Appeal By Pa Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Pentland,Lord Woolman,Lord President |
| Neutral Citation | [2020] CSIH 34 |
| Docket Number | P555/19 |
| Date | 19 June 2020 |
| Court | Court of Session |
| Published date | 19 June 2020 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 34
P555/19
Lord President
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Appeal by
PA
Petitioner and Appellant
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
______________
Petitioner and Appellant: Winter; Drummond Miller LLP (for Latta & Co, Glasgow)
Respondents: Maciver; Office of the Advocate General
19 June 2020
[1] This is an appeal in terms of section 27D of the Court of Session Act 1988. It proceeds
as a reclaiming motion in terms of RCS 38.8(d) and 58.10. The petitioner challenges the
interlocutor of the Lord Ordinary, dated 29 August 2019, which refused to grant the
petitioner permission to proceed with a judicial review of the respondent’s decision to treat
her further submissions in support of her claim for asylum as a fresh claim in terms of
2
Immigration Rule 353. The petitioner has exhausted her appeal rights in relation to her
claim that she would be persecuted in her country of origin on the basis of her sexuality.
The respondent and the First Tier Tribunal decided that she was not, as she claimed, a
lesbian.
[2] The first issue is procedural. It concerns the role of the first instance court, when
determining whether to grant permission to proceed. Is a Lord Ordinary entitled to reach a
view on the merits, and thus arguably determine the petition at the permission stage, as
distinct from deciding simply whether the petition has a real prospect of success (1988 Act,
s 27B(2)(b) or (3)(b))? The second issue concerns the role of the appellate court when
reviewing the Lord Ordinary’s determination (1988 Act, s 27D). Is it assessing whether the
Lord Ordinary erred in law or deciding whether to grant permission de novo?
[3] The third issue is one of substance. It is whether the respondent erred in
determining that the petitioner’s further representations, when taken together with the
material already submitted by her in earlier applications, did not create a realistic prospect
of success under Immigration Rule 353.
Legislation, and the Immigration Rules
The Court of Session Act 1988
[4] The Court of Session Act 1988, as amended by section 89 of the Courts Reform
(Scotland) Act 2014, provides as follows:
“27B Requirement for permission
(1) No proceedings may be taken in respect of an application to the supervisory
jurisdiction of the Court unless the Court has granted permission for the application
to proceed.
To continue reading
Request your trial