Scottish Court of Session Decisions

Petitioner: J J Mitchell QC, Forrest; Drummond Miller LLP

Respondent: Advocate General for Scotland: Lindsay QC; Office of the Advocate General

13 December 2011

[1] AB is a citizen of Iran whose application for leave to remain in the United Kingdom has been refused. This is an application on his behalf for judicial review of a decision of a Judge of the Upper Tribunal Immigration and Asylum Chamber dated 15 August 2011 in which he refused permission to appeal the decision of an Immigration Judge in the First-tier Tribunal dated 11 May 2011 to dismiss his appeal.

[2] AB was unsuccessful in his claim for asylum in 2005 and 2006. In 2006 he was convicted of indecent behaviour towards two teenage boys and was sentenced to seven months imprisonment. He made a fresh claim for asylum in 2008 in which he claimed that he would face persecution on return to Iran because he would be known as a sex offender and because he was a homosexual. After sundry procedure, which included judicial review proceedings, the Secretary of State rejected that claim on 28 March 2011. AB renewed the claim on appeal to the First-tier Tribunal. The Immigration Judge dismissed his appeal, holding (i) that there was no evidence to support his assertion that the United Kingdom authorities would inform the Iranian authorities about his conviction and (ii) that he had failed to prove to the lower standard of proof applicable in asylum cases that he was a practising homosexual.

[3] AB applied unsuccessfully to the First-tier Tribunal for permission to appeal that decision. In his application he challenged the second finding and argued that the Immigration Judge had failed to consider his criminal conviction and the social enquiry reports in the criminal proceedings as evidence of his homosexuality. The First-tier Tribunal rejected his application, holding that it raised no arguable error of law that might either lead to a different outcome or raise a question of general importance that the Upper Tribunal should consider. AB then applied to the Upper Tribunal on essentially the same grounds.

[4] The Judge of the Upper Tribunal in refusing permission to appeal gave the following reasons:

"1. The appellant is a citizen of Iran who claims to be a homosexual. The grounds argue that the Immigration Judge did not take into account his conviction for lewd behaviour towards two males when assessing the evidence and that he therefore erred in law. No challenge is made to any of the other findings.

2. The Immigration Judge did in fact take the appellant's conviction into account (paragraphs 22-23). Nevertheless it was open to him to find that the appellant was not a practising homosexual (for the reasons given), that he had a wife and children in Iran and that the authorities there would not be aware of his conviction. The grounds disclose no arguable error of law."

The Judicial Review Challenge and its amendment

[5] In the petition for judicial review counsel argued that the Upper Tribunal had erred because the First-tier Tribunal, while holding that AB was not a homosexual, had failed to take into account the possibility that the Iranian authorities might perceive him to be a homosexual. He averred that the United Kingdom government might make "proactive disclosure" of the criminal conviction to the Iranian government, which might as a result perceive him to be a homosexual. The First-tier Tribunal, it was averred, erred in law in not considering this possibility and the Upper Tribunal erred in law in failing to recognise that error.

[6] Mr Jonathan Mitchell QC, who appeared on behalf of AB, did not argue his case in the way in which it was presented in the petition. He stated that it was "fanciful" to suggest that the United Kingdom government would disclose the criminal conviction. He also accepted that the Immigration Judge in the First-tier Tribunal had been entitled on the evidence to conclude that AB was not a practising homosexual. He presented a succinct Minute of Amendment which raised the question whether the Iranian authorities might perceive AB to be either a homosexual or a criminal. He submitted that AB's lawyer had raised in his submission the possibility that AB would reveal his criminal conviction when questioned by the authorities on his return to Iran.

[7] It was not in dispute that AB would need to obtain a new passport or other travel document from the Iranian embassy in order to return to Iran and that people who could not show that they had left Iran legally would be sent for questioning before a court at the Imam Khomeini airport at Tehran. Mr Mitchell referred to various passages in the Iran Country of Origin Information Report ("COI") dated June 2011 which suggested that a person who had left Iran illegally would face a fine, that failed asylum seekers could be prosecuted for making up accounts of alleged persecution, that certain persons could be subjected to strenuous interrogation in detention and that it was not clear that Iran had a rule against double jeopardy. If AB were to be so interrogated and disclosed his criminal conviction, there was a substantial risk that he would be persecuted.

[8] At the heart of Mr Mitchell's submission was a paragraph in the decision of the Immigration Judge in the First-tier Tribunal in which he recorded part of the submission of AB's lawyer in the following terms:

"Mr McCusker submitted that the Appellant is at risk if he returns to Iran being known as a sex offender. He said that on return to Iran he would be questioned about his asylum claim as his travel documents will show that he is a failed asylum seeker. It is likely that during questions he will disclose his homosexual activities and would then be brought to the attention of the authorities."

He submitted that the Immigration Judge had clearly erred in law as he had failed to address this submission, which Mr Mitchell construed as meaning that the questioning of AB as a failed asylum seeker would give rise to the disclosure of both his criminal conviction and his homosexual activities. Mr Mitchell accepted that the issue of the outcome on questioning in Iran had not been addressed in the evidence before the Immigration Judge but said that all parties would be aware from the Country Guidance cases of BA (Demonstrators In Britain - risk on retrun) Iran CG [2011] UKUT 36 (IAC) (paras 33-37) and SB (risk on return - illegal exit) Iran CG [2009] UKAIT 00053 (paras 21, 28 and 47-49) that there was a likelihood that questioning would occur. The Immigration Judge by not addressing his mind to the likely outcome of the questioning which AB would face at Tehran airport had failed to address the case which Mr McCusker had made.

[9] Mr Mitchell also referred in this part of his submission to HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 and RT (Zimbabwe) v Secretary of State for the Home Department [2011] Imm AR 2 (CA). He submitted that the questions which the Immigration Judge should have addressed were (i) whether AB was realistically likely to be able to lie about his asylum claim and his criminal conduct and (ii) whether he was likely to get away with that untruth. By failing to address the likelihood of those matters the Immigration Judge had clearly erred in law and the Upper Tribunal should have recognised that.

[10] Mr Mitchell also made careful submissions on the proper approach to the second appeal test which the Supreme Court had laid down in Eba v Advocate General for Scotland 2011 SLT 768. But before I turn to that issue, I will address the question whether the applicant has established that the Judge of the Upper Tribunal erred in law.

Discussion

[11] The difficulty which AB faces in this application, as Mr Lindsay QC submitted on behalf of the Secretary of State, is that the point which Mr Mitchell seeks to raise was not raised in the applications for permission to appeal before either the First-tier Tribunal or the Upper Tribunal. As a result, the Judge of the Upper Tribunal will not have erred in law unless, in failing to address the point, he has overlooked an obvious point of Convention law which was favourable to the asylum-seeker: R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929. As Lord Woolf M.R. made clear in delivering the decision of the Court of Appeal in Robinson (at p.946), an obvious point is one which has a strong prospect of success if it is argued.

[12] I am not persuaded that the argument which Mr Mitchell advanced was an obvious point in this sense. First, it is clear from the documents placed before the Immigration Judge in the First-tier Tribunal and from his determination that the claim which AB made was that he would be persecuted in Iran because he was a practising homosexual and that the United Kingdom authorities had failed properly to address his sexuality. Secondly, it appears from paragraph 22 of the Immigration Judge's determination that the assertion which he was addressing was that AB would return to Iran as a convicted sex offender because the United Kingdom authorities would disclose his conviction. The letter dated 20 August 2008 from AB's solicitor to which the Immigration Judge referred in that paragraph supports this interpretation of the submission which the Immigration Judge was addressing as it spoke of AB "returning to that country as a convicted sex offender". The summary of Mr McCusker's submission, which I quoted in paragraph [8] above and which was not challenged, is consistent with that view. So also are the terms of the judicial review petition before it was amended. The argument which was advanced in support of permission to appeal both in the First-tier Tribunal and in the Upper Tribunal was not that rigorous interrogation would bring about the disclosure of both the criminal conviction and homosexual activity. Thirdly, while there are passages in the COI which suggest that some people can be exposed to rigorous interrogation on return to Iran, there are also passages which suggest that people who have exited Iran illegally normally pay a relatively modest fine for having done so and that failed asylum seekers are not persecuted simply for having claimed asylum. Fourthly, I was not pointed to any evidence which suggested that it was likely that AB would be subjected to such rigorous questioning and that it was likely that he would disclose either his criminal conviction or homosexual activities about which he had failed to persuade the United Kingdom immigration authorities.

[13] Until the decision of the Supreme Court in Eba provided authoritative guidance on the approach to judicial review applications from decisions of the Upper Tribunal, the test which the courts applied in dealing with a judicial review of an Upper Tribunal decision was whether the applicant had demonstrated that the Judge of the Upper Tribunal had fallen into an error of law which played a material part in his decision: see HA v Secretary of State for the Home Department 2008 SC 58. The Upper Tribunal when deciding whether to give permission to appeal considers whether the applicant for permission has a real prospect of success in his appeal as well as the materiality of the alleged error of law by the First-tier Tribunal. The court in reviewing the Upper Tribunal's decision bears in mind that that is the test which the Upper Tribunal has applied. In this context both counsel referred me to Hoseini v Secretary of State for the Home Department 2005 SLT 550.

[14] The petitioner has not satisfied me that the Upper Tribunal or the First-tier Tribunal has made any material error of law. The application therefore fails. It is therefore not strictly necessary to address the interesting submissions which counsel made on the correct application of the Eba test. But out of respect to those careful submissions I will summarise their content and comment briefly on them.

The Eba test: "some other compelling reason"

[15] Counsel agreed that the present application did not raise "some important point of principle or practice." Accordingly, the question which they had to address in the application of the Eba test was whether there was "some other compelling reason."

[16] Mr Mitchell submitted that second appeal criterion which the Supreme Court endorsed in Eba would not necessarily be interpreted in the same way in Scotland as it was in England and Wales. He pointed out that in Scotland, unlike in our sister jurisdiction, the Upper Tribunal did not apply a second appeal criterion: Eba, at paragraph 23. Secondly, he submitted that, unlike in English law, an applicant for judicial review in Scotland was entitled to have his application heard; the court did not exercise discretion as to whether to deal with a competent application: Eba, at paragraphs 27 and 44. Thirdly, the policy considerations, such as the burden on the Administrative Court in London, which may influence the exercise of discretion in that jurisdiction, did not apply with the same force in Scotland. Fourthly, he recognised that the court had always exercised restraint in its power of review of tribunals because it acknowledged the expertise of specialist tribunals. Fifthly, it was clear from Lord Hope's judgment in Eba, and in particular at paragraph 51, that he saw the second appeal criterion as adding little to the common law principle of judicial restraint which applied to those Scottish tribunals to which the second appeal criterion did not apply.

[17] He described the "some other compelling reason" test as protean because what might amount to a compelling reason would depend on the particular circumstances of each case. It was not in doubt that perverse decisions or a gross procedural irregularity which had deprived an applicant of a fair hearing would amount to compelling reasons. But the test was more liberal than that. If it were correct to see little difference in Scotland between the second appeal criterion and the restraint which the courts exercise in relation to challenges of the decisions of other tribunals, a compelling reason might amount to the existence of a strongly arguable case and also the gravity of the consequences to the individual applicant if the error of law were not corrected. The relative weight of those two factors in contributing to a compelling reason would vary from case to case.

[18] Mr Mitchell submitted that in this context it would be an error of law for the Scottish courts to adopt the approach of the Court of Appeal in PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 and treat the compelling reason criterion as giving rise to only an exceptional remedy. In particular, he attacked the judgment of the Court of Appeal for requiring (at paragraphs 35 and 36) very high prospects of success because the decision was perverse or otherwise plainly wrong or because of such gross procedural irregularity and for viewing the possibility of extreme consequences for the individual as being a consideration which only exceptionally could add weight to the legally compelling arguments. He submitted that this approach was not justified by the decision in R (Cart) v Upper Tribunal [2011] 3 WLR 107, [2011] UKSC 28. In any event, the policy considerations which pointed to that approach did not apply in Scotland.

[19] Mr Lindsay submitted that the approach in Scotland had been set out in Eba. Lord Hope's statement in paragraph 48 of his judgment that the concept of "compelling reason" 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"

gave a flavour of the general nature of the test. He accepted that the court could have regard to a number of factors, including the extreme consequences for the petitioner. The extremity of the consequences however was not a free-standing ground. The weight to be attached to particular factors depended on the circumstances of the individual case. But there had to be a legally compelling reason for the application and a strongly arguable case was not sufficient. He referred me to Uphill v BRB (Residuary) Limited
[2005] 1 WLR 2070 (CA), Dyson LJ at paragraphs 23-25, in support of the submission that the court's jurisdiction under the second appeal criterion was of a truly exceptional nature.

[20] The judgment of the Supreme Court in Eba is binding authority that this court should apply the second appeals criterion to applications for judicial review of unappealable decisions of the Upper Tribunal. In my opinion counsel were correct in their suggestion that what amounted to compelling reasons would depend on the circumstances of a particular case: Eba at paragraph 49(b). The Supreme Court has left it to the Court of Session to give further guidance. How far the second appeals criterion differs from the established common law practice of restraint, to which Lord Hope referred in paragraph 51 of the Supreme Court's judgment, is something which will have to be worked out in future cases. It is not appropriate that I should attempt to undertake that exercise in a case in which the point does not arise for determination because of my conclusion that there was no error of law. I therefore confine myself to two general observations. First, it appears to me that the differences in judicial review procedure between the two jurisdictions may result in nuances in the application of the criterion. Secondly, the practical need for a broadly similar standard as the gateway to the review of decisions in relation to United Kingdom tribunals, and in particular the need to avoid forum-shopping in immigration and asylum cases, supports the alignment of the scope of judicial review in the two jurisdictions (Eba, at paragraph 46) and militates against one jurisdiction adopting a radically different interpretation of the criterion.

Conclusion

[21] I therefore sustain the third plea in law for the respondent, repel the plea in law for the petitioner and refuse the orders sought in the petition.