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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edwards, Re a Decision Of The Asylum & Immigration Tribunal [2006] ScotCS CSIH_31 (25 May 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_31.html
Cite as: [2006] CSIH 31, [2006] ScotCS CSIH_31
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Macfadyen

Lord Kingarth

Lord Kirkwood

 

 

 

 

 

 

[2006] CSIH 31

XA105/05

 

OPINION OF THE COURT

 

delivered by LORD MACFADYEN

 

in

 

APPLICATION FOR LEAVE TO APPEAL

 

under

 

Section 103B of the Nationality Immigration and Asylum Act 2002

 

by

 

JAQUELINE VIVIENNE EDWARDS

Appellant;

 

against

 

A decision of the ASYLUM AND IMMIGRATION TRIBUNAL dated 12 September 2005

 

_______

 

 

 

Act: Forrest; Drummond Miller

Alt: Lindsay; C. Mullin

 

25 May 2006

 

[1] This is an application for leave to appeal against a determination of the Asylum and Immigration Tribunal dated 12 September 2005.

[2] The applicant is a Jamaican national who came to the United Kingdom in 1999 to attend her father's funeral. She subsequently applied for asylum. That application was initially refused. An adjudicator, on appeal, refused the asylum appeal and declined to make a decision on the applicant's alternative claim under Article 3 of the European Convention on Human Rights. On further appeal the latter part of the adjudicator's decision was held to be in error and the matter was remitted to the Asylum and Immigration Tribunal to consider the Article 3 claim, on the basis of the findings in fact made by the adjudicator, so far as they dealt with the issues which arose in connection with the Article 3 claim.

[3] The Asylum and Immigration Tribunal rejected the appeal on the Article 3 claim and refused permission to appeal to this court. The matter now comes before us on an application for such permission. It is not disputed that the test for us to apply is whether the appeal has real prospects of success or whether there are other compelling reasons why the appeal should be heard (Hoseini v The Secretary of State for the Home Department 2005 S.L.T. 550).

[4] The first point made on the applicant's behalf is that the Asylum and Immigration Tribunal has fallen into error by substituting findings in fact of its own for those made by the adjudicator. That point is made by reference to three separate aspects of the findings. They are set out in paragraphs 3.1.1, 3.1.2 and 3.1.3 of the application. We do not require to set out in detail what these individual aspects were. We are not persuaded that in any of them the Asylum and Immigration Tribunal is properly to be regarded as having made findings of its own, contradictory of those made by the adjudicator. On the contrary, what the Tribunal did was to interpret for itself the findings narrated by the adjudicator. They did so, in our opinion, in a way in which they were entitled to do.

[5] The Tribunal's findings were to the effect that the applicant had not shown that she was at real risk of such treatment by the drugs gang in Jamaica mentioned in her evidence as would, if the authorities there did not protect her adequately, infringe her Article 3 rights. If that is so the Article 3 claim fails. We do not consider that the applicant has real prospects of success in maintaining that the Tribunal erred in its treatment of this aspect of the claim.

[6] The second ground of appeal relates to the issue of sufficient protection by the Jamaican authorities. The ground, as originally formulated, proceeded on what counsel ultimately recognised was a misunderstanding of what the Tribunal had done. Much of the ground was not insisted in. What remained of it was said to be relevant to the third ground of appeal which we allowed to be added by amendment in the course of the hearing. The added third ground of appeal also related to the question of adequate protection. If the finding that the applicant was not at real risk of harm from the drugs gang in Jamaica stands, the issue of adequate protection does not arise.

[7] In all the circumstances, therefore, we are of opinion that the appeal has no real prospects of success and that there is no other compelling reason for it to be heard. We therefore refuse leave to appeal.

 

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