PA v Secretary of State for the Home Department

JurisdictionScotland
CourtCourt of Session (Inner House)
JudgeLord Bannatyne
Judgment Date19 June 2020
Neutral Citation[2020] CSIH 34
Date19 June 2020
Docket NumberNo 32

[2020] CSIH 34

First Division

Lord Bannatyne

No 32
PA
and
Secretary of State for the Home Department
Cases referred to:

Ceesay v Secretary of State for the Home Department [2017] CSIH 26; 2017 GWD 11–160

Clippens Oil Co Ltd v Edinburgh and District Water Trs (1906) 8 F 731

Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702; [2003] Imm AR 1

Eba v Advocate General for Scotland [2011] UKSC 29; 2012 SC (UKSC) 1; 2011 SLT 768; [2012] 1 AC 710; [2011] 3 WLR 149; [2011] PTSR 1095; [2011] STC 1705; [2011] Imm AR 745; [2011] STI 1941

Henderson v Foxworth Investments Ltd sub nom Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd [2014] UKSC 41; 2014 SC (UKSC) 203; 2014 SLT 775; 2014 SCLR 692; [2014] 1 WLR 2600; 158 (27) SJLB 37

McGraddie v McGraddie [2013] UKSC 58; 2014 SC (UKSC) 12; 2013 SLT 1212; 2015 SCLR 109; [2013] 1 WLR 2477

R (on the application of AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447; [2010] 1 WLR 855; [2010] INLR 373

R (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663; [2011] 3 WLR 107; [2011] 4 All ER 127; [2011] PTSR 1053; [2011] STC 1659; [2012] 1 FLR 997; [2011] Imm AR 704; [2011] MHLR 196; [2012] Fam Law 398; [2011] STI 1943

Royal Society for the Protection of Birds v Scottish Ministers [2017] CSIH 31; 2017 SC 552; [2018] Env LR 1; 2017 GWD 18–290

SA v Secretary of State for the Home Department [2013] CSIH 62; 2014 SC 1; 2013 SLT 1132

SSMA (Sudan) v Secretary of State for the Home Department [2017] CSIH 63; 2017 GWD 33–521

TF v Secretary of State for the Home Department [2018] CSIH 58; 2019 SC 81; 2018 SLT 1225

WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm AR 337; [2007] INLR 126

Wightman v Advocate General for Scotland sub nom Wightman v Secretary of State for Exiting the European Union [2018] CSIH 18; 2018 SC 388; 2018 SLT 356; 2018 SCLR 588

Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345

Textbooks etc referred to:

Gill (Rt Hon Lord), Report of the Scottish Civil Courts Review (B60185) (Scottish Civil Courts Review, Edinburgh, September 2009), vol 2, Ch 12, para 51 (Online: https://www.scotcourts.gov.uk/docs/default-source/civil-courts-reform/report-of-the-scottish-civil-courts-review-vol-2-chapt-10---15.pdf?sfvrsn=4 (5 July 2020))

Lord President (Carloway), Practice Note (No 3 of 2017): Judicial Review (Scottish Courts and Tribunals, Edinburgh, June 2017), para 12 (Online: https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/court-of-session/court-of-session---practice-note---number-3-of-2017.pdf?sfvrsn=4 (5 July 2020))

Administrative law — Judicial review — Permission to proceed — Real prospect of success — Whether preliminary assessment or determination of merits required — Court of Session Act 1988 (cap 36), sec 27B

Process — Review — Nature of appeal to Inner House — Function of Inner House in determining appeal — Court of Session Act 1988 (cap 36), sec 27D

Immigration — Asylum — Fresh application — Significance of previous adverse finding on credibility — Immigration Rules (HC 251), r 353

PA presented a petition in the Court of Session seeking to bring under judicial review a decision of the Secretary of State for the Home Department to refuse to treat further submissions as a fresh claim for asylum under Immigration Rule 353. The Lord Ordinary (Bannatyne) ordered an oral hearing for the purpose of deciding whether to grant permission to proceed in terms of sec 27B of the Court of Session Act 1988 and r 58.7(1)(b) of the Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)). The hearing called before the Lord Ordinary, on 29 August 2019. The Lord Ordinary refused permission to proceed. The petitioners appealed in terms of sec 27D(2) of the 1988 Act and RCS 58.10 to the Inner House.

The Court of Session Act 1988 (cap 36) (‘the 1988 Act’), sec 27B, provides, inter alia, “(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. (2) … The Court may grant permission … for an application to proceed only if it is satisfied that– … (b) the application has a real prospect of success”. Section 27D provides, inter alia, “(1) … where, after an oral hearing to determine whether or not to grant permission for an application to the supervisory jurisdiction of the Court to proceed, the Court– (a) refuses permission for the application to proceed … (2) the person making the application may … appeal under this section to the Inner House. (3) In an appeal … the Inner House must consider whether to grant permission for the application to proceed”.

The Immigration Rules (HC 251), r 353, provides that when an asylum claim has been refused, and no appeal is pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. Submissions will amount to a fresh claim if they are significantly different from the material which has been previously considered. Submissions will only be significantly different if the content has not already been considered, and, taken together with the previously considered material, create a realistic prospect of success, notwithstanding its rejection.

The petitioner was a national of the Islamic Republic of Pakistan and a failed asylum-seeker. The petitioner made further representations to the respondent that she was homosexual and would face persecution on that basis if she were to return to Pakistan. In refusing the petitioner's appeal, the immigration judge made an adverse finding on her credibility. The petitioner made further submissions to the respondent, comprising letters of support from third parties. The respondent refused to treat the further evidence and submissions as a fresh claim, and determined that, although the letters had not previously been considered, they did not create a realistic prospect of success. The petitioner presented a petition for judicial review to challenge the refusal to treat the further submissions as a fresh claim.

The petition came before the Lord Ordinary for permission to proceed. He allowed the parties an oral hearing on, inter alia, the respondent's approach to the new documentation. The Lord Ordinary determined that there was no error of law in the respondent's approach. The new evidence had been properly considered, and the respondent was entitled to rely on the previous adverse finding on the petitioner's credibility where the information stemmed from the petitioner herself. The Lord Ordinary concluded that there was no merit in the petitioner's challenge, that there was no realistic prospect of success before another immigration judge, and the test in sec 27B of the 1988 Act was clearly not met.

Held that: (1) in determining whether an application had a real prospect of success under sec 27B of the 1988 Act, the court ought not to be engaged in an exercise of determining the merits of the petition, although the Lord Ordinary would inevitably require to make some form of preliminary assessment of the merits (para 30); (2) while an appeal under sec 27D of the 1988 Act could involve a complaint that the Lord Ordinary erred in law, the appellate court did not have to find an error, of fact or law, in the Lord Ordinary's opinion before granting permission to proceed; instead sec 27D(3) of the 1988 Act required the court to decide for itself whether to grant permission by considering whether there was a real prospect of success under sec 27B(2), and while the opinion of the Lord Ordinary would be afforded due respect in that regard, it was open to the appellate court simply to form a different view from the Lord Ordinary on real prospects of success (para 33); (3) in considering whether to grant permission, there had been no identifiable error of law in the respondent's approach to the assessment of the weight to be given to the new evidence, and there had been no real prospect of the petition succeeding (para 37); and appeal refused.

Observed that: (1) at the permission stage, the error on the part of the decision-maker should be identifiable from the averments in the petition, and it was crucial that the petition was both accurate and succinct in relation to the facts and propositions of law (para 29); (2) while an appeal under sec 27D of the 1988 Act required to follow the same procedure as a reclaiming motion, it was expressly not a reclaiming motion but an appeal (para 32); and (3) the court would allocate appropriate time for the hearing of an appeal against permission to proceed, which would take into account the preliminary nature of the exercise being carried out and the importance that the averments of fact and propositions of law in the petition itself had in determining real prospects of success (para 38).

SA v Secretary of State for the Home Department 2014 SC 1 considered and Wightman v Advocate General for Scotland2018 SC 388applied.

The cause called before the First Division, comprising the Lord President (Carloway), Lord Woolman and Lord Pentland, for a hearing on the summar roll, on 7 May 2020.

At advising, on 19 June 2020, the opinion of the Court was delivered by the Lord President (Carloway)—

Opinion of the Court— [1] This is an appeal in terms of sec 27D of the Court of Session Act 1988 (cap 36). It proceeds as a reclaiming motion in terms of RCS 38.8(d) and 58.10 (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))). 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...

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