EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 85
Lady Smith	OPINION OF THE COURT delivered by LADY SMITH in the application for leave to appeal by JJD Applicant; against A decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________

Act: Winter; Drummond Miller LLP (for Gray and Co, Glasgow)

Alt: Webster; Solicitor to the Advocate General

15 October 2013

Introduction

[1] JJD is the second applicant in a group of three appellants, the first of whom was her husband and the third of whom was her young child. This application for leave to appeal to this court is, however, only in relation to her claim.

Background

[2] The first and second appellants are both nationals of Gambia. The first appellant came to the United Kingdom as a student in 2004 and his visas were renewed until 25 August 2010. He then became an overstayer, having deliberately decided to overstay. On 18 May 2012 he sought asylum. His claim was based on the allegation that he would be apprehended by the authorities if he returned to Gambia. That was for two reasons: first, he had been involved in corruption when working for a particular council there between 1999 and 2004 and if arrested he would be ill‑treated; secondly, he referred to having participated at a demonstration in London to oppose the election victory in Gambia in December 2011 and he alleged that that would also put him at risk.

Findings of the First-tier Tribunal

[3] The first appellant was found not to be a credible witness, for the detailed and cogent reasons given by Immigration Judge Wallace in the determination dated 8 August 2012. Reference is made there to his lack of credibility being such as to go to the core of his claim. At paragraph 62, the following conclusion is recorded:

"The appellant came across as a highly intelligent individual. On a number of occasions he made reference to the internet and accessing resources. Taking the evidence in the round, what is suggested is that the appellant has constructed an asylum claim on the basis of fact he has extrapolated from the objective evidence available to him. On that basis, he has endeavoured to construct an asylum claim."

[4] Turning to the applicant, she came to the United Kingdom in 2008 as a dependent of the first appellant. She sought asylum in May 2010 on the basis that she and her husband had separated and she would be at risk if she returned to Gambia. That claim failed. The account on the basis on which her fear of persecution was said to be based was not accepted as true. Also, her evidence was found not to be credible in many other respects, as noted by the First-tier Tribunal which considered her present application, at paragraph 73 of Immigration Judge Wallace's reasons.

[5] In this application, the applicant asserted that she had a well-founded fear of persecution because, in 1997, when her brother was involved in an attempted coup, she assisted him to flee by collecting clothes from her parents' house for her sister to pass on to him. She alleged that she would, on return, be regarded as a criminal for having done so. Her account does not suggest that she was at risk during the 11 years she remained in Gambia before joining the first appellant in the United Kingdom; rather, her allegation of risk relates to what would be her position on returning now. She offers no explanation of why the risk would arise now whereas she lived safely in Gambia for 11 years after the alleged involvement with helping her brother.

[6] The objective evidence shows that the applicant's brother was detained and remained in detention in relation to attempts at a coup. According to the applicant, her sister had fled to Senegal. The applicant was, however, again, not accepted as being a credible witness. That was for reasons which are, again, detailed and cogent. Further, Immigration Judge Wallace explains that even if the applicant was involved in helping her brother, as she alleged, her involvement was minimal and indirect. Her parents did not even know of the assistance she and her sister were said to have given and the conclusion was, therefore, that there was very little prospect of her being wanted by the authorities. Immigration Judge Wallace did not accept that a "police wanted" poster that was produced by the second applicant amounted to evidence that she would be at risk. Its authenticity was called into question by reason of its source and the fact that it omitted vital information.

[7] The third appellant's interests were considered by Immigration Judge Wallace and the conclusion was that, being a 2 year old child, he had not established any independent relationships in the United Kingdom and he would be able to return to Gambia as part of his family unit. The implication is that Immigration Judge Wallace concluded that the effect on the child of a move to Gambia would be minimal and not a disproportionate interference with his article 8 rights.

[8] In summarising her conclusions, Immigration Judge Wallace said this at paragraph 80:

"Taking the evidence in the round I do not accept that the appellant's account as an accurate finding in fact. I do not believe the appellant and her husband have had no communication in the period they alleged and the appellant's claim comes across as a manufactured claim when another claim has failed."

[9] Thus, in common with the findings regarding the first appellant, the immigration judge concluded that the material put before her in evidence from the applicant was manufactured.

Permission to Appeal to the Upper Tribunal

[10] The applicant received permission to appeal to the Upper Tribunal but only in relation to article 8 - because of the economy of the immigration judge's expression of reasons in respect thereof. Otherwise leave to appeal was refused as the grounds represented nothing more than disagreement with the findings made by the immigration judge; it is clear that, had those been the only grounds, leave would not be granted.

Upper Tribunal

[11] Before the Upper Tribunal, counsel's principal arguments were, however, not advanced as arguments in relation to article 8, they were it was said "Robinson obvious points". They were as follows. First, that the immigration judge failed to take proper account of explanations provided by the applicant in her statement or failed to give adequate reasons for not accepting those explanations. Second, by arriving at credibility findings before making any findings about the "police wanted" poster, the immigration judge adopted the wrong approach. Third, that the immigration judge failed to consider the issue of imputation of political belief to the applicant by the Gambian authorities. Such imputation was liable to arise, it was said, from the fact that she would be a failed asylum seeker, from her sister having fled to Senegal and from her brother having been imprisoned. The applicant would, it was said, be perceived to oppose the government. Finally, counsel submitted that the immigration judge had not substantially discussed the matters relevant to article 8.

[12] The Upper Tribunal rejected the appeal in all respects. First, regarding the assertion that the immigration judge had overlooked the explanations given the applicant's statement, no submission had been made to the Upper Tribunal as to the substance of her explanations and the allegations contained in them. The statement did not raise anything afresh apart from the matters dealt with by the Upper Tribunal in relation to the second and third submissions. The Upper Tribunal rejected the proposition that the immigration judge failed to make findings about the poster - she had done so, it had important omissions within it and it did not, for the reasons she gave, impress as demonstrating that the second applicant would be at risk. Regarding the proposition about imputed political belief, there was a fundamental problem with the second applicant because of her account of being involved in helping her brother not having been believed and the fact that, even if it was correct, her involvement was too minimal to put her at risk.

[13] At paragraph 27 of their reasons, the Upper Tribunal said this:

"It is also important to look at the allegedly obvious shortcomings in the factual findings in a realistic perspective. The second appellant made a previous unsuccessful claim based on an invented estrangement from her husband without mentioning the circumstances she had put forward. The first appellant put forward an asylum claim which has been rejected as incredible in respect of which he now makes no complaint. There are several good reasons for finding the second appellant's asylum claim unpersuasive even to the lower standard in the determination. Looking at matters in the round, the Upper Tribunal has no basis on which to interfere."

At paragraph 28, the Upper Tribunal explained its approach to article 8 and why, in the circumstances of such a young child it was not surprising that article 8 was dealt with fairly briefly.

Application to Upper Tribunal for Permission to Appeal to the Inner House

[14] The second appellant sought leave from the Upper Tribunal to appeal to this court. The application for leave that was presented to the Upper Tribunal was in the following terms:

"It is submitted that the Upper Tribunal has erred in law in dismissing this appeal and that with reference to the determination received on the 22nd March 2013 that the Upper Tribunal has erred in law by reaching an irrational decision in the light of the grounds of appeal before it and has also failed to provide adequate reasons for the decision."

That is the sum total of what was said in the application to the Upper Tribunal for leave to appeal. That patently inadequate application was refused in the following terms:

"Their proposed grounds are irrationality and inadequacy of reasoning in the UT but a bare assertion to that effect is not enough to merit debate in the court."

The reason given for refusal is not at all surprising. What is surprising is that it was thought appropriate to present an application in terms that were as bare as the above; so bare as to be devoid of content.

Application to Inner House for Permission to Appeal

[15] The Upper Tribunal's refusal of permission was followed by the present application to this court. It contains two grounds. First, that the Upper Tribunal erred at paragraph 22 where it is stated that the applicant's written statement was essentially a repetition of her account and a denial of the respondent's points. That is, it is said, because she gave details in the statement and they raised fresh material that required to be resolved. Thus, it can be seen that the first ground reflects broadly that one of the grounds was argued before the Upper Tribunal.

[16] The second ground is stated as being that the Upper Tribunal erred in concluding that the submission about imputed political belief did not advance the applicant's case. So, again, it can be seen that an argument which was presented to the Upper Tribunal and, like the first ground of appeal, rejected, is sought to be advanced again on appeal to this court.

[17] At the hearing before me today, Mr Winter adopted his note of argument. He confirmed that the application only related to her and that no such application was made in relation to the other two applicants, albeit that, as her dependent, the third appellant's position would depend on the success of his mother's appeal. Mr Winter accepted that the test is that which is set out in the case of Hoseini v The Secretary of State for the Home Department 2005 SLT 550.

[18] In relation to the first ground of appeal he submitted that there was an error of law in respect that the applicant's statement was not, essentially, a repetition of her account; the Upper Tribunal was wrong to say that it was and had erred in saying the statement did not raise anything afresh. The Upper Tribunal had erred by miscategorising the explanations in the statement as being a repetition of her account. When one looked at the detailed explanations that had been given in the statement, it was wrong to say that there was nothing fresh for the judge to resolve. Had the First-tier Tribunal and Upper Tribunal looked at the applicant's statement they would have seen that it contained detailed explanations rebutting part of the refusal letter and concluded that the reliance on the refusal letter was undermined.

[19] Mr Winter referred to the applicant's statement, particularly at paragraphs 14 to 17. They contained new explanations which responded to the refusal letter and when Immigration Judge Wallace's decision was considered, whilst it was accepted that she did take account of her statement, she had failed to deal properly with it from paragraph 64 onwards.

[20] Regarding the second ground of appeal, Mr Winter submitted there was sufficient material to show that the applicant would suffer from imputed political opinion on return. That was because she would be returning as a failed asylum seeker. When asked what he meant by that, he said that she had been out of her country for some time and whilst it had to be accepted that that might, of itself, not be a problem and that returning as a failed asylum seeker might suggest to the authorities that she did not have adverse political allegiances, there was still a risk of imputed political opinion. The discussion in Sepet v The Secretary of State for the Home Department [2003] 1 WLR 856 in the speech of Lord Bingham at 871 showed that there was a need to be aware of that risk. Mr Winter said that, as the sister of a man who had been detained by the authorities, the applicant would be at risk. Thus put, his argument seemed to be rather different from simply asserting that returning as a failed asylum seeker would, of itself, be a problem for the second applicant. He also pointed to the applicant's case that her sister had fled to Senegal and to the fact that her brother had been involved at a previous attempt at a coup and imprisoned.

[21] Mr Winter did not make any submission to the effect that there was some other compelling reason to grant leave nor was any such submission included in the written application or his note of argument.

[22] For the respondent, Mr Webster submitted that the application should be refused. This matter had gone from the First-tier Tribunal to the Upper Tribunal only in relation to article 8 and that had not, in the end of the day, been insisted upon. It was other arguments which had, rather, featured. The applicant had not identified any ground of appeal constituting error of law with real prospects of success or some other compelling reason for granting leave.

[23] There was, he said, no challenge to the effect that either tribunal had failed to have regard to relevant material; the argument appeared to be based on the weight that could be put on the evidence. That was, however, a matter for the tribunal. Regarding paragraph 22 of the Upper Tribunal's reasons, the applicant's case that the Upper Tribunal had failed to have regard to the statement did not stand up, rather the applicant failed to have regard to everything that was said; there was a generalised statement in advance of detailed analysis which followed. The First‑tier Tribunal had considered various aspects of what had been raised in the statement; it was not obliged to discuss every part of it.

[24] The immigration judge's concern had been the plausibility of the applicant's account. She appeared before the First-tier tribunal having previously had an asylum application refused, partly because she was not believed and partly because she delayed until her marriage broke down in 2009. Then she made a new allegation when this fresh application was made at the time her husband applied for asylum. Her initial position was, accordingly, a weak one. At paragraphs 64 to 80 the First‑tier Tribunal had set about its task appropriately. It did not matter that the immigration judge had not spelt out every aspect of the evidence; it was plain that the conclusion was, looking at the evidence as a whole, that the applicant could not be believed. There were more than adequate reasons given to show why it was that the claim based on the further representations had failed. The Upper Tribunal seemed to have noted that at paragraph 27.

[25] Turning to the second ground of appeal, Mr Webster submitted that the difficulty which the applicant had in relation to that ground was that if the contention is correct then it would be open to any failed asylum seeker who came to the United Kingdom, manufactured a narrative and then said when it was disbelieved "but if I returned as a failed asylum seeker, I would be at risk" to succeed in their application. There was however a fallacy in that argument because there required to be a credibility of factual assertion before imputed political opinion could apply. Regarding the case of Sepet, what was said by Lord Bingham in the passage referred to was obiter and did not, in any event, support the argument advanced. There would still need to be some finding in fact on the basis of which the relevant political opinion could, albeit erroneously, be imputed to the applicant by the authorities in her own country. Without the requirement for the requisite underlying finding of credibility, the system would be open to abuse and that could not be right.

Decision

[26] I turn to my decision. The question for this court is that identified in the case of Hoseini, namely whether the application discloses grounds of appeal based on error of law which have a real prospect of success or whether there are other compelling reasons why it should be granted. I have reached the view that no such grounds are disclosed.

[27] On no view could it be said that this appeal has any prospect of success. The first ground proceeds on an incomplete rehearsal and incomplete understanding of the Upper Tribunal's reasoning at paragraph 22. When the whole of that paragraph is read in context, it is plain that it introduces a discriminating analysis of the relevant evidence which then follows.

[28] In any event, all that Mr Winter's submissions amounted to, in the end of the day was to say that, as a general proposition, there was more in the applicant's written statement than was stated in either of the tribunal decisions. Significantly, he did not point to anything in the statement that amounted to an assertion of a plainly material fact of such weight as to have had the potential to persuade that the applicant's account was, in fact, a credible one. Rather, as Mr Webster submitted, the impression is of an argument about weight that might have been afforded to the evidence but, as was also submitted by Mr Webster and is trite, what weight to give to any evidence that is accepted is very much a matter for the tribunal of first instance.

[29] There is also, of course, the overwhelming problem for the applicant that her evidence was simply not accepted as being a true account. Questions of weight only arise in relation to evidence which has been accepted as credible so, even if the applicant did have some colourable argument about weight, she fails at the first hurdle of being able to point to material evidence which was accepted as being a true account of some fact or facts.

[30] Turning to the second proposed ground of appeal, it is plainly without any merit given that the applicant's account that what she did was not believed. This ground of appeal fails to take any account of the fact that the applicant's account regarding helping her sister to help her brother was not believed and that when the First-tier tribunal went on, very properly, to ask itself what would have been the conclusion if her account had been able to be accepted as credible, the answer was that it would have been no different. Her involvement as described by her was so distant in time and so minimal and indirect that it could not be accepted that that put her at risk of persecution. However, the First-tier Tribunal's approach was, it has to be remembered, that it could not be concluded that what the second applicant alleged had actually happened at all.

[31] In these circumstances, there was no factual basis upon which any reasonable apprehension of imputed political opinion could be based. It is certainly possible in an appropriate case for such an imputation to arise, as Lord Bingham recognised in his obiter discussion in Sepet but much more than the fact of being a failed asylum seeker or being a relative of someone who has been in trouble with the authorities on account of his political opinions will be required. There must be something in the findings in fact about the relevant applicant's own conduct or profile which makes it likely that they will be the subject of adverse attention by the authorities. In this case the applicant cannot point to any finding by the tribunal that could properly be used as a basis for that imputation.

[32] In all these circumstances, there is no basis upon which it could be concluded that the appeal has any reasonable prospect of success and the application is, accordingly, refused.