Bm (ap) For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2012] CSOH 142 |
| Year | 2012 |
| Published date | 04 September 2012 |
| Court | Court of Session |
| Docket Number | P225/11 |
| Date | 04 September 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 142 | |
| P225/11 | OPINION OF LADY CLARK OF CALTON in the Petition of BM (AP) Petitioner; for Judicial Review of a decision notified on 27 January 2011 by the Upper Tribunal (Immigration and Asylum Chamber) to refuse the petitioner permission to appeal ________________ |
Petitioner: Devlin; Drummond Miller LLP
Respondent: Webster, Office of the Advocate General
4 September 2012
Summary
[1] The petitioner is a national of Uganda who claimed asylum (along with his first wife as his dependent) on 8 June 2010. Asylum was refused on 29 June 2010. A hearing before the First-tier Tribunal (Immigration and Asylum Chamber) took place in September 2010. On 2 November 2010, the immigration judge dismissed the asylum appeal and appeals in relation to humanitarian and human rights protection (6/2 of process). Thereafter the petitioner exhausted his appeal rights.
History of proceedings
[2] On 27 January 2011 the Upper Tribunal (Immigration and Asylum Chamber) (hereinafter referred to as the Upper Tribunal) refused to grant the petitioner permission to appeal against a decision of the First-tier Tribunal. The petitioner sought to judicially review the decision of the Upper Tribunal.
[3] In the grounds of appeal (6/3 of process) which were considered without an oral hearing by the First-tier Tribunal, eleven grounds of appeal are set out. Ground 10 states:
"Further reference is made to paragraph 92 and 93 of her determination, where Immigration Judge states: 'I find that the appellant's wife EM was attacked, beaten and raped in Uganda.' Yet the Immigration Judge fails to give adequate reasoning as to why she dismissed the appellant's wife's corroborated account and finds that the injuries sustained were not incurred as a result of the claimed incident."
These eleven grounds are dealt with in two short paragraphs by the First-tier Tribunal. No reasoning is addressed in particular to ground of appeal 10. Permission to appeal to the Upper Tribunal was refused (6/5 of process).
[4] The application to appeal to the Upper Tribunal refers only to ground 10 subject to "further amplification" as set out in 6/4 of process. The Upper Tribunal considered it unnecessary to hold an oral hearing of the application for permission to appeal. The Upper Tribunal refused permission to appeal. The following reasons were given:
"The judge summarises the respective submissions of the parties and refers to the Medical Report at paragraphs 52 and 58 of the determination and in the latter paragraph to particular paragraphs within that report drawn to her attention by the representatives. She includes a reference to the report in paragraph 61 at the start of the part of the determination where she makes her findings of fact.
There is no indication that she had made up her mind about credibility prior to reading the report.
The immigration judge's negative credibility appears to me to be amply reasoned. It was not in contention between the parties (see paragraph 52) that the appellant had suffered mistreatment but the circumstances were in contention and having properly surveyed the evidence the judge reached conclusions open to her. It was not arguably a case of putting the cart before the horse in my view and the determination is not vulnerable for the reason identified in Mibanga [2005] EWCA Civ 367. I do not find the judge was unduly dismissive of the report or failed to give it proper scrutiny. The determination is comparatively lengthy and on the whole buttressed by reasoning not lacking in cogency and it is clear that the judge took pains over it."
It should be noted that there is an obvious error in the third paragraph of the reasons given by the Upper Tribunal. It was not the appellant (now the petitioner) who suffered "mistreatment" but the petitioner's first wife. This error may or may not be a failure to note a typographical error by the Upper Tribunal. A failure with which I have considerable sympathy. It does mean however that there is a lack of clarity in the decision of the Upper Tribunal and I will consider the implications of that later.
[5] The first hearing in respect of the petition for judicial review and answers commenced before me in January 2012 but was not completed. There was some delay in fixing another date as it was considered appropriate to await a decision of the Inner House now reported as KP v Secretary of State for the Home Department [2012] CSIH 38. On 12 July 2012, the hearing resumed before me. On that date, at my request, counsel for the petitioner lodged written submissions (14 of process). Counsel for the respondent lodged a further written outline argument (15 of process). His original note of argument (13 of process) was described by him as a "generic note" which set out the general legal principles to be applied. I understand that this "generic note" formed the basis of the submissions made on behalf of the respondent in a case heard before Lord Brodie which is now reported as AKA v The Secretary of State for the Home Department [2012] CSOH 86. I am grateful to counsel for their assistance. The oral submissions were based on the written submissions.
Submissions by counsel for the petitioner
[6] Counsel addressed me firstly on the test the court should apply in determining whether to grant judicial review following Eba v Secretary of State for the Home Department (2011) 3 WLR 149. He conceded that the present case did not raise an important point of principle or practice of the type referred to in Eba. He sought to argue that there was some "other compelling reason" to justify the court in exercising its supervisory jurisdiction in relation to the unappealable decision of the Upper Tribunal and on that basis to bring the petitioner within the Eba principles. Under reference to Lord Hope DPSC at page 162, counsel submitted that:
"some other compelling reasons" 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."
Counsel also referred to R (Cart) v Upper Tribunal (Public Law Project Intervening) (2011) 3 WLR 107, Lady Hale SCJ at page 125G where she defined "some other compelling reason" as:
"capable of encompassing both the important point of principle affecting a large number of similar claims and the compelling reasons presented by the extremity of the consequences for the individual"
Lord Dyson at page 148A-C accepted, under reference to PR (Sri Lanka) and others v Secretary of State for the Home Department (2011) EWCA Civ 988, that merely because a case related to asylum issues did not make it "compelling". Counsel also referred to Carnwath LJ who stated that:
"...however, as we read the judgment as a whole, such matters were not seen as constituting a free standing test. In other words 'compelling' means legally compelling, rather than compelling, perhaps from a political or emotional point of view, although such considerations may exceptionally add weight to legal arguments"
[7] Counsel developed his submissions in relation to JD (Congo) and others v Secretary of State for Home Department and another (2012) EWCA Civ 327 and referred in particular to the judgment of Sullivan LJ at paragraphs 26 and 27.
[8] Having analysed the authorities, he submitted that "legally compelling" means "a strongly arguable error of law" or "a sufficiently serious legal basis for challenging the Upper Tribunal's decision". He submitted that a court must first consider whether there is a clear or plain error of law. If so, the court must consider whether the error provides a sufficient basis for overturning the Upper Tribunal. An error will provide a sufficient basis for overturning the Upper Tribunal if it is strongly arguable. In determining whether an error is strongly arguable, the court must have regard not only to the merits of the argument, but also to the risk to the asylum seeker if the Upper Tribunal's decision is wrong.
[9] Counsel then developed his submission in relation to the facts of the case. He submitted that the immigration judge had erred in law in that she failed to consider the medical report as an integral part of the decision making process. He prayed-in-aid Mibanga v Secretary of State for the Home Department [2005] INLR 377; HH (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 306; and NT (Togo) v Secretary of State for the Home Department [2007] EWCA Civ 1431.
[10] Counsel then analysed in detail the findings of the immigration judge at paragraphs 64 to 90 of her determination. He accepted that the immigration judge had dealt with the medical report but stated that the immigration judge "had looked at it through the wrong end of the telescope". He submitted that the immigration judge tested the medical report against the country background information and previous findings and concluded that she could only accept the report in so far as it could stand consistently with the said information and findings. Counsel submitted that this illustrated that the immigration judge had fallen into the same error as was identified in Mibanga. As a way to check whether the immigration judge has fallen into such error, counsel referred to S v Secretary of State for the Home Department (2007) Imm AR 7, Ricks LJ at page 14.
[11] Under reference to paragraphs 32 to 44 of his written submission (14 of process), counsel developed his detailed criticisms. In conclusion he submitted that when looked at in the round, it is strongly arguable that the immigration judge erred in law in that she failed to consider the medical foundation report as an integral part of her credibility findings and treated it as a mere add on. This error in law "leapt off the page" and should have been obvious to the appellate tribunals who also obviously erred in law in their decision making.
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