Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 182

P799/16

OPINION OF LORD BOYD OF DUNCANSBY

In the Petition

RA (AP)

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Forrest; Drummond Miller LLP

Respondent:  Gill; Office of the Advocate General

14 December 2016

[1]        By interlocutor dated 30 November 2016 Lady Wise refused the petitioner permission to proceed under section 27B of the Court of Session Act 1988, as amended.  The petitioner sought a review of that decision under RC 58.8.  Along with the request he lodged a minute of amendment and three productions.

[2]        The petition challenges a decision of the Secretary of State for the Home Department dated 27 May 2016 that the petitioner has not made a fresh claim for asylum under Immigration Rule 353.  The test to be applied is whether there is a realistic prospect of success before an immigration judge when applying the rule of anxious scrutiny:  WM(DRC) v Secretary of State for the Home Department [2007] Imm AR 337.

[3]        The petitioner is a Kurd and an Iraqi national from Kirkuk.  It is accepted by the respondent that he cannot return to Kirkuk.  The issue between the parties is whether or not he can relocate to another part of Iraq, in particular to Kurdistan.

[4]        Mr Forrest, appearing for the petitioner, explained that the minute of amendment sought to do two things.  First, it responded to the answers lodged on behalf of the respondent.  Secondly, it introduced a new matter which was not available before the petition was lodged namely a decision of FTTJ Grant Hutchison, dated 15 November 2016 in what was said to be an analogous case.

[5]        The first issue is whether it is competent, at the stage of a review of an application for permission to proceed, to amend the petition.  Section 27B(1) of the 1988 Act states,

“No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.”

[6]        Mr Forrest submitted that there was nothing in the Act or in the rules of court to preclude a Minute of Amendment at this stage.  He accepted that the minute of amendment is lodged outwith the three month period (section 27A(1)(a)) and that he could only bring the minute of amendment if the court was satisfied that it was equitable to allow a longer period in terms of section 27A(1)(b).  He submitted that it was equitable to allow the minute of amendment.

[7]        Mr Gill submitted that since permission had been refused by Lady Wise on 30 November the petitioner was precluded by the terms of this section from seeking to amend the application.  The amendment procedure was “proceedings” for the purpose of the section.  He accepted that the review process was “proceedings” but that was expressly provided for in the Act and did not open up the process to ancillary proceedings.

[8]        RC24.1(2) provides that amendment of a principal writ may be allowed at any time before final judgement if it is necessary for the purpose of determining the real question in controversy between the parties.  Under the procedures brought in by section 89 of the Courts Reform (Scotland) Act 2014 an application to the supervisory jurisdiction of the court requires permission.  Where permission is refused that is a judgement of the court.  But it is not final if the petitioner exercises a right of review under RC58.8 or a right of appeal under section 27D of the 1988 Act.  Accordingly in my opinion a minute of amendment at the stage of review is competent.

[9]        It is however a matter for the discretion of the court whether or not such an amendment at this stage should be allowed.  In my opinion it will only be in rare and exceptional circumstances that the court should grant a motion to amend at this stage.

[10]      In the first place it should never be sufficient to allow a minute of amendment on the basis that it responds to answers lodged by the respondent or to the Lord Ordinary’s refusal of permission in circumstances where the petitioner is seeking to review that decision or appeal it to the Inner House.  The granting of permission is not an iterative process to be undertaken between the petitioner, the respondent and the court and the lodging of a minute of amendment before permission has been granted should not be seen as an opportunity to correct flaws in the petition.

[11]      It may be that answers will contain matters with which the petitioner takes issue but these should be taken care of in the adjustment period.  If it appears that the Lord Ordinary considering permission has been influenced by matters within the answers with which the petitioner disagrees that can be challenged in the application for review or in the appeal process as the case may be.

[12]      Secondly where the minute of amendment introduces a new ground the court should apply the test in section 27B of the 1988 Act.  In B v Secretary of State for the Home Department 2016 SLT 1220, the Lord President (Carloway) giving the opinion of the First Division said the where the court is considering a minute of amendment in proceedings raised after the introduction of the test the existence of “real prospects of success” should, except in exceptional circumstances, be regarded as a minimum requirement before such a minute of amendment should be allowed (paragraph 64).

[13]      Thirdly if follows from this that the court should also consider whether the test in section 27A (time limits) is met.  It is however open to question whether or not a minute of amendment at the permission stage is a fresh application or an amendment to an existing application.  In any event the court will want to examine closely why the new material was not in the petition.  In my opinion, except in exceptional circumstances, it would only be where the minute of amendment contained matters which were not known at the time of the lodging of the petition that it would be right to allow a minute of amendment at the permission stage.

[14]      It should be remembered that judicial review is a summary procedure.  At its most efficient it is intended to involve the petitioner and the respondent being able to put all their averments in the petition and answers and for the court to be able to proceed to determination upon them;  B, paragraph 62.  It is recognised that there should be a degree of flexibility in the process but in my opinion that should not extend to altering the grounds of challenge or expanding on the averments before permission has been granted merely to meet the answers lodged by the respondent or the reasons for refusal.

[15]      It must also be recognised however that in asylum cases the consequences for the petitioner if he or she is returned to the country from which they are claiming humanitarian protection can be very serious.  In some cases that may be a factor that the court should take into account when determining an application to amend the petition before the permission stage;  B, paragraph 61.

[16]      In this case the minute of amendment did not seek to amend the grounds but to expand upon them.  Mr Forrest explained that the decision of FTTJ Grant‑Hutchison was an illustration of an immigration judge in an analogous situation finding that it would be unduly harsh to expect the appellant to relocate to Kurdistan.  Accordingly, he submitted there must be a realistic prospect of success for the petitioner before an immigration judge.  This case had not been determined before the petition was lodged.

[17]      However the decision of FTTJ Grant‑Hutchison was not before the Secretary of State when she reached her decision in respect of the petitioner.  This is a review of her decision and not an assessment by the court.  Moreover while Mr Forrest claimed that the circumstances were analogous I find that the facts were very specific and easily distinguishable from the petitioner’s circumstances.

[18]      So far as the merits are concerned there is nothing in what has been said by Mr Forrest that would disturb the reasoning of Lady Wise.  In particular I note that the issue is whether or not it would be unduly harsh for the petitioner to be expected to relocate to Kurdistan.  With the fresh submissions was a report by Dr Rebwar Fatah dated 18 May 2016.  At paragraph 161 of the report he concludes that relocation to Kurdistan would suit the petitioner’s profile.  He is a Kurd and speaks Kurdish (Sorani dialect).  He could gain entry and residence with no problem.