enmity against God and corruption

on earth, rebellion, conspiracy and community or armed action against the

Islamic Republic of Iran or sabotage and destruction of property in order to deal

5- Insulting the founder of the Islamic Republic of Iran and the Supreme Leader.

6- all crimes related to narcotics, psychotropic substances and precursors and

trafficking in firearms, ammunition and items and materials under control

Mr Winter submitted that the FTT had misinterpreted this passage of evidence in

concluding that it was normal practice for an arrest warrant such as the one relied upon by

the petitioner to state a reason for the warrant being granted. At paragraph 43 of its

Reasons, the FTT had accordingly erred in concluding that the expert did not offer any

explanation for that normal practice not being followed in this case. In referring to the

normal practice for temporary detentions (6/3 of process at paragraph 43), the FTT had also

misunderstood the evidence about the precise nature of this warrant. Specifically, it had

failed to recognise that the expert’s evidence (6/1 of process at paragraphs 3 and 7) had been

that this was a post-conviction warrant rather than a warrant to facilitate questioning of a

[9] In relation to the authentication report of 23 January 2019 (6/2 of process), Mr Winter

submitted that the FTT had erred in concluding that the expert offered no assistance on the

issue of why there had been a significant delay between the alleged taxi incident in 2014 and

the issuing of the warrant in 2016 (6/3 of process at paragraph 44). Paragraph 44 of the FTT’s

“In respect of the timing of the document being issued, it was not clear to the

Tribunal why, if the warrant was issued in January 2016, it was not delivered to the

Appellant’s home until July 2016…I find that [the expert’s] report offers no assistance

to the Tribunal in understanding why the document was issued after such a period

of delay, either in terms of the period elapsed between his claimed political

involvement and the warrant being issued, or between the date of issue and the

Mr Winter submitted that such assistance could clearly be seen in a passage found within

the first paragraph of page 2 of the report of 23 January 2019 which stated inter alia:

“It is not my duty to explain why the arrest warrant reached UK within two years,

but this arrest warrant is from enforcement office, this could be because

Mr Validbeigi (sic) was free on bail, or the court procedure was so long, when the

arrest warrant is from enforcement office it means that is end of court procedure.”

[10] Since the concept of an error of law was wide enough to include circumstances

where a decision had been made in the absence of evidence, or without sufficient evidence

(R v Secretary of State for Scotland 1999 SC (HL) 17 at page 42, A-B), where the decision-maker

had misconstrued the evidence or failed to take account of a relevant matter (SS (Iran) v

Secretary of State for the Home Department [2010] CSIH 72 at paragraph [13]) or where there

had been a failure to take into account and / or resolve conflicts of fact or opinion on

material matters or to give reasons for findings on material matters (R (Iran) v Secretary of

State for the Home Department [2005] Imm AR 535 at paragraph [9], these were plainly

arguable errors by the FTT in respect of which leave ought to have been granted. The UT

had not given adequate reasons for refusing to grant leave in relation to those errors.

[11] Mr Winter further submitted that it could be seen from paragraph 2 of its reasons

that the UT had been inappropriately swayed by the previous adverse credibility finding

against the petitioner when considering the significance of the separate evidence of the

expert. The credibility of the petitioner had no bearing upon the assessment of that other

independent evidence (TF & MA v Secretary of State for the Home Department 2019 SC 81 at

[12] In all of these circumstances, Mr Winter submitted that the reasons given by the UT

for refusing leave were inadequate in that they left the informed reader in real and

substantial doubt as to why leave had not been granted to advance the ground of appeal set

[13] Mr Middleton invited me to sustain either the respondent’s second or third plea-in-

law and to refuse the petition. Under reference to what was said by Lord Brodie about the

constitutional function of this court in considering an application for judicial review in HH v

Secretary of State for the Home Department 2015 SC 613 (at paragraph 15), he stressed that the

correct starting point was to consider precisely what decision the UT had been asked to

make. An application for leave to appeal to the UT is made under reference to specific

grounds. Subject to what was held in R v Secretary of State for the Home Department ex parte

Robinson [1997] QB 929, it is only the legality of a refusal of permission in respect of those

specific grounds which is put in issue by the petitioner’s application for judicial review.

Embarking upon a consideration of new lines of argument which were not put forward in

the Grounds of Appeal to the UT risks confusion about the function of this court in an

[14] The petition challenges the adequacy of the reasons given by the UT in refusing leave

to appeal on the basis of the argument set out in paragraph 3.2 of the Grounds of Appeal.

The first sentence of paragraph 3.2 states only that the FTT gave insufficient weight to the

evidence of the expert. That sentence does not describe any error of law, and the UT

correctly held that the weight to be attached to the evidence was a matter for the FTT judge.

The remainder of paragraph 3.2 was limited to an argument that the FTT judge had failed to

take into account the passage at page 2 of the expert report of 23 January 2019. That

argument was the subject of paragraph 3 of the UT’s reasons. Taking paragraph 3.2 as the

narrow context of the decision that the UT had been asked to make, paragraph 3 of the UT’s

reasons was perfectly clear and intelligible to an informed recipient when read with the

[15] In considering an application for judicial review of a decision of the UT to refuse

leave to appeal to itself, the role of this court is limited to considering whether or not the

decision of the UT was erroneous in law. The starting point for consideration of that

question is to consider what proposed Grounds of Appeal were presented to the UT in the

leave application. In this case, two separate arguments were presented to the UT. These

were set out in paragraphs 3.1 and 3.2 of the proposed Grounds of Appeal. It is not

suggested that the UT erred in refusing permission to advance the argument set out in

paragraph 3.1. This petition relates only to the refusal of leave to advance the argument set

[16] I do not accept the submission made for the petitioner that paragraph 3.2 of the

proposed Grounds of Appeal was habile to include an argument that the FTT judge had

misunderstood the terms of the first authentication report. That issue was not raised in

paragraph 3.2, nor was it “obvious” in the Robinson sense such that the UT judge should

have had regard to it notwithstanding its absence from the proposed Grounds of Appeal.

On the question of whether or not I should exercise a discretion to grant the petition on the

basis of an argument that was not advanced before the UT judge, I was not persuaded that

the role of this court in the exercise of its supervisory jurisdiction is directly analogous to

that of an appellate court. I do not, therefore, accept that the principles which were

discussed in the cases of RJG v Secretary of State for the Home Department [2016] EWCA

Civ 1042 and Miskovic v Secretary of State for Work and Pensions [2011] EWCA Civ 16) can

simply be read across to the jurisdiction exercised by this court under Chapter 58. No

authority was cited to me which suggested that it could. In any event, I saw no force in the

submission that the FTT judge had arguably erred in her treatment and consideration of the

first authentication report. Interpretation of any ambiguity in the evidence of the expert was

[17] I also do not accept the submission made for the petitioner that paragraph 2 of the

UT’s reasons demonstrates that it fell into the type of error described in TF & MA v Secretary

of State for the Home Department 2019 SC 81. On a fair reading, paragraph 2 of the UT’s

reasons relates only to its refusal of leave to advance the argument contained in paragraph

3.1 of the proposed grounds of appeal. Paragraph 2 of the UT’s reasons does not relate to its

refusal of leave in respect of paragraph 3.2. It is not, therefore, correct to say that the UT

allowed the previous adverse credibility finding in relation to the petitioner’s evidence to

colour its conclusions about the separate evidence of the authentication expert.

[18] Turning to paragraph 3 of the UT’s reasons, I accept the respondent’s submission

that those reasons were clear and intelligible to an informed reader. In particular, it is clear

that the UT refused leave to advance the argument set out in paragraph 3.2 of the proposed

Grounds because, on a fair reading of the whole of the FTT judge’s decision, it could be seen

that full consideration had been given to the provenance of the warrant and that, in the

context of the evidence as a whole, a number of material discrepancies were found. In

particular, discrepancies were found in the petitioner’s oral evidence and his witness

statement to the FTT (described at paragraphs 37-39 of the FTT’s Reasons) which

undermined his claim that the warrant was genuine (paragraph 39). This led the FTT judge

to conclude that the story as to how the warrant came to be in his hands had been concocted

(paragraph 40). The expert evidence about the warrant was also then fully considered at

paragraphs 41-44. The particular points about delay in delivering the warrant were

considered in paragraph 44. The FTT judge took account of the evidence of the expert but

found it to be of no assistance. That was understandable. The expert did not address at all

the question of the delay of approximately 6 months between the date when the warrant

was said to have been issued in January 2016 and its arrival at the petitioner’s home in July

of that year. In other respects, his comments at page 2 of the report of 23 January 2019 were

speculative. The FTT judge was entitled to conclude that the expert offered no assistance on

the issue of delay, and in determining that the FTT judge “gave full and detailed

consideration to the evidence of the appellant and his witnesses”, the UT judge was correct

to conclude that it was not arguable that material evidence had been misunderstood or

[19] In these circumstances, I will sustain the respondent’s second plea-in-law and refuse

the petition. I shall reserve meantime all questions of expenses.

Scottish Court of Session Decisions