Scottish Court of Session Decisions

Petitioner: Winter, advocate; Drummond Miller LLP

Respondent: Gill, advocate; Office of the Advocate General

31 October 2013

[1] A procedural first hearing called before me on 26 September 2013. Mr Winter appeared on behalf of the petitioner and Mr Gill appeared on behalf of the respondent. The petition challenges the decision of the Upper Tribunal of 9 May 2013 refusing permission to appeal from a decision of the First Tier Tribunal.

Background

[2] The petitioner is from Iraq. He left there on 3 April 2012 and arrived illegally in the United Kingdom on 20 April 2012. He subsequently claimed asylum. By letter of 4 February 2013 the UK Border Agency refused his asylum and human rights claim. He appealed that decision to the First Tier Tribunal (FTT) which dismissed his appeal by decision of 13 March 2013. Contrary to the decision of the Border Agency, the First Tier Tribunal accepted that he had left Iraq because of threats made to him and to his family that he and they would be killed. Those threats appeared to have come from an unknown Arab man and related to the petitioner's finding of drugs in a prison in which he worked. However, the FTT found that relocation to the Kurdistan Regional Government (the KRG) would be reasonable.

[3] The petitioner sought permission from the FTT to appeal to the Upper Tribunal. It was contended that the FTT had erred in law in finding that he could relocate to KRG because it was claimed that the Tribunal had failed properly to assess a risk factor, namely that he had been employed as a prison officer. Permission was refused on 5 April 2013. The judge found that the relevant background material had been properly considered and proper grounds had been given for the conclusion that living conditions in the KRG would be safe and adequate and thus reasonable. No arguable error of law had been identified.

[4] Thereafter the petitioner sought permission to appeal from the Upper Tribunal founding essentially on the same grounds as lodged before the FTT. Permission to appeal was refused on 9 May 2013. At this stage it was argued that no proper reasons had been given for the conclusion that the petitioner could safely and reasonably relocate to the KRG and, as a prison guard, he fell into a risk category as defined by the UNHCR. The Upper Tribunal judge found that the FTT judge had had full regard to the evidence and submissions and had given ample reasons for his findings and conclusions. He points out that at paragraphs 22 to 23 the FTT judge provided his reasons for the finding that relocation as a Kurd to the KRG was an available option.

The Petition

[5] The petitioner has lodged a petition for judicial review of the decision to refuse permission to appeal. At paragraph 14 of the petition it is averred that both the FTT and the Upper Tribunal failed to exercise "anxious scrutiny" in assessing whether internal flight (or relocation) would be unduly harsh. That was because the petitioner would need certain documents to relocate to the KRG including a public distribution system (PDS) card which is a form of food ration card and he would have to return to his home to collect food rations thus exposing himself to the real risk of harm which the FTT had identified.

The Petitioner's Submissions

[6] Mr Winter accepted that the point now advanced was not focused in the hearing before the FTT or in the grounds for permission to appeal to the Upper Tribunal but claimed that it is an obvious point in the sense set out in R v Secretary of State for Home Department ex parte Robinson 1998 QB 929 (Robinson). He also contended that the point now identified has a strong prospect of success. He pointed out that in this particular case there had been only one substantive hearing of the petitioner's claim (at FTT level) and consequently there may be a "slightly less demanding standard" and more flexibility as to whether there is a compelling reason to seek judicial review.

[7] Mr Winter submitted that there was in this case a compelling reason advanced justifying this court interfering by way of judicial review with the decision of the Upper Tribunal to refuse permission to appeal. Both the FTT and the Upper Tribunal when considering permission to appeal had failed to identify the problems which the petitioner would be likely to encounter in relocating to the KRG. He would have to transfer his PDS card so that it was valid in the KRG and there were difficulties in doing that. If such difficulties were encountered, he would require to return to his home area in order to collect his rations and he has been found to be at real risk there. Reference was made to paragraphs 9, 44, 49, 53 and 61 to 69 of MK (Documents-relocation) Iraq CG 2012 UKUT 00126 and to paragraphs 351 and 352 of HM and Others (article 15C) Iraq GC 2012 UKUT 00409.

[8] The point now raised, although not raised before in any proceedings before the tribunal system, represented a compelling reason and satisfied the test in Eba. It demonstrated that anxious scrutiny had not been applied to the petitioner's case. That was demonstrative of an irrational decision which is, in itself, a form perversity constituting a compelling reason to interfere with a decision such as this.

[9] Mr Winter argued that in order to constitute a perverse or plainly wrong decision, it was enough to demonstrate a material error of law although the court would have to be satisfied in addition that that was an obvious error in law in the Robinson sense and so had strong prospects of success. Mr Gill in a Note of Argument for the respondent at paragraph 13(2) had stated that more was required than simply a material error of law and that some Upper Tribunal decisions, even though erroneous in law, would go uncorrected in the proper application of the Eba test.

[10] Mr Winter referred me to Regina (Cart) v Upper Tribunal 2012 1 AC 663 (Cart) at paragraphs 99 and 100 of the opinion of Lord Brown of Eaton-under-Haywood. His Lordship states there that the "second tier appeals approach" expressly contemplates that tribunal decisions might go uncorrected, even though erroneous in law. But Mr Winter contended that that approach was not necessarily the approach adopted by the whole court and pointed out that Lord Phillips of Worth Matravers at paragraph 95, Lord Hope of Craighead at paragraph 96, Lord Clarke of Stone-cum-Ebony at paragraph 104 and Lord Dyson at paragraph 133-144 align themselves with the reasons given by Baroness Hale as opposed to those given by Lord Brown.

[11] However, I note that Lord Phillips at paragraph 92 states this:

"Having considered, however, the judgment of Baroness Hale JSC who has great experience in this field, and those of other members of the court, I have been persuaded that there is, at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance (my emphasis) slip through the system.

In addition, at paragraph 131 Lord Dyson, who was the architect of the choice of the second tier appeals criteria, said:

"Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at paragraph 99 as "a wholly exceptional collapse of fair procedure" or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences (my emphasis)."

[12] It seems to me, therefore, that what has been described as the second tier appeals criteria does envisage that some errors of law might go unchecked and what will be required is a compelling reason to interfere based upon an error of law "of real significance" in the words of Lord Phillips or one which has caused "truly drastic consequences" in the words of Lord Dyson.

The Respondent's Submissions

[13] The petition is resisted by the respondent and notice had been given that the respondent contends that the test set out in Eba v Advocate General 2012 SC UKSC 1 (Eba) is not met in this case.

[14] Mr Gill argued that since the test in Eba was not made out in this case, I should dismiss the petition at this stage. He referred to SA v Secretary of State for the Home Department 2013 CSIH 62 at paragraphs 43 and 44 where it is emphasised that the test which the petitioner faces is a stringent one and that review of decisions such as the present should only be allowed in rare and exceptional cases in order to ensure that no compelling injustice occurs. There was no justification for any less stringent test to be applied here since this petition was presented after a full hearing at first tier level and the decision had been subjected to scrutiny at Upper Tribunal level at the stage of permission to appeal which found no arguable error of law. Mr Gill referred to the Opinion of Lord Doherty in Nabeel Yusuf Khan 2013 CSOH 84 at paragraphs 43 to 45 where His Lordship disagreed with Lord Stewart in Petition of AHC for Judicial Review at paragraph 57. The point now taken did not have a strong prospect of success and did not represent a compelling reason to allow judicial review of the decision. Neither was it an obvious point in the sense used in Robinson. It was not readily discernible since it depended on a process of inference and deduction. Mr Gill also submitted that it was wrong to say that this decision was perverse since it did not deal with the "obvious point". A failure to exercise anxious scrutiny was not per se perverse. He referred me to the case of EP 2013 CSOH 99 at paragraph 44 where Lord Armstrong cautioned against the use of cases which predate Eba and Cart as assisting in the interpretation of concepts such as perversity and compelling reasons in the current context.

Discussion and Decision

[15] In order to constitute a compelling reason justifying review of the decision of the Upper Tribunal, it would be necessary for me to be satisfied that this was an "obvious" point which ought to have been addressed by the Upper Tribunal, despite the fact that the petitioner and his legal advisors failed to raise it. Mr Gill referred me to Robinson at 946 where Lord Woolf MR stated that the appellate authorities are not required to engage in a search for new points. An obvious point of convention law is one that is "readily discernible" and one with a strong prospect of success not merely arguable.

[16] On examination of the "obvious point" which is now advanced by the petitioner in this case, it appears to be founded on what is said in the country guidance cases of MK (Documents-relocation) Iraq CG 2012 UKUT 00126 and HM and Others (article 15C) Iraq GC 2012 UKUT 00409 in the paragraphs set out above. In MK the appellant had referred to the evidence of Dr Fatah and the difficulties he had described in having a PDS card transferred by a person who had moved from his residence of origin to another part of Iraq. The bureaucratic procedures were "lengthy" (see paragraph 9). At paragraph 49 there is reference to the transfer of PDS cards which suggests that such a transfer is, in exceptional cases, possible but there are lengthy bureaucratic procedures involved. At paragraph 61 it is stated:

"It was difficult for Iraqis coming to the KRG to have their PDS card transferred from their place of origin and therefore it was common for IDPs from outside the KRG to go back to the place where there PDS card is valid in order to collect their food rations every month."

[17] In HM at paragraph 352 the tribunal said the evidence relating to difficulties in transferring PDS cards did not go quite as far as Dr Fatah had suggested.

"It would seem that an Arab such as the third appellant would, subject to security clearance, be able to get his PDS card transferred, though it could take up to two months."

And they proceed at paragraph 353 to say:

"None of this evidence takes matters any further than the position in MK. The tribunal there noted, for example, at 61 difficulties for Iraqis coming to the KRG to have the PDS card transferred from their place of origin. It was noted that IPDs from outside the KRG could go back to the place where their PDS card was valid in order to collect food rations every month. Clearly that would not be possible for everyone, but the tribunal went on to note the evidence concerning access to housing and employment, free public health and schooling and the financial support available from UNHCR by way of grants to people on repatriation and other forms of support from the UNHCR's Protection and Assistance Centre."

[18] I am unable to conclude that the point which is now advanced in the petition is an obvious point that ought to have been addressed by the Upper Tribunal at the stage of permission to appeal in the absence of grounds of appeal in relation to it. It is not "readily discernible" but requires a detailed examination of a number of paragraphs of the country guidance cases cited. Such a point would, in my view, require the judge to engage in an active search for new arguments and, as submitted, in a process of inference and deduction from the terms of selected passages from the country guidance cases quoted to me.

[19] Furthermore, I am not able to state that the point has a strong prospect of success as opposed to being merely arguable (see Robinson page 946 A-D). It is far from clear from the country guidance cases cited to me what difficulties, if any, might be encountered by the petitioner in getting his PDS card transferred; how long that process might take; whether, during the time the process of transfer was proceeding, he would require to travel from Kurdistan to his place of origin in order to collect food rations each month or whether, rather than having to return to his place of origin, he would be able to rely upon support from UNHCR, financial or otherwise, that might be available to him in that period. If he could, the risk apprehended by the petitioner would not arise.

[20] In any event, I do not consider that the point now advanced constitutes a compelling reason justifying judicial review of the refusals of permission to appeal. The process of anxious scrutiny did not dictate that the tribunal judges ought to have identified the point now taken for the reasons I have set out in paragraph 18 above. It cannot be said that the failure to identify it amounts to an error of law rendering the decision to refuse permission to appeal "perverse or plainly wrong" (Lord Hope in Eba paragraph 48).

[21] Even if I am wrong about that, the point cannot be said to constitute an arguable error of law which, in the words of Lord Dyson at paragraph 131 of Cart, cries out for consideration by the court having, for example caused "truly drastic consequences". On reading the country guidance to which I was referred, it is not apparent to me that the petitioner will have to return to his place of origin even if he does encounter difficulty in having his PDS card transferred and thus be exposed to the apprehended risk. Even if some difficulty was encountered in the process of transfer of his PDS card, the petitioner would only be faced with some delay in getting that done during which time, according to the country guidance, he could obtain financial assistance. For these reasons this case also fails to meet the requirements set out in Uphill v BRB (Residuary) Ltd 2005 1 WLR 2070 paragraph 24(1) since the prospects of success cannot be said to be very high. Furthermore the petitioner contributed to the way in which his case was dealt with at both levels of the tribunal system. At paragraphs 22 of the FTT's determination, the petitioner's evidence is set out which addressed the difficulties which he would face on relocation. The judge makes specific reference to both MK and HM. No-one pointed out to the FTT or to the Upper Tribunal the combination of circumstances now relied upon.

[22] Mr Winter submitted that a less stringent test might be used in cases where there has been one substantive appeal. I do not accept that submission. In this case there was not only a decision after a full hearing before the FTT but that decision was subjected to scrutiny by another judge at first tier level and again by the Upper Tribunal judge. For the reasons given by Lord Doherty at paragraphs 43-45 of Nabeel Yusuf Khan 2013 CSOH 84, I agree that, in such circumstances, no less stringent test should be applied.

Disposal

[23] For these reasons I find that the test set out in Eba is not satisfied. I will therefore repel the petitioner's plea in law and refuse the petition. I will reserve meantime all questions of expenses.