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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> XL, APPLICATION BY AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT FOR JUDICIAL REVIEW [2018] ScotCS CSOH_58 (10 May 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_58.html
Cite as: [2018] CSOH 58, [2018] ScotCS CSOH_58
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P203/18
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 58
OPINION OF LADY WOLFFE
in the application by
XL
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
for Judicial Review
No representation: permission determined on the papers
Applicant
Respondent
10 May 2018
Nature of challenge
[1] This is an application for judicial review of a decision of the Secretary of State not to
treat the further submissions of the petitioner as a fresh claim for the purposes of rule 353 of
the Immigration Rules.
[2] This opinion follows my consideration on the papers as to whether the petitioner has
satisfied the test for permission in Section 27B of the Court of Session Act 1988.
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2
Background
[3] The petitioner, a Chinese national, had her application for asylum refused, following
the expiry of her student visa. She has exercised, and exhausted, appeal rights to the
First-tier Tribunal (“the FTT”) and the Upper Tribunal (“the UT”). The gravamen of her
application was the fact that she had (at that point) two children out of wedlock, and the
anticipated difficulties she would face upon return to China in the light of its policies about
children or about certificates of sterilisation from women with more than one child.
[4] There is no need to narrate the petitioner’s prior unsuccessful challenges. For
present purposes, it suffices to note that she made representations by letter dated 23 October
2017 (“the petitioner’s representations”), which were not accepted as constituting a fresh
claim, by decision communicated on 29 November 2017 (“the Decision”). The petitioner
wishes to bring these proceedings to challenge the Decision.
The material relied on as constituting a fresh claim
[5] The only new material included in the petitioner’s representations, apart from the
fact that she has had a third child out of wedlock, was a copy of the recent decision of the
of whether the UT was entitled to open up and reverse a finding in fact made by the FTT.
The finding related to the evidence of an expert, Ms Gordon, about a requirement for a
woman to undergo a forced sterilisation before her child or children could be registered for a
“hokou”. The FTT had accepted her evidence and, on that basis, departed from the Country
Guidance case of AX (family planning scheme) China Country Guidance [2012] UT 00097 (IAC)
(“AX”). It is important to note that the Court was not adjudicating on the merits of that
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evidence but, rather, on the proper scope of the powers of the UT to interfere with a finding
in fact by the FTT.
[6] The purpose in producing this case was, presumably, to rely on the few extracts of
this expert’s report, quoted by the Inner House, in order to challenge the Country Guidance
case of AX. The Secretary of State rejected the petitioner’s representations.
Ground of challenge in the petition
[7] The challenge in the petition is on the basis that the Secretary of State failed to apply
anxious scrutiny or erred in declining to accept the material quoted in YZ in preference to
her reliance on AX, and that it was not necessary for the petitioner to have to commission
another generic report to vouch the points quoted in YZ.
Discussion
The use of reports from other cases: The Slimani principle
[8] It is a well-established principle in immigration law that a third party report, that is a
non-generic report prepared for a person other than the applicant, may not be used unless
the author has agreed that it may be relied upon: Slimani v Secretary of State for the Home
Toward the end of Slimani Collins J stated that:
“We would add that all too often reports prepared for a specific case are relied on in
other cases in which appellants from the same country are represented by the same
advisers. This should not happen unless the report is stated to be general and to be
valid for all cases or the author is asked to confirm that he is content for it to be relied
on. Apart from anything else, conditions change and views which may have been
valid when the report was written might not be 12 months later”.
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The Country Guidance system
[10] In this case, the petitioner seeks simply to rely on extracts from the report quoted by
the Inner House in YZ, in a manner indistinguishable from the petitioner in the recent case
agree with his observation (at para 23) that it is difficult to see how any factfinder could base
his decision on brief excerpts in an appellate judgment from the evidence of a witness in a
different case. I would add that this is particularly so, where the appellate court was not
adjudicating on the merits of that evidence, but addressing a procedural issue. I also agree
with his observations that the attempt to rely on the extracts of a report in YC, as a means to
challenge a Country Guidance case (such as AX, relied on by the Secretary of State in the
Decision), is impermissible. As he noted (at para 24):
“But it seems to me that it would entirely subvert the CG system if a claimant were
able to search through reported appeal decisions for passages of evidence which
appear to support an argument that a relevant CG case should not be followed. Far
from promoting consistency of treatment, such an approach would lead to
considerable uncertainty, as parties would no longer know where they stood as
regards the starting point of the tribunal’s findings in fact. Where a particular aspect
of country guidance is thought to have become inaccurate, the solution is to amend
the guidance in an appropriate appeal. Ms Gordon’s evidence in YZ has not, of
course been awarded CG status; if it had been, subsequent tribunals would have had
the benefit of a tribunal’s identification of the critical matters found to have been
proved, rather than a small group of excerpts which happen to have been most
relevant to the circumstances of a particular appellant.”
[11] It respectfully seems to me that those remarks apply with equal force to this case.
[12] For these reasons, I find that the petitioner in this case has failed to meet the
threshold in 27B of the 1988 Act, and that it has not been shown that there are reasonable
prospects of success.
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[13] The petitioner’s challenge is not the first predicated essentially on YZ as the basis for
a fresh claim. The purpose of this opinion is to bring these recent cases to the notice of those
practicing in this field.