Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 90
P126/14	OPINION OF LADY SCOTT in the Petition of Y A N (AP) Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Petitioner: Caskie, advocate; Drummond Miller LLP

Respondent: McGregor, advocate; Office of the Solicitor to the Advocate General

23 May 2014

Introduction

[1] The petitioner, who is now 32, came to Scotland from Angola when he was 18 years old. He was granted leave to remain on the basis of concerns expressed at that time by the United Nations High Commissioner for Refugees (UNHCR) of the risk to young men from the civil war in Angola. On 23 January 2006 he was granted indefinite leave to remain. Subsequently he pled guilty to possession of cannabis, a controlled drug, with intent to supply and sentenced to 396 days imprisonment. On 3 July 2013 a deportation order was made against the petitioner in terms of section 32(5) of the UK Borders Act 2007 (the 2007 Act).

[2] The petitioner's appeal against deportation was made inter alia on asylum grounds that he faced a well-founded fear of persecution should he be returned to Angola on the basis of his likely expression of his political views. The First Tier Tribunal (FTT) rejected his appeal. On 21 October 2014 the Upper Tribunal (UT) refused to grant the Petitioner permission to appeal. It is this decision that the petition seeks to review.

[3] In terms of article 1A(2) of the European Convention of Human Rights (the Convention) a refugee is a person who

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country ..."

Amongst the benefits that a person who satisfies that definition enjoys under the Convention is the prohibition of expulsion or return. Article 33(1) provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

[4] The issue raised in this case concerned the decision making in respect of the petitioner's claim that if he were returned to Angola there was a reasonable likelihood that he would speak out against the regime which he disagreed with. There was no dispute that should he do so, then he would be liable to persecution. Finally there was no dispute that the onus was on the Petitioner to establish this claim.

Submissions for the Petitioner

[5] Counsel for the petitioner submitted that the narrow point in this case was whether the FTT was entitled, for the reasons given, to reject the asylum claim that the petitioner would be reasonably likely to speak out against the political regime in Angola and whether the UT erred in law in refusing an appeal on this issue.

[6] In his claim to the FTT the petitioner stated that he viewed the government or regime in Angola as repressive and corrupt. His father, a supporter of the opposition to the government had been killed by UNITA forces and he had lived on the streets throughout his childhood. Since his stay in Scotland he now fully appreciated the lack of freedom and the corruption prevalent in Angola. He said that "he would not be able to hold his tongue" if he was back in Angola. His position was supported by two witnesses' statements that the Petitioner had spoken to them and expressed his anger at the political situation in Angola. One witness gave his opinion that the petitioner would not be able to stop himself speaking out.

[7] The decision of the immigration judge (6/1 of process) rejected his claim on the basis that there was 'no evidence' that the petitioner had a well-founded fear of persecution should he be returned. This was subsequently clarified by the FTT as meaning there was 'not sufficient evidence' of same (6/3 of process). This conclusion was based on the facts that when the petitioner made his original asylum claim, he accepted that he had never had any problems when in Angola and had not spoken out about the regime and he had not been involved in any sur place activities when in the UK. The FTT considered the immigration judge was entitled to reject the assertions of the appellant he would speak out having regard to his conduct before and after entering the UK.

[8] The UT in a very short decision (6/5 of process) refused permission to appeal in respect of this point on the basis that -

"If the appellant had not expressed any political views when he was in Angola and after he came to the UK, it is not reasonably likely that he would express such views on his return to Angola. Merely saying he would, is insufficient to lead to a finding that he is entitled to refugee protection."

[9] The petitioner challenged the UT decision as an error of law rooted in the approach taken to the assessment of the asylum claim. He relied upon the test set out in HJ(Iran) v SSHD [2010] UKSC 31 in the opinion of Lord Hope at [35]-[36]:

"[35] This brings me to the test that should be adopted by the fact-finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact-specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set it out in my own words. It is necessary to proceed in stages.

The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant's case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. ... The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. ... If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.

On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin ... It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department
[2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.

[36] It should always be remembered that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant. As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country. An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted. "

[10] The petitioner submitted that applying this test here required an assessment of the likely future position, which essentially concerned the question of whether or not the petitioner was likely to speak out or express his political opinions on return. Both the FTT and the UT had unreasonably adopted reliance upon the past conduct or past failure to speak out in making this assessment and refusing his claim. This was the only reason given. No adequate reason was given for rejecting the petitioner's evidence he would do so, if returned. It was accepted that past conduct was relevant to any assessment but the approach taken here was unreasonable because no regard was had to the facts that whilst in Angola the petitioner was only a child and the evidence was that whilst in the UK he had in fact "spoken out" to his friends as attested to in the witness statements. The petitioner may not have spoken out against the regime on a public platform or protest in the UK but then he had no motivation to do so in the context of his long un-interrupted residence in his country of refuge.

Eba Test

[11] The petitioner submitted that the issue raised here impacted upon the approach to be taken to deportation of individuals coming here as children from repressive regimes and as such it raised an important point of principle meeting the test in Eba v Advocate General [2011] UKSC 29 at [48]. This test is met where the court is satisfied that the error of law has a wider impact than merely the petitioner's own case.

Compelling Reason

[13] In discussion I raised whether the petitioner had a basis which met the second limb of Eba namely whether there was "some other compelling reason" to allow review or reduce the UT decision. "Compelling reason" includes where the decision is perverse or plainly wrong.

[14] The petitioner relied upon the petition (paragraph 3) seeking the court to make such orders as may seem to be just and reasonable and submitted that the decision of the UT (as rehearsed above at 8) fell to be read as

"the appellant had not expressed any political views when he was in Angola and after he came to the UK, therefore it is not reasonably likely that he would express such views on his return"

which decision is plainly wrong for the reasons the petitioner had given.

Future Procedure

[15] The statement of issues suggested that should it be accepted that the petitioner's case passes the Eba test - the error of law having been presumed to exist - then a first hearing should be fixed. Alternatively the petitioner submitted that if it is accepted that the case meets the Eba test, no further hearing was required and it was further submitted by the petitioner it would be appropriate, in the context of this being an error by the UT, for this court to sustain the petition and reduce the decision of the UT (petition paragraph 12).

Submissions for the Respondent
[16] The respondent had no real dispute with the approach required to be taken to the petitioner's asylum claim. The Tribunals' decisions must be read as having regard to the whole evidence in considering whether to grant permission to appeal. Adjudication of the issues raised required the decision maker to look at all the relevant evidence and indicators in deciding whether or not there was a well-founded fear of persecution. This must include past conduct. The relevant facts were considered. There was no error of law here.

[17] The respondent then confined his submissions to what he said was a clear failure to meet the threshold test in Eba. The onus was on the petitioner to establish the risk of persecution and all the UT was doing was assessing whether he had discharged that onus by reviewing the evidence. The test and underlying principles of the relevant law raised in the petition were established in HJ (Iran) supra. There was nothing new here and the question raised as to whether or not the petitioner could "hold his tongue" was fact specific and the issues involved had no general application or importance. The petitioner had simply failed to provide sufficient evidence to discharge that onus. This was not an appealable decision.

Compelling Reason

[18] In response to the submissions on whether the UT decision was "plainly wrong" and provided a compelling reason which met the Eba test the respondent began by emphasising the stringency of the test involved. An error of law is not enough in itself (SA v SSHD paragraphs 39-41) and it must be "legally" compelling such as to carry high prospects of success, none of which can be said to be the case here.

[19] In any event this argument was not focussed in the petition and where there is a compelling reason this should be clearly identified (SA supra at paragraph 43).

Future Procedure

[20] The respondent submitted that clearly if his first plea in law was sustained this would end the matter. However if the court considered the case met the Eba test on the basis of a compelling reason, then the respondent would wish to argue the materiality of the error in law at a first hearing.

Discussion

[21] The respondent insisted the only issue before me was simply whether or not the assumed (but not conceded) error of law raised, met the Eba test and he confined his submissions to this test. The difficulty with this is that in order to make sense of the Eba test I require to identify and assess the alleged error of law and, as is often the case in an error of law challenge, any such assessment requires me to be informed by the history of the decision making and alleged errors. I respectfully agree with the observations of Lord Glennie in Mdluli at [28].

[22] So whilst of course the focus of my decision must be the grounds of challenge to the decision of the UT to refuse permission to appeal, that requires a wider consideration than the simple exercise suggested by the respondent.

[23] The errors of law raised here, in my view, are whether the UT erred in failing to properly assess the preceding error by the FTT in considering the asylum claim and in so doing failed to address the issues sought to be raised on appeal, namely whether the petitioners application raised a point of law which was arguable.

[24] It was agreed the approach to be taken to an asylum claim of this nature was that established in HJ (Iran) supra. It was not disputed that the petitioner held the views or political opinions he expressed in the evidence in his appeal. In this sense his position is comparable to the gay man in HJ(Iran) and goes some way to establishing the causative condition - Lord Hope at [35] rehearsed above. So too, does the fact that it was agreed that, should the petitioner voice his political opinion or "speak out" regarding the regime on his return, then he would be subject to persecution. Therefore the only issue was whether there had been a reasonable assessment made of the likelihood of his giving voice to those opinions or speaking out on his return. Any such assessment must be an "individual and fact-specific inquiry" (HJ Iran at [35]. Finally it was agreed that his past conduct was relevant to that enquiry. Accordingly the petition is founded upon the very narrow issue of whether there were failures in the way this fact specific enquiry was made.

[25] I am satisfied that it is arguable that the FTT erred in its conclusions drawn in respect of the likelihood of speaking out and in the way it assessed the petitioner's past conduct. It seems to me to be arguable that it was unreasonable to rely upon the failure to speak out when living in Angola when at that time the petitioner was a child - and indeed a vulnerable child living on the streets. It is also arguably unreasonable to conclude he did not "speak out" when resident here, in the face of the evidence of the statements by the petitioner and witnesses that he had done so. The evidence of the statements was that the petitioner had expressed his political views and voiced his opinions to others, albeit not on a public platform or protest. In any event there is nothing to suggest these factors were taken into account.

[26] It is also arguable that the UT expressly approves and repeats this error in its decision in refusing leave. I would also observe that the starting point in the reasons given by the UT for refusing permission to appeal is the conclusion that if the appellant had not expressed any political views when he was in Angola and after he came to the UK, it is not reasonably likely that he would express such views on his return to Angola. This reads as if that conclusion is reached only on the evidence of past conduct and before consideration of the petitioner's evidence is made. It can be argued therefore that the terms of the UT decision suggest the issue was decided without consideration of the evidence taken as a whole, constituting an error of law in making the decision.

[27] Having been satisfied that the error of law raised by the petitioner is arguable and has substance, I have to decide if it meets the Eba test. I am not persuaded it raises an important point of principle of general application. In my view it falls clearly within the ambit of HJ (Iran). The issue raised is directed to the assessment of the facts and, whilst I accept this concerns the legal approach taken rather than simply weight, it is by its nature a question closely tied to specific facts involved.

[28] It does seem to me however that there is compelling reason in the particular circumstances of this case to meet the second limb of the Eba test. Assuming the error of law is correct, the nature of the error rehearsed above and the fact that it is the only basis upon which the asylum claim is refused, renders the decision to refuse the appeal plainly wrong. This is a compelling reason to go to a first hearing. This is the reason it seems to me why the issue on which the petitioner has failed twice should be subjected to a third judicial process.

Decision
[30] Accordingly I find that the second limb of the test in Eba is met.

[31] The respondent at this hearing expressly confined his submissions to the Eba test and indicated he reserved any substantial submissions on the error of law and it's materiality to a first hearing. Given this, despite so much of the ground having been covered, I have decided that I am not in a proper position to make a final decision and it would not be fair for me to do so without allowing such further submissions. Accordingly with considerable reluctance I will continue this petition to a substantive first hearing for that purpose.