Scottish Court of Session Decisions

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Solicitor to the Advocate General for Scotland

16 May 2014

[1]        The petitioner is a 19 year old Afghan whose father was murdered by the Taliban because of his work for a human rights organisation known as the Cooperation Centre for Afghanistan (“CCA”).  He claims that, as his father’s son,  he will be targeted by the Taliban and at risk of death if returned to Afghanistan. 

[2]        After arriving in the UK in April 2012 the petitioner sought asylum.  This was refused and a removal direction was issued.  The petitioner’s appeal came before a judge of the First-tier Tribunal.  He identified the issue as being “Why would the Taliban have any interest in the petitioner?”  He considered it likely that the petitioner is of no interest to the Taliban.  He criticised a letter from CCA, which had been supplied through the British Red Cross, as being too vague and thus of limited, if any, evidential value.  Because of similar comments in the initial decision by the Secretary of State, further information had been obtained from CCA which provides more detail in support of the petitioner’s claim.  Although this additional material was before the immigration judge, in his decision he made no specific mention of it.  Amongst other things CCA states that, a reporter having been sent to investigate,  the view is that the petitioner is targeted “because he was son of the man who work for human rights and his father was killed by them and human rights is not acceptable by Taliban”.   Without addressing that new information, or giving any specific indication that it had been taken into account, the immigration judge reached the conclusion that it had not been established that there is a real risk to the petitioner from the Taliban on his return to Afghanistan, even in his home village, and dismissed the appeal. 

[3]        An application for permission to appeal that decision was refused by another judge of the First-tier Tribunal on the basis that “Contrary to claims within the grounds, the judge had considered the report from CCA at paragraph 35 of the determination”.  However, at paragraph 35 the immigration judge referred only to the original letter supplied through the Red Cross.  An application for permission to appeal came before a judge of the Upper Tribunal.  The issues before him included whether there was an arguable ground of appeal in that the immigration judge failed to have regard to the new information.  The operative part of his decision was as follows:

“A reading of the papers and the determination does not arguably support the claim the judge failed to consider all the available evidence.  The judge was clearly aware of the material and decided that the weight to be attached to the CAA (this should be CCA) documents was not that he was being invited to do by the appellant’s representative. Adequate reasons were given for the findings made.”  (For the avoidance of doubt, the above is an accurate quotation.)

[4]        The present petition asks the court to quash that refusal of permission to appeal, and to suspend the subsequent decision that the petitioner should be returned to Afghanistan on 20 May.  In respect of an application for interim suspension, I was addressed by Mr Caskie on behalf of the petitioner, and by Mr Pirie on behalf of the respondent.  It is averred that the decision is plainly wrong, and that the petitioner has not had a fair hearing in that significant elements of the adduced evidence were not considered by the Upper Tribunal judge, nor by either of the other decision makers.  With regard to the tests for judicial review laid down in Eba v Advocate General for Scotland 2012 SC (UKSC) 1, Mr Caskie submitted that there is a compelling reason that the petition be allowed to proceed, namely a plain error of law in the determination of the Upper Tribunal, allied to the potentially dire consequences for the petitioner if he is returned to Afghanistan.  The alleged error of law and lack of a fair hearing is based on the failure of the Upper Tribunal judge to engage with the grounds of appeal which, as Mr Caskie put it, had been “hammered home” in a covering letter.

[5]        Mr Pirie acknowledged that the balance of convenience favours the petitioner, thus he approached the matter on the basis that the question for the court is whether the petitioner has presented a prima facie case that there is such a compelling reason.  He submitted that there was no such prima facie case.  He referred to a number of authorities, including the recent Inner House decisions in A v Secretary of State for the Home Department 2013 SLT 1132, and EP v Secretary of State for the Home Department [2014] CSIH 30.  Mr Pirie submitted that a failure to consider evidence in support of a claim for asylum is a mere error of law which does not pass the Eba compelling reason test.  Something “more extreme” is required.  He stressed that the petitioner’s application was considered by an impartial and independent tribunal, which exercised its jurisdiction, and considered representations on behalf of the petitioner.  It gave reasons for its decision. 

[6]        Mr Pirie submitted that in any event there was no prima facie case that there had been an error of law.  The court should be slow to infer that the immigration judge ignored the new material.  Reference was made to paragraphs 4 and 37 of his decision.  Furthermore the new information was not so compelling that it was likely to have made a difference.  Mr Pirie stressed that this court should not interfere with the decision of an expert and specialist tribunal.  I was invited to refuse the motion for interim suspension.

[7]        In a brief response Mr Caskie observed that the new information from CCA  answered the questions which had troubled the immigration judge, all as expressed at paragraph 35 of his decision.  For whatever reason, everyone failed to address the central evidence in support of the petitioner’s claim.  The reasons for refusal of leave to appeal did not relate to the grounds of appeal put forward on behalf of the petitioner.  According to Mr Caskie, all of this was “a fundamental denial of justice”.  He drew an analogy with the decision of Lord Jones in YHY (China) [2014] CSOH 11 at paragraphs 28 to 29.  Mr Caskie asked - if a plain error of this kind allied to a risk of death is not a compelling reason - what is?

Discussion and decision

[8]        I am satisfied that the petitioner has presented a prima facie case of an irregularity in the decision of the Upper Tribunal judge which, in the pre-Eba world, would have justified interim suspension.  Indeed, while acknowledging that matters are at an early stage, with as yet no answers, and the benefit of only relatively brief submissions, my impression at the moment is that the petitioner has reasonable to good prospects of establishing that neither the Upper Tribunal nor the First-tier Tribunal engaged with the potentially important additional information from CCA.  In the case of the Upper Tribunal judge, this consisted of a failure to address and deal with the main ground upon which permission to appeal was sought.  However, in the post –Eba world the petitioner must also demonstrate that there is a compelling reason for this court to review the decision of the Upper Tribunal judge.  (The other possibility is that an important point of principle or practice arises, but Mr Caskie made it clear that he is not relying on that limb of the Eba test.)  It is important that I remember that at present I am only being asked to decide whether a prima facie case for a compelling reason has been presented.  As Mr Pirie acknowledged, if the answer is yes, Mr Caskie’s motion falls to be granted, and the case will proceed to a full hearing in the usual way after answers have been lodged. 

[9]        I have had regard to the guidance available from other cases, not least that given in the Inner House decisions in A and EP.  In A the court indicated that the Eba  test is a stringent one.   It is designed to allow review only in rare or exceptional cases, all with a view to correcting instances of compelling injustice.  Normally the error will be one which "cries out for consideration".  In JD (Congo) [2012] CSOH 195, Lord Bannatyne drew attention to comments made by Lord Justice Dyson to the effect that the court should supervise 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 slip through the system.  In another case Lord Justice Laws talked of examples where it is strongly arguable that there has been an error of law which has caused truly drastic consequences. 

[10]      In YHY (China) Lord Jones granted decree of reduction of the Upper Tribunal’s decision to refuse permission to appeal to it on the basis that it erred in holding that the grounds of appeal disclosed no arguable error in the First-tier Tribunal’s decision.  His Lordship observed that the role of the Upper Tribunal is to correct fundamental denials of justice in the First-tier Tribunal, but on this occasion, and for unsustainable reasons, it had failed to do so.  It followed that, having regard to the whole proceedings, the petitioner was denied a fair hearing. 

[11]      The citation of authority could be extensive, and no doubt there are many passages in the case law which can provide comfort to one side or the other.  From time to time it is emphasised that the issue of whether there is a compelling reason for the court to intervene is acutely fact sensitive.  I agree with that.  It is clear that the courts are still grappling with the notion that there are some injustices which must be tolerated, whatever the consequences, and others which justify court proceedings.  It has been said, I refer here to the decision in A at paragraph 31, that the UK Supreme Court introduced the Eba regime for pragmatic rather than principled reasons.  This may go some way to explaining the apparent collision between the new approach and the judicial instinct for fairness and due process, especially when the results can be so serious for the individuals concerned. 

[12]      I am satisfied that I should reject Mr Pirie’s submission that the petitioner has failed to present a prima facie case that the Eba test can be met.  Given that in due course the matter will come before the court for a decision on the merits, it is as well that I do not attempt to give detailed reasons for this decision.  It is enough to say that distinguished judges have offered the view that a strongly arguable case in law, allied to the possibility of dire consequences, can amount to the necessary compelling reason.  The petitioner has put forward material which, at least on a prima facie basis, supports the proposition that there was a denial of a fair hearing in that the immigration judge failed to address important evidence in the case, and the subsequent judges, and in particular for present purposes, the Upper Tribunal judge, failed to engage with the main ground of challenge when refusing permission to appeal to the Upper Tribunal.   All of this was notwithstanding the potentially very serious consequences of a return to Afghanistan if the petitioner’s case is well founded.

[13]      A different picture might emerge in due course as the case develops, but on the face of it, this is a case which cries out for consideration.  As to the guidance in A, if the petitioner’s claim is made out, I would very much hope that this is a rare and exceptional case.  It would be a matter of concern if such flaws in decision making are common.  Along with first orders, I shall grant the motion for interim suspension of the removal decision.