Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 101

XA23/14

OPINION OF LADY CLARK OF CALTON

in the application for leave to appeal

under the Tribunals, Courts and Enforcement Act 2007, section 13

by

SS (AP)

Applicant;

Act:  Caskie;  Drummond Miller LLP

Alt:  McIlvride QC;  Office of the Advocate General

25 November 2014

Summary of history
[1]        The applicant claimed to be a national of the Democratic Republic of Congo (DRC) and claimed asylum in the UK on 19 May 2006.  He gave a history which narrated that he had a well‑founded fear of persecution and ill treatment in the DRC and was fearful of being returned to the DRC because of his involvement with the UDSP party and because he would be returned as a failed asylum seeker.  Following an unsuccessful appeal on 26 October 2006, further claims and representations were also unsuccessful.  A decision to remove the appellant to DRC was made on 31 October 2012.  An appeal against that decision was made to the First‑tier Tribunal and the appeal was dismissed on 24 December 2012.  An appeal to the Upper Tribunal was also dismissed on 19 November 2013.  Thereafter an application to the Upper Tribunal for leave to appeal to this court was refused on 30 December 2013. 

The application for leave to appeal
[2]        The applicant applied to this court for leave to appeal setting out four grounds of appeal, all of which were stated to raise an important point of principle for the purposes of section 13(6)(a) of the Tribunals, Courts and Enforcement Act 2007.  In oral submissions at the hearing of the application, counsel for the applicant did not seek to advance ground 2.  I deal only therefore with grounds of appeal 1, 3 and 4.  Counsel for the parties adopted their respective written notes of argument, 12 and 14 of process which I have carefully considered.

Ground 1
[3]        Counsel for the applicant submitted that the Upper Tribunal had erred in law because, in promulgating their determination, they identified the applicant by name and birth date as a person who claimed to be an opponent of the DRC thus breaching an obvious point of Convention law as it is well recognised that suspected opponents of the DRC regime are at risk of persecution.  Counsel accepted that no motion for anonymity was made before the First‑tier Tribunal or before the Upper Tribunal.  He submitted that it was the responsibility of the Upper Tribunal to consider the need for anonymity in the knowledge that their decision would be on their website and easily accessible to officials of the DRC who screened people at the airport on return.  He prayed in aid as analogy YB (Eritrea) v Secretary of State for the Home Department (2008) EWCA Civ 360 at paragraph 18.  He also referred to P (DRC) v Secretary of State for the Home Department (2013) EWHC 3879(Admin) paragraphs 52‑55. 

[4]        The main thrust of the complaint was to the effect that in failing to anonymise their determination, the Upper Tribunal erred in law in circumstances where their determination does not make it plain that the applicant’s claims were disbelieved.  Counsel submitted that this error opened up a new ground for the applicant to claim that he has a well‑founded fear of persecution in the DRC as he was publicly described in the Upper Tribunal’s determination as claiming to be an opponent of the present government in the DRC.

[5]        Counsel was frank in accepting that the appeal court would not be in a position to make new findings of fact and come to a conclusion as to whether the new claim was well‑founded.  But he submitted that the case provided an opportunity for the appeal court to provide authoritative guidance about the approach to be taken by the Upper Tribunal in such cases.  Counsel also frankly accepted that in the event that leave to appeal was not granted, he had drafted and intended to make further submissions to the respondent in terms of immigration rule 353 about the change in circumstances resulting from the failure to anonymise the Upper Tribunals determination.

[6]        Counsel for the respondent submitted that ground 1 was plainly unsound.  The applicant had identified no error of law by the Upper Tribunal in determining the merits of the applicant’s appeal or any error of law which is open to correction by the appeal court.  The new event, relied on by the applicant as giving rise to a well‑founded fear of persecution, was the publication of the determination by the Upper Tribunal after it had been made.  In any event it is plain from the Upper Tribunal’s determination in paragraphs 3 and 17 that the applicant had not been found to be a credible witness.  His claims to be an opponent of the DRC were not found to be credible claims.  Counsel submitted that the applicant has a remedy to make further submissions in terms of immigration rule 353, if so advised. 

[7]        Even if I accept, as a hypothesis, that there was an error in law on the part of the Upper Tribunal, I have no difficulty in concluding that this case does not raise any point of principle.  It is plain that the issues raised in the case are fact specific to the case.  In these circumstances, I see no merit in exploring the prospects of success as to whether there was or was not a material error of law on the part of the Upper Tribunal and its implications.  The parties appear to agree that there is a potential remedy for the applicant once the appeal process is concluded.

Ground 3
[8]        Counsel for the applicant submitted the Upper Tribunal erred in equiparating the need for “compelling evidence” with “credible fresh evidence” in making the decision as to when it was appropriate to depart from a country guidance case.  The Upper Tribunal applied too high a test.  Counsel accepted that the correct test was identified by the Upper Tribunal in DSG and others (Afghan Sikhs) [2013] UKUT 00148 (IAC) but he submitted that in upholding the First‑tier Tribunal’s decision‑making, the Upper Tribunal has caused confusion and introduced a lack of clarity about the test. 

[9]        Counsel for the respondent, under reference to paragraphs 31 and 32 of the Upper Tribunal’s determination, submitted that there was no arguable error of law and that it was plain that the Upper Tribunal did not adopt a new test.   There was no confusion about the test to be applied.

[10]      In my opinion the Upper Tribunal correctly identifies and applies the “credible fresh evidence” test set out in DSG and others.  At paragraph 22, the Upper Tribunal states “the test is not that the evidence is ‘compelling’”.  In my opinion it is plain that no point of principle arises in relation to ground 3.

Ground 4
[11]      I have some difficulty in understanding the submissions in relation to the fourth ground of appeal advanced on behalf of the applicant.  It is submitted that this ground does not arise unless the Upper Tribunal erred in law in either of the two earlier grounds.  Ground 3 appears to be a new ground of appeal which was not argued before either Tribunal.  That might be considered sufficient reason for refusal.  When I consider the merits, the ground appeared to be premised on the assertion that it is for the Upper Tribunal to give policy guidance about whether it is in the public interest to grant leave to remain to all nationals of the DRC because otherwise there is (it is asserted) an incentive for DRC nationals who seek to remain in the United Kingdom to commit criminal offences and thus avoid return to DRC.  I do not consider it necessary to deal with this in any detail.  In my opinion it is unstateable to argue that the Upper Tribunal in this case, without any submission by the parties, should have produced the guidance which is said to be necessary.  I also consider the submission that such a policy would be part of country guidance as ill‑founded.  I accept the submissions made by counsel for the respondent that such policy decisions are exclusively within the province of the respondent and parliament.

Decision
[12]      For these reasons I refuse the application for leave to appeal.