Petitioner and Reclaimer: Bovey QC et Winter; Drummond Miller LLP

Respondent: McIlvride; Office of the Advocate General

7 March 2014

[1] This reclaiming motion concerns an application for judicial review of an unappealable decision of the Upper Tribunal to refuse to grant permission to the reclaimer to appeal of the Upper tribunal from a determination of the First-tier Tribunal refusing his claims for asylum and humanitarian protection.

[2] The reclaimer came to the UK illegally in around September 2008, shortly before his 15^th birthday, claiming to be Iranian and seeking asylum and humanitarian protection. His claim was refused by the Secretary of State and subsequent tribunals on the basis that it was not accepted that he was of Iranian nationality.

[3] Because the reclaimer was a minor at the time of his claim there was a duty on the Secretary of State to endeavour to trace members of the applicant's close family, in terms of regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. In these proceedings it is conceded on behalf of the Secretary of State that this duty was not carried out. The duty, and the failure to carry it out, did not feature in any of the tribunal proceedings, but was the basis upon which judicial review was sought, on the argument that the point was one that was Robinson obvious (R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929) and, had the duty been carried out, might have had a favourable effect on the credibility findings made against the reclaimer.

[4] The Lord Ordinary, having regard to the high test which must be satisfied in such a case (Eba v Advocate General [2011] SC (UKSC) 1) refused the petition for judicial review on the basis that there was no compellable reason to reduce the decision complained of. In doing so, he noted that, in considering whether there was a compellable reason to allow the petition, it was a relevant factor that the reclaimer was not without a remedy, namely the presentation of a fresh claim in terms of Immigration Rule 353. Before the Lord Ordinary, it was accepted on behalf of the reclaimer that such a course would be open to him, but that there was a concern that in any such claim he would be "stuck with the adverse credibility findings made by the previous immigration judges". To the extent that those findings are not expunged from the record, that is so, but it does not follow that those adverse credibility findings must be accepted uncritically and must have equal effect in any fresh claim, or even that it would necessarily have that effect in the consideration of a fresh application or any subsequent proceedings. It is true that in any such fresh consideration the starting point will be the determination of the First-tier Tribunal, but the appeal tribunal is not bound by such findings. It requires to consider the position as it is at the time of the appeal, not as it was at the time of the original determination. If at the time of an appeal, and equally in a fresh application, there has been a change of circumstances of a kind which is capable of undermining the original credibility findings, the tribunal or the Secretary of State, would have to consider the effect of these changed circumstances on the issue of credibility. This is specifically conceded for the Secretary of State in this reclaiming motion, in the written submissions made on her behalf that:

"In the event that any further submissions are made by the petitioner in respect of his asylum and/or human rights claims, founding upon the breach of the duty to endeavour to trace family members, the Secretary of State will be required to consider any previous adverse credibility findings in light of the whole material then before her and will be subject to review by the court in the event her reconsideration is not lawful or reasonable."

[5] It is difficult to see how the reclaimer could be in any better position on a remit of the case to the Upper Tribunal for consideration only of the question of whether the First-tier Tribunal erred in law, as opposed to a fresh claim in which the effect of the Secretary of State's failure of duty would be fully taken into account. Indeed, the reverse would seem to be the case, a point which was effectively conceded by Mr Bovey for the reclaimer. We shall accordingly refuse this reclaiming motion, since it was ultimately conceded by Mr. Bovey that, subject to the considerations which we have just set out, the petitioner's position would be safeguarded by a fresh application.

[6] We should simply add that it was also suggested to us in the course of argument that the decision of the Lord Ordinary might be treated, in a fresh application, as equivalent to findings on the substance of the matter. We find it difficult to understand how that might be the case. Although an examination of isolated sentences in the opinion of the Lord Ordinary might, out of context, lend themselves to an argument that he considered, as a matter of fact, the effect on the claim of the breach of duty, it is clear on a reading of the opinion as a whole that he did not do so. His consideration was restricted to the question of whether the reclaimer had met the high legal test for allowing a judicial review of an unappealable decision such as this. No conclusions of fact should be taken from the decision of the Lord Ordinary and his decision is not determinative of the approach which should be taken in any fresh application, or the result which might follow.