Petition Of Abt (ap) Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2017] CSOH 65 |
| Court | Court of Session |
| Docket Number | P990/16 |
| Published date | 20 April 2017 |
| Date | 20 April 2017 |
| Year | 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 65
P990/16
OPINION OF LORD ARMSTRONG
In the Petition of
ABT (AP)
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Devlin; Drummond Miller LLP
Respondent: Tariq; Office of the Advocate General
20 April 2017
Introduction
[1] The petitioner is a citizen of Ethiopia. The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland. The petitioner arrived in the UK on 29 September 2013. On 12 February 2014, she claimed asylum, but her application was refused. She appealed to the First-tier Tribunal (“the FTT”) which refused her appeal by decision, dated 7 June 2016. Her claims, that she was of Oromo ethnicity, that she was associated with the Oromo Liberation Front (“the OLF”), that she qualified for refugee status on the basis of sur place activity, and that she was at risk of persecution on return to Ethiopia, were not accepted. Her application to the FTT for permission to appeal to the Upper Tribunal (“the UT”) was refused by decision, dated 1 July 2016. Her subsequent application to the UT for permission to appeal was refused by decision, dated 27 July 2016. By this petition for judicial review, she sought reduction of that decision by the UT, dated 27 July 2016, to refuse her permission to appeal.
[2] In respect that the decision under challenge is an un‑appealable decision of the UT, this application is subject to the second‑tier appeals test, in respect of which, in terms of section 27B(3) of the Court of Session Act 1988, a decision should be made at the stage at which permission to proceed is granted. In this case, by some procedural omission, permission to proceed was granted without consideration of whether the requirements of that test were met. The opportunity to determine the matter at a subsequent procedural hearing was not taken. As a consequence, and somewhat anomalously, at the substantive hearing, in addition to the issue of the merits of the challenge made, the issue of whether the case met the requirements of the second‑tier appeals test remained extant.
The Submissions for the Petitioner
(3) Mr Devlin, who had not previously been involved in the case, submitted that when the petition was read in conjunction with the grounds of appeal submitted to the UT, the basis of the challenge was plain. It was that in determining whether permission to appeal should be granted, the UT had erred in law by failing to recognise material errors of law on the part of the FTT.
[4] In relation to the second‑tier appeals test, it was accepted that no important point of principle arose, but it was asserted, under reference to JD (Congo) v Secretary of State for the Home Department (2012) 1 WLR 3273, at paragraphs 26, 27, that there was a compelling reason, in that there was, in prospect, the possibility of extreme and dire consequences for the petitioner, given her fear of persecution. It was accepted that, in consideration of whether or not there was a compelling reason, extreme consequences, on their own, would not suffice. There required to be a sufficiently serious legal basis for challenging the UT’s decision. In that regard, counsel advanced seven propositions.
[5] Firstly, the FTT had erred in relation to paragraph 81 of its decision, and had made a
finding which no reasonable judge would make. In that regard, some weight was placed by the FTT on the petitioner’s statement that she had a false passport, in that it contained some false particulars. The FTT had been wrong to assume, on the basis that the statement was true, that other documents provided by the petitioner were also false, and that, in particular, other documents, such as the ID card of the petitioner’s sister, on which the petitioner placed some reliance, would have been easier to falsify. In that context, the FTT had taken as support for that view, the inference that the fact that the petitioner had been in possession of her sister’s ID card for a year would not have caused her sister inconvenience if in fact the ID card was not genuine.
[6] It was submitted that the FTT had been wrong to assume that because the passport
was false, so must be the other documents. The FTT should have taken account of the widely recognised use by asylum seekers of false identity documents. The facts did not support the conclusion which the FTT had reached. It had failed to take into account the possibility that the petitioner’s sister could have obtained a replacement ID card.
[7] Secondly, the FTT had made a significant error of fact, at paragraph 82 of its decision.
It was stated there that, although the petitioner had returned to Ethiopia in 2013, an arrest warrant relating to her had not been issued until 2015. That was inconsistent with the fact noted in the expert report, produced on the petitioner’s behalf, to the effect, at paragraph 11.ix., that the petitioner had been told by her sister, on 1 January 2014, that a warrant had been issued, and with the note of the petitioner’s evidence, at paragraph 60 of the FTT decision, to broadly the same effect.
[8] Further, the inference at paragraph 82 of the FTT decision, on the basis of the
mistaken date of 2015, that it was implausible that the authorities would take so long to issue a warrant, amounted to conjecture or speculation. In circumstances in which a decision on credibility was one which depended for its validity on the acceptance of other contradictory facts or inference from such facts, it would be erroneous in point of law if the contradictory position was not supported by any, or sufficient, evidence, or was based on conjecture or speculation (HA v Secretary of State for the Home Department 2008 SC 58, paragraph 17).
[9] Here, there was no evidential basis for the inference drawn, but, further, on the contrary, there was positive evidence supportive of the petitioner’s position, which the FTT had failed to take into account. In that regard, the expert report, at paragraph 12.ix., indicated that in Ethiopia it was common for arrest warrants to be issued months after the wanted person had left the country, with no real expectation that the suspect might be arrested.
[10] Thirdly, in relation, again, to paragraph 82, the FTT had erred, but in another respect.
The FTT had found that it was not credible that, when travelling on a passport which had her real name and photograph in it, the petitioner would have been able to enter and leave Ethiopia without being detected, simply by wearing a hijab or burkha. Under reference to HA, supra, that contradictory position, based on the inference that if the petitioner was the subject of an issued arrest warrant, and using a passport genuine in those respects, the systems put in place by the Ethiopian authorities would have identified her as a wanted person, was unsupported by any evidential basis, and amounted to conjecture or speculation. On the contrary, there was evidence available to the FTT to the opposite effect. Paragraph 9.xv. of the expert report indicated that although those circumstances were unusual, they were not beyond the author’s experience. The FTT had failed to take that into account.
[11] In any event, there was available country guidance to the effect that the Ethiopian
authorities did not maintain any centralised system of record‑keeping which would enable officials responsible for immigration and emigration matters to access information regarding wanted persons (MB (OLF and MTA ‑ Risk) Ethiopia CG (2007) UKAIT 00030, at paragraph 60). The FTT had reached an adverse inference in relation to the petitioner’s ability to return to Ethiopia which had no evidential basis.
[12] Fourthly, at paragraphs 85 and 89 of its decision, the FTT had drawn an adverse
inference in relation to how it could have been that the petitioner would have been able to return to Ethiopia once the OLF cell, with which she had been associated, had been detected. There was no evidential basis for such an inference. Further, the FTT had failed to take into account available evidence to the contrary effect. At paragraph 42 of the decision, the FTT had noted the petitioner’s evidence that it was only on her return to Ethiopia that she had discovered that the OFL cell had been discovered. On that basis, she had been unaware of that fact when travelling there.
[13] Fifthly, in paragraph 87 of its decision, there was an irrelevant consideration taken
into account by the FTT which, although not flagged in the grounds of appeal, was obvious and not merited by the passage quoted in the paragraph. The petitioner had claimed to have been trafficked, but an investigation by the police had found that: “The account she provided … was severely deficient in terms of evidence required to prove an offence of trafficking for exploitation”. Those facts did not support the finding, as inferred by the FTT, that the petitioner’s claim of having been trafficked was incredible. Rather, they pointed only to an insufficiency of evidence such as to merit prosecution. No other inference was justified.
[14] Sixthly, at paragraph 91 of the decision, in stating that there was no evidence that
any activities of the OLF in the UK may have come to the notice of the authorities in Ethiopia, the FTT had failed to take into account all material considerations. In particular, the FTT had before it a letter, dated 11 September 2015, by Dr Berri, Chairman, OLF Committee in the UK, together with photographs, which confirmed that the petitioner had participated in public demonstrations in support of the OLF in London. That evidence, coupled with the guidance set out in YB (Eritrea) v Secretary of State for the Home Department (2008) EWCA Civ 360, at paragraphs 16 ‑ 18, to the effect that there was a strong possibility that the Eritrean authorities film and photograph their nationals who demonstrate in public against the regime, and use informers...
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