Scottish Court of Session Decisions

Act: Dewar; Drummond Miller LLP (for Neil, Jain & Ruddy, Glasgow)

Alt: Maciver; Office of the Advocate General

7 February 2014

[1] The argument for the applicant is now presented on the basis of paragraph (2)(b) of Rule of Court 41.57 and not on the basis of ground 2(a). Consequently the applicant must show that there is a compelling reason for the court to hear the appeal, other than that it would raise some important point of principle. Whether there is a compelling reason must depend upon the circumstances of the particular case. That is apparent from the decision of this court in A. It is impossible to give an exhaustive list of the circumstances where the test may be satisfied. The test might be satisfied if there were a serious failure in procedure, with or without catastrophic consequences on return to the country that the applicant comes from.

[2] In the present case the main ground founded on was the inadequacy of reasoning in the Upper Tribunal and by extension the First-tier Tribunal. It is clear, however, that more than a material error in law is required to satisfy the test of another compelling reason. The present system as it operates following the decisions in Eba v Advocate General 2012 SC (UKSC) 1, and R (Cart) v Upper Tribunal [2001] UKSC 28, assumes that the First-tier and Upper Tribunals may make errors of law which will go uncorrected simply because it is the function of those tribunals to administer the system of immigration law, and as in any system, it is possible for tribunals and courts to make errors. That is not enough to justify an appeal to the Court of Session under the system of appeals that now operates. Consequently it will be in fairly exceptional cases that an appeal to the Court of Session is allowed.

[3] Perhaps the most standard case may be something that has been described as an exceptional collapse of fair procedure such that the petitioner has not had a fair hearing at all. That is referred to in Eba at paragraph 48. I take the view that these criteria are not satisfied in this case. The challenge here is essentially to the reasons given by the Upper Tribunal and by extension the First-tier Tribunal. One aspect that was criticized is the adoption of reasoning; the Upper Tribunal adopted the First-tier Tribunal and both of them adopted the Home Secretary's refusal letter. I do not see that there is anything objectionable in this. It is something that courts do from time to time if the reasoning of the court below is sufficiently clear and coherent. Authority for that exists in the cases of Zazouu in England and Wales and Singh in Scotland. Zazouu v Immigration Appeal Tribunal, 2002 EWHC 434 (Admin), the judge made it clear that it was possible to adopt the reasoning of the Home Secretary's refusal letter. Similar remarks are found in the Scottish case of Singh v Home Secretary, 1998 SLT 1370, in a statement by Lord Macfadyen at page 1377F-G. The same point is made by the Upper Tribunal in the present case at paragraph 12 of its decision, where it is remarked that a simple endorsement of the case of one side is better avoided. I would agree entirely with that. The judge goes on to say there is no universal law that a judge may not adopt reasons given by the Secretary of State for rejecting a claim. Symes and Jorro, Asylum Law and Practice (2^nd Edition), at paragraph 17-58, is cited, and the judge of the Upper Tribunal points out that in certain cases if nothing of substance is raised by way of response to the Home Secretary a judge need say little more. To the extent that the Home Secretary gave good reasons the judge was entitled to endorse and accept them. The Upper Tribunal goes on to say that in this case the refusal letter was detailed and well argued, and that would certainly entitle the judge of the First- tier Tribunal to adopt those reasons.

[4] In relation to the reasons given by the First-tier Tribunal judge and endorsed by the judge of the Upper Tribunal there are essentially two bases on which the applicant's claim failed. First of all her basic claim that she would be subject to threats in Nigeria simply failed on the facts, on the basis of credibility. Secondly, the claim for asylum failed because internal relocation was possible, in view of the size of Nigeria, the family contacts that were available there and the possibility of moving to a separate part of the country where members of the applicant's family were located. Consideration was also given to the alleged threat from members of the appellant's family, in particular from members of the family who were said to have joined Boko Haram. In the First-tier Tribunal and Upper Tribunal it appears to have been assumed that that allegation should be accepted, but the claim for asylum was nevertheless rejected.

[5] In my opinion the reasons that were given by both Tribunals were adequate. There is nothing that could be considered as a collapse of fair procedure. An informed decision-maker would be aware of what those reasons were. In this respect I apply the test which in Scotland is found in the well-known case of Wordie Property Company v Secretary of State for Scotland 1984 SLT 345, and in an immigration context in the more recent decision of Koca v Home Secretary 2005 CSIH 41. I accordingly consider that the test in paragraph (2)(b) of Rule of Court 41.57 is not met. Submissions were made by counsel for the applicant on the question of procedural fairness. It seems to me that the crucial point of his criticism related to the reasoning of the Upper Tribunal and First-tier Tribunal, where the arguments presented for the applicant were taken into account in at least general terms. It does not appear to me that there was any major failure to take into account any argument. Consequently there was nothing like a collapse of fair procedure, and in my opinion nothing like a compelling reason for the court to hear the appeal. I would emphasize that the thresholds in this area of law are high, and what is required is something akin to a total absence of procedural fairness or adequate reasoning. Nothing of that sort exists in this case. For these reasons I will refuse the application.