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Cite as: [2019] CSOH 45, 2019 GWD 22-337, [2019] ScotCS CSOH_45

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P938/18

OUTER HOUSE, COURT OF SESSION

[2019] CSOH 45

OPINION OF LORD PENTLAND

In the petition

LB (AP)

for

JUDICIAL REVIEW

Petitioner

Petitioner: Caskie; Drummond Miller LLP

Respondent: Maciver; Office of the Advocate General

13 June 2019

Introduction

[1] In these proceedings for judicial review brought against the Secretary of State for the

Home Office, the petitioner is a citizen of the Gambia. The petitioner challenges a decision

by the Upper Tribunal (“UT”) to refuse him permission to appeal against a decision of the

First-tier Tribunal (“FTT”).

[2] The petitioner was born on 26 December 1979. It is not known when he first arrived

in the United Kingdom. On 5 May 2016 the police detained him. It was discovered that the

petitioner had been convicted of a drug-related offence in Sweden on 24 January 2012, for

which he was sentenced to 4 months imprisonment. On 3 July 2013 the petitioner was again

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convicted in Sweden, this time for two drug-related offences. In respect of these offences he

was sentenced to 2 years imprisonment, deported from Sweden, and prohibited from re-

entering that country until 3 July 2023.

[3] On 24 August 2017 the Home Office served a deportation order on the petitioner.

Thereafter he made a human rights claim and an application to transfer to this country

refugee status which he claimed to have been granted in Italy in 2008. On 26 October 2017

the human rights claim, and the transfer application were refused. The Home Office did not

accept that the petitioner currently had refugee status in Italy. The decision letter noted that

the petitioner had explained in his interview that on his return to the Gambia from Sweden

he had travelled through Senegal and Spain to the Republic of Ireland. He provided no

explanation as to why he did not apply for re-entry to Italy in view of his alleged refugee

status there. The petitioner had applied for asylum in Ireland, but he could not explain why

he had done so. In his statement the petitioner said that his asylum claim in Ireland had

been refused. He had appealed against the refusal, but he had then left Ireland for the UK

before his appeal was heard.

[4] Against this unpromising background, the petitioner appealed to the FTT. By a

determination promulgated on 13 March 2018, his appeal was refused. Leave to appeal to

the UT was refused by the FTT on 4 April 2018. Then on 13 June 2018 the UT refused leave

to appeal.

[5] The petitioner challenges the refusal of leave by the UT. On his behalf Mr Caskie

advanced two broad lines of argument. First, Mr Caskie submitted that there was an

arguable appeal against the FTT’s finding that the petitioner had not shown that he had

been granted refugee status in Italy. The Home Office had failed to take steps to verify the

petitioner’s alleged refugee status; in the circumstances of the case, it was said to be

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incumbent on the Home Office to have done so – in other words, the normal burden of proof

was, according to Mr Caskie, reversed. Second, the FTT had wrongly treated the petitioner

as a “foreign criminal”; this error was also said to give rise to an arguable ground of appeal

to the UT.

[6] I shall address these lines of argument in turn.

Refugee status

[7] In refusing leave to appeal, the UT held that the FTT had been entitled to conclude

that the petitioner did not have refugee status in Italy.

[8] Mr Caskie submitted that both the FTT and the UT had failed to appreciate the

fundamental distinction between refugee status on the one hand and leave to remain on the

other.

[9] In paragraph 46 of his determination the FTT Judge said this:

“I was not inclined to place any real weight on the claimed Italian asylum documents

in view of the concerns I had over other documentation in this case and the

(petitioner's) credibility as a whole. No explanation was given as to why a document

dated 18 March 2008 for the Local Administrative Division of Crotone referred to the

existence of grounds in Article 1A of the Geneva Convention and that he had refugee

status when the other documentation lodged indicated that he had limited leave to

remain in Italy to March 2013.”

[10] In paragraph 47 the FTT Judge continued as follows:

“In any event even if he had secured asylum in Italy there was no real explanation as

to why he had not renewed that status there if the validity of that status was only

until 6 March 2013. On the face of it even if this documentation was valid any

asylum status he had in Italy was, under Italian law, only valid until March 2013. I

agreed with Mr Young (the presenting officer) that there was no basis upon which it

could be said that there was refugee status to transfer to the UK.”

[11] Mr Caskie’s argument was that once refugee status had been granted, it could only

be lost where one of the grounds for cessation set out in Article 11 of the Qualification

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Directive (Council Directive 2004/83/EC of 29 April 2004) applied. None of these grounds

was satisfied in the petitioner’s case. The FTT Judge had misdirected himself by finding that

the petitioner only had refugee status until 6 March 2013. The UT had fallen into the same

error. Even if the petitioner’s leave to remain in Italy had expired on 6 March 2013, this had

no effect on his refugee status.

[12] The difficulty with Mr Caskie’s argument is that it ignores the primary basis on

which the FTT Judge rejected the petitioner’s evidence that he had been granted refugee

status in Italy in March 2008. The argument also misunderstands the basis of the FTT’s

reasoning. As the first sentence in paragraph 46 of the determination makes clear, the FTT

Judge was not prepared to place “any weight” on the Italian asylum documents because of

the concerns he had over other documentation in the case and the petitioner’s credibility as a

whole.

[13] In earlier parts of his determination the FTT Judge made clear that he was not willing

to accept the petitioner as a credible witness. In paragraph 20 the Judge found the petitioner

to be a most unsatisfactory witness. The answers the petitioner gave to the Judge’s

questions “simply reinforced the view that I was not being told the truth”. In his findings in

paragraph 38 the Judge stated that he had little doubt that he was not told the truth; he

added that he considered the accounts of the witnesses an elaborate concoction designed to

facilitate the petitioner remaining in the UK when quite properly he ought to be deported.

[14] In paragraph 43 the Judge described the petitioner’s evidence as being poor in a

number of respects: he was unable to explain how he had come into possession of what

appeared to be internal court documents purporting to relate to certain proceedings

allegedly taking place in the Gambia. In paragraph 48 the Judge drew attention to other

unsatisfactory aspects of the petitioner’s evidence: he was not able to explain why he had

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not shown more interest in the Irish appeal proceedings. The Judge formed a highly

unfavourable view of the petitioner’s evidence in support of his Article 8 claim. He

considered that a child had been used “as a convenient pawn in this whole affair”.

[15] In paragraph 67 the Judge said this:

“There was nothing to show what the basis of his claim for political asylum had been

in Italy much less that it could be linked to what he says are current circumstances in

the Gambia relating to court proceedings instigated by rivals. I found the

documentation said to support his claim to be unpersuasive even to the low standard

and when taken with the general credibility problems I had with the (petitioner).”

[16] In paragraph 68 the Judge concluded as follows:

“I could not be satisfied that there was any continuation of risk of serious harm to the

(petitioner) and when taken with the terms of his Italian grant of asylum and failure

to renew it and lack of interest in pursuing the Irish proceedings, this all indicated to

me that the (petitioner) was simply making up a claim of risk upon return.”

[17] From all this it is clear that the FTT Judge did not believe the petitioner in regard to

any aspect of his evidence; that finding plainly extended to the claim that the petitioner had

been granted refugee status in Italy. Having regard to the Judge’s highly adverse findings

on the petitioner’s credibility, there can be no doubt that he was well entitled to find as a fact

that no weight should be placed on any of the Italian asylum documentation. The position is

that the Judge simply did not believe anything that the petitioner said in support of his case.

He did not accept that any of the documents on which the petitioner sought to rely were

genuine. The Judge gave ample reasons why he formed such an unfavourable view of the

petitioner’s case. He was entitled, for example, to take into account that the petitioner

offered no explanation as to why one document (bearing to be from 2008) said that he had

refugee status, whereas others indicated that he had limited leave to remain in Italy until

March 2013. He was also entitled to have regard to the petitioner’s failure to explain the

basis on which he had allegedly been granted asylum.

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[18] Since the finding on the issue of the petitioner’s alleged refugee status was a factual

finding and since the finding was amply supported by the evidence before the FTT, it

follows that the UT was correct to hold that there was no basis for an appeal against this

finding.

[19] Turning to the second aspect of Mr Caskie’s argument on this branch of the case, he

submitted that the onus had, in any event, been incumbent on the Secretary of State to check

the authenticity and validity of the Italian asylum documentation. According to Mr Caskie,

the FTT Judge had erred in law in failing to appreciate where the burden of proof lay.

Reference was made to MJ Afghanistan [2013] UKUT 253 at paragraphs 49 and 50. In that

decision it was confirmed that there may be some cases in which it is incumbent on the

Home Office to make its own inquiries to verify the authenticity of documentation. That

would only be in circumstances where verification would be easy, the documentation came

from an unimpeachable source, and the documents were at the heart of the request for

protection. The onus of checking verification is transferred to the State only in

circumstances where it would be simple and straightforward to expect the State to do that;

the normal rule is, of course, that it lies upon the applicant to establish the authenticity of the

evidence on which he or she relies. Thus in Singh v Belgium (Application no 33110/2011), the

European Court of Human Rights was willing to hold that it was not unreasonable to expect

the agency of the State to check the authenticity of email attachments which were

attestations from the UNHCR.

[20] In my opinion, the present case is not one in which it would have been at all easy or

straightforward for the Home Office to have checked the authenticity of the Italian

documents relied on by the petitioner. Mr Caskie pointed to the fact that there was a Home

Office official posted to Italy with responsibility for investigation of asylum issues. He said

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that this official could have checked the “Eurodac” database. In response to this assertion,

Mr McIver explained, on the basis of specific instructions from the Home Office, that such

investigations were in practice far from straightforward. The Italian Border Police received

thousands of such requests a year; there were lengthy turn-around times for the verification

of documents. The Eurodac database only showed the context in which a person had been

apprehended, for example whether he or she had entered Italy illegally or had made an

asylum application and had fingerprints taken in the course of that application process. It

was therefore necessary for all requests to be directed to the Italian Border Police at local

level; the Ministry of the Interior in Rome would not be able to assist. In his oral

submissions Mr Caskie did not question the accuracy of this information, although he

asserted that verification would have involved no more than a telephone call. I have already

noted that the Italian documents referred to by the FTT Judge said nothing about the

petitioner’s immigration status in 2018. No explanation was given as to why one document

referred to refugee status in 2008 and another referred to his having limited leave to remain

until March 2013. In the circumstances, I do not accept that the process of verification would

have been easy, straightforward or simple.

[21] I am not persuaded that the onus lay on the Home Office to verify the authenticity of

the Italian documentation. It seems to me that this was not a case in which the normal rule

that the burden of proof lay upon the claimant would be reversed.

[22] Since I have dismissed the argument on onus to verify as being unfounded in

substance, there is no need for me to consider separately the respondent’s submission that

the point was not now open to the petitioner as it was not taken before the FTT.

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The “foreign criminal” point

[23] That leaves the third point argued by Mr Caskie. He submitted that the petitioner

was not a “foreign criminal” as defined by section 32(1) of the UK Borders Act 2007 (“the

2007 Act”) because he had not been convicted of an offence in the United Kingdom. The

FTT Judge had erred in applying paragraphs 398, 399 and 399A of the Immigration Rules

because these applied only to “foreign criminals” as defined in the 2007 Act.

[24] In its decision refusing leave to appeal, the UT observed simply that the petitioner

was a foreign criminal; it noted that he had been deported from Sweden following

convictions on 3 July 2013 for serious drug offences for which he was sentenced to 2 years

imprisonment.

[25] The guidance issued by the Home Office in February 2017 on Criminality: Article 8

cases (“the Guidance”) makes clear that where deportation is pursued on the basis of an

overseas conviction the claim will be considered outside the Immigration Rules.

Importantly, however, the Guidance says that the rules must be used as a guide because

they reflect Parliament’s view of the balance to be struck between an individual’s right to

private and family life and the public interest.

[26] It is clear from his determination that the FTT Judge had regard to paragraphs 399

and 399A of the Immigration Rules. In paragraph 69 of his determination he found that the

child might not even be in the UK. Even if he was, he had not lived here for 7 years. On no

objective view was the child likely to be living in the Gambia with the petitioner. He was

likely to be living in Sweden. The child’s alleged presence in the UK was a contrivance. The

petitioner appeared to have little interest in the child. The FTT Judge concluded that a case

had not been made out under paragraph 399. It is important to note that he went on to say

that this was also his conclusion on wider Article 8 grounds.

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[27] The Judge also found that paragraph 399A was not met. There was no genuine and

subsisting relationship between the petitioner and his alleged new partner. On this aspect

as well, no case had been made out under paragraph 399A or on wider Article 8 grounds.

[28] Having regard to these clear findings, the point taken by Mr Caskie can be seen to be

purely technical and theoretical. The FTT Judge had regard to the relevant provisions

contained in the Immigration Rules and took account of them properly. He adopted the

approach set out in the Rules. He considered whether the petitioner’s deportation would be

conducive to the public good. He then addressed the question of whether there were any

very compelling reasons capable of overcoming that public interest. Overall, the Judge’s

approach was one that complied with the Guidance in substance and in spirit. In the

circumstances, the UT was, I consider, entitled to refuse leave to appeal on the “foreign

criminal” point. The UT did not err in law on this aspect of the case.

Disposal

[29] Since I have rejected all the petitioner’s submissions, it follows that the petition must

fail. I have granted decree of dismissal and reserved all questions as to expenses.