A.j. (ap) V. The Secretary Of State For The Home Department For Judicial View
| Jurisdiction | Scotland |
| Judge | Temp Judge J. Beckett QC |
| Neutral Citation | [2012] CSOH 36 |
| Docket Number | P1255/10 |
| Court | Court of Session |
| Published date | 01 March 2012 |
| Date | 01 March 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 36 | |
| P1255/10 | OPINION OF J. BECKETT QC (Sitting as a Temporary Judge) in Petition of AJ (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review ________________ |
Petitioner: Forrest; Drummond Miller
Respondent: Lindsay, Q.C; Office of the Solicitor to the Advocate General
1 March 2012
Introduction
[1] The petitioner, who is a national of Syria, of Kurdish ethnicity, seeks reduction of a decision of 8 October 2010 by the Upper Tribunal Immigration and Asylum Chamber to refuse him permission to appeal against a decision of the First Tier Tribunal dated 29 April 2010 rejecting an appeal by the petitioner against a decision of the Secretary of State to reject his claim for asylum on 5 February 2010.
The facts of the case
[2] The following narrative is taken from Mr Forrest's submissions and the determination and reasons dated 29 April 2010, No. 6/6 of process, of Immigration Judge Reid, a judge of the First Tier Tribunal (I J Reid). The petitioner arrived in the United Kingdom and claimed asylum on the basis of a well founded fear of persecution based on his political opinions and membership of the Kurdish Democratic Party in Syria, known as Yekiti. (This party name and spelling is taken from paragraph 3.1 of Mr Forrest's note of argument. It would seem that there are a number of political parties sympathetic to the cause of Kurdish people in Syria which include the word Yekiti, which means unity, in their title. The name of the party and the spelling of Yekiti are not used consistently in the case papers before me. I will endeavour to use the party name and spelling as they are variably used in the documents.) Part of the Secretary of State's reasoning in rejecting the claim was that she did not accept that the petitioner was associated with that party, or any similar party, and that decision was set out in a letter of 5 February 2010 which is No. 6/2 of process. The petitioner's appeal to the First Tier Tribunal was rejected because I J Reid, having heard the petitioner, did not accept his account that he had been politically active in Syria. A Senior Immigration Judge refused permission to appeal on 26 May 2010 and his reasons form No. 6/8 of process. The Upper Tier tribunal refused permission to appeal on 8 October 2010 and the reasons form No. 6/1 of process.
Submissions for the petitioner
[3] Mr Forrest, for the petitioner, presented a note of argument, No. 12 of process. In his oral submissions, he largely followed the argument in the note. Mr Forrest argued that the Upper Tribunal had erred in law because it had left out of account matters which ought to have been taken into account, namely information in numbers 6/4 and 6/5 of process, print-outs taken from a website which Mr Forrest presumed was run by Yekiti. These print-outs contained information about the party itself and the treatment of Kurdish people in Syria. The argument seemed to be that given that I J Reid had omitted to deal with these documents specifically in her determination and reasons, that omission undermined the subsequent decisions in relation to the petitioner's claim. Mr Forrest acknowledged that the decision of the Upper Tribunal was not an appealable decision and that whether the court could exercise it's supervisory jurisdiction fell to be decided in light of the principles set out by the Supreme Court in Eba v Advocate General for Scotland 2011 SLT 768. Mr Forrest drew my attention to the terms of paragraph 48 of the opinion of the Supreme Court given by Lord Hope of Craighead:
"48. So I would hold that the phrases 'some important point of principle or
practice' and "some other compelling reason", which restrict the scope for a
second appeal, provide a benchmark for the court to use in the exercise of its
supervisory jurisdiction in relation to decisions that are unappealable that is in
harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, paras 17 and 24 per Dyson L J and Cramp v Hastings Borough Council [2005] EWCA Civ 1005 para 68 per Brooke L J. 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."
Mr Forrest did not contend that the petitioner's case raised an important point of principle or practice. He sought to persuade me that there was nevertheless a compelling reason why the decision should be reduced. In this case, the compelling reason was that the error was such that the petitioner did not receive a fair hearing at all.
[4] Mr Forrest submitted that a particular passage in the decision by the Secretary of State was an important starting point. Paragraph 14 of No 6/2 of process narrates certain information about the Yekiti party thought to be led by Hassan Saleh, and the existence of at least three parties which include the name Yekiti, and then paragraph 15 states:
"It is accepted that the information on the Yekity available in the public domain is limited. However, it is considered that the objective evidence that is available is inconsistent with your own evidence that there is a party by the name of 'the democratic union of Kurds in Syria (yekity)' that is headed up by a man named 'Ismail Omer' and was formed in 1998, as you claim. No record could be found of the party as described by you when searching the internet."
[5] Mr Forrest submitted that in his decision, the Secretary of State had questioned both the existence of the party and the petitioner's familiarity with its aims and in that respect questioned the credibility of the petitioner.
[6] Mr Forrest accepted that I J Reid had considered No 6/3 of process, a letter dated 11 February 2010 bearing to be from 'Europe representative of The Kurdish Democratic Unity Party of Syria.' She had given reasons for rejecting that information which, Mr Forrest conceded, could not be criticized. The position was different when it came to numbers 6/4 and 6/5 of process. The former, which bears to be attested to by the...
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