Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 142
P225/11	OPINION OF LADY CLARK OF CALTON in the Petition of BM (AP) Petitioner; for Judicial Review of a decision notified on 27 January 2011 by the Upper Tribunal (Immigration and Asylum Chamber) to refuse the petitioner permission to appeal ­­­­­­­­­­­­­­­­­________________

Petitioner: Devlin; Drummond Miller LLP

Respondent: Webster, Office of the Advocate General

4 September 2012

Summary

[1] The petitioner is a national of Uganda who claimed asylum (along with his first wife as his dependent) on 8 June 2010. Asylum was refused on 29 June 2010. A hearing before the First-tier Tribunal (Immigration and Asylum Chamber) took place in September 2010. On 2 November 2010, the immigration judge dismissed the asylum appeal and appeals in relation to humanitarian and human rights protection (6/2 of process). Thereafter the petitioner exhausted his appeal rights.

History of proceedings

[2] On 27 January 2011 the Upper Tribunal (Immigration and Asylum Chamber) (hereinafter referred to as the Upper Tribunal) refused to grant the petitioner permission to appeal against a decision of the First-tier Tribunal. The petitioner sought to judicially review the decision of the Upper Tribunal.

[3] In the grounds of appeal (6/3 of process) which were considered without an oral hearing by the First-tier Tribunal, eleven grounds of appeal are set out. Ground 10 states:

"Further reference is made to paragraph 92 and 93 of her determination, where Immigration Judge states: 'I find that the appellant's wife EM was attacked, beaten and raped in Uganda.' Yet the Immigration Judge fails to give adequate reasoning as to why she dismissed the appellant's wife's corroborated account and finds that the injuries sustained were not incurred as a result of the claimed incident."

These eleven grounds are dealt with in two short paragraphs by the First-tier Tribunal. No reasoning is addressed in particular to ground of appeal 10. Permission to appeal to the Upper Tribunal was refused (6/5 of process).

[4] The application to appeal to the Upper Tribunal refers only to ground 10 subject to "further amplification" as set out in 6/4 of process. The Upper Tribunal considered it unnecessary to hold an oral hearing of the application for permission to appeal. The Upper Tribunal refused permission to appeal. The following reasons were given:

"The judge summarises the respective submissions of the parties and refers to the Medical Report at paragraphs 52 and 58 of the determination and in the latter paragraph to particular paragraphs within that report drawn to her attention by the representatives. She includes a reference to the report in paragraph 61 at the start of the part of the determination where she makes her findings of fact.

There is no indication that she had made up her mind about credibility prior to reading the report.

The immigration judge's negative credibility appears to me to be amply reasoned. It was not in contention between the parties (see paragraph 52) that the appellant had suffered mistreatment but the circumstances were in contention and having properly surveyed the evidence the judge reached conclusions open to her. It was not arguably a case of putting the cart before the horse in my view and the determination is not vulnerable for the reason identified in Mibanga [2005] EWCA Civ 367. I do not find the judge was unduly dismissive of the report or failed to give it proper scrutiny. The determination is comparatively lengthy and on the whole buttressed by reasoning not lacking in cogency and it is clear that the judge took pains over it."

It should be noted that there is an obvious error in the third paragraph of the reasons given by the Upper Tribunal. It was not the appellant (now the petitioner) who suffered "mistreatment" but the petitioner's first wife. This error may or may not be a failure to note a typographical error by the Upper Tribunal. A failure with which I have considerable sympathy. It does mean however that there is a lack of clarity in the decision of the Upper Tribunal and I will consider the implications of that later.

[5] The first hearing in respect of the petition for judicial review and answers commenced before me in January 2012 but was not completed. There was some delay in fixing another date as it was considered appropriate to await a decision of the Inner House now reported as KP v Secretary of State for the Home Department [2012] CSIH 38. On 12 July 2012, the hearing resumed before me. On that date, at my request, counsel for the petitioner lodged written submissions (14 of process). Counsel for the respondent lodged a further written outline argument (15 of process). His original note of argument (13 of process) was described by him as a "generic note" which set out the general legal principles to be applied. I understand that this "generic note" formed the basis of the submissions made on behalf of the respondent in a case heard before Lord Brodie which is now reported as AKA v The Secretary of State for the Home Department [2012] CSOH 86. I am grateful to counsel for their assistance. The oral submissions were based on the written submissions.

Submissions by counsel for the petitioner

[6] Counsel addressed me firstly on the test the court should apply in determining whether to grant judicial review following Eba v Secretary of State for the Home Department (2011) 3 WLR 149. He conceded that the present case did not raise an important point of principle or practice of the type referred to in Eba. He sought to argue that there was some "other compelling reason" to justify the court in exercising its supervisory jurisdiction in relation to the unappealable decision of the Upper Tribunal and on that basis to bring the petitioner within the Eba principles. Under reference to Lord Hope DPSC at page 162, counsel submitted that:

"some other compelling reasons" 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."

Counsel also referred to R (Cart) v Upper Tribunal (Public Law Project Intervening) (2011) 3 WLR 107, Lady Hale SCJ at page 125G where she defined "some other compelling reason" as:

"capable of encompassing both the important point of principle affecting a large number of similar claims and the compelling reasons presented by the extremity of the consequences for the individual"

Lord Dyson at page 148A-C accepted, under reference to PR (Sri Lanka) and others v Secretary of State for the Home Department (2011) EWCA Civ 988, that merely because a case related to asylum issues did not make it "compelling". Counsel also referred to Carnwath LJ who stated that:

"...however, as we read the judgment as a whole, such matters were not seen as constituting a free standing test. In other words 'compelling' means legally compelling, rather than compelling, perhaps from a political or emotional point of view, although such considerations may exceptionally add weight to legal arguments"

[7] Counsel developed his submissions in relation to JD (Congo) and others v Secretary of State for Home Department and another (2012) EWCA Civ 327 and referred in particular to the judgment of Sullivan LJ at paragraphs 26 and 27.

[8] Having analysed the authorities, he submitted that "legally compelling" means "a strongly arguable error of law" or "a sufficiently serious legal basis for challenging the Upper Tribunal's decision". He submitted that a court must first consider whether there is a clear or plain error of law. If so, the court must consider whether the error provides a sufficient basis for overturning the Upper Tribunal. An error will provide a sufficient basis for overturning the Upper Tribunal if it is strongly arguable. In determining whether an error is strongly arguable, the court must have regard not only to the merits of the argument, but also to the risk to the asylum seeker if the Upper Tribunal's decision is wrong.

[9] Counsel then developed his submission in relation to the facts of the case. He submitted that the immigration judge had erred in law in that she failed to consider the medical report as an integral part of the decision making process. He prayed-in-aid Mibanga v Secretary of State for the Home Department [2005] INLR 377; HH (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 306; and NT (Togo) v Secretary of State for the Home Department [2007] EWCA Civ 1431.

[10] Counsel then analysed in detail the findings of the immigration judge at paragraphs 64 to 90 of her determination. He accepted that the immigration judge had dealt with the medical report but stated that the immigration judge "had looked at it through the wrong end of the telescope". He submitted that the immigration judge tested the medical report against the country background information and previous findings and concluded that she could only accept the report in so far as it could stand consistently with the said information and findings. Counsel submitted that this illustrated that the immigration judge had fallen into the same error as was identified in Mibanga. As a way to check whether the immigration judge has fallen into such error, counsel referred to S v Secretary of State for the Home Department (2007) Imm AR 7, Ricks LJ at page 14.

[11] Under reference to paragraphs 32 to 44 of his written submission (14 of process), counsel developed his detailed criticisms. In conclusion he submitted that when looked at in the round, it is strongly arguable that the immigration judge erred in law in that she failed to consider the medical foundation report as an integral part of her credibility findings and treated it as a mere add on. This error in law "leapt off the page" and should have been obvious to the appellate tribunals who also obviously erred in law in their decision making.

Submissions by counsel for the respondent

[12] Counsel set out in detail in his note of argument (13 of process) recent developments in the law under reference to Eba v Secretary of State for the Home Department (2011) 3 WRL 149; R (Cart) v Upper Tribunal (Public Law Project ) 2011 3 WLR 107; PR (Sri Lanka) and others v Secretary of State for the Home Department (2011) EWCA Civ 988. He further submitted that the effect of KP v Secretary of State for the Home Department (2012) CSIH 38 did not undermine the general principles in the aforesaid cases. I was also referred to AKA v Secretary of State for the Home Department (2012) CSOH 86.

[13] Counsel referred to the concession on behalf of the petitioner that there are no important points of principle or practice raised in the petition. The petitioner therefore required to satisfy the court that there was "some other compelling reason" to grant judicial review. He submitted that the court should give due weight to the word "compelling". He accepted the formulation in Eba per Lord Hope of Craighead DPSC which had been referred to by counsel for the petitioner.

[14] Counsel submitted that due consideration by the court at the judicial review stage should be given to the petitioner's case insofar as it was based on ground 10 which had been the only ground submitted to the Upper Tribunal. He submitted that insofar as the petitioner now sought to rely upon other grounds which had not been founded upon before the Upper Tribunal, the court should be slow to consider new grounds. A failure to found upon the grounds before the Upper Tribunal might itself be a good reason for not granting judicial review. He referred to Uphill v BRB (Residuary) (Limited) (2005) 1 WLR 2070 per Dyson LJ at paragraph 24.

[15] Counsel submitted that the attack on the reasoning of the immigration judge was misplaced. He accepted that some of the reasons were less compelling than others. The reasoning process must be taken as a whole and the approach of the immigration judge was sound. The immigration judge was entitled to consider the evidence of the petitioner and his first wife in the round under reference to Tanveer Ahmed v Secretary of State for the Home Department [2002] Imm AR 318. Counsel referred in detail to the reasoning of the immigration judge and submitted that it followed a logical progression. The immigration judge plainly had regard to the medical evidence and made findings based on that medical evidence. The immigration judge was entitled to reach a view about the credibility of the petitioner and his first wife in relation to the circumstances in which she had suffered the injuries referred to in the medical report.

[16] Under reference to paragraph 12 of his written outline argument (15 of process), counsel dealt in detail with the criticisms in the petition in paragraphs 9, 10, 12, 15, 16, 18 and 21. He submitted that the issues referred to had not been founded upon before the Upper Tribunal. In any event they were all matters which the decision maker was entitled to take into account in reaching a view which cumulatively bore upon credibility. No errors were identified individually or cumulatively which would justify judicial review.

[17] Finally counsel drew attention to paragraph 94 of the decision of the immigration judge (6/2 of process). He submitted that, in any event, even if the immigration judge had erred, her conclusion was sound bearing in mind that there were amnesty provisions now in place.

[18] Counsel submitted that when properly analysed, the immigration judge was well entitled to reach the conclusion which she did. The First-tier Tribunal had properly considered all the eleven grounds of appeal and there was no error of law or irrationality in their decision. Further the Upper Tribunal having considered the restricted grounds, as amplified, which were founded on by the petitioner had reached a conclusion which in law they were entitled to reach for the reasons given.

Discussion

Grounds for intervention in judicial review

[19] The case was presented to me by both counsel on the basis that the issue in the present case could not be considered one of general importance. Both counsel accepted that the correct approach was as formulated per Lord Hope of Craighead DPSC in Eba at paragraph 48 in his second category which "... 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". In paragraph 22 of AKA Lord Brodie asks an important question which I adopt:

"If then Eba effected a change in the extent to which it is open to the Court of Session to review a refusal of permission to appeal by the Upper Tribunal by importing the second-tier appeals test from England the question remains as to how that test is to be understood and how it is to be applied in the present case."

He then considers the difficulties with this in paragraphs 23 to 30. Lord Brodie appears to conclude that "plainly wrong" falls to be understood in the context of the sort of limited consideration to be expected in a procedure such as that outlined in paragraph 49 of Eba, that is a judge carrying out a paper exercise on the basis of various documents including written submissions. He appears to consider that as a necessarily limited exercise, perhaps of the type undertaken by the Upper Appeal Tribunal in the present case which was a paper exercise. I find some difficulties with that conclusion. In cases with the potential harmful and sometimes fatal consequences which may occur in asylum cases, I consider that any examination by a judge, at whatever level and whether on paper or not, requires to be both detailed and very careful. The exercise may be rendered more difficult because the judge does not have the assistance of oral submissions. No doubt in some cases where the grounds are manifestly ill-founded, the exercise may not take much time or require much analysis. That however has not been my experience of asylum and immigration cases which often require difficult analysis and a serious understanding of the law to give proper consideration to the issues. At present in Scotland we do not have a system which is designed as a paper exercise to be carried out by judges. The assistance of counsel is often critical in assisting the judge to a proper conclusion in some cases. I am of the opinion that at whatever level a decision is reviewed, that is an onerous task for the judge or judges who are entrusted with that task.

[20] I have been so entrusted in the present case and I have had the advantage of both oral and written submissions presented by counsel. I do not think that the answer to whether the decision of the Upper Tribunal was perverse or plainly wrong can depend on whether one or more lower tribunal judges thought the decision was acceptable or whether counsel for the Secretary of State is capable of presenting a good and attractive submission. Such a submission may obscure for a time that the decision is perverse or plainly wrong. But having considered all the information the judge requires to come to a decision. I accept that not every error of law, however minor and tangential, would lead to a successful judicial review. It is not my understanding that was the law prior to Eba. I am of the opinion, however, that if a judge concludes that a decision going to the heart of the merits of the case is perverse or plainly wrong in a situation relating to the petitioner's own facts and circumstances, that seems a compelling reason to me for giving a remedy in the situation where the potential consequences of enforced return to the Country of Origin for example involve risk of death or injury. It may be that the principles which are to be applied will become clearer with the development of case law. In the present case, I will do my best to apply the principles expressed by Lord Hope, bearing in mind the context in which he expressed these principles.

Analysis of the decision making

[21] The starting point for consideration is the decision of the Upper Tribunal which notes that the immigration judge refers to the medical report at paragraph 61 at the start of the part of her determination where she makes her findings of fact. The Upper Tribunal conclude that the immigration judge's negative credibility appears to be amply reasoned. I have difficulty with this conclusion because it is not clear whether the Upper Tribunal is referring to the credibility of the petitioner and/or his first wife. As I have noted above, the Upper Tribunal has mistakenly recorded "that the appellant has suffered mistreatment" and refers to the immigration judge reaching conclusions about the circumstances in which that was incurred. It is also not clear from the decision of the Upper Tribunal whether the Upper Tribunal has focused on the reasons given by the immigration judge for rejecting the credibility of the appellant's first wife in the context of the medical evidence. The Upper Tribunal does not express any particular reasons supportive of the reasoning of the immigration judge. The comments are in general terms to the effect "the determination is comparatively lengthy and on the whole buttressed by reason not lacking in cogency and it is clear that the judge took pains over it". There is no analysis of the reasoning of the immigration judge. In my opinion in order to consider the soundness of the approach and reasoning of the Upper Tribunal, it is necessary to look in detail at the reasoning of the immigration judge.

[22] When I attempted that exercise, even with the able assistance of counsel for the respondent, I came to the conclusion that the reasoning and findings of the immigration judge are impossible to understand even with prolonged detailed analysis. My reading of findings 61 to 93 which deal with credibility and the reasons for the decision of the immigration judge left me unable to understand the reasons for the critical findings in paragraph 64 in which the immigration judge states: "I found the appellant and his wife to be lacking in credibility and to be inconsistent witnesses in certain important areas of their accounts." In reading paragraphs 64 to 93, one should reasonably expect to find some reasons to explain why the petitioner's first wife is found to be lacking in credibility, what are the inconsistencies found between the two witnesses (the petitioner and his first wife) and in what respects they are considered to be important all as promised by the immigration judge in paragraph 64. Despite spending a lengthy period considering this and having the assistance of counsel for the respondent seeking to explain the reasoning process, I confess a complete failure to understand. The immigration judge proves capable of making sweeping criticisms about the lack of credibility but unfortunately I am unable to understand the basis for that from the findings set out in 6/2 of process.

[23] At the heart of this case there are allegations from two witnesses, the petitioner and his first wife, about events which are said to have commenced in May 2004. This is summarised in paragraph 16 of 6/2 of process. The petitioner, having allegedly witnessed government soldiers shooting, torturing and raping villagers, described events in the immediate aftermath. These events resulted, he said, in the brutal murder of his second wife and horrendous consequences for his first wife all caused by the brutality of government forces. Neither the petitioner or his first wife were a direct witness to the murder of the second wife. Both the first wife and to some extent the petitioner spoke to the consequences suffered by the first wife which included brutal assault, terrible threats, multiple rapes and stab wounds in part to obtain information about the whereabouts of the petitioner. The petitioner's first wife described these events in her evidence and the petitioner gave evidence about seeing the armed men leave his house and finding his first wife seriously injured in a pool of blood. She required hospital treatment. Their evidence was to the effect that thereafter, as a result of these atrocities and their fears for their family safety, they ended up seeking refuge with rebel forces from the LRA who sheltered them. They feared not the LRA but government forces. Thereafter they said they experienced nomadic life with LRA forces for 6 years until the political situation further deteriorated as did the health of the petitioner's first wife. They said they left the LRA and had a long and difficult journey away from the LRA. Eventually, with the assistance of some members of the petitioner's family they escaped on false passports to the UK where the petitioner claimed asylum with his first wife.

[24] After the refusal of the asylum claim, the petitioner's first wife was examined at the Medical Foundation. The qualifications and experience of the doctor who carried out the examination are set out in Appendix A (6/6 of process). The petitioner's first wife gave a detailed history of events about the circumstances of the alleged attack in May 2004. From the many and varied injuries which the doctor records in 6/6 of process, the doctor provides an interpretation at paragraphs 58 to 71. I do not detail the many injuries detected but they include injuries at S11 (lateral to the buttock) and S32 on the inner thigh close to the vulva. I note that S32 is considered to be diagnostic of torture. Torture is part of the claim by the petitioner's first wife as the events she describes are illustrative of torture to reveal the whereabouts of the petitioner. She said that she disclosed to her attackers that the petitioner was with his second wife in Kilak. S11 and S17 are described as typical of a stab wound and S9 and S10 as typical marks of deliberate beating. The groupings of S19 to S23, S25 to S27, s29 to S31 and 34 are described as highly consistent with the petitioner's first wife having been beaten or dragged over stony ground. The doctor makes other conclusions including support for rape having occurred. The doctor finds continuing symptoms of PTSD suffered by the petitioner's first wife and considers that the most likely cause is her experience of torture which drives the symptoms of PTSD. The medical report concludes injury S32 is diagnostic of torture and there is also evidence to the effect that some of the injuries are highly consistent with the account of the petitioner's first wife.

[25] There is no suggestion in this case that either the petitioner or his wife were cross-examined on behalf of the respondent on the basis that these injuries were caused by domestic violence or by some random arbitrary mob involved in ethnic violence. This is the competing theory however accepted by the immigration judge.

[26] I turn now to consider further how the immigration judge deals with the lack of credibility of the petitioner's first wife as she set out to do in her findings at paragraph 64. There is no mention in the decision letter (6/2 of process) of the credibility of the petitioner's first wife until some passing references in paragraphs 79 and 80. In paragraph 79 it is stated that: "there is no satisfactory explanation why the appellant and his wife sought refuge with the LRA for 6 years rather than move to say Kampala." The immigration judge records the evidence of the petitioner's first wife at paragraphs 36 to 49. In that evidence the petitioner's wife has explained the atrocities from which they were fleeing and their dependence on the rebels. She also said that even when they eventually obtained help from the petitioner's family in 2010, they were advised to hide because they had evidence against the government. Now this explanation may or may not be satisfactory. Much might depend on the Country of Origin information about the state of the country. The immigration judge however does not explain why the explanation given is not satisfactory. She does not refer to any contrary information which would make such testimony incredible. It merely appears to be an unsupported assertion by the immigration judge that she does not find it credible but no particular reason is given for that.

[27] The next mention of credibility of the petitioner's first wife is in paragraph 92. I consider that considerable support is given to the credibility of the first wife in that paragraph. The immigration judge finds that the petitioner's first wife "was attacked, beaten and raped in Uganda." She states that she has read with care the report 6/2 of process. She does not state whether her conclusions were in any way informed by that report.

[28] In paragraph 92 having found that the petitioner's first wife was attacked beaten and raped in Uganda, the immigration judge states "Such an attack is supported by the objective country evidence that there is 'a continued high prevalence of gender based violence, particularly domestic violence...'". She also refers to the US State Department Report 2009 at page 90 of the bundle which refers to "arbitrary and politically motivated killings...mob and ethnic violence...". I find it difficult to understand paragraph 92. The immigration judge appears to draw some corroboration from the accounts of general violence referred to in said reports to support the particular violence in this case. But the support for the petitioner's first wife does not rest in these general reports. The support is to be found in the testimony of the petitioner, the petitioner's first wife and the medical evidence in 6/6 of process. The immigration judge does not say what she accepts or rejects about the medical evidence or why. She says nothing about the finding of torture. It is not clear whether she accepts or rejects that evidence which one might reasonably consider to be important in this case. What the immigration judge appears to conclude is that because there are alternative explanations (domestic violence or random ethnic violence) for violence and rape occurring in Uganda, that is good reason to reject the petitioner's first wife account of the circumstances. I cannot follow the logic of such reasoning, particularly where there is no evidence relating to the circumstances of the present case that, for example, this may be a case of domestic violence.

[29] The testimony of the petitioner and his first wife is that the violence was by government forces in the circumstances described by the petitioner's first wife. Obviously in some cases the Country of Origin information or other information in a particular case may be to the effect that government forces were not involved in violence against citizens at the relevant time. But there is no such information relied on by the immigration judge in this case to reject the oral testimony of the petitioner and his first wife.

[30] With that analysis, the immigration judge then reaches her conclusion in paragraph 93 and states "However, even applying the low standard of proof I do not believe that she was attacked in the circumstances she claims". I can only say that I am left bewildered by this analysis.

[31] In paragraph 64, the immigration judge states that the appellant and his first wife were inconsistent witnesses in certain important areas of their accounts. That issue appears to be considered in paragraph 90. The immigration judge states that their explanations as to how Mr O knew that the appellant's second wife had been beaten to death were inconsistent. This is a reference to hearsay evidence as to what Mr O said to the petitioner and to the petitioner's wife. The oral evidence and the context is not recorded and it is impossible to determine whether there was any inconsistency. It is not clear whether Mr O was said to have had a conversation about this with the petitioner on the same occasion as with the petitioner's wife or on different occasions. Much may depend on what, if anything, Mr O said. In any event bearing in mind the passage of time and the peripheral nature of the circumstances in which Mr O found out about the death of the petitioner's second wife, this is a point which could be regarded as having no significance even if it was possible to determine whether there was an inconsistency.

[32] The only other criticism made of the appellant's wife by the immigration judge is in paragraph 89. She states that the appellant's wife's explanation in oral evidence was vague and unpersuasive about lack of contact with her children. As there is no record of what this evidence is, it is difficult to comment on. She also notes that the petitioner and his first wife gave different details of the school they thought their children attended or last attended. Again there is no record of what was said in oral evidence. It is also entirely unclear as to whether the immigration judge takes into account that there are two sets of children, the children of the petitioner from his second wife and the children of the petitioner from his first wife. Both sets of children appear to attend different schools. It is not at all clear whether the immigration judge is identifying some difference about schooling in relation to the children of the petitioner and his first wife as distinct from the petitioner's children with his second wife.

[33] Counsel for the respondent made a valiant effort to support the reasoning of the immigration judge. I was referred to the criticisms made by the immigration judge of the petitioner's evidence. It should be noted however that the immigration judge in this case does not seek to justify her rejection of the evidence of the petitioner's wife on the basis that she must be incredible because the appellant is incredible. If she had done so I consider it would be necessary to examine her reasoning about that.

[34] We have in this case a woman who the immigration judge accepts as a victim of terrible violence and rape. The victim has described that and the context to the immigration judge. We are told by the immigration judge that the victim is found to be incredible about the circumstances. In my opinion the reasons given by the immigration judge are plainly inadequate and perverse. The petitioner's first wife is a victim of terrible trauma and, according to the medical evidence, torture. The immigration judge does not even address the issue of the medical evidence about torture which may of course have a bearing on the credibility of the petitioner's first wife bearing in mind her evidence about what she said occurred. The least the petitioner's first wife deserves as a witness in the tribunal and court system is to have her testimony about how the events occurred be given due consideration. If her account is to be rejected rational comprehensible reasons should be given. The petitioner who offers his first wife as a witness also deserves no less. I have no hesitation in concluding that the Upper Tribunal is plainly wrong and that their reasons for refusing an appeal do not survive scrutiny. The immigration judge in this case in my opinion has fallen into serious error in her assessment of credibility of the petitioner's first wife and I consider that should have been obvious to the Upper Tribunal. That in my opinion impacts upon all her decision making about credibility.

[35] I have concentrated my attention on ground of appeal 10. I would be reluctant to entertain resurrected grounds of appeal at judicial review which had not been pursued to the Upper Tribunal. Were it not for ground 10, I might not be prepared to look at this decision any further. The difficulty is that to some extent the decision making process and reasons which relate to ground 10 have to be seen in the wider context of the decision making process which is what I have attempted to do. I do not propose to say much about the respondent's assessment of the petitioner as these matters were not challenged before the Upper Tribunal. The discussion before me plainly indicated that such a challenge is certainly stateable but, as the Upper Tribunal were not invited to deal with that, I shall make no further comment.

[36] In conclusion I note that the Upper Tribunal do not pray-in-aid the immigration judge's reasoning in paragraph 97. Counsel for the respondent sought to pray it in aid in the proceedings before me. I consider that the immigration judge is plainly wrong in her conclusion. The legislation, the Amnesty Act 2000, which was produced to me, is not designed to cover innocent witnesses or victims. The Act does not extend to such persons. It is designed to give an amnesty to various categories of persons who have actually participated in combat, collaborated with the perpetrators of the war or armed rebellion, committed any other crimes in the furtherance of the war or armed rebellion or assisted or aided the conduct or prosecution of the war or armed rebellion. While it may be true that innocent victims may have witnessed atrocities the legislation is not framed to give them amnesty. It is plain that the Act is not designed to extend to innocent witnesses and victims. In my opinion the Amnesty Act 2000 is no answer to any difficulties which the petitioner and petitioner's wife might face if returned to Uganda.

[37] I therefore repel the pleas-in-law for the respondent, uphold the plea of the petitioner and grant the petitioner permission to appeal to the Upper Tribunal.