Ebriham Ceesay (ap) Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Glennie,Lord Menzies,Lady Paton |
| Neutral Citation | [2017] CSIH 26 |
| Published date | 22 March 2017 |
| Docket Number | P239/16 |
| Date | 15 March 2017 |
| Court | Court of Session |
| Year | 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 26
P239/16
Lady Paton
Lord Menzies
Lord Glennie
OPINION OF THE COURT
delivered by LADY PATON
in the cause
EBRIHAM CEESAY (AP)
Petitioner and Reclaimer;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Appellant: K Campbell QC, Dewar; Drummond Miller LLP
Respondent: Komorowski; Office of the Advocate General
15 March 2017
[1] The circumstances and the sequence of events in this case are set out in Lady Stacey’s opinion dated 3 June 2016. Having heard submissions, she decided that the petition had no real prospect of success. By an interlocutor of that date, she refused permission for the petition to proceed. It is that decision which is reclaimed.
[2] Senior counsel for the petitioner indicated at the outset that he no longer insisted upon the first ground of appeal. The second and third grounds were to be argued.
[3] Counsel were agreed that the test to be applied by the Lord Ordinary was as set out in section 27B of the Court of Session Act 1988 as amended, ie was there “a real prospect of success”. We were referred to O v SSHD, 2016 SLT 545, CF v SSHD [2016] CSOH 28, Carroll v Scottish Borders Council, 2014 SLT 659, and B v SSHD, 2016 SLT 1220 (paragraph [66]), but there was no live issue on this point between the parties, and we see no reason to add any further gloss to the words in the statute.
[4] We deal first with Ground of Appeal 2. The Lord Ordinary declined to grant permission on paper, and appointed an oral hearing. In advance of that hearing, she indicated two matters which counsel should address. Before us, the thrust of the submissions presented by the petitioner’s senior counsel was that, having raised these points in her informal note, the Lord Ordinary should make specific reference to the points in her decision.
[5] We disagree with that proposition. There was no requirement for the Lord Ordinary to give any notice of points which required to be addressed. The Lord Ordinary did so solely for the assistance of parties. Senior counsel for the petitioner accepted that had the Lord Ordinary not issued the note, no challenge could have been made to her reasoning and decision on this ground. We do not consider that there is any requirement for a Lord Ordinary who has provided an informal note of this nature to make specific reference to the content of the note in the decision. If it were otherwise, that would act as a disincentive to a useful practice.
[6] In the result, Ground of Appeal 2 fails.
[7] With regard to Ground of Appeal 3, the Secretary of State issued a certificate on 17 September 2010 in terms of section 94 of the Nationality, Immigration and Asylum Act 2002, that the claim for asylum, as then framed (namely on the basis that the petitioner’s father was likely to beat him to death if the petitioner returned to Gambia) was “clearly unfounded”. That certification was not challenged.
[8] The petitioner made a new application for asylum on the ground that...
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