Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 104

XA39/14

OPINION OF LADY CLARK OF CALTON

in the application for leave to appeal

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

by

JM (AP)

Applicant;

Act:  Carmichael QC, Caskie;  Drummond Miller LLP (for Latta & Co, Glasgow)

Alt:  Komorowski;  Office of the Advocate General

26 November 2014

History

[1]        On 10 January 2014, the Upper Tribunal considered an appeal by the applicant from the determination of the First‑tier Tribunal dated 24 May 2013.  The Upper Tribunal considered six grounds of appeal, none of which were upheld.  The Upper Tribunal dismissed the appeal and concluded that the determination of the First‑tier Tribunal shall stand.  The Upper Tribunal further refused leave to appeal to this court. 

Application for leave to appeal
[2]        The issue which I have to determine is whether to grant the application for leave to appeal to this court.

[3]        In the application for leave to appeal and in the written submissions, two grounds of appeal were advanced.  The first ground was based on issues arising out of the application of article 32 of the Refugee Convention and it was contended that an important point of principle arose.  Senior counsel for the applicant submitted that she was not advancing this ground of appeal as she considered that R (ST) v Secretary of State for the Home Department (2012) 2 AC 135, relied on by counsel for the respondent in his written submissions, was applicable.  It is unnecessary therefore for me to consider further this ground of appeal.  I am grateful to counsel for both parties for identifying the relevant law and taking the appropriate action to narrow the issues in dispute.

[4]        Senior counsel for the applicant restricted her submissions to the second ground of appeal.  This ground is directed to an error in law in the approach by the First‑tier Tribunal to a medical report dated 20 October 2007 (no 6 in the appendix to the application) relied on by the applicant in support of her evidence that she was raped in 2007 by three men in the circumstances described by her.

[5]        In summary, the complaint made by senior counsel was that the First‑tier Tribunal ignored the critical evidence in the medical report dated 20 October 2007.  That medical report gave compelling support to the applicant’s evidence that she had been raped.  There is clearly recorded in the medical report a history of rape, bleeding from the vagina and associated injuries.  The issue raised now in this application was clearly raised and focused in ground of appeal 5 to the Upper Tribunal.  It is also plain from the decision of the Upper Tribunal (no 1 in the appendix to the application at paragraphs 14 and 27) that relevant oral submissions on behalf of the applicant were made in support of ground 5.  Senior counsel submitted that the Upper Tribunal completely failed to engage with ground of appeal 5.  The Upper Tribunal failed to engage with the merits, failed to consider the contents of the medical report and the implications for the credibility of the applicant.  Senior counsel submitted that this was an extreme example of the Upper Tribunal having failed to identify and respond to an error of law raised clearly by the applicant and which was material to the critical issue of the applicant’s credibility.

[6]        Under reference to EP v Secretary of State for the Home Department (2014) CSIH 30 paragraph 25 and Cart v Upper Tribunal (2012) 1 AC 663, senior counsel submitted that the failure by the Upper Tribunal was perverse and/or demonstrated a failure to provide a fair hearing at all.  She also prayed in aid the extremity of consequences as the case involved return of an individual who is not safe as she has been repeatedly attacked because of her relationship with her brother who has antagonised the government regime. 

[7]        Senior counsel submitted that the policy reasons which give due deference to the Upper Tribunal are premised on an acceptance that the Upper Tribunal is a specialist tribunal which will duly carry out its appeal jurisdiction.  In this case it is patent that the Upper Tribunal has failed badly.  It has not engaged with the material before it to the extent that there was no proper hearing at the appeal stage in relation to a critical and material issue or at the Lower Tier Tribunal stage.

[8]        Counsel for the respondent conceded that the respondent was unable to support the assessment made by the First‑tier Tribunal of the said medical report.  The respondent was also unable to support the reasoning of the Upper Tribunal in holding that there was no error of law in that respect.  Counsel conceded that there was an error of law but submitted that the error of law was not material.  He submitted that even if it was accepted as true that the applicant was raped, that does not take her case further because there is no credible evidence as to why she was raped.  Her lack of credibility was underpinned by a number of reasons and the history of rape given by the applicant (and not believed) was only one of the reasons.

[9]        Counsel drew attention to paragraphs 51, 54 and 56 of the First‑tier Tribunal decision (no 4 in the appendix to the application) to emphasise that there were a number of difficulties identified by the First‑tier Tribunal about the applicant’s credibility.  In addition, he submitted that the First‑tier Tribunal, in paragraph 55, having stated that the judge did not believe the applicant’s account of her two attacks in Uganda stated:

“The background evidence indicates that there would be a sufficiency of protection for the appellant in Uganda and I find her account to lack credibility.  If her account is true nothing has been provided to show that these attacks had anything to do with her brother or that she is in any danger because of her brother.”

[10]      Counsel further submitted that the error identified in the circumstances of this case did not amount to a compelling reason.  The statutory test was a very high test and a failure to consider one aspect of the case, even if material, did not amount to a wholly exceptional failure of fair procedure.  In essence the complaint by the applicant is that the reasons of the Upper Tribunal were unsupportable.  Further the error does not lead to the drastic consequences submitted on behalf of the applicant as the applicant’s account has been rejected as incredible.

The legal framework
[11]      In terms of section 13 of the Tribunals, Courts and Enforcement Act 2007 it is provided that permission for leave to appeal should not be granted unless the court considers:

“(a)  that the proposed appeal would raise some important point of principle or practice, or

(b)  that there is some other compelling reason for the relevant appellate court to hear the appeal.”

I did not understand there to be dispute about the applicable case law and that the test to be applied in Eba and Cart was a high test characterised as “a stringent” test in EP v The Secretary of State for the Home Department (paragraph 22).  Mere error of law, even material error of law, was not of itself enough.

[12]      I am of the opinion that there was a material and obvious error of law on the part of the First‑tier Tribunal in dealing with the said medical report and that the implications are capable of seriously affecting the credibility assessment of the claims made by the applicant.  The error was clearly identified in appeal ground 5 to the Upper Tribunal.  The response by the Upper Tribunal is contained in paragraph 27 (no 1 in the appendix to the application).  The Upper Tribunal states:

“As to ground 5, the relevant medical report is mentioned in some detail.  There was an abundance of material before the judge, and she did not have to expound on this particular aspect to any greater extent that she did.”

[13]      I consider that this response by the Upper Tribunal does point to a complete failure by the Upper Tribunal to address the ground of appeal and properly consider the issue.  In the result the applicant has proceeded through the tribunal system in circumstance in which neither tribunal has properly addressed issues fundamental to her credibility.  I accept that there is some force in the submissions by counsel for the respondent that there were other significant criticisms of the credibility of the applicant.  Nevertheless, there is evidence which might be considered of a compelling nature that the applicant was raped and it is not at all clear on what basis the judge of the First‑tier Tribunal disbelieved her account of events in relation to that and how that disbelief affected assessment of credibility about other parts of the applicant’s version of events.  Her account of events includes a history, reasons why she was victimised and the absence of protection from the police.  The applicant’s credibility is central to this case.  I accept that it is open to the decision maker to believe some parts of the evidence and not others but I consider that the decision maker must assess the credibility of the applicant properly taking into account all the relevant evidence in the round.  It appears in this case that this exercise has not been done.

Decision
[14]      In my opinion there is merit in the submissions by senior counsel for the applicant as to why leave to appeal should be granted.  In the particular circumstances of this case, I grant the application for leave to appeal on the basis that there is compelling reason for this court to hear the appeal.