Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 26

P239/16

Lady Paton

Lord Menzies

Lord Glennie

OPINION OF THE COURT

delivered by LADY PATON

in the cause

EBRIHAM CEESAY (AP)

Petitioner and Reclaimer;

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Appellant:  K Campbell QC, Dewar;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

15 March 2017

[1]        The circumstances and the sequence of events in this case are set out in Lady Stacey’s opinion dated 3 June 2016.  Having heard submissions, she decided that the petition had no real prospect of success.  By an interlocutor of that date, she refused permission for the petition to proceed.  It is that decision which is reclaimed.

[2]        Senior counsel for the petitioner indicated at the outset that he no longer insisted upon the first ground of appeal.  The second and third grounds were to be argued. 

[3]        Counsel were agreed that the test to be applied by the Lord Ordinary was as set out in section 27B of the Court of Session Act 1988 as amended, ie was there “a real prospect of success”.  We were referred to O v SSHD, 2016 SLT 545, CF v SSHD [2016] CSOH 28, Carroll v Scottish Borders Council, 2014 SLT 659, and B v SSHD, 2016 SLT 1220 (paragraph [66]), but there was no live issue on this point between the parties, and we see no reason to add any further gloss to the words in the statute.

[4]        We deal first with Ground of Appeal 2.  The Lord Ordinary declined to grant permission on paper, and appointed an oral hearing.  In advance of that hearing, she indicated two matters which counsel should address.  Before us, the thrust of the submissions presented by the petitioner’s senior counsel was that, having raised these points in her informal note, the Lord Ordinary should make specific reference to the points in her decision.

[5]        We disagree with that proposition.  There was no requirement for the Lord Ordinary to give any notice of points which required to be addressed.  The Lord Ordinary did so solely for the assistance of parties.  Senior counsel for the petitioner accepted that had the Lord Ordinary not issued the note, no challenge could have been made to her reasoning and decision on this ground.  We do not consider that there is any requirement for a Lord Ordinary who has provided an informal note of this nature to make specific reference to the content of the note in the decision.  If it were otherwise, that would act as a disincentive to a useful practice. 

[6]        In the result, Ground of Appeal 2 fails.

[7]        With regard to Ground of Appeal 3, the Secretary of State issued a certificate on 17 September 2010 in terms of section 94 of the Nationality, Immigration and Asylum Act 2002, that the claim for asylum, as then framed (namely on the basis that the petitioner’s father was likely to beat him to death if the petitioner returned to Gambia) was “clearly unfounded”.  That certification was not challenged.

[8]        The petitioner made a new application for asylum on the ground that he had set fire to a Gambian military vehicle.  This claim was refused on 18 April 2012, on which date the Secretary of State issued a certificate in terms of section 96(2) of the 2002 Act, in effect that an application on this ground could not be brought because it could and should have been put forward in the earlier claim for asylum.  Neither the decision nor the certification was challenged. 

[9]        The present application is based on two allegedly new matters.  First, it is now recognised that conditions in Gambian prisons are contrary to article 3 of the European Convention on Human Rights;  and second, a manuscript letter has been produced, bearing to be from the petitioner’s aunt, and apparently providing further information to the effect that the petitioner is still of interest to the authorities in Gambia in respect of the fire-raising, and also that his sister had to leave Gambia in 2013. 

[10]      The Secretary of State found that letter unreliable.  The letter refers to the claimed fire-raising which was certified as being too late.  Also there are inconsistencies between the assertions in the letter and answers given by the petitioner when he was interviewed on 23 March 2012.

[11]      Given that the claim for asylum based on the claimed fire-raising was certified as coming too late, further evidence in support of that claim cannot take matters any further.  On that ground alone, the Lord Ordinary was right to conclude that there was no “real prospect of success”.  And if the fire-raising point could not succeed, neither could any point about current prison conditions in Gambia.

[12]      The third ground of appeal accordingly fails.

[13]      We should add that we do not accept the proposition advanced by senior counsel for the petitioner to the effect that whenever a decision is based on credibility and the applicant has not had an opportunity to appear before a tribunal, it is necessary for the matter to be sent to a First-tier Tribunal.

[14]      In the result we refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.