Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 34

P806/16

OPINION OF LORD ARMSTRONG

In the Petition of

PS

Petitioner

For Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber), dated 1 June 2016, rejecting an application by the petitioner for permission to appeal against a decision of the First‑tier Tribunal (Immigration and Asylum Chamber), dated 11 March 2016.

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  Massaro;  Office of the Advocate General

9 March 2017

Introduction
[1]        The petitioner is a national of Georgia.  The respondent is the Advocate General for Scotland, representing the Secretary of State for the Home Department.

[2]        The petitioner entered the United Kingdom on about 17 October 2014.  He claimed asylum on account of his fear that if he returned to Georgia he would be persecuted there by the police, who had previously threatened him and seriously assaulted him.  His claim was rejected, and he appealed to the First‑tier Tribunal (Immigration and Asylum Chamber) (“the FTT”).  His appeal was heard on 18 February 2016, and refused by decision dated 11 March 2016.  The petitioner applied to the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) for permission to appeal.  His application was refused, by decision dated 1 June 2016.

[3]        The petitioner seeks reduction of the decision of the UT, refusing him permission to appeal, on the basis that, by holding that the decision of the FTT was not irrational and made in error of law, the UT erred in law.  Additionally, in circumstances where the petitioner seeks judicial review of an unappealable decision of the UT, and where the second appeals test applies (Eba v Advocate General [2012] UKSC 1), the petitioner also submits that, although the case raises no important point of principle or practice, there is another compelling reason which makes it appropriate that the court should exercise its supervisory jurisdiction. 

The FTT Decision
[4]        The FTT accepted that the core of the petitioner’s account was credible in that he had been threatened and severely assaulted by two senior police officers in Rustavi, his hometown.  The FTT concluded that these officers were rogue agents of the state, that there was no evidence to suggest that the petitioner would be of interest to the police throughout Georgia, and that it was more likely, given the available country information and the actions of the two officers concerned, that the two officers were aware that they did not have the means or the authority to pursue the petitioner outwith the immediate area of their operations.  On that basis, the FTT determined that the petitioner would not be at a real risk of persecution or serious harm were he to return to an area of Georgia outside his home area of Rustavi, and that in these circumstances it would not be unreasonable or unduly harsh to expect him to return to Georgia and relocate. 

1. Did the Upper Tribunal Err in Law?
(i) The Submissions for the Petitioner
[5]        The UT had fallen into error of law by affirming the decision of the FTT. 

[6]        In circumstances where it was accepted that the petitioner had been a victim of persecution, the FTT had erred in law by failing properly to assess the extent to which the state in Georgia could provide protection, in conjunction with its assessment of whether, in the circumstances of the case, return and internal relocation would be unduly harsh.

[7]        When taking account of all relevant circumstances, in deciding whether it was reasonable to expect a claimant to relocate, or unduly harsh to expect him to do so, it was necessary to determine where on the spectrum the particular case fell.  “All must depend on a fair assessment of the relevant facts” (AH (Sudan) v Secretary of State for the Home Department, 2008 1 AC 678, per Lord Bingham at paragraph (5), referring to Januzi v Secretary of State for the Home Department 2006 AC 426, and Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 at paragraph 55). 

[8]        While the legal burden of proving entitlement to international protection from persecution lay on the person claiming it, what the burden entailed must depend on the particular circumstances of the case (AMM (Somalia) v Secretary of State for the Home Department [2012] Imm AR 374, at paragraph 225). 

[9]        Where a judge is satisfied that the applicant has a justified fear of persecution or harm if returned to his home area, the claim will ordinarily be made out, unless the judge is satisfied he can nevertheless be safely returned to another part of his country of origin.  The judge of fact should not reject an otherwise well founded claim unless the evidence satisfies him that internal relocation is a safe and reasonable option (AMM (Somalia), supra at paragraph 222). 

[10]      The circumstances identified by the FTT included acceptance that the petitioner was at risk of persecution if returned to Rustavi, and that the degree of protection afforded by the state was limited.  It had been recognised by the FTT that the available country information indicated that progress towards modifying police behaviour in Georgia was, at best, patchy.

[11]      In such circumstances, where the petitioner had a justified fear of persecution, and where there was no certainty that the available protection from it was sufficient, the conclusion by the FTT that return and internal location was not unduly harsh was not justified.  There was a requirement for protection which was effective (NA and VA (protection:  Art 7(2)) Qualification Directive) India, (2015) UKUT 432, at paragraph 17). 

[12]      When considering whether or not a state is providing sufficient in the way of protection, it was necessary to recognise that the more senior the officers of state involved in the persecution, and the more closely involved in it they were, the more necessary it was to demonstrate clearly the home state’s political will to stamp it out and the adequacy of its systems for doing so, and the easier it was for the claimant to cast doubt on its readiness or at least its ability to do so (Svazas, supra, at paragraph 55).  Thus, in circumstances where protection was not effective, the burden of proof on the claimant was modified.  The FTT had not taken that into account when considering the adequacy of the protection offered by the state in Georgia.

[13]      Before the FTT, it had been submitted by the Secretary of State that it would not be unreasonable to expect the petitioner to relocate to Batumi.  If that was to be taken as an acknowledgement that it would be unreasonable to expect him to relocate anywhere else, then what was envisaged was so restricted that it would be unduly harsh to expect the petitioner to follow that course.  That was at odds with the decision which the FTT had reached. 

(ii) Submissions for the Respondent

[14]      The starting point was to recognise that the FTT was an expert tribunal, charged with administering a complex area of law in challenging circumstances.  Ordinary courts should approach challenges to its decisions with a degree of caution, since it was probable that, as the fact finding tribunal applying the law in its specialist field, the FTT would have reached the correct decision.  Its decision should be respected unless it was quite clear that it had misdirected itself in law (AH (Sudan), supra, at paragraphs 30, 19, 43). 

[15]      Although the FTT had accepted that the petitioner had been the subject of persecution in his home town, in relation to the evidence bearing on the critical questions, it had also noted that the facts that the petitioner had been able to apply for a passport in his own name, obtain a UK visa, and leave Georgia openly from the main airport without any interference, indicated that his problems were local rather than national.  It had also noted that there was no arrest warrant for the petitioner outstanding in Georgia, that he had received messages from his mother asking him to return to Rustavi, that he had in the past left Georgia and returned there with no issue from the authorities, and that the people whom the petitioner feared were rogue agents who did not have influence throughout the country.  The reference to Batumi had been made only as an example of an alternative location to Rustavi.  The Secretary of State’s position had been that it would not be unreasonable to expect the petitioner to relocate to Batumi, or to anywhere else in Georgia other than Rustavi.

[16]      In reaching the decision on the issue of internal relocation which it did, the FTT had taken into account facts which indicated that the two police officers concerned were aware that their actions might be viewed as misconduct if brought to light, and that they could not rely on other officers to conceal their behaviour.  The FTT found that there was nothing of any substance in the petitioner’s own account, or in the available country information, to support his fear that these two police officers would be able to pursue him throughout Georgia.  Although the petitioner may have had a subjective fear of that, the other facts noted by the FTT indicated that the police, as an organisation, were not looking for him.  As a matter of fact, the petitioner had been able to live in Tbilisi, before his departure, without coming to the attention of the authorities.

[17]      Thus, the approach of the FTT had been to recognise that the case turned on its own facts, to carefully weigh all the evidence, and, having done so, to find that the two police officers concerned were rogue agents in Rustavi, who did not pose a risk to the petitioner elsewhere in Georgia.  That factual decision was an appropriate basis for the conclusion that, in the case of the petitioner, internal relocation was reasonable. 

[18]      The UT, when examining that decision, had recognised that the matter was essentially a factual question and that the relevant test had not been misapplied. 

[19]      Although it was submitted for the petitioner that the FTT had not properly assessed the issue of sufficiency of available protection in all parts of Georgia, the FTT had applied the correct test by assessing the whole facts and circumstances.  It had focussed on the nature of the petitioner’s fear of persecution, and had considered the issue in the light of an assessment as to whether or not there was a safe place of relocation in his country.  That was consistent with authoritative guidance on the matter (Januzi, supra, at paragraphs 65, 67).  On a proper analysis of the evidence, the facts indicated that the conclusion that the petitioner’s fear was not well‑founded was justified.  If he was not at risk other than in Rustavi, it followed that, elsewhere, he was not in need of protection.  On that basis, the criticism advanced on behalf of the petitioner, that the assessment by the FTT of whether the provision of protection was adequate, was not in point.  The issue at large for the FTT was not principally whether protection in Georgia was adequate, but, rather, whether the petitioner was at risk of persecution in another part of Georgia. 

[20]      In circumstances where, before the FTT, the issue of internal relocation had been raised on behalf of the Secretary of State, the burden of proof lay on the petitioner to explain why it would be unreasonable or unduly harsh to expect him to return (AMM (Somalia), supra, at paragraph  225).  In determining, in effect, that the petitioner had failed to displace that burden, the FTT had made no error of law. 

(iii) Decision
[21]      It has been stated authoritatively that the difficulty in such cases is not in expressing the relevant test, but in applying it.  The task is to identify where on the recognised spectrum any given case may lie.  In that regard, the guidance that a court should be slow to interfere with the decisions of a specialist tribunal is particularly apt.

[22]      I am satisfied that the FTT carried out a detailed and careful consideration of the whole facts and circumstances of the petitioner’s case.  In applying the appropriate test, in circumstances where it was accepted that the petitioner had been the subject of persecution, the question as to whether his fear of persecution throughout Georgia was well‑founded was material.  That approach was consistent with the guidance set out in Januzi (supra).  I am satisfied that, on the evidence available to it, in particular those aspects of the evidence emphasised in the submissions for the respondent, the FTT was entitled to conclude that his fear was not well founded, on the basis that there were areas of the country, other than Rustavi, where he would not be at risk.  In such circumstances, having regard to the onus of proof, where the evidence available was not sufficient to allow the petitioner to demonstrate that he would be at risk elsewhere, the extent to which the protection from persecution available elsewhere in Georgia is effective was not a determinative factor in the decision as to whether return and internal relocation would be unreasonable or unduly harsh.  As it was submitted for the respondent, if the petitioner was not at risk of persecution elsewhere, he did not require protection elsewhere. 

[23]      In any event, I consider that while the conclusion that the petitioner would still be at risk of persecution, were he to return to Rustavi, was justified on the basis of the evidence available, the evidence on which the FTT relied, for the conclusion that progress towards modifying police behaviour in Georgia was patchy, was not sufficient to justify the contention that outwith Rustavi there was a widespread failure to put in place effective protection.  However, for the reasons I have stated,  it was unnecessary for the FTT to go that far. 

[24]      In the whole circumstances of the case, therefore, I am satisfied that the FTT applied the relevant test correctly.  I am unable to detect any error of law on the part of the FTT in deciding the matter as it did, and, consequently, I do not accept that the UT erred in law in affirming its decision.

2.  The Eba test
(i) Submissions for the Petitioner
[25]      Although it was accepted that this case presented no important point of principle or practice, it was submitted that there existed “some other compelling reason” such as to merit the exercise of the court’s supervisory jurisdiction.  While something less than very good prospects of success on an appeal will rarely suffice for the purposes of the second‑tier appeals test, there could be circumstances where there was a compelling reason to grant permission to appeal even where the prospects of success were not high.  The particular circumstances of a case which required to be taken into account, could include the fact that an applicant had succeeded before the FTT and failed before the UT, or the facts that the FTT’s adverse decision had been set aside and the decision had been remade by the UT.  Such circumstances did not of themselves amount to “some other compelling reason” but they were capable of being a relevant factor in the consideration of whether there was such a reason (JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273, at paragraph 23). 

[26]      The petitioner’s case was analogous to that.  His evidence had been accepted in part.  In the course of his appeal, the FTT had accepted his account of persecution as being credible.  On the question of the sufficiency of available protection, the conclusion reached was that it was patchy.  On that basis, the petitioner had succeeded in his appeal to some extent and in consequence there was a basis for the contention that, given that there existed a strongly arguable error of law on the part of the FTT, the circumstances of the petitioner’s case suggested that there was “some other compelling reason”, such as to satisfy the Eba test. 

(ii) Submissions for the Respondent
[27]      Underlying the concept of “some other compelling reason”, in the relevant context whereby a court should be slow to interfere with the decisions which lie within the expertise of specialist tribunals, was recognition that it would require to be clear from the circumstances of the case that the decision was perverse or plainly wrong (Eba, supra, per Lord Hope, at paragraphs 47-48).  The second appeals test was a stringent one, designed to allow an appeal only in rare and exceptional circumstances that “cry out for consideration” (SA (Nigeria) v Secretary of State for the Home Department 2014 SC 1, at paragraph 44).

[28]      An error of law, even a material one, was not of itself a sufficiently compelling reason such as to meet the second appeals test (EP v Secretary of State for the Home Department [2014] SC 706, at paragraph 31). 

[29]      The “some other compelling reason” test required a reason which is legally compelling (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, at paragraph 36).  The required legally compelling argument must have very high prospects of success (Uphill v BRB (Residuary) Limited [2005] 1 WLR 2070, at paragraph 24).

[30]      Extreme consequences for the individual concerned were not enough to constitute “some other compelling reason” in the absence of a strongly arguable error of law (JD (Congo), supra, at paragraph 26).

[31]      On the basis of these well accepted authorities, in circumstances where the petitioner’s case identified no sufficiently compelling legal basis for challenging the decision of the UT, the Eba test was not met. 

(iii) Decision
[32]      It was accepted on behalf of the petitioner that in order to meet the test, there required to be a strongly arguable error of law.  In light of my decision in that regard, I simply record that, in the circumstances of this case, that criterion is not met. 

[33]      I would add two further observations for completeness.  First, and consistent with my decision on the issue of error of law, I consider that the facts of the petitioner’s case which justify the decision of the FTT indicate that he would not be at risk of extreme consequences, in the form of further persecution by the two police officers concerned, on return to Georgia elsewhere than Rustavi. 

[34]      Secondly, I do not consider that the extent to which the petitioner’s evidence was accepted by the FTT is sufficient to support the contended analogy with a situation where a claimant may have succeeded before the FTT and failed before the UT, in the manner considered in JD (Congo), supra.  In circumstances where, as a matter of fact, the petitioner failed before both tribunals, the fact that some aspects of his evidence were accepted is not of sufficient weight to amount to a relevant factor in considering whether there is “some other compelling reason”.

Disposal
[35]      For the reasons I have stated, I will repel the petitioner’s plea‑in‑law, sustain the respondent’s fourth plea‑in‑law, and refuse the petition. 

[36]      I reserve, meantime, all questions of expenses.