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Cite as: [2019] ScotCS CSOH_12

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P237/18

OUTER HOUSE, COURT OF SESSION

[2019] CSOH 12

OPINION OF LORD TYRE

In the cause

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Petitioner

Respondent

Petitioner: Winter; Drummond Miller LLP

Respondent: McIver; Office of the Advocate General

13 February 2019

Introduction

[1] The petitioner is Nigerian. She arrived in the United Kingdom in 2013 on a student

visa which was extended until 22 November 2016. On 14 December 2016 she claimed

asylum on the ground that she was at risk of harm by cults if she were to return to Nigeria.

Her asylum claim was refused by the respondent and she appealed to the First-tier Tribunal

(“FTT”). By decision dated 28 July 2017 the FTT refused her appeal. Her application to the

FTT for leave to appeal to the Upper Tribunal was refused. She then applied to the Upper

Tribunal for leave to appeal to it. By decision dated 8 December 2017 the Upper Tribunal

refused leave.

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[2] The petitioner now seeks judicial review of the decision of the Upper Tribunal

refusing leave to appeal against the decision of the FTT. Permission to proceed with this

petition was initially refused but was subsequently granted on review following an oral

hearing. The issue for determination by the court is whether the Upper Tribunal erred in

law in deciding that there were no arguable grounds of appeal against the FTT’s decision.

The FTT’s decision

[3] Having narrated certain uncontroversial facts regarding the petitioner’s current

circumstances, the FTT judge stated (paragraph 21) that he had considered the totality of the

petitioner’s evidence before him, including the record of two interviews, a letter from her

representative regarding amendments to her substantive asylum interview, her written

witness statement, and her oral evidence. On the basis of that material, the FTT accepted

that the petitioner’s father had, prior to his death in 2005, been a prominent lawyer and

politician who had been instrumental in the formation of a political party which had

produced a former president of Nigeria. The FTT further accepted that he had been a

member of two cults, this being a prerequisite of a successful political career in a particular

area of Nigeria.

[4] The petitioner’s evidence to the FTT may be summarised as follows. Her father had

pledged to the chief priest of one of the cults that the petitioner would marry him. When

she was about 9 years old, her father took her to the priest who made marks on her body

which have left scarring. She graduated from university in 2002. After her father’s death,

members of the cult came to the family home to discuss her marriage to the chief priest.

However she re-located to Lagos, where she lived, mostly alone, from 2005 until she came to

the UK in 2013. She worked as a flight attendant with an aviation company until 2014. In

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July 2011 there was a fire in her apartment in Lagos while she was at work. A few days later

she was approached by four armed individuals who said they had caused the fire. They

entered her car and threatened to take her back to her home city. They stole her car.

[5] The petitioner further stated that while in the UK she was contacted by a friend of

her father who persuaded her to return to Nigeria where he would assist her in appeasing

cult members. On arrival in Nigeria she discovered that the friend had tricked her. She was

kept in a room at his house. However she in turn tricked him and managed to depart on a

return flight to the UK. In 2015 she was advised that her father’s brother had been

kidnapped by members of the cult in response to news that she was pregnant.

[6] Having narrated this evidence, the FTT expressed (at paragraph 33) the view that the

petitioner’s stated position was not credible. In succeeding paragraphs the FTT set out its

reasons for arriving at that view, including the petitioner’s vagueness in describing the visits

of cult members to the family home, and the fact that she retained her freedoms and lived

openly and largely without incident in her own home in Lagos.

[7] The FTT then referred to an expert report produced on behalf of the petitioner on the

cults in question. The report stated that the cults had national presence and influence and

significant power, that they were relentless in their approach to tracing individuals that they

wanted, and that a father might (emphasis in the FTT decision) pledge a daughter to the high

priest. The FTT observed, firstly, that the petitioner’s description of leaving home and then

living openly in Lagos was not consistent with the description in the expert report, and,

secondly, that the comment about a father pledging a daughter did not appear to be a

common scenario or to be evidence-based. For these reasons, the FTT judge (at

paragraph 37) stated his view that “…whilst the expert sets out, by way of background

evidence, something which is externally consistent, I do not rely heavily on that”.

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[8] At paragraphs 38 to 48 the FTT set out its reasons for not finding credible the

petitioner’s evidence that her house had been set on fire by members of the cult, that these

individuals had threatened her and stolen her car, that she had been tricked into returning

to Nigeria and then detained in a room, or that her father’s brother had been kidnapped

because of information that she was pregnant. The FTT noted that the petitioner had failed

to make an asylum claim in the UK until after her visa had expired, and made an adverse

credibility finding in terms of section 8(4) of the Asylum and Immigration (Treatment of

Claimants etc) Act 2004.

[9] The FTT then referred to a medical report prepared on behalf of the petitioner by a

general practitioner. It referred to scars on the petitioner’s body but offered no comment as

to whether they were accidental or deliberate injuries, or as to their age. The FTT concluded

that the report did not assist the petitioner’s case and attached no weight to it.

[10] At paragraph 51, the FTT referred to two letters received from individuals in Nigeria,

containing details supportive of the petitioner’s claim. The FTT noted that they were not

attested before a notary public and did not rely upon them. The FTT commented that no

statement had been produced from a member of the petitioner’s family, and regarded it as

incredible that she had no ongoing contact with any of her family members.

[11] Finally, the FTT expressed the view that the petitioner did not make an impressive

witness and that she was evasive. Her appeal on asylum grounds was dismissed.

The petitioner’s application for leave to appeal to the Upper Tribunal

[12] The petitioner’s application to the Upper Tribunal for leave to appeal to it contained

the following grounds (in summary):

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(i) The FTT erred in law by reaching conclusions on the petitioner’s credibility

before surveying all of the evidence including the expert reports, the GP report and

the supporting witness statements, and by making findings for which there was

insufficient evidential support;

(ii) The FTT erred in law in failing to attach due weight to the expert report;

(iii) The FTT erred in law by failing with regard to various specified matters to take

into account material evidence, by reaching findings which were not supported by

evidence, or by failing to explain why its findings had been reached in light of the

evidence.

The Upper Tribunal’s decision

[13] The Upper Tribunal refused the application for permission to appeal. Its reasons

included the following:

“The grounds are wholly without merit. Each point raised amounts to a

disagreement with the findings, an attempt to re-argue the case and/or a

misrepresentation of the decision of the judge.

…

Ground 1 is without merit. Whilst the judge chose to disclose the outcome of the

appeal at [33], on a proper reading of the decision, the judge considered the evidence

in the round including the evidence of the expert and the GP.

…

Ground 2 does not identify an arguable error. The issues raised are disagreements

with the findings. It is unarguably the case that an expert report should be properly

sourced.

Ground 3 in the main is an attempt to re-argue the case…”

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Argument for the petitioner

[14] On behalf of the petitioner it was submitted that the Upper Tribunal had erred in law

when refusing permission to appeal, and in particular had erred in each of its findings that

the grounds of appeal were not arguable. Firstly, the Upper Tribunal had failed to

appreciate that the FTT had made the error identified in TF and MA v Secretary of State for the

Home Department 2018 SLT 1225, namely that it had assessed the credibility of the

petitioner’s evidence on its own and not, as it ought to have done, in the round, and then

allowed its adverse assessment of the petitioner to colour its approach to the expert report,

the medical report, and the two statements from individuals in Nigeria. The FTT ought not

to have reached a conclusion regarding the petitioner’s credibility without first considering

all of the evidence, including evidence supportive of or at least consistent with that of the

petitioner. It had not been adequately explained why the petitioner was found not to be

credible. The terms of her witness statement had not been properly taken into account.

[15] Secondly, the Upper Tribunal had erred in law in finding that the FTT’s findings

regarding the vagueness of the petitioner’s account of visits to her home, her evidence

regarding the fire and a subsequent encounter with cult members, and her evidence of being

tricked into returning to Nigeria were grounded in the evidence. The petitioner’s position

was supported, not contradicted, by the expert evidence. Thirdly, the Upper Tribunal erred

by failing properly to address the grounds of appeal in so far as founded on the petitioner’s

evidence of the fire and subsequent approach by cult members. Fourthly, the Upper

Tribunal failed to appreciate that the FTT had given no adequate reasons for finding the

petitioner’s evidence vague and in characterising her as evasive. Fifthly, the Upper Tribunal

had failed properly to address the second and third grounds of appeal, which identified

“well-known errors of law”.

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Argument for the respondent

[16] On behalf of the respondent it was submitted that no error of law by either the Upper

Tribunal or the FTT had been identified. It was not correct to say that the FTT had

committed the error identified in TF and MA. Although the FTT had stated conclusions

regarding the petitioner’s credibility at paragraph 33, it was clear that all of the evidence had

been considered in the round. The remainder of the grounds of appeal consisted of no more

than disagreement with the FTT’s findings. The Upper Tribunal had been correct so to

characterise them.

Decision

[17] In my opinion there is no merit in any of the petitioner’s arguments. The principal

submission on her behalf was that based upon TF and MA. In that case two Iranian nationals

claimed asylum on the basis of inter alia a well-founded fear of persecution arising out of

their conversion to Christianity while in the UK. In each case the FTT did not believe that

the conversion was genuine, and refused the appeals on that basis. Both appellants had led

evidence from church members expressing views that their conversion was genuine. The

FTT concluded, however, in each case that the appellant’s failure to be truthful about other

matters, such as (in TF’s case) participation while in Iran in anti-regime activities and (in

MA’s case) a homosexual encounter, undermined his claimed conversion to Christianity. In

consequence, the FTT dismissed the appeals. Leave to appeal having been refused by the

Upper Tribunal, the matter came before the court in a petition for judicial review.

[18] Delivering the opinion of the court, Lord Glennie observed (paragraphs 37 and 38)

that for a FTT judge to find that an appellant’s failure to provide honest information on one

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aspect undermined his evidence on another aspect was a rational approach to finding the

facts, but that there were limits that the judge had to be careful to observe. In the cases

before the court, the FTT judges, having formed adverse views regarding the appellants’

credibility, appeared to have paid little attention to the evidence of other witnesses. At

paragraphs 47-50, Lord Glennie identified three overlapping points of importance where a

judge might fall into error: (i) the judge should not jump too readily to the conclusion that

because an appellant has told lies about some matters then his credibility on all matters is

fatally undermined; (ii) the judge should not allow an adverse finding about the credibility

of an appellant to sway his assessment of the credibility and relevance of other independent

evidence bearing upon the issue before him; and (iii) it is wrong in principle for a judge to

form a concluded view of the probable veracity of particular items of evidence and then,

from that fixed point, to allow that view to govern the assessment of other evidence in the

case. The proper approach was to consider all the evidence “in the round” before arriving at

any concluded view on the facts.

[19] In the present case, the FTT’s observation that the petitioner’s stated position did not

withstand scrutiny appeared at paragraph 33 of a decision in which the judge’s assessment

of the asylum claim did not finish until paragraph 53. But when the decision is read as a

whole it is quite clear that the judge did not commit any of the errors described in TF

and MA. The FTT’s assessment of the petitioner’s credibility did not stop with the statement

in paragraph 33. On the contrary, most of the following paragraphs consist of the FTT’s

detailed reasoning of why each element of the petitioner’s evidence was rejected in turn as

not credible. Each element is addressed on its own merits and rejected for reasons specific to

it; the FTT has not committed the error of finding one element incredible and then applying

that finding to another unrelated element. There is no indication that the FTT has regarded

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the petitioner’s evidence as a whole to have been fatally undermined by any particular point

on which she has been found to have been untruthful.

[20] Nor, in contrast to the facts of TF and MA, has the FTT allowed its adverse

assessment of the petitioner to colour its approach to other evidence. Subject to one point, it

is apparent from the decision, especially at paragraph 36, that the FTT did not take any issue

with the expert report itself. The problem for the petitioner was that to the extent that it was

not in generic terms, it relied upon information provided by her. In critical respects, it did

not provide support for her claim to be at risk, having regard in particular to the fact that

she had been able to live openly in Lagos for a period of years without harm. The

exceptional point was the expert’s opinion that a father might pledge his daughter to a high

priest. The FTT did not rely heavily on that statement, not because it had formed an adverse

view of the petitioner, but rather for the entirely proper reason that the statement was

tentative and did not appear to have an evidential basis. The medical report was not given

weight not because the FTT had formed an adverse view of the petitioner but because the

GP expressly declined to offer a view on the cause or age of the scars observable on the

petitioner’s body. The two letters of support were not relied upon because they were not

attested.

[21] Taking all of the above into account, there is in my opinion no substance to the

petitioner’s assertion that the FTT failed to consider the evidence “in the round”. The FTT

carefully considered the petitioner’s oral and written evidence, and the independent

evidence adduced in support of her appeal. The Upper Tribunal was, in my view, entirely

correct to reject this ground of appeal as wholly without merit.

[22] Most of the other grounds upon which the petitioner seeks to challenge the decision

of the Upper Tribunal and, through that, the decision of the FTT, can be addressed together.

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They amount, in my opinion, to no more than attempts to reopen findings made by the FTT

that were based upon evidence before it and properly and adequately explained in its

decision. In so far as the FTT characterised the petitioner’s evidence as vague, for example

in paragraph 34 (visit by cult members to her father’s house) and paragraph 38 (the car

incident), that characterisation is explained and examples of the vagueness given. The

expert report provided no support on the issue of whether incidents which the FTT

considered to be inherently implausible actually happened. In each case where the FTT has

rejected evidence as implausible, an explanation has been provided for that assessment. In

essence, the petitioner’s complaint is that the judge erred in not finding her to be credible.

The Upper Tribunal was correct to hold that that complaint did not constitute an arguable

error of law.

[23] Finally, it was contended that the Upper Tribunal erred in failing to appreciate that

the FTT had not adequately supported, by examples, its finding that the petitioner was not

an impressive witness and was evasive. Reference was made to observations by the Upper

Tribunal in its ex tempore judgment in MK v Secretary of State for the Home Department

[2013] UKUT 641 (IAC), summarised at the beginning as follows:

“If a tribunal finds oral evidence to be implausible, incredible or unreliable or a

document to be worth no weight whatsoever, it is necessary to say so in the

determination and for such findings to be supported by reasons. A bare statement

that a witness was not believed or that a document was afforded no weight is

unlikely to satisfy the requirement to give reasons.”

Again there is no substance to the criticism. It is quite clear that the FTT’s adverse finding

on credibility was based mainly upon what it regarded as the inherent implausibility of the

petitioner’s evidence, rather than upon her demeanour as a witness. In any event, the

observation that she was not an impressive witness was explained by what followed in

paragraph 52: she failed to listen to questions, to answer them directly, to not answer

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questions she did not understand, and to advise that she did not know the answer if that

were the case. An example of evasiveness was provided at paragraph 42 regarding the

immigration status of the father of her son.

Disposal

[24] For these reasons I shall sustain the respondent’s second plea in law and refuse the

petition.