Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 109

P237/13

Lord Brodie

Lady Clark of Calton

Lord McGhie

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the reclaiming motion

by

HF

Petitioner and Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

In Judicial Review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 20 November 2012 refusing permission to appeal

Act:  Dewar, QC; Winter; Drummond Miller LLP

Alt:  Maciver;  Office of the Advocate General

17 December 2014

History of proceedings

[1]        On 18 July 2012 the asylum claim made by the petitioner and reclaimer (“the reclaimer”) was refused by the respondent.  The reclaimer appealed against the refusal to the First-tier Tribunal which heard the appeal on 29 August 2012.  By determination promulgated 17 September 2012, her appeal was refused.  Her application to the First-tier Tribunal for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) was refused on 3 October 2012 on the basis that there was no error of law and that the appeal was an attempt to reargue the case in which she “had told a pack of lies in respect of her claim for asylum and her claims about her studies in the UK…”.   On 8 October 2012, the reclaimer sought permission from the Upper Tribunal to appeal but this was refused.  In giving reasons for the refusal of permission to appeal, the Upper Tribunal stated:

“…(2).  The appeal has already been the subject of a well reasoned determination that, in turn, was carefully considered, by the Judge of the First-tier Tribunal in her consideration of the first application for permission to appeal and who concluded that the grounds amounted to no more than an attempt to reopen sustainable findings of fact and thus disclosed no arguable error of law.  The original judge had given ‘cogent reasons for finding that the appellant had fabricated her account of a pregnancy with a man who was not her husband…the judge was entitled to conclude that she was not a witness of truth…had demonstrably lied about her circumstances in Pakistan…’.

(3)…..  I would entirely concur with that view……

(7).       This application raises no arguable error of law that might either lead to a different outcome on the appellant’s case or raise a question of general importance that the Upper Tribunal should consider”.

[2]        The same grounds seeking permission to appeal were prayed-in-aid by the reclaimer before both Tribunals.  The grounds made criticisms of the evidential foundation of the decision by the First-tier Tribunal on credibility, the reasoning of the First-tier Tribunal and made complaint that the respondent had not used her resources to check if the reclaimer’s husband ever entered the UK. 

[3]        Having failed in the tribunal system, the reclaimer raised a petition seeking judicial review of the decision of the Upper Tribunal dated 20 November 2012 refusing permission to appeal.  Statement 8 of the petition sets out the grounds for review.  The best that can be said about the pleadings in statement 8 is that they are ill-focused but appear to echo the grounds relied on by the reclaimer before both Tribunals in seeking permission to appeal. 

Statement 8 of the petition avers:

 “in light of the foregoing, the Eba test in terms of a compelling reason is met, allowing the Court to reduce the decision of the UT”. 

This is a reference to the decision in Eba v The Secretary of State for the Home Department 2012 SC (UKSC) 1.   There are no clear averment in the petition setting out the compelling reason.  This does not assist the court in the gate keeping role envisaged in Eba. 

[4]        On 19 December 2013, the Lord Ordinary dismissed the petition for judicial review by the reclaimer for the reasons given in his opinion dated 19 December 2013.  The Lord Ordinary stated:

“[15]    The submissions for the petitioner are to the effect that compelling reasons are demonstrated, justifying the future progress of the petition, in respect that the UT was in error by failing to grant permission to appeal where, it is said, it was incumbent upon it to intervene in circumstances where the FTT had reached findings on the issue of credibility on a flawed basis, such as to render the FTT decision perverse, all in circumstances where a failure to properly exercise anxious scrutiny itself rendered the FTT decision irrational to the extent of perversity.

[16]      I regret to say that I am not persuaded by either of the arguments.  As regards the question surrounding the observations of the FTT in relation to the whereabouts of the petitioner’s husband, I agree with the characterisation of the claim as submitted on behalf of the respondent.  The case was presented to the FTT on the principal basis that the father of the petitioner’s expected baby was Mr Y.  It was for her to prove the critical fact that Mr Y was the father and in that, on grounds of lack of credibility, she failed.  At best, the fact of the whereabouts of her husband was ancillary to that principal issue.  That being so, I agree that any observation in that regard, whatever its origin, whether by inference or otherwise, was immaterial to the ultimate decision.  I do not consider, as was asserted on behalf of the petitioner, that the fact of the absence of the petitioner’s husband from the UK was fundamental to the decision of the FTT, or indeed to its assessment of the petitioner’s credibility.  While there is no doubt that the FTT referred to the matter, I interpret the fact that it did as indicative of a desire to achieve completeness in relation to an assertion made on behalf of the Secretary of State during the hearing, all in the context of a full and detailed written decision.  While the evidence, had it been available, might well have emerged in a manner which could have added support to the petitioner’s case, by bolstering her credibility in relation to certain matters, I do not consider the references in the decision of the FTT as to the whereabouts of the petitioner’s husband to be findings on credibility in themselves.  In that context, reference to the passage quoted from paragraph 17 of the decision in HA (supra) is not apt.

[17]      ….Since the burden of proof lies on the appellant, it is not for the Secretary of State to contribute to the presentation of the appellant’s case….”

[5]        In the grounds of appeal in the reclaiming motion, it is submitted that the Lord Ordinary erred in law in finding there was no compelling reason because he made two errors of law.   Firstly, an error in law at paragraph 16 of his opinion in finding that the whereabouts of the reclaimer’s husband was ancillary to the principal issue:  that issue was not ancillary, it was the critical issue.  Secondly, an error in law at paragraph 17 by failing to find that there was an onus on the respondent in the circumstances of the case to carry out checks in relation to the reclaimer’s husband to discover if he was in the UK.

The factual history
[6]        The factual history is set out in detail by the First-tier Tribunal.  For present purposes it is necessary only to refer to the summary given by the Lord Ordinary.  He states in paragraph 1 of his opinion:

“The petitioner is a Pakistani national …….  She claimed asylum on 21 June 2012, in circumstances where her student visa was about to expire on 28 June 2012.  Prior to coming to the UK, she was married on ……2006 and lived with her husband and his parents near Lahore until …… 2011.  Both she and her husband are Sunni muslims.  Having arrived in the UK on 25 February 2011, on her own and on a student visa, she began studying English at college in London and there formed a relationship with Mr Y, eventually moving in with him.  She became pregnant in December 2011 but lost contact with Mr Y in about May 2012.  Her claim in support of asylum was that if she was required to return to Pakistan, she would be in great danger because she had committed adultery and would be a victim of domestic abuse in circumstances where there was an insufficiency of protection afforded by the Pakistani authorities”.

[7]        In this case it is not disputed that the reclaimer became pregnant while in the UK.  The dispute related to the reclaimer’s account of her relationship with her husband, her reasons for leaving Pakistan and her claims that her pregnancy was as a result of adultery with a named person, in the particular circumstances which she described. 

[8]        Before the respondent made a decision to refuse asylum, some checks had been carried out by the respondent about the man named as the father by the reclaimer.  The respondent could find no information in the records regarding such a man albeit the reclaimer stated that he was on the same course as her at college and claimed that he had a UK visa.  The respondent did not carry out any checks about the whereabouts of the reclaimer’s husband. 

Submissions by counsel for the petitioner and reclaimer

[9]        Counsel invited the court to sustain the reclaiming motion, to grant reduction of the decision of the Upper Tribunal dated 27 December refusing to grant permission to appeal and to remit to the Upper Tribunal to consider the reclaimer’s application for permission. 

[10]      Counsel adopted his written note of argument.   He focused on the failure by the respondent to carry out checks in relation to the critical issue before her, namely the question as to whether the husband of HF is the father of her child.  The respondent chose only to carry out checks about the ancillary question as to whether the person named by HF is the father.

[11]      Counsel submitted that it was important to bear in mind that the First-tier Tribunal in this case had taken into account the “wealth of background country information” provided on behalf of the reclaimer.  The First-tier Tribunal accepted the reclaimer would be at risk and lack protection, if returned to Pakistan, if her claims to have left her husband, committed adultery and borne a child in these circumstances were true.  Where such risks existed the guidance in KA & Others (Domestic Violence-Risk on Return, Pakistan) CG (2010) UKUT 216) was accepted by the First-tier Tribunal. 

[12]      Under reference to SA v Secretary of State for the Home Department 2014 SC 1, paragraph 44, counsel accepted that in order to succeed the reclaimer required to meet the high or stringent test set out in Eba v Secretary of State for the Home Department 2012 SC (UKSC) 1.   He accepted this test is designed to allow review only in rare and exceptional cases in order to ensure that no “compelling injustice” occurs.  The error normally requires to be one which “cries out for consideration” and not just potentially arguable.  He submitted that he was able to meet the high test in this case. 

[13]      Counsel submitted that the legal error began when the respondent confined her checks to the person named as the father by the reclaimer.   The respondent did no checks about the husband to ascertain whether he was in the UK at the relevant time.  If the husband was not in the UK, he could not possibly be the father.   This would give support to the reclaimer’s evidence and her credibility.  The checks involved little effort on the part of the respondent and her failure to carry out said checks demonstrated a failure to exercise anxious scrutiny.  In relation to anxious scrutiny, counsel prayed-in-aid Dangol v Secretary of State for the Home Department 2011 SC 560 at paragraph 9.

[14]      Counsel criticised the decision-making of the Lord Ordinary for his failure to derive any assistance from Tanveer Ahmed (2002) Imm AR 318 and MJ (Singh) v Belgium:  (Tanveer Ahmed unaffected) (2013) Imm AR 799 to support the reclaimer’s primary submission that the respondent in all the circumstances required to carry out some checks as to whether the reclaimer’s husband was in the UK at the relevant time.

[15]      Counsel also submitted that in considering the credibility of the reclaimer, the First-tier Tribunal fell into error, the sort of error which leaps off the page and cries out for consideration, in that the First-tier Tribunal expected the reclaimer to prove a negative, that her husband lived in Pakistan and was not the father of the child conceived in the UK.   The First-tier Tribunal was faced with submissions made on behalf of the respondent, that the husband was the father, despite the fact that the respondent had no evidence to support that contention, and had made no checks as to the whereabouts of the husband at the relevant time.  Counsel submitted that the First-tier Tribunal proceeded on the basis of the respondent’s assertion and judged the credibility of the reclaimer against that.  The whole context of the decision-making was skewed and there was an absence of anxious scrutiny by the Tribunal.  The failures in the credibility assessment of the First-tier Tribunal amounted to an error of law.  That error ought to have been recognised by the Lord Ordinary.  Reference was made to HA v Secretary of State for the Home Department 2008 SC 58, paragraphs 10 to 17.

[16]      In summary, counsel submitted that these errors demonstrated that there is a  compelling reason in the case that cries out for consideration and correction bearing in mind that the First-tier Tribunal accepted, that if credible, the reclaimer is at serious risk if returned to Pakistan.  The Lord Ordinary in addressing the issue of other compelling reason, erred in law in his conclusion.

Submissions by counsel for the respondent

[17]      Counsel set out the background to Eba v Advocate General, 2012 SC (UKSC) 1.  He emphasised the exceptional nature of the Eba test and the pleading requirements.  He noted that the reclaimer in this case did not seek to rely on the first limb of the test as no claim was made that an important point of principle or practice arose.   The reclaimer founded on the second limb and claimed that there was “other compelling reason”. 

[18]      Counsel submitted that it was important to bear in mind the terms of the two grounds of appeal which were put forward in support of the reclaimer’s case in this reclaiming motion.  The first ground of appeal focused on an alleged error in law by the Lord Ordinary at paragraph 16 in finding that the whereabouts of the reclaimer’s husband was an ancillary question.  Counsel submitted that the starting point for consideration by the First-tier Tribunal was the detailed account given by the reclaimer which included evidence about her adulterous relationship with another man who she said had fathered her child.  The evidence of the reclaimer was not accepted as credible.  The First-tier Tribunal made detailed findings about the claims made by the reclaimer and the limited evidence produced in support of the claims and concluded (paragraph 43) “…that the evidence of the appellant is not plausible and I did not find her to be a credible witness”.  In support of this conclusion, the First-tier Tribunal gave detailed reasons.   

[19]      The second ground of appeal was founded on the assertion that there was an onus on the respondent to carry out checks about whether the reclaimer’s husband was in the UK at the relevant time.  Counsel submitted that there was no onus on the respondent to carry out any such checks, and in any event such checks could not establish paternity or establish if the husband was in the UK as he might have used false documents.  The onus of proof remained throughout on the reclaimer. 

[20]      Counsel made reference to PJ (Sri Lanka) v Secretary of State for the Home Department (2014)          EWCA Civ 1011, paragraph 29 in relation to the onus on national authorities which may arise in limited and special circumstances.  He submitted that even in relation to documents, there was a recognition that there were many uncertainties and problems in attempting to establish the reliability of documents.   It was recognised by the courts that if the outcome of any inquiry is likely to be inconclusive this is a highly relevant factor.  There is no general obligation on national authorities, of the type advanced by the reclaimer, to verify documents or other information given by an applicant seeking asylum.

[21]      In conclusion, counsel submitted that the Lord Ordinary was correct in finding that the Upper Tribunal did not err in law.  The reclaimer failed to meet the high test in Eba.  Properly analysed, both the first and second ground of appeal were no more than a disagreement about assessment of the facts.  The Lord Ordinary was correct in his conclusion that there was no compelling reason for the case to be heard.

Analysis

[22]      This is a case in which the reclaimer gave a detailed and specific history of the circumstances in which she married, left her husband, came to the UK, formed a relationship with another man while she was at college with him, lived with him in adultery and became pregnant with his child, was deserted by him and failed to have any contact with him again.  For the many reasons, detailed by the First-tier Tribunal, neither the reclaimer, nor a witness MS led in support of her case, were found to be credible.    

[23]      It was not disputed, in the judicial review proceedings or in the reclaiming motion, that judicial review of a refusal by the Upper Tribunal to grant permission to appeal the decision of the First-tier Tribunal should not be granted unless the reclaimer met the second part of the Eba test.  That test requires some other compelling reason justifying interference with the refusal decision.

[24]      In relation to the first ground of appeal, we note that the First-tier Tribunal duly considered the evidence and submissions and took into account correctly that the onus of proof rested on the reclaimer.  There was no positive evidence before the Tribunal that the reclaimer’s husband did in fact enter the UK and continue a marital relationship with the reclaimer.  The First-tier Tribunal did not approach the case on that basis.  The First-tier Tribunal listened to the evidence but did not believe the reclaimer about the circumstances in which she allegedly left her husband, entered the UK or became pregnant.  We consider that the First-tier Tribunal was bound to proceed, as it did, on the basis of evidence presented.  It was not open to the First-tier Tribunal to make inferences about the evidence because of the failure by the respondent to carry out checks, or  to reverse the onus of proof. 

[25]      In relation to the second ground of appeal counsel for the reclaimer sought to persuade us that the respondent, in the circumstances of this case, required to make investigation about the whereabouts of the reclaimer’s husband.  We consider that there is no support in the case law cited by counsel for the reclaimer for this proposition.    It is plain from the case law flowing from Tanveer Ahmed that a responsibility on national authorities may arise in relation to the checking of documents in certain circumscribed circumstances.   There is no rule of law which imposes a general duty of investigation or checking on the respondent as submitted by the reclaimer. 

[26]      The reclaimer has failed to persuade us that there are any prospects of success of establishing any error in law on the part of the First-tier Tribunal.  We consider that the Lord Ordinary was well entitled to reach the conclusions that the criteria as set out in Eba and SA are not met for the reasons he gave.   

[27]      We therefore refuse the reclaiming motion.