Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 147
P950/10	OPINION OF LORD STEWART in the Petition of A H C (AP) Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) dated 12 August 2010 to refuse the petitioner leave to appeal and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: Winter, advocate; Drummond Miller LLP

Respondent: K Campbell QC; Office of the Solicitor for the Advocate General

11 September 2012

[1] Underlying this immigration judicial review is a substantive issue about the removal to Pakistan of Christian converts - apostates in the eyes of their former co‑religionists. There is also an issue about the limits of this Court's power, in the exercise of its common law supervisory jurisdiction, to review decisions of the Upper Tribunal in respect of which Parliament has excluded further appeals [Eba v Advocate General for Scotland 2011 SLT 768]. The decision which this petitioner seeks to bring under review is a decision of 12 August 2010 by a senior immigration judge of the Upper Tribunal (Immigration and Asylum Chamber) refusing the petitioner leave to appeal against, in a nutshell, a decision that he should be removed to Pakistan; and the petitioner, who is an illegal immigrant, now comes to this court to get another chance to argue that he should be allowed to stay in the United Kingdom.

[2] This is one of a number of judicial review petitions sisted to await the outcome of Eba v Advocate General for Scotland in the Supreme Court. Shortly after the sist expired, on 13 September 2011, the Lord Ordinary fixed a First Hearing for 18 January 2011. I presided at the First Hearing on that date and having heard submissions I made avizandum. I have decided that the petition must be granted. In coming to this decision I have exercised "anxious scrutiny" on the basis that, it is said, removal to Pakistan would involve extreme risk for the petitioner. The risk is said to be the risk of torture and inhuman or degrading treatment while in custody in Pakistan consequent on arrest for blasphemy.

[3] Although the issue of "persecution" flits in and out of the record as if this were, or might be, a "well-founded fear of persecution", 1951 Refugee Convention case, Mr Winter, counsel for the petitioner, clearly stated that this is an article 3, 1950 European Convention on Human Rights [ECHR], case (right not to be subject to torture or to inhuman or degrading treatment or punishment), and that is all it is. I do not have a view as to whether the petitioner should be given humanitarian protection and allowed to stay: my concern is that his case should be properly determined; and that if he is to be removed he should be removed on solid grounds. I have reached my conclusion without regard to the question whether the petitioner's position is a deserving one, a question on which, I dare say, there will be a range of opinions.

Background

[4] The petitioner is a national of Pakistan. He was born on 8 December 1974 and is now aged 37. On his account he entered the United Kingdom illegally in 1999. He came to the attention of United Kingdom Border Agency [UKBA] in 2007 when he was found working in a restaurant in Falkirk. He was served with removal papers, form IS151A. He then claimed asylum on article 8 ECHR grounds (right to respect for private and family life). This was on the basis of his relationship with a female British citizen, Ms IAS. On 24 November 2009 UKBA, acting for the Secretary of State, refused the application for leave to remain and affirmed the decision to remove the petitioner to Pakistan. The petitioner then appealed to the First-tier Tribunal (Immigration and Asylum Chamber).

[5] At this point I should mention the fact, a fact which has subsequently become central to the case, that, also in 2007, precise date unspecified, the petitioner converted from his ancestral faith, Islam, to Christianity. He was baptised in 2008. He is a practising Christian. He adheres to a pentecostal church in Falkirk. He assists with pastoral care and ministry for his church. He will be viewed by Muslims as an apostate. His apostasy is known to his family in Pakistan and he has been disowned. In order to obtain a national identity card for his return to Pakistan the petitioner will have to declare his religion. The immigration judge who presided at the First-tier Tribunal hearing accepted the evidence, which he described as "clear and credible", about the petitioner's Christianity. He found that the petitioner "lives out daily practice of his Christian faith".

[6] It ought to be appreciated that the evidence offered to the immigration judge about the petitioner's Christianity went unchallenged by UKBA on behalf of the Secretary of State. This is because UKBA chose not to be represented at the First-tier Tribunal hearing. (The indication to the contrary at paragraph 11 of the immigration judge's decision is a mistake.) Mr Winter's submission to me that the petitioner is a "genuine" Christian convert was also not contested by senior counsel for the Secretary of State who is now the respondent to this petition. This is important because it distinguishes the petitioner from the applicants in the two previous Christian-convert-Pakistan reported cases [AJ (Risk -Christian Convert) Pakistan CG [2003] UKIAT 00040, §§ 3, 5, 22, 28, 29; Rana, R (on the application of) v Upper Tribunal (Immigration & Asylum) & Anor [2010] EWHC 3558 (Admin), § 4, reported in the Supreme Court as R (MR (Pakistan)) with R (Cart) v Upper Tribunal [2011] 3 WLR 107 at §§ 5, 59].

[7] On 12 March 2010 Ms IAS withdrew her support for the petitioner's article 8 ECHR claim. The petitioner departed from his article 8 ECHR claim. His appeal to First-tier Tribunal was then presented solely on the new basis of threatened violation of his article 3 ECHR rights. The logic of the case was and is that, if removed to Pakistan, the petitioner would face a charge of blasphemy; that if charged he would be taken into custody; and that while in custody he would be tortured and subject to inhuman or degrading treatment. The immigration judge held that the argument presented on behalf of the petitioner was not supported by the background materials put before him, particularly in relation to the risk of torture and unacceptable conditions in prison. He found that the case law directly contradicted the argument. He refused the appeal holding that UKBA's determination "would not cause the United Kingdom to be in breach of the law or its obligations under the 1950 Convention". The immigration judge's determination was promulgated on 28 April 2010.

Applications for leave to appeal

[8] In terms of the Tribunals, Courts and Enforcement Act 2007 there is a so‑called right of appeal to the Upper Tribunal on a point of law arising from a decision made by a First-tier Tribunal. The right may be exercised only with the permission of the First-tier Tribunal or of the Upper Tribunal. The petitioner applied in turn to both the First-tier Tribunal and the Upper Tribunal, as he was entitled to do. The petitioner's application for permission to the First-tier Tribunal (Immigration and Asylum Chamber) was refused on 18 June 2010. The petitioner then, applied to the Upper Tribunal (Immigration and Asylum Chamber) for permission to appeal to the Upper Tribunal. By a decision issued on 12 August 2010 a senior immigration judge refused permission to appeal.

[9] Parliament has excluded any further appeal, so that the only way the petitioner can keep his claim alive is by invoking the common law supervisory jurisdiction of this Court. Traditionally this Court has exercised oversight of "inferior judicatories" to ensure that the rule of law is maintained. The supervisory jurisdiction has been extended in recent times to encompass all errors of law. [Tribunals, Courts and Enforcement Act 2007 ss. 11(4), 13(1) and (8)(c); West v Secretary of State for Scotland 1992 SC 385 at 395 per Lord President (Hope) delivering the Opinion of the Court; Eba v Advocate General for Scotland [2010] CSIH 78, §§ 34-42, 44-46 per Lord President (Hamilton) delivering the Opinion of the Court; Eba v Advocate General for Scotland 2011 SLT 768 at § 4 per Lord Hope of Craighead DPSC].

[10] The present petition seeks to have the decision of 12 August 2010 set aside, presumably so that the application for leave to appeal can be re-determined by the Upper Tribunal (Immigration and Asylum Chamber). The petitioner's complaints were, and are, that the immigration judge who made the original determination of 28 April 2010 failed to consider the case-law - including two "country guidance" cases - in the light of the up-to-date 2010 Country of Origin Information Report [COIR]; and that the immigration judge applied the wrong test for standard of proof. Essentially the current petition criticises the senior immigration judge who refused permission to appeal on 12 August 2010 for failing to address these complaints properly or at all. Altogether the petition claims that the decision by the senior immigration judge was "unreasonable et separatim irrational". As I read the petition, it specifies two errors of law on the part of the senior immigration judge.

[11] First, it is said, there was a failure of the senior immigration judge to have regard to the materials that were actually before the immigration judge and that this failure amounted to "a collapse of fair procedure". The petition points out, correctly, that paragraph 14(f) of the immigration judge's determination expressly states that an excerpt of the COIR, section 19, "Freedom of Religion", was placed before the immigration judge. In submissions, Mr Winter, counsel for the petitioner, told me that section 19 contains "90 per cent" of the relevant background material. I think this is a fair assessment, if not an underestimate, although the question may be whether the missing ten per cent, or whatever, is the bit that really matters.

[12] There is an unresolved issue as to whether the whole of the 2010 COIR was lodged by the petitioner's lawyer for consideration by the immigration judge. The issue was flagged up in the (supplementary) grounds of appeal relative to the Upper Tribunal permission application [appendix to production no 6/4, (supplementary) grounds of appeal, § 4.] I think the matter came to the fore because, in seeking to distinguish the "country guidance" case-law on prison conditions in Pakistan, the petitioner's lawyer wished to rely on section 13 of the 2010 COIR, "Prison Conditions", in particular paragraph 13.06 [production no 6/2, grounds of appeal, "Errors in Law", § 1 at (un-numbered) page 3; appendix to production no 6/4 (supplementary) grounds of appeal, § 4].

[13] According to the (supplementary) grounds of appeal: "The COI Report confirms at para 13.06 that Christians were more likely to be tortured in prison" [appendix to production no 6/4, (supplementary) grounds of appeal, § 1]. The reference is to part of a quotation at paragraph 13.06 from the United States State Department International Religious Freedom Report 2009. Substantially the same information is contained in the passage from the United States State Department International Religious Freedom Report 2006 quoted in the 2010 COIR "Freedom of Religion" section, section 19, at paragraph 19.89. Therefore, since the immigration judge did have section 19, the issue about what was and what was not produced looks like a bit of a storm in a teacup, though a distracting one.

[14] The senior immigration judge's reasons state that "[the 2010 COIR] is not referred to in the three inventories of documents submitted on behalf of the appellant", continuing: "it was incumbent upon [the petitioner] (who was legally represented) to put that before the IJ". The inference drawn by the petitioner, which I think is a reasonable one, is that the senior immigration judge did not have regard to the 2010 COIR, section 19. On that basis I also think it is a reasonable conclusion that the senior immigration judge did not address the substance of the petitioner's complaint that the immigration judge had failed to consider the case-law in the light of the up-to-date 2010 COIR. Whether this counts as a material error of law is the question.

[15] Secondly, the petition states that it was an error on the part of the senior immigration judge not to recognise that the immigration judge had, by referring to "inevitability" rather than to "real risk", applied the wrong standard of proof. The immigration judge's determination states [§ 14(j)]: "I am not persuaded that [the petitioner] will inevitably face prosecution for blasphemy" The senior immigration judge's reasons state:

"... there is nothing in the point that the IJ stated that prosecution was not "inevitable" (at para 14(j)). Seen in context, it is clear that the IJ applied the correct standard of proof overall which he correctly set at para 8 of the determination."

Mr Campbell QC, counsel for the respondent, does not contest that if the wrong standard of proof were applied that would amount to a material error of law. The question is whether the senior immigration judge's interpretation of the immigration judge's reasoning in relation to standard of proof is the correct one.

Submissions for the petitioner

[16] Mr Winter opened by referring me to Macdonald's Immigration Law & Practice, 8^th edn, vol 1 (London, 2010), § 12.28. I note that COIRs are produced by the Home Office Country of Origin Information Service in implementation of an obligation under the Immigration Rules to obtain and make available to immigration decision makers "reliable and up-to-date information" about the "general situation prevailing in the countries of origin of applicants for asylum". I note that "country guidance" [CG] determinations of the Upper Tribunal (Immigration and Asylum Chamber) [UTIAC] and its predecessor tribunals should be followed. It is not permissible to relitigate country guidance in the absence of fresh evidence [MY (Country Guidance cases -no fresh evidence) Eritrea [2005] UKAIT 00158 at §§ 23-26; Asylum and Immigration Tribunal Practice Directions, 4 April 2005, § 18 - see now Practice Directions for the Immigration and Asylum Chamber of the First-tier Tribunal and the Upper Tribunal,10 February 2010, §12]. Counsel then turned to the three decisions from which the immigration judge derived his conclusion that "the case law (particularly the case of SA) directly contradicts [the petitioner's] argument".

[17] The "country guidance" case particularly relied on by the immigration judge, SA (Fair Trial -Prison Conditions) Pakistan, is, according to counsel, not at all in point: unlike the petitioner, Mr SA was a prominent businessman and member of the Muslim League, who had been charged at the instance of a director of the Railway Lahore Co with fraud and embezzlement; there was a positive finding that Mr SA would receive a fair trial; if not admitted to bail, he could expect to be accommodated in a class A prison cell "reserved for prominent prisoners who are permitted television, servants and special food"; and there was no evidence that members of his political party were selected for ill-treatment by police and prison warders by reason of their affiliations. I also note that, although article 3 ECHR was touched on, SA was a "well-founded fear of persecution", Refugee Convention case [SA (Fair Trial -Prison Conditions) Pakistan CG [2002] UKIAT 05631 at §§ 1-4, 8, 15, 16-19]. The decision pre-dated the 2003 and 2010 COIRs and the information relied on by the court was taken from a Home Office Country Information Policy Unit Report [CIPU].

[18] The effect of AJ (Risk - Christian Convert) Pakistan, the other "country guidance" case mentioned by the immigration judge, is that, against a background of some four million Christians in Pakistan, individual instances of serious difficulties encountered by Christian evangelists (as opposed to ordinary Christian worshippers) in Pakistan "fall... far short of showing that a person who converts to Christianity faces as such in Pakistan a real risk of treatment which can be described as persecutory or otherwise inhuman or degrading treatment". The immigration judge in the present case reminded himself that Mr AJ claimed to have been attacked with guns, knives and sticks by militants from Sipah-I-Sahaba-I-Pakistan. I observe that these assailants were not apparently agents of the state. A determining fact in AJ (Risk -Christian Convert) Pakistan, as the immigration judge correctly recognised, was that, quoting from the 2003 COIR at paragraph 6.75, "the authorities were usually willing and able to protect [Christians] from harassment, violence and intimidation" by non-state actors. According to counsel, the information given by the 2003 COIR and therefore the guidance given by the case has been superseded. Counsel submitted that the case is also to be distinguished on the basis of personal circumstances: Mr AJ's claim to have converted to Christianity was, unlike the present petitioner's claim, viewed with justified scepticism; and Mr AJ was found to be "highly unlikely to continue any form of Christian observance" if he returned to Pakistan. (My reading of the decision is that the tribunal found, elliptically, that Mr AJ had not actually converted) [AJ (Risk -Christian Convert) Pakistan CG [2003] UKIAT 00040 at §§ 2, 3, 14-16, 19-25, 28, 30-36].

[19] Likewise counsel said that the case of AM (Pakistan), referred to by the immigration judge, is to be distinguished on the ground that though Mr AM was a Christian, he was not a convert [AM (Pakistan) v the Secretary of State for the Home Department [2008] EWCA Civ 1064 (17 June 2008) at §§ 1, 2, 18]. I note that the immigration judge himself acknowledged this point of distinction when he stated [§ 14(j)]: "The [petitioner's] profile is different to that of a person who is born into a Christian family." When AM (Pakistan) was decided, the 2003 COIR was still the current edition.

[20] Counsel for the petitioner then directed my attention to the up-to-date Pakistan COIR dated 18 January 2010, section 19 "Freedom of Religion", paragraphs, as I have noted it, 19.01-19.08 ("Overview"), 19.13-19.22 ("Blasphemy laws"), 19.23 ("Legal procedure for blasphemy charges"), 19.28-19.30 ("Apostasy"), 19.80-19.83 ("Christians - Demography - Recent events"). I may be wrong, but I do not think counsel referred me to paragraph 19.89, which is also relevant, as explained above. The following excerpts give the flavour of the situation as counsel wishes it to be understood:

"19.01... Law enforcement personnel abused religious minorities in custody. Security forces and other government agencies did not adequately prevent or address societal abuse against minorities.

"19.05... Reprisals and threats against suspected converts from Islam occurred. Members of religious minorities were subject to violence and harassment, and at times police refused to prevent such actions or charge persons who committed them, leading to an atmosphere of impunity.

"19.06... Sectarian and religiously-motivated violence continues, particularly against Shi'a Muslims, Ahmadis, Christians and Hindus, and the government's response continues to be insufficient, and in some cases, is outright complicit...

"19.13... Despite calls for the abolition of blasphemy laws from inside and outside the country, the Pakistan government has yet to take any genuine steps to do so. Meanwhile, many citizens are being arrested, prosecuted and even killed under the law. In many cases it is used to settle personal vendettas or to grab land.

"19.16... According to several NGOs, cases against Christians and Ahmadis continued to increase during the reporting period...

"19.17... Blasphemy allegations, which are often false, result in lengthy detention of, and sometimes violence against Ahmadis, Christians, Hindus and members of other religious minorities, as well as Muslims. Because the laws required no evidence to be presented after allegations are made and no proof of intent, and contain no penalty for false allegations, they are commonly used by extremists to intimidate members of religious minorities and others with whom they disagree. They also are often used by the unscrupulous simply to carry out a vendetta or gain an advantage over another.

"19.20... The negative aspect of the blasphemy laws is further compounded by the lack of due process... Several of those accused under the blasphemy laws have been attacked, even killed, by violent extremists, including while in police custody."

"19.22... Incidents in which low-ranking police officials take bribes to file false blasphemy charges against Ahmadis, Christians, Hindus, and occasionally other Muslims continue to occur... suspects are generally forced to spend lengthy periods in prison, where they are subject to ill-treatment...

"19.28... people who change their faith are regularly charged with blasphemy and insulting Islam..."

"19.30 On 9 May 2007, Asianews reported that a draft bill on apostasy had been adopted in its first reading by the National Assembly and had been put before a parliamentary standing committee for consideration. The article stated that "... [the bill] would impose the death penalty on Muslim men and life in prison on Muslim women in case they leave Islam [sic]. It would also force them to forfeit their property and lose legal custody of their children..."

"19.82... Taliban ideology has... underpinned an upsurge in attacks against Christians in Pakistan. On August 1^st [2009] around 800 Muslims attacked Christians in the town of Gojra, in Punjab province. At least eight Christians were killed following the spread of false rumours that the Quaran had been desecrated during a Christian wedding..."

"19.83... forced conversion of religious minorities to Islam occurred at the hands of societal actors... Of the 39 women who were abducted and forced to convert in 2008, 34 cases occurred in Lahore alone... A majority of these women were Christians, and two were Hindus..."

"19.89... Police torture and mistreatment of those in custody remained a serious and common problem throughout the country and at times resulted in extrajudicial killings. It was usually impossible to ascertain whether religion was a factor in case in which religious minorities were victims; however, both Christian and Ahmadi communities claimed their members were more likely to be abused."

Counsel summarised by saying that the country guidance cases referred to by the immigration judge were to be distinguished on their facts and, in addition, had been superseded in effect by the new information in the 2010 COIR about prosecutions for blasphemy and the article 3 ECHR risks for apostates.

[21] The quotations from the 2010 COIR in the foregoing paragraph represent the bleakest picture. There are some positive comments about the situation of Christians in Pakistan. One of the positives, which has since become a negative, is that in November 2008 Shabaz Bhatti, a Christian, was appointed as Federal Minister for Minorities' Affairs [§§ 19.02, 19.81]. A few weeks before the First-tier Tribunal hearing in this case, it was very widely reported that Mr Bhatti had been assassinated for his opposition to the blasphemy laws and for lending support to the Christian woman, Asia Bibi, who had been condemned to death on an allegedly trumped-up blasphemy charge.

[22] Mr Winter accepted that the burden of proof is on applicants who, like the present petitioner, put forward article 3 ECHR claims. He submitted that the test to be applied by immigration decision makers in deciding such claims is whether there are reasonable grounds for believing or, in other words, whether there is a reasonable degree of likelihood, that there is a real, as opposed to a fanciful, risk; and that the "reasonable grounds" or "reasonable degree of likelihood" standard is something less than the balance of probabilities [Secretary of State for the Home Department v Kacaj [2001] INLR 354 at Held (1) and §§ 7 (referring to Soering v United Kingdom (1989) 11 EHRR 439 at § 91), 9 and 11-12; MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852 at §§ 22-23 per Laws LJ with whom the other members of the Court of Appeal agreed; PS (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1213 at § 11 per Sedley LJ with whom the other members of the Court of Appeal agreed; MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at §§ 12 and 13 per Sir John Dyson delivering the judgment of the Supreme Court.] Counsel also drew attention to the majority determination in Kaja: "In our view the parties are entitled to know that the adjudicator has applied the appropriate criterion and they will not know unless there is an explicit reference to it." [Kaja v Secretary of State for the Home Department [1995] Imm AR 1]. Mr K Campbell QC for the respondent did not challenge these propositions. My own observation is that perhaps the "real risk" element of the test is not so much part of the standard of proof as the essential fact that has to be proved, factum probandum.

[23] Counsel for the petitioner continued to the effect that the language of the immigration judge's decision dated 12 August 2010 "may betray that the standard of proof has not been applied appropriately". The standard is rehearsed at paragraph 8 of the immigration judge's decision:

"In human rights appeals, it is for the Appellant to show that there has been an interference with his or her human rights. If that is established, and the relevant article permits, it is then for the Respondent to establish that the interference was justified. The appropriate standard of proof is 'whether there are substantial grounds for believing the evidence'."

I observe that this seems to be a known formula: but, as expressed, it is better suited to cases about past breaches of derogable rights rather than extreme future risks: see for example the article 8 ECHR issue in GO (Right of appeal: ss 89 and 92) Nigeria [2008] UKAIT 00025 at § 4 quoting § 6 of the immigration judge's decision. This version of the test does not refer to the essential fact "real risk". It is well understood that "real risk" is an essential part of the test. The test as set out in the Immigration Rules, rule 339C (iii), is whether: "substantial grounds have been shown for believing that the person concerned... would face a real risk of suffering serious harm..." "Serious harm" includes "torture or inhuman or degrading treatment or punishment of a person in the country of return." This is a correct expression of the full test in accordance with the case law.

[24] Counsel submitted that an inappropriate application of the test is evidenced by the following passages of the immigration judge's decision [§§ 14(j) and (k), my emphasis]:

"I am not persuaded that the [petitioner] will inevitably face prosecution for blasphemy... The logic employed in the [petitioner's] argument is that because of his Christianity, he faces a charge of blasphemy, & that the charge will inevitably lead him into custody."

As counsel pointed out the senior immigration judge who refused the initial application for permission to appeal in the First-tier Tribunal on 18 June 2010 had stated:

"The application [for permission to appeal] criticises the Immigration Judge for saying that he was not persuaded that the appellant would "inevitably face prosecution for blasphemy". While the phrase might have been better avoided, a reading of sub-paragraph 14(j) and of the determination as a whole shows that the correct standard of proof was applied."

Counsel contested that paragraph 14(j) shows that the correct standard of proof was applied.

[25] The whole of paragraph 14(j) of the immigration judge's determination reads as follows:

"The [petitioner's] claim is not supported by the case law in this case, nor is it supported by the background information. I am not persuaded that the [petitioner] will inevitably face prosecution for blasphemy. The [petitioner's] profile is different to that of a person who is born into a Christian family. It is quite clear that the [petitioner] comes from a Muslim family and has converted to Christianity. However, his need to live out his Christian faith is not sufficient in itself to demonstrate that the [petitioner] is at risk of a breach of his rights in terms of Article 3 of the 1950 Convention on return to Pakistan. Case law indicates that the [petitioner] may face discrimination. The evidence indicates that the [petitioner] may have unpleasant exchanges with his family, but neither discrimination, not hostility from family members amounts to either persecution or inhuman & degrading treatment within the meaning of the 1950 Convention."

Counsel for the petitioner submitted that the word "inevitably" as used in its context by the immigration judge in the just-quoted paragraph and in paragraph 14(k) implies at least a balance of probability test and, anyway, a higher standard of proof than is laid down in Kacaj. Further, although at paragraph 8 of the determination, quoted above, the immigration judge "got the first half of the test right", he did not apply the "real risk" part of the test and had, instead, later in the determination, used the word "inevitably" twice. Accordingly, the senior immigration judge who refused permission to appeal on 12 August 2010 had fallen into an error of law in deciding that "seen in context it is clear that the [immigration judge] applied the correct standard of proof overall which he correctly set [sic] at para 8 of his determination."

Submissions for the respondent

[26] Mr K Campbell QC for the respondent submitted that the decision of 12 August 2010 to refuse leave to appeal did not contain a material error of law. He accepted that there was arguably an error on the part of the senior immigration judge in taking the view that the 2010 COIR was not before the immigration judge: but the immigration judge did have the information and it is clear that he considered it. At paragraph 14(f) of his determination the immigration judge made an express reference to section 19 of the COIR, to the report's treatment of Pakistan's blasphemy laws and to the relevance of the blasphemy laws to the petitioner's article 3 ECHR claim. The question was whether this made any difference to the country guidance contained in the case law.

[27] Referring to the case of MY, senior counsel submitted that the criteria for challenging the country guidance cases were not met in this petition [MY (Country Guidance cases - no fresh evidence) Eritrea
[2005] UKAIT 00158 at §§ 25-26]:

"... The only exceptions to the rule that country guidance cases should be followed... concerned: (i) evidence that the circumstances have changed; (ii) significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any national change in circumstances; and (iii) the passage of time or substantial new evidence which warrants a re-examination of the position [...] The country guidance system allows for challenge, but it must be through the front door, on the basis, that is, of fresh evidence having a material bearing on the findings of fact which comprise existing guidance."

The country guidance case of SA (Fair Trial -Prison Conditions) Pakistan gives clear guidance as to judicial standards and prison conditions in Pakistan which the immigration judge was bound to follow unless there was a reason for not doing so [SA (Fair Trial -Prison Conditions) Pakistan CG [2002] UKIAT 05631 at §§ 16-19]. Whether there was a reason not to follow the country guidance was a matter of fact for the immigration judge to decide. He was entitled to reach the view that he did.

[28] The immigration judge's use of the word "inevitably" was a gloss on the petitioner's argument. Isolating the word "inevitably" from its context was rather alarming but less so when the word was seen in context. The correct standard of proof was set out at paragraph 8 of the determination (see above) and was applied [Secretary of State for the Home Department v Kacaj [2001] INLR 354 at § 7 (referring to Soering v United Kingdom (1989) 11 EHRR 439 at § 91)]. There was no error.

Discussion: error of law

[29] I am satisfied that the senior immigration judge fell into error. He clearly had the impression that the 2010 COIR had not been put before the immigration judge whereas the relevant excerpt at least, section 19, had been. The mistake may have been due to way the excerpt was listed in the inventories, which the senior immigration judge appears to have studied closely; or it may have been due to the fact that the petitioner's advisers also had the impression that the immigration judge did not have a copy of the 2010 COIR, their concern at that stage being focused on the section 13, "Prison Conditions" [(supplementary) grounds of appeal, appendix to No 6/4 of process, § 4]. However that may be, the mistake amounted to an error of law. I say this because it represented a failure to have regard to relevant material, which failure disabled the senior immigration judge from giving consideration to the merits of the first ground of appeal. Slightly more troubling is the possible implication that the senior immigration judge overlooked paragraph 14(f) of the immigration judge's determination which states in terms: "I was referred to the COI report."

[30] The error by the senior immigration judge is immaterial if it does not touch the underlying issue whether, in terms of the Tribunals, Courts and Enforcement Act 2007 s. 11, there is a "point of law" to be argued on appeal. A "point of law" is not the same as a categorical error of law: a "point of law" is a "question of law", something which defines itself at least in part in opposition to a "question of fact". [See also production no 6/7, "Permission to Appeal Guidance Note", July 2011, § 12: "... in dealing with applications for PTA Judges are concerned with whether there is an arguable error of law, not whether the error is made out".]

[31] The argument that the senior immigration judge's error was immaterial amounts in this case to saying that no underlying point of law is involved. This argument cannot be accepted. The argument is advanced on the basis that, in fact, the immigration judge had himself considered section 19 of the 2010 COIR. However, the immigration judge's determination refers to only one paragraph of section 19, paragraph 19.26 which, it is said, "deals with blasphemy". Paragraph 19.26 does not deal with blasphemy. It is part of the group of paragraphs dealing with the "Hudood Ordinances". Paragraph 19.26 itself deals with the Women's Protection Bill 2006. The measure transferred rape and adultery cases from Shar'ia to secular courts. "Blasphemy laws" are dealt with not in one paragraph, but in ten paragraphs, paragraphs 19.13 to 19.22; "Legal procedure for blasphemy charges" is covered in paragraph 19.23; and "Apostasy" is the subject of paragraphs 19.28 to 19.30. The determination does not refer in terms to any of these paragraphs. Further, at no point do the reasons given by the immigration judge address the question whether the existence and content of the up-to-date 2010 COIR warranted reconsideration or re-examination, still less whether they supersede or qualify the effect of, the country guidance cases.

[32] There is plenty of information in the 2010 COIR, section 19, about the relevant topics, namely persecution of and discrimination against Christians, blasphemy laws and procedures, apostasy and conditions in custody: but counsel for the petitioner did not seek to persuade me, by fine-detail comparison of the texts, that there is a material difference between earlier material, for example the 2003 COIR, and the 2010 COIR in relation to the topics that matter. Equally counsel for the respondent did not suggest that there is no material difference. What am I supposed to do? I am not prepared to make the textual comparison myself without counsel's assistance. I am prepared to assume that there is a question, simply by virtue of the existence on a new COIR, as to whether the information in the new, up-to-date COIR amounts to "fresh evidence" in the MY sense of evidence justifying a challenge to the existing country guidance [MY (Country Guidance cases -no fresh evidence) Eritrea [2005] UKAIT 00158 at §§ 25-26]. In my opinion, a question as to whether "fresh evidence" exists capable of satisfying the MY test is, or contains, "a point of law".

[33] While I have made the assumption just mentioned, I think, to be fair, that there are actual indications of "fresh evidence" in the material put before me. A determining fact in AJ (Risk - Christian Convert) Pakistan, as the immigration judge correctly recognised, was that, quoting from the 2003 COIR at paragraph 6.75, "the authorities were usually willing and able to protect [Christians] from harassment, violence and intimidation" by non-state actors. The situation as described in the 2010 COIR at paragraph 19.01 is: "Security forces and other government agencies did not adequately prevent or address societal abuse against minorities." This suggests to me that the situation has changed as regards the ability and willingness of the authorities to protect minorities against abuses by non-state actors. Again, as regards apostasy, in AJ (Risk - Christian Convert) Pakistan it is said, quoting from the 2003 COIR at paragraph 6.77: "... those that do convert may encounter problems from some elements of society who do not accept the practice." The situation as described in the 2010 COIR at paragraph 19.28 is: "... people who change their faith are regularly charged with insulting Islam." [AJ (Risk -Christian Convert) Pakistan CG [2003] UKIAT 00040 at § 33]. This suggests to me an escalation from societal discrimination to state abuses.

[34] I also take the view that a serious question about the scope of country guidance cases is in itself "a point of law". In my opinion there is such a point of law in this case. I would have thought, as well, that the questionable relevance to the petitioner's circumstances of the country guidance case-law referred to by the immigration judge made it, and makes it, doubly important to consider the issue whether the existing country guidance might require, to use the words of MY, "revision or refinement".

[35] The difficulty with country guidance cases, particularly those pre-dating the practice of adding headnotes, which started in about 2005, is that they do not necessarily declare the scope of the guidance they mean to give [MK v Secretary of State for the Home Department
[2012] CSOH 29 (21 February 2012)]. The country guidance case of SA (Fair Trial - Prison Conditions) Pakistan, particularly relied on by the immigration judge, is a case dating from 2002. From the immigration judge's reference to SA (Fair Trial - Prison Conditions) in paragraph 14(k) it seems that he found the case valuable for its guidance on prison conditions: but Mr SA was a well connected individual, a Muslim and apparently a member of the political elite, charged with white collar offences, not at risk of ill-treatment, for whom the "five star" option, if I can put it like that - a better cell, servants, television, special food - would have been available. It is not obvious that the case gives any guidance in relation to the risk claimed to be faced by the present petitioner were he to be taken into custody as an apostate; and it is, I would have thought, with respect, simply irrelevant. The immigration judge's statement that the case "directly contradicts" the petitioner's argument is, in my respectful opinion, wrong. [SA (Fair Trial -Prison Conditions) Pakistan CG [2002] UKIAT 05631 at §§ 1-4, 8, 15, 16-19]. It follows that in attaching particular weight to SA (Fair Trial -Prison Conditions) Pakistan, the immigration judge allowed himself to be materially influenced by irrelevant considerations. That was, in my view, a material error of law.

[36] Going back to the other country guidance case referred to by the immigration judge, AJ (Risk - Christian Convert) Pakistan, this appears at least superficially to have some resemblance on its facts. However, the risks for Christians described in the tribunals' determination, which are referenced to paragraphs 6.74, 6.75, 6.77 and 6.85-6.90 of the 2003 COIR and page 21 of the US State Department Report on Pakistan for 2001, are essentially about problems posed by societal actors rather than by state agents such as police officers and prison staff; and the Christians who are reported to have encountered problems are those who do something more than "merely going about the business of religious worship", in particular those who seek to evangelise [AJ (Risk -Christian Convert) Pakistan CG [2003] UKIAT 00040 at §§ 28, 30-36].

[37] I should mention in this context that during Mr Campbell's submissions Mr Winter indicated his agreement with the proposition that "discrimination" by non-state actors cannot by itself amount to a violation of article 3 ECHR rights. This was in the context of Mr Campbell's submissions on paragraph 14(j) of the immigration judge's determination where, I take it, the immigration judge used "discrimination" to refer to the sort of problems encountered by Christians generally from "some elements of society", as mentioned in AJ (Risk - Christian Convert) Pakistan.

[38] As to the standard of proof question, I think both counsel are right to some extent. The immigration judge's reasoning starts at paragraph 14(f) of the determination where he describes the argument for the now petitioner. The argument was that "once the [petitioner] is charged with blasphemy, he will be taken into custody"; and that while in custody he would be at risk of article 3 ECHR-type violations. The immigration judge correctly pointed out at paragraph 14(k) that being charged with blasphemy and being taken into custody were not argued to be human rights abuses in and of themselves. They were argued, if I can put it like this, as the causal link between apostasy and mistreatment in custody or prison. I think it was not unreasonable for the immigration judge to point out, in effect, that, contrary to the way matters were put on behalf of the petitioner, it was not inevitable that this link in the chain of would be established. This is how I read the references to inevitability in paragraphs 14(j) and 14(k). And to that extent Mr Campbell QC was correct when he submitted that the word "inevitably" was a "gloss" on the argument. Understood in that way, it is not a substitute standard of proof test.

[39] Equally Mr Winter was correct to submit that only part of the proper test, as laid down in Kacaj, had been stated by the immigration judge; and that the petitioner's entitlement, as set out in Kaja, to have express reference to the proper test had not been satisfied [Secretary of State for the Home Department v Kacaj [2001] INLR 354 at Held (1) and §§ 7 (referring to Soering v United Kingdom (1989) 11 EHRR 439 at § 91), 9 and 11-12; Kaja v Secretary of State for the Home Department [1995] Imm AR 1 at 3]. I think that this would not matter if it were otherwise clear that the immigration judge had applied the proper test: but I also think that it is not clear. The only reference to "real risk" is in the quotation from AJ (Risk - Christian Convert) Pakistan at paragraph 14(g). The context is "real risk of persecution". There is reference to a "risk of breach" of the petitioner's article 3 ECHR rights in paragraph 14(j) but that does not answer the point. The problem, as I perceive it, is that, as was half suggested by counsel for the petitioner, the only assessment of the risk was in relation to the first part of the causal chain, which was said to be not inevitable. "Not inevitable" might mean anything from "highly unlikely" to "highly likely".

[40] My understanding of the authorities referred to by counsel for the petitioner is that it was incumbent on the immigration judge to make an assessment of the risk overall, as to whether it was a "real risk" or otherwise. What might have been argued for the respondents, but was not, is that the immigration judge found that there was no evidence to support the second part of the causal chain, so that an assessment of the risk overall would have been superfluous. What the immigration judge said was:

"What was argued as a breach of the [petitioner's] rights is that whilst in custody he would be tortured and that Pakistani prison conditions were so poor that his rights in terms of Article 3 would be breached. No background materials are placed before me to support that argument. I find that the case law (particularly the case of SA) directly contradicts that argument."

There is a controversy, already alluded to, as to what background materials the immigration judge had about prison conditions in Pakistan [appendix to production no 6/4, (supplementary) grounds of appeal, § 4].

[41] On the hypothesis that the whole of the 2010 COIR was not lodged, and that reference was not made in any way to section 13, "Prison Conditions", then I would accept that there was nothing in the background materials placed before the immigration judge to support the argument about prison conditions as such. However I cannot reach the same conclusion about physical ill treatment and torture in custody, given the terms of paragraphs 19.01, 19.20, 19.22 and 19.89 of the 2010 COIR quoted above. It is of course agreed that section 19 was placed before the immigration judge. I am left in a state of uncertainty as to whether the immigration judge's attention was actually drawn to the passages. Given his statement that "no background materials" were placed before him to support the argument, which on a broad view must be wrong, and given his mistake about what bit or bits of section 19 relate to blasphemy laws in Pakistan, I judge that in the exercise of anxious scrutiny the petitioner must have the benefit of the doubt. On that basis a point of law must arise as to whether the immigration judge failed to take into account relevant material that was placed before him and so failed to make an overall assessment as to whether there were substantial grounds for believing that the petitioner would be subject to a real risk of article 3 ECHR violations if removed to Pakistan. This was a material error of law.

[42] There was a suggestion in submissions that a "real prospect of success" test should be applied in addition to the "material error of law test" when reviewing permission-to-appeal decisions. The basis for this suggestion was apparently rule 18 of the now repealed Immigration and Asylum Appeals (Procedure) Rules 2003. The 2003 Rules were repealed before the present case was initiated. I was not pointed to an equivalent provision which is in force [AB Petitioner (AP), Re Judicial Review [2011] ScotCS CSOH 205 at § 20, citing Hosneini v Secretary of State for the Home Department 2005 SLT 550].

[43] What appears to be the current "Permission to Appeal Guidance Note", which has been produced but which was not referred to by counsel and was not in any event available at the material time, provides [production no 6/7, "Permission to Appeal Guidance Note", July 2011]:

"6. On the face of it, where a point of law arises from a decision of the [First-tier Tribunal] other than an excluded decision there is a right of appeal, but the requirement to obtain permission enables the judiciary to grant permission only where it is appropriate to do so.

[...]

8... Wherever life, limb or liberty may be placed in jeopardy or important human rights may not be respected, the approach of the higher courts has been to scrutinise anxiously the decision below to ensure that it is in no way flawed. Judges deciding whether to grant permission to appeal should adopt no less stringent an approach (in the context of "second applications", a refusal of permission is final and so the application may be the last opportunity for a judicial remedy)...

[...]

14. Whilst the existence of reasonable prospects of success is a relevant criterion to apply to the grant of permission, it is not a precondition of its grant. A point of law may be of such general importance as to justify the grant of leave even though the prospects of the appellant succeeding may not be substantial..."

I think it is enough for me to be satisfied in this context that there were material errors. I would also be of the view that there was a failure to exercise "anxious scrutiny" and that the failure to do so was a material omission whatever the then current guidance stated.

An important point of principle or practice or some other compelling reason
[44] My conclusion so far is that there are material errors in the determination of 12 August 2010 whereby the petitioner was refused permission to appeal. Contrary to what the senior immigration judge decided on 12 August 2010, I take the view that there are points of law which the petitioner ought to have been permitted to raise at a substantive appeal hearing in the Upper Tribunal. Until the decision of the Supreme Court in Eba, this conclusion would have been enough to justify setting aside the determination [Eba v Advocate General for Scotland 2011 SLT 768]. The decision in Eba puts another hurdle in the petitioner's way, namely "the second appeals test". Counsel for the petitioner endeavoured to persuade me that the "second appeals test" does not apply, or at least does not apply with its full rigour in Scotland. I disagree. I accept the submission of Mr K Campbell QC for the respondent, quoting the obiter dictum of Lord Hodge in AB Petitioner, that "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" [AB Petitioner (AP), Re Judicial Review [2011] ScotCS CSOH 205 at § 20]. I take this view conscious that one of the two reasons given by Lord Hope for aligning Scots practice with that of England & Wales is no longer valid [Eba v Advocate General for Scotland 2011 SLT 768 at § 47 per Lord Hope of Craighead DPSC; KP and MRK v Secretary of State for the Home Department [2012] CSIH 38].

[45] The question then is whether the test is satisfied in this case. In my view it is satisfied; and it is satisfied in both of its branches, namely (1) that the petitioner's case involves an important point of principle or practice and (2) that there is some other compelling reason why he should have an opportunity to put his case. The petitioner pleads that there is both an issue of principle and a compelling reason. I am aware that these branches have been considered as mutually exclusive alternatives: but I can see no good reason why this should be so in every case and I do not think it is so in this case.

[46] When counsel for the petitioner referred me to paragraph 11 of Lord Hodge's Opinion in AB I raised what I thought was an obvious point about HJ (Iran), the case about homosexuality. In his turn senior counsel for the respondent submitted that the ratio of HJ (Iran) does not apply. I disagree. I therefore start from the proposition that if a proper respect for human rights entails that individuals should be entitled to live out their sexuality openly, they should be as much entitled to live out their religious faith; and that no one should be expected to veil his or her faith from a motive of self-protection. [HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 applied in MT (Ahmadi - HJ (Iran) Pakistan) [2011] UKUT 277 (IAC)].

[47] This should be the starting point for assessing whether the petitioner would be at risk of article 3 ECHR violations on return, whatever he may have indicated about exercising discretion because of fear. The immigration judge in this case cannot be faulted for failing to take HJ (Iran) into account because the judgment of the Supreme Court in that case, 7 July 2010, post-dates his decision: but nonetheless there is an error of law and, as is demonstrated by the case of MT (Ahmadi - HJ (Iran) Pakistan), even where previous country guidance has been faithfully followed by a First-tier Tribunal judge, the emergence, and recognition of the principle established in HJ (Iran) now requires the Upper Tribunal, on appeal, to consider whether the First-tier determination ought to be re-made. The case of HJ (Iran) necessarily brings the discussion back to the issue of country guidance.

[48] The existence of country guidance on removing Christian converts to Pakistan sufficiently evidences that the subject is an important point of more than individual application. The existing guidance, as I perceive it on the information made available to me, is out-dated factually as well as - because of the decision in HJ (Iran) - legally; and the only reported decisions involve individuals who were not genuine converts. The important point to be established is whether, as a generality, in the circumstances currently obtaining in Pakistan, it is consistent with the United Kingdom's obligations in terms of ECHR article 3 to return genuine Christian converts. On the material put before me there is a good argument as I see it for at least giving consideration to refining the existing country guidance, failing which for clarifying that it does not apply to genuine Christian converts, whose cases should be treated on an individual basis. I am encouraged to take this view by what the case of MR did not decide.

[49] The case of MR, which subsequently "leap-frogged" the Court of Appeal to be heard in the Supreme Court with Cart and Eba, had a similar procedural history to the present case. Permission to appeal was refused in turn by a senior immigration judge in the First-tier Tribunal and then, in the Upper Tribunal, by Mr Justice Ouseley. Ouseley J's whole determination is quoted in the judgment of Sullivan LJ in the Administrative Court [Rana, R (on the application of) v Upper Tribunal (Immigration & Asylum) & Anor [2010] EWHC 3558 (Admin), § 4]. Commenting on the First-tier Tribunal decision, Ouseley J said:

"Crucial to the decision was the finding that the applicant was not a genuine convert to Christianity. The question of how a genuine convert would be treated did not arise."

On that basis there was, as Baroness Hale of Richmond JSC stated in the Supreme Court, clearly nothing to bring Mr MR's case within the second appeal "criteria", meaning, as I understand it, within either branch of the test [R (Cart) v Upper Tribunal; R (MR (Pakistan)) v Upper Tribunal [2011] 3 WLR 107 at §§ 5, 59.]

[50] Given Ouseley J's knowledge and experience of immigration case law, if I may say so with respect, I would accord his words the fullest weight, to the effect that a case involving a genuine Christian convert might well merit a substantive appeal hearing in the Upper Tribunal and would not necessarily be foreclosed by any previous country guidance [cf. FS and others (Iran, Christian Converts) Iran CG
[2004] UKIAT 00303]. Equally, as I see it, Lady Hale left open for consideration whether, in the case of a genuine Christian convert, there might well be "something" to satisfy one, or other or both branches of the second appeals test.

[51] The "important point of principle or practice" branch of the test is satisfied if what is involved is a question about establishing the important point rather than a question about the correct application of an existing important point [Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 at § 18 per Dyson LJ giving the judgment of the Court; followed in PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 998 at § 7 per Carnwath LJ giving the judgment of the Court]. Since there is no existing guidance on the removal of genuine Christian converts, I take the present case to be about "establishing the point". This is a different point from the "important point of principle" referred to in the petitioner's pleadings. In the pleadings, what appears to be identified as the important point of principle is the fact that "the wrong standard of proof has been used". In oral submissions Mr Miller did not advance "standard of proof" as an "important point of principle", presumably for the reason that the correct standard of proof is already well established, even if not applied in the present case.

[52] I have to consider whether it is fair and reasonable to both parties to decide the case on a matter not expressly pled. Can I put it this way? I think it is a little unfair on the respondent but not unreasonable given that the question of country guidance has been at the forefront of the debate and given that the relevant authorities have been canvassed in argument. Both sides agree that "anxious scrutiny" applies; on the authority of Robinson the Court, in applying "anxious scrutiny", is bound to take account of obvious points not advanced on the applicant's behalf; and the point about HJ (Iran) is an "obvious" one in the Robinson sense [R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 at 945-946 per Lord Woolf MR.] I am also influenced by the fact that this Court is not making the substantive decision, merely judging whether the decision brought under review ought to be re-decided.

[53] The alternative branch of the second appeals test is whether there is some other "compelling reason". Mr Winter, counsel for the petitioner, gathered together some of the phrases from the decisions on the subject and submitted (a) that the decision of the senior immigration judge was in itself a compelling reason, evidencing as it did a collapse of fair procedure, (b) that the prospects of success for the petitioner are very good, (c) that removal to Pakistan would involve a real risk of extreme consequences for the petitioner. Counsel emphasised that returning to Pakistan with an identity card declaring the petitioner to be a Christian would involve "drastic consequences", and I suppose counsel said this in part because the same document would show the petitioner to have a Muslim name.

[54] Mr K Campbell QC, for the respondent, submitted that there was nothing compelling, in the PR (Sri Lanka) sense, about the petitioner's case. PR (Sri Lanka cites the principles enunciated by Dyson LJ (with Tuckey LJ), approved by the Master of the Rolls and the Vice-President, in Uphill v BRB (Residuary) Ltd
[2005] EWCA Civ 60 at § 24 per Dyson LJ giving the judgment of the Court [PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 998 at §§ 7-9 per Carnwath LJ giving the judgment of the Court]. Senior counsel referred particularly to the principles enunciated in PR (Sri Lanka) at paragraphs 33 to 43: the "compelling reason" exception should not normally apply unless the prospects of success were "very high" or unless the case is one that "cries out" for consideration by the court, for example where a decision on the merits is "perverse or otherwise plainly wrong" or where a procedural failure by the Upper Tribunal makes it "plainly unjust" to refuse a further appeal, where there has been "a wholly exceptional collapse in fair procedure" or where "the petitioner had not had a fair hearing at all". Senior counsel continued that "compelling" means legally compelling: extreme consequences for an individual do not constitute a free-standing test though they may add weight to the legal arguments. There is no sound basis for a different approach in asylum and immigration cases involving extreme risks.

[55] The "prospects of success" point is the one that gives me most difficulty. This is something on which the Supreme Court gave no guidance in either Eba or Cart. The words quoted in PR (Sri Lanka) come from Uphill. Uphill was a case about a "true" second appeal, the equivalent of which, in the present context, would be an appeal from the Upper Tribunal to the Court of Appeal or the Inner House of the Court of Session; and the "prospects of success" test has to be read in the context of the failures at the first instance and on the first appeal that have gone before [at § 24]. In PR (Sri Lanka) it was accepted that Cart, as well, was a true second appeal case [at § 53]. PR (Sri Lanka) itself was also a second appeal of a sort, albeit not a second appeal of the ordinary kind, so that, it was accepted all round, the Court of Appeal was bound to apply the actual second appeals test as contained in section 13(6) of the Tribunals, Courts and Enforcement Act 2007 [at § 53].

[56] Deciding an application for permission to bring a second appeal and judicially reviewing a decision to refuse permission for a second appeal are perhaps rather different exercises from the exercise of judicially reviewing a decision to refuse permission for a first appeal, which is what I have been asked to do. For one thing, in the former situations, assessing the prospects does not involve any question of trespassing on the jurisdiction confided to the tribunal judges. Strictly speaking the only issue I am concerned with is whether the question of permission to appeal, that is a first appeal, should be re-decided by the Upper Tribunal, this time on sound legal principles. I would not wish to go further and to comment on the prospects. Still less would I want to become involved in the merits of the substantive question whether the petitioner has a strong case for not being removed to Pakistan.

[57] Sensibly, if I may say so, the Court of Appeal in PR (Sri Lanka) suggested that: "A slightly less demanding standard may be appropriate where there has been only one level of judicial consideration." There might be "room for some flexibility" [at § 53]. In PR (Sri Lanka) itself the Court of Appeal said that the process "shows the two-tier system working as it was intended" [at § 55]:

"The appeal to the Upper Tribunal revealed an error in the First-tier's reasoning which needed to be corrected. The TCEA [Tribunals Courts and Enforcement Act 2007] enabled DIJ Wilson to reconsider the matter, and hear evidence for the purpose. He rightly had regard to the most up-to-date Country Guidance, but took account of the fact that it was by then almost a year old."

So, in PR (Sri Lanka) the applicant had had two opportunities to make out his claim, the second opportunity being a re-determination after permission was granted rather than an appeal proper. The other two cases heard with PR (Sri Lanka), namely TC (Zimbabwe) and SS (Bangladesh) were "true" second appeals. In the present proceedings, there has been only one substantive hearing. The logic of the Court of Appeal's approach arguably leads to the conclusion at an even "less demanding standard" and more than "some flexibility" are called for when applying the second appeals rule to first appeals: but I do think I have to go there on this occasion.

[58] In reaching the view that there is a compelling reason in this case, I have noted that the two-tier tribunal system is argued to be "adequate and proportionate protection" for the rights of those applicants who come within its jurisdictions [Eba v Advocate General for Scotland 2010 CSIH 78 at § 18; cf. R (Cart) v Upper Tribunal [2011] 3 WLR 107 at §§ 5, 86 per Lord Philips of Worth Matravers PSC; PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 998 at § 41 per Carnwath LJ giving the judgment of the Court]. This presupposes that the system works; and in particular it presupposes that where there are points of law to be taken on appeal from the First-tier Tribunal to the Upper Tribunal such points will be entertained. Arguably it is of the greatest importance that the system functions properly where fundamental rights and extreme risks are at issue. In the present case, it is my view that the system has broken down. Three specialist immigration judges - one immigration judge and two senior immigration judges - have apparently applied, or endorsed the application of an incorrect standard of proof in a situation where the correct test is clearly set out in the Immigration Rules; and they have failed to take account of the up-to-date COIR material which has been produced in implementation of an obligation under the Immigration Rules to obtain and make available to them as immigration decision makers "reliable and up-to-date information" about the "general situation prevailing in the countries of origin of applicants for asylum".

[59] I acknowledge the argument that three failures in one case does not necessarily represent a "systematic" breakdown: but if the law has to wait until a number of applicants have potentially been denied the right to humanitarian protection, then it has to wait too long. I would have expected the error to be corrected by the Upper Tribunal. The failure of the Upper Tribunal to exercise the jurisdiction confided to it by Parliament for the purpose of providing "fair, adequate and proportionate protection" and ensuring compliance with the United Kingdom's treaty obligations is a serious matter but one that can be rectified by reconsideration [cf. the argument presented for the Secretary of State in PR (Sri Lanka) at § 30].

[60] The argument for applying the second appeals rule to first appeals is an attractive one, but, it has to be remarked, one that did not attract Parliament. Had Parliament thought it proper to restrict rights of appeal within the tribunal system, it could as easily have enacted the "important point of principle or practice or some other compelling reason" rule for appeals from the First-tier to the Upper Tribunal. Parliament did not do so. The fact the Parliament has approved such a rule only for onward appeals to appeal court level is -as I believe was recognized in PR (Sri Lanka) - an indication for "flexibility" in the application of the rule at the lower level where, by virtue of the judicial decisions in Cart and Eba, the rule now also exists . In the present case I take the view that a "compelling reason" is constituted by the failure of the Upper Tribunal to exercise the jurisdiction confided to it by Parliament for the purpose of providing "fair, adequate and proportionate protection" of the Convention rights of an applicant in an extreme risk case.

Conclusion, disposal and afterthoughts

[61] My conclusion is that the decision of 12 August 2010 has to be set aside so that the permission application or a re-formulated permission application can be considered by the Upper Tribunal in accordance with sound principles. I shall therefore repel the three pleas-in-law for the respondent, sustain the petitioner's plea and grant decree of reduction as sought by the petitioner.

[62] If permission is granted the question may arise as to whether there should be an evidential hearing or a review. No doubt consideration will require to be given to the most up-to-date COIR but something more than that may appear to be appropriate. Counsel for the petitioner submitted that there will not require to be an evidential hearing at least in relation to the petitioner's Christianity. The findings about that were however made on the basis, without cross-examination, on unchallenged evidence. If the matter is to be decided de novo it may be for consideration whether all questions should be re-opened, if that is competent. If the country guidance question is to be re-opened, it may be thought proper do so only on the basis of evidence tested in cross-examination. Finally, I hope it will be understood that the views that have been expressed by me about the merits of various questions are for the purpose of supporting my own conclusion and are not intended to bind decision-makers of the Immigration and Asylum Chamber in relation to matters confided to their judgment.