Q.e. V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2014] CSOH 53 |
| Date | 20 March 2014 |
| Court | Court of Session |
| Docket Number | P24/14 |
| Published date | 20 March 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 53 | |
| P24/14 | OPINION OF LORD BURNS in the cause QE Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________ |
Petitioner: Byrne, Advocate; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
20 March 2014
Introduction
[1] This petition called at a procedural first hearing on 26 February 2014. The petitioner was represented by Mr Byrne and the respondent by Mr Pirie. The petition seeks judicial review of the decision of the Upper Tribunal dated 17 December 2013 to refuse permission to appeal from a determination of the First‑tier Tribunal judge dated 7 November 2013. The issue at this stage is whether the petitioner can establish that the circumstances averred bring the matter within the supervisory jurisdiction of this court as defined in the case of Eba v Advocate General 2012 SC 1
[2] The petitioner, who is a Nigerian national, arrived in the United Kingdom on or around 29 April 2012 and claimed asylum shortly thereafter on the grounds that she was a victim of sexual trafficking from Nigeria to the United Kingdom. She had a screening interview on 30 May 2012 and her application was refused. She appealed that decision to the First-tier Tribunal (FTT). At the hearing on 21 October 2013 the petitioner gave evidence and evidence was also led from a clinical psychologist, Dr Copstick who spoke to a neuropsychological assessment carried out on 19 September 2013. There was also a report prepared by a psychiatrist on behalf of the petitioner.
[3] The principal issue before the FTT was the credibility of the petitioner and, in particular, whether her account of being a victim of sexual trafficking was to be accepted. The FTT rejected her evidence and gave reasons for that at paragraphs 80 - 94 of the determination. The Tribunal accepted that the petitioner suffered from post-traumatic stress disorder as diagnosed by the psychiatrist but rejected her account of how she came to enter the United Kingdom because she had been inconsistent in a number of respects in the detail of her evidence. She had entered the United Kingdom in what she claimed to be a false passport in a false name and she claimed that that identity was given to her by her trafficker. When she initially claimed asylum she claimed a date of birth of 10 July 1996 whereas the visa applications provided a date of birth of 14 July 1984. A formal age assessment had found her to be substantially above the age of 18. She had been inconsistent on the number of times she had been fingerprinted, how many times she actually applied for a visa and the number of times she attended for a visa at the appropriate office. Her visa application described her occupation as "banking, marketing officer". In evidence she claimed that that was false and that occupation was one of the details provided to her by her trafficker in Nigeria.
[4] The evidence of Dr Copstick, the psychologist, was to the effect that her mental age was substantially below her physical age. She could not perform intellectual tests more than someone of about 10 or 11 years of age in UK terms. The psychologist considered that her answers and behaviour were consistent with someone who had a mental age of someone in the UK of about 7 to 11 years. The conclusions of the report find that she had very poor language ability "for a woman of her age" and had difficulty expressing herself. She had difficulty with times and dates and had poor verbal memory for new information.
[5] At paragraph 85 of the determination the FTT states that it carefully considered the conclusions of the psychological report and the fact that she had little understanding of the calendar and time and that her "cognitive capabilities may not be developed". The Tribunal was satisfied that she was not who she claimed to be in her evidence nor was she the age she claimed to be. It was satisfied that she had not been trafficked to the United Kingdom but accepted that she suffered from post-traumatic stress disorder.
[6] The petitioner applied for permission to appeal first to the First-tier Tribunal. She advanced a number of grounds of appeal. Under the heading ground 1 there are two paragraphs. Paragraph 5 is directed to the FTT's findings in relation to the number of visa applications the petitioner had made and criticises the Tribunal for failing to set out what discrepancies it considered existed in her evidence in respect of that matter. In paragraph 6 it is stated that the decision failed to take account that the petitioner had a mental age of between 7 and 11 years of age and references made to Dr Copstick's report. Ground 2 at paragraph 7 is to the effect that, in criticising the petitioner's inconsistency in relation to her date of birth and age, the Tribunal failed to take account of Dr Copstick's report which had a direct bearing on the assessment of credibility. Paragraph 8 further criticises the Tribunal's determination in relation to the discrepancies as to how many times she attended to have photographs or fingerprints taken. Again, it is said that there is "no appreciation of the exceptional circumstances of this applicant's mental age and (in)ability" (sic).
[7] In the refusal of permission to appeal (6/2 of process), the First-tier Tribunal's decision dated 29 November 2013 deals with ground 1 in the following terms:
"Ground 1 asserts the judge failed to give reasons for finding the appellant's account was inconsistent as to the number of times she had been fingerprinted. This issue was raised in paragraph 28 of the respondent's reasons letter which rehearsed why it was considered there was an inconsistency. It appears from the Tribunal file that this alleged inconsistency of which the appellant was aware was not addressed."
Grounds 2 and 3 are dealt with in the same paragraph to this effect:
"Grounds 2 and 3 refer to the issue of the appellant's age. The judge had before her a 'Merton compliant' age assessment. Dr Copstick had seen the report of Dr Kathuria (the psychiatrist) and so was aware of the issue of the disputed age which is expressly referred to on the front sheet of the latter report in large type. Neither expert makes a finding on the appellant's age. The judge was entitled to rely on the Merton compliant age assessment. In the light of the information in the Tribunal file the judge was entitled to treat the appellant's physical age as having little correspondence with her mental age."
[8] The First-tier Tribunal judge concluded that none of the grounds disclosed any arguable error of law and permission to appeal was refused.
[9] The petitioner then applied for permission to appeal to the Upper Tribunal by letter dated 6 December 2013 (6/3 of process). The letter, which enclosed the original application for leave to appeal, also made further submissions to the effect that the FTT determination failed to take proper account of additional evidence. The Upper Tribunal judge in a notice dated 17 December 2013 (6/1 of process) adopted the reasons for refusal of permission to appeal of the First-tier Tribunal judge. It referred to the grounds of appeal before that judge and to the letter dated 6 December 2013. The Upper Tribunal judge went on to say:
"The assessment of credibility in an asylum case is seldom easy, and two conscientious judges might come to opposite conclusions on the same evidence without falling into legal error. I cannot say that the judge here left relevant evidence wholly out of account, such as to constitute an error of law. It seems to me that Judge Clapham (the First-tier Tribunal judge who issued the original determination) was rationally entitled to reach the conclusion she did for the reasons she gave."
The Submissions
[10] Mr Byrne submitted that the test in Eba was met in this case in that there is a compelling reason advanced in the petition for judicial review of the Upper Tribunal decision to refuse permission to appeal. That was because the Upper Tribunal had failed to address and engage with a discrete ground of appeal before it which is contained in paragraph 6 of the application (6/3 of process). That ground had also been before the FTT at the permission to appeal stage. The Upper Tribunal had adopted the FTT's reasons for refusing permission to appeal which itself had not addressed paragraph 6. The further reasons given by the Upper Tribunal failed to address the matter and accordingly...
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In The Petition Of M.j. (ap) For Judicial Review Of A Decision By The Upper Tribunal
...the Eba test. Consideration of the grounds stated [9] Reference was made to the case of QE v Secretary of State for the Home Department [2014] CSOH 53, in particular at paragraphs [10], [11], [15], [21], [23] and [26]. In QE, the argument now presented by the petitioner had been considered.......