Scottish Court of Session Decisions

Petitioner: Bryce; Morton Fraser

Respondent: Ms Catherine Smith; Office of the Advocate General

8 March 2013

[1] The petitioner is a Sri Lankan asylum seeker. He claimed asylum in May 2008 and underwent a screening interview ("the screening interview") in June. There is an issue as to the accuracy of the record of that interview, which was conducted in English at a time when, according to him, he was by no means fluent in that language. He underwent a substantive asylum interview ("the asylum interview") in September 2010, more than two years later. There is a discrepancy between what he said at the asylum interview about the date on which he was arrested by the authorities in Sri Lanka and the date which he is recorded as having given in the screening interview two years earlier. In March 2012 his claim for asylum was refused. He appealed against that refusal. His appeal was heard by the First‑tier Tribunal ("FTT") (Judge Mosolowski) in Glasgow in April 2012 and was refused.

[2] There is a right of appeal to the Upper Tribunal ("UT") on any point of law arising from a decision made by the FTT other than an excluded decision: s.11(1) Tribunals, Courts and Enforcement Act 2007. However, permission to appeal is required before this right can be exercised: s.11(3). Permission to appeal may be given by the FTT or, if refused at that stage, by the UT: s.11(4). The petitioner applied to the FTT for permission to appeal to the UT. That application was refused by the FTT (Judge Plumptre) in June 2012. The petitioner duly renewed his application for leave to appeal, this time to the UT. That renewed application was refused by UT Judge Allen in August 2012. The petitioner seeks judicial review of that final refusal by UT Judge Allen of his application for permission to appeal to the UT.

[3] I need not set out the grounds upon which the petitioner presents his claim for asylum. Judge Mosolowski found against the petitioner on grounds of credibility. It is, as I understand it, accepted, at least for the purposes of this judicial review, that had his account of events in Sri Lanka and of his concerns about returning there been accepted as credible, the petitioner would have been entitled to be granted refugee status and his claim for asylum would have succeeded.

[4] There is no right of appeal against the refusal by a judge of the UT to grant permission to appeal to the UT from a decision of the FTT. Such a refusal by a judge of the UT marks the end of the road for the applicant. However, the applicant may present a petition for judicial review of that refusal. It has been held by the Supreme Court in Eba v Advocate General for Scotland [2012] SC (UKSC) 1, in line with the decision in the English case of Cart - R (on the application of Cart) v Upper Tribunal [2012] 1 AC 663 - that the test to be applied on any such application is what has become known as the "second appeal test". Judicial review of a refusal by the UT to grant permission to appeal to itself from a decision of the FTT should not be granted unless (a) the proposed appeal would raise some important point of principle or practice or (b) there is some other compelling reason justifying interference with that decision.

[5] The petitioner seeks to challenge the decision of the FTT under reference to three particular grounds. These are set out in the application for permission to appeal which was lodged with the UT. The first of these grounds was that the judge had disbelieved the petitioner's account of his actions on the basis of wholly unwarranted speculation about how an ordinary civilian in Sri Lanka might respond to death threats made against him and his family by a terrorist organisation. The second ground related to Judge Mosolowski's adverse finding on credibility based on what she perceived to be his delay in claiming asylum - the petitioner had sought to explain the lapse of time before he made his application by saying that for a certain period he had expected the trouble in Sri Lanka to die down, but the judge simply dismissed that as not credible. It is said that not only was it credible but, in view of the fact that there was a ceasefire which only broke down later (just before the petitioner claimed asylum), it was objectively and verifiably true. It was an error of law to leave out of account that objectively verifiable fact and in any event there was no basis for finding that the petitioner's evidence was not credible on this point. The third ground related to the reliance placed by the judge on the discrepancy in the different interviews (to which I have referred earlier) concerning the date on which the petitioner had been arrested in Sri Lanka. It is said that great care should be exercised before holding an applicant to the precise details of everything said in the screening interview and holding against him when assessing credibility inconsistencies between what he said there and what he has said later at the much fuller asylum interview.

[6] It is sufficient for present purposes to identify these grounds of challenge at this level of generality. The point to note is that these were presented as errors of law. There is no doubt, and this was expressly accepted by Ms Smith for the respondent, that it may be an error of law for a tribunal to take into account matters which should not be taken into account because they have no relevance to the issue under consideration; and equally it may be an error in law for a tribunal to fail to take into account matters which ought to have been taken into account because they are relevant. It was, of course, necessary for the petitioner to present these arguments as raising points of law. Otherwise there would be no possibility of an appeal to the UT.

[7] It is not in dispute that the question to be answered by a judge of the UT presented with an application for permission to appeal to the UT from a decision of the FTT is whether the proposed appeal raises a point of law which is arguable. The test of arguability is not in terms set out in s.11 of the Act but it is, in my view, implicit. If the UT judge considers that there is an arguable point of law raised by the proposed appeal, he should give leave. If no such arguable point of law is identifiable, leave should be refused. I am not here seeking to define what is meant by "arguable", nor to suggest a particular threshold of arguability which has to be crossed before leave can be given. That does not arise on this petition. All I am concerned to identify here is that the task of the UT judge considering an application for permission to appeal to the UT from the FTT is to ask himself whether the application for permission to appeal raises a point of law which is arguable to whatever is the relevant standard. It is not his task to resolve the point. If the point is arguable, permission should be given even if he considers that the appeal will ultimately fail. In this connection there is assistance given in Guidance Note 2011 No.1 issued by the Chamber President, Mr Justice Blake. Para.12 of that Guidance emphasises that:

"It must always be recalled, however, that in dealing with applications for PTA [Permission to Appeal] Judges are concerned only with whether there is an arguable error of law, not whether the error is made out..."

Para 14 of that Guidance notes that whilst the existence of "reasonable prospects of success" is a relevant criterion to apply to the grant of permission, it is not a precondition for its grant. This appears to equate arguability with reasonable prospects of success. Be that as it may, it is clear that the judge hearing the application for permission to appeal is concerned only with identifying whether the proposed appeal raises an arguable point of law; beyond considering the question of arguability, he is not concerned with how that point of law should be resolved.

[8] As I have already indicated, the application for permission to appeal to the UT was refused by UT Judge Allen. In accordance with Rule 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008, if the UT refuses permission to appeal, it must send written notice of the refusal to the appellant together with reasons for the refusal. The Reasons given by Judge Allen are brief and I quote the material part in full:

"(1) The first paragraph of the grounds amounts to disagreement only. (2) With regard to the second ground, the judge considered the issue appropriately, noting the appellant's explanation that he expected the trouble in Sri Lanka to die down. I consider the findings at paragraph 74 to be sound. (3) There were a number of factors which caused the judge to find the appellant to lack credibility and I consider that taken as a whole the reasoning is sound. Although it may well be the case that if his account was found to be true he would face a real risk on return, he has been found not to be credible for sound and clearly articulated reasons ..."

I have numbered the different sections of the Reasons to indicate the different grounds of appeal to which they refer.

[9] It is argued for the petitioner that these Reasons show that the judge was not focusing, as he should have been, on the question whether there were arguable points of law raised by the application for permission to appeal but was instead considering the merits of the case, in the sense of reaching a conclusion that the FTT judge was correct and for that reason refusing permission. Put another way, he did not ask himself the right question which was simply this: does the application for permission to appeal raises an arguable point of law? Instead, he seemed to be asking himself whether the appellant had persuaded him that the FTT judge had reached the wrong decision.

[10] It is not in dispute that, if this is what the UT judge did when considering the application for permission to appeal, then he did indeed ask himself the wrong question. The petitioner characterises this as an error going to jurisdiction. In the post-Anisminic and post‑Eba world, I am not sure that such a distinction is helpful. I would prefer to categorise it in this way, namely that if the UT judge considering the application for permission to appeal asked the wrong question, and instead of focusing on whether there was an arguable point of law concentrated instead on how that point was likely to be resolved, he deprived the petitioner of his last opportunity of having his case heard with the prospect of a favourable outcome. The UT judge considering an application for permission to appeal is acting as a gatekeeper. If he acted in the way complained of, it is as though he refused to open the gate without first finding out whether the appellant was eligible to come through. In enacting s.11 of the 2007 Act, Parliament clearly intended that a would-be appellant should have two opportunities of persuading a judge (successively a judge of the FTT and a judge of the UT) that he has an arguable point of law justifying the grant of permission to appeal. If one or both of the judges considering the application for permission does not ask himself the relevant question, he deprives the would-be appellant of one or both of those opportunities. If this is what he did, that seems to me to amount to a serious breakdown of due process which the court would be loath to leave standing, particularly in an asylum case where the effect would be to deprive the petitioner of his last opportunity of persuading the UT that his case should be reconsidered.

[11] It has been said in many different contexts that Reasons given by a decision maker should not be scrutinised as though they were written down in a statute. They should be read sensibly to try to understand what reasoning process has been undertaken. They should also be read against the background of an initial assumption that the decision maker was aware of the task which he was meant to be carrying out. Thus, it must be assumed that UT Judge Allen was aware that the question to be asked and answered by him was: has the appellant raised a question of law sufficiently arguable to justify the giving of permission to appeal to the UT? But against this background, it is still necessary to read what is said in the Reasons; and if it appears from the Reasons that the judge has lost sight of the question he was meant to be asking, the court should not be deflected from reaching that conclusion and granting an appropriate remedy.

[12] Reading the Reasons given by the UT judge for refusing leave to appeal, and having proper regard to the need to give those Reasons a sensible rather than an over-literal interpretation, it does not seem to me that the UT judge anywhere addresses the question whether the proposed appeal raises an arguable point of law. The first ground of appeal is dealt with in one short sentence, which explains that, in the opinion of the UT judge, it amounts to "disagreement only". Had this stood alone, I would have been open to the argument that what the judge was there saying was that it raised no question of law but simply amounted to an assertion that the FTT judge had reached the wrong conclusion on the facts. But in dealing with the second ground of appeal the UT judge makes the point that the FTT "considered the issue appropriately" and that he considered the findings of the FTT in para.74 "to be sound". That is the language of having reached the conclusion that the FTT was correct. It gives no indication that the UT judge has considered whether or not the proposed appeal raised a question of law which was arguable, whatever his own view of the likely outcome might be. Similarly, in dealing with the third ground of appeal, the UT judge talks about there being a number of factors causing the FTT judge to find that the appellant lacked credibility and that "taken as a whole the reasoning is sound". The fact that there were a number of factors causing the judge to find that the appellant lacked credibility may well be highly relevant in disposing of an appeal were permission to be given, and might even be relevant to the question of whether the point of law sought to be raised on the appeal was material (since if it would not possibly lead to the decision being reversed there would be no point in granting permission to appeal). But the UT judge does not take as his starting point any consideration of whether the proposed ground of appeal does raise a question of law; and in light of that omission, for the UT judge to conclude that the reasoning of the FTT is sound is, to my mind, wholly beside the point.

[13] In those circumstances I have come to the conclusion that the UT judge considering the application for permission to appeal must have asked himself the wrong question and failed to give the petitioner the opportunity, which Parliament said that he should be given, to have a second opportunity of persuading a judge that his proposed appeal raised an arguable point of law and should be allowed to proceed.

[14] What is to be done? Mr Bryce, who presented the case for the petitioner, argued that in those circumstances the court was not concerned with the "second appeal" test referred to in Eba and Cart. He argued that where the tribunal had made an error of law which went to its jurisdiction, for example by asking the wrong question, its decision should be reduced without any consideration of the "second appeal" test. He sought to derive some support for this from para.[49](a) and (b) of the judgement of Lord Hope in Eba. The submission was that the "second appeal" test was a restriction of the court's ability to interfere with intra vires errors of law by the judge refusing permission to appeal, but had no application to ultra vires errors of law. I do not accept that submission. The court in Eba and Cart was not concerned to reinstate the distinction between intra vires and ultra vires errors of law which, as Lady Hale pointed out, had often given rise to difficulties. Rather it was concerned to apply across the board a single test for the grant or refusal of judicial review in this area.

[15] The "second appeal" test has two elements. The first raises the question whether the proposed appeal raises an important point of principle or practice. Save in one respect to which I shall refer in due course, Mr Bryce rightly, in my view, did not seek to suggest that the proposed appeal would raise such a point of importance. The second element of the test raises the question whether there is some other "compelling" reason. In Eba and Cart reference was made in this context to the similar provision in the CPR discussed in the judgment of the Court of Appeal in Uphill v BRB (Residuary) Ltd. The Court of Appeal emphasised at para.24 (1) and (2) that even when some other compelling reason was relied upon, there would usually have to be shown to be good prospects of success on the appeal itself if permission were to be granted. But at para.24(3) the court went on to recognise that there might be circumstances where there was a compelling reason to grant permission to appeal even where the prospects of success were not very high. An example is given of where the judge did not allow the appellant to present his or her case. In those circumstances, even if the appellant had no more than a real as opposed to fanciful prospect of success, it would plainly be unjust to deny him a second appeal since to do so might, in effect, deny him a right of appeal together.

[16] Despite Ms Smith's very able arguments to the contrary, I do not consider that in every case it is necessary for the court to be satisfied that the would-be appellant has a very good or strong prospect of success before a decision of the UT refusing leave to appeal to itself will be reduced. It must be borne in mind that cases such as Uphill were concerned with the question whether the Court of Appeal should entertain an appeal to itself. In those circumstances, where there have already been a number of decisions below, there is every reason to restrict the grant of permission by reference to a high threshold of arguability on the merits. What is involved if permission is granted in such a case is a full-scale hearing of the appeal itself, with all that that involves in terms of expenditure and strains imposed on the system. Proportionality is an issue. In a case such as the present what is involved if the decision refusing permission to appeal is reduced is that the matter will go back to the UT for reconsideration as to whether or not permission to appeal should be given. That will simply involve a UT judge considering whether an arguable point of law is raised. If he grants permission to appeal it will be because he considers that there is an arguable point of law, and the system will take its course. If, on the other hand, he considers that there is no arguable point of law, he will refuse to leave and there will be little by way of wastage of time and expense. That is not to say that in the general case all the points made in Uphill will not be of great significance in this field. In the general case where the application for permission to appeal has been considered and refused at two levels (FTT and UT), those levels being on top of the initial decision by the FTT on the merits, proportionality requires that there be a high threshold before the court will interfere with the last decision refusing permission to appeal. But that is not this case. In this case there has, admittedly, been a substantive decision of the FTT and there has also, admittedly, been a decision by the FTT on the question of permission to appeal. But the petitioner has not had, as Parliament intended, the opportunity to have his application for permission to appeal considered properly by a UT judge. Although any attempt at equating one set of facts with another is usually invidious, the position here is not so very different from that posited in para.24(3) of Uphill.

[17] I propose to grant the prayer of the petition by reducing the decision of the UT refusing permission to appeal to itself. The matter will have to go back to the UT so that the application can be considered afresh.

[18] I should emphasise that in taking this course I do not make any finding or express any opinion one way or the other as to the strength of the petitioner's case on the three points sought to be argued on appeal before the UT. An assessment of whether those points are properly to be described as points of law, and an assessment of whether they are sufficiently arguable to justify the grant of permission to appeal, is a matter for the UT. My decision is based firmly and exclusively on the ground that, on the material presented to me, it appears that the UT judge considering the application for permission to appeal has not in fact carried out his function and has thereby deprived the petitioner of his entitlement to have his application for permission to appeal considered by the UT in the event that, as happened here, it was refused by the FTT.

[19] I should note that the petition also included as a ground for reduction an argument that the reliance placed by the FTT judge, in her substantive decision, on the screening interview was excessive to the extent of being wrong in law, and that this was in itself an important point of principle or practice justifying the grant of permission to appeal under the first part of the "second appeal" test. This argument was understandably not pressed very hard by Mr Bryce. There was no material upon which the court could assess whether the point was a commonly recurring one or was one which gave rise to difficulties which needed to be resolved by an appeal to the UT and possibly, thereafter, to the court. Insofar as this point was pursued as a separate and independent ground for reduction of the decision of the UT to refuse permission to appeal, I reject it.