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APPEAL BY MR SAMI KAREEM ALSHAMMARI AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT [2021] ScotCS CSIH_26 (30 April 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSIH_26.html
Cite as:
[2021] CSIH 26,
[2021] ScotCS CSIH_26,
2021 GWD 17-249
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 26
P27/20
Lady Paton
Lord Woolman
Lord Doherty
OPINION OF THE COURT
delivered by LADY PATON
in the appeal
by
MR SAMI KAREEM ALSHAMMARI (AP)
Petitioner and Appellant
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
in Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 14 October 2019 refusing permission to appeal to itself
Petitioner and Appellant: Winter; Drummond Miller LLP (for Katani & Co, Solicitors, Glasgow)
Respondent: Maciver; Office of the Solicitor for the Advocate General
30 April 2021
Introduction
[1]
In this appeal under s 27D(2) of the Court of Session Act 1988, the petitioner
challenges the decision of the Lord Ordinary dated 8 July 2020 to refuse to grant permission
for his petition for judicial review to proceed. The petitioner claims to be an undocumented
2
Bidoon from Kuwait, and to be entitled to asylum and to international protection on that
basis. The Home Office does not, in principle, dispute that undocumented Bidoons are
entitled to such protection, but it does not accept that the petitioner is an undocumented
Bidoon.
[2]
In refusing permission to proceed, the Lord Ordinary was exercising the jurisdiction
prescribed by section 27B(3)(b) and (c) of the Court of Session Act 1988. The Lord Ordinary
could only grant permission if he was satisfied that the application had a real prospect of
success, and, as the second part of the test, either (i) the application would raise an
important point of principle or practice, or (ii) there is some other compelling reason for
allowing the application to proceed. This is the "second appeals test", discussed in Eba v
[3]
It is not necessary for this court to find that the Lord Ordinary erred in any way
(PA v Secretary of State for the Home Department 2020 SLT 889, para [33]).
[4]
While the question raised in the petition for judicial review is whether there has been
an error of law by the Upper Tribunal ("UT"), the error of law contended for by the
petitioner is the failure by the UT to recognise an arguable error of law on the part of the
First-tier Tribunal ("the FtT") (cf para [9] of Waqar Ahmed v Secretary of State for the Home
Department [2020] CSIH 59). Parties were therefore agreed that it was necessary to examine
the decision of the FtT.
The issue for the court
[5]
Many issues were explored and debated before the FtT and the UT, but the sole issue
argued before us concerned the treatment of the evidence of one of the petitioner's two
supporting witnesses, namely Naef Abdulla Al-shamari ("Naef"). Naef was the only
3
witness who could give evidence about the petitioner's claimed status as an undocumented
Bidoon. The petitioner's contention is that Naef gave evidence vouching that the petitioner
is an undocumented Bidoon, yet no clear assessment of that evidence was made by the FtT.
The petitioner contends that if Naef's evidence was accepted as credible and reliable, then it
corroborated the petitioner's evidence that he is an undocumented Bidoon. If, on the
contrary, the evidence was not accepted as credible or reliable, the petitioner maintains that
the FtT's decision should have given reasons explaining why that conclusion had been
reached.
Naef's evidence
[6]
Naef's evidence consisted of a witness statement and oral testimony at the FtT
hearing, when he was cross-examined. There is no transcript of the oral evidence, but it may
be helpful to set out the witness statement, which was as follows:
"1. My full name is Naef Abdulla Al-shamari. My date of birth is 09 May 1977. I
was born in Kuwait.
2.
I am a recognised refugee and was granted Refugee status by Home Office as
an undocumented Kuwaiti Bedoon.
3.
I first met Sami [the petitioner] at Shurai Alkadi Mosque, which is located at
Block 1. We both lived at block number 7. We would both go to pray at Hateb Ibn
Amr mosque in Block 7.
4.
Sami and I studied at the Shurai Alkadi Mosque. This is where people study
informally - to receive an education - when you are an undocumented Bedoon.
Anyone who is registered would go to school to study.
5.
We would often play and spend time in a group with other people from the
mosque. We met each other on a daily basis because we lived close to each other.
6.
We did not have the same privileges as people who were registered. We were
not allowed access to health services, go to school, be issued with a driver's license,
marriage certificate, find employment (within public or private sector).
4
7.
I had to leave Kuwait because of the persecution of undocumented Bedoons.
8.
I did not know Sami had left Kuwait and was living in UK until he called me
out of the blue and said he was living in UK. I told him I was living in Glasgow.
9.
We met up and spoke about our families and how our lives were for the past
couple of years. We had discussed the fact that we had both claimed asylum. I
advised him I was granted asylum.
10. I know Sami is an undocumented Bedoon because our lives were the same
growing up in Kuwait. We both went to Mosque to study and this only happens
when you are not documented. This also applies to other areas (discussed above)
which his and my family both had.
11. I do not know why anyone would falsify a claim that they are an undocumented
Bedoon given the clear disparity of how people are treated between [documented]
and undocumented Bedoons.
I have given this statement in Arabic ... with the assistance of Sami's legal
representative. This statement has been read back to me in Arabic by the interpreter
and has been approved by me. This statement has been signed by me at Glasgow on
6
th
May 2019."
The assessment of the evidence by the FtT
[7]
The FtT analyses the petitioner's evidence at paragraphs 18 to 27 of its decision.
Following the guidance given in KB and AH (credibility-structured approach) Pakistan
sufficiency of detail, internal consistency, external consistency, and plausibility. Amongst
other things, the petitioner was found to have deliberately concealed the fact that he had
made an application for a US visa in Baghdad based on an Iraqi passport, which passport he
subsequently claimed was false (paragraph 23 of the FtT decision). He was found not to
have harboured a fugitive friend as he had claimed (paragraph 24). He was found to have
used a different name on a false Kuwaiti passport in order to enter the UK (paragraph 25).
5
[8]
By contrast, no criticism is made in the FtT decision of Naef or his evidence. There is
no suggestion that Naef behaved improperly or dishonestly. There is no suggestion that his
evidence was false, or that it disclosed inconsistencies, or that it should be given little or no
weight.
[9]
The references to Naef and his evidence can be found in paragraphs 6, 7 and 26, and
in the FtT's final conclusion on all the evidence at paragraph 28.
[10]
Paragraphs 6 and 7 state:
"6. The appellant and his witnesses Naef Abdullah Al-Shamari and Khaled Hamad
Al Shammari gave their oral evidence through an interpreter. The language is
Arabic (Middle Eastern).
7.
The appellant and his witnesses adopted their witness statements and
answered all the questions put to them."
[11]
Paragraph 26 notes:
"The evidence of Naef Abdullah Al-Shamari and Khaled Hamad Al-Shammari was
broadly consistent with the account given by the appellant. [The decision then notes
an inconsistency between Khaled's evidence and the appellant's evidence, but no
inconsistency or criticism relating to Naef is suggested.]"
[12]
Paragraph 28 concludes:
"I have considered all the evidence in the case. I take account of the fact that it may
be necessary for a genuine applicant for asylum to disguise his identity as part of a
legitimate claim. I have given weight to the various issues in the case as I have
indicated. The account the appellant has given is lacking in detail and while it is
plausible there are aspects to it which I have described as curious. The main issue is
inconsistency. The appellant attempted to obtain a US visa in March 2016 and
denied this throughout the asylum interview process. I cannot regard this as
anything other than a deliberate and sustained attempt to mislead the immigration
authorities. The cumulative effect of this and the other issues I have identified lead
me to conclude that the appellant is not a credible witness. I do not consider that I
can rely upon the appellant's evidence and do not accept that he is an undocumented
Kuwaiti Bidoon. I make no finding as to his true nationality as that is not required
for the disposal of this appeal."
6
Discussion and decision
[13]
The crux of the FtT's reasoning was that the petitioner's account should not be
accepted because the FtT was satisfied that he had been untruthful in relation to certain
matters. A potential difficulty with that approach in the present case is that in relation to the
core issue - whether the petitioner was an undocumented Bidoon - there was evidence from
Naef which corroborated the petitioner's account. Notwithstanding the petitioner's
untruthfulness in relation to other matters, on the crucial issue Naef's evidence supported
him. It is trite that parts of a witness's evidence can be untruthful or unreliable but other
parts may be truthful and reliable (cf Daoud v Secretary of State for the Home Department
[14]
In our opinion there is an argument of some substance that the FtT erred in law,
either by reaching a view in relation to the petitioner's credibility and reliability on the
core issue without having proper regard to Naef's supporting evidence on that issue
(cf S (AAS) v Secretary of State for the Home Department 2011 SLT 1058, Lord Bonomy at
para [9]-[11]; AR [2017] CSIH 52, Lord Malcolm at para [36]); or by rejecting Naef's
evidence as being incredible or unreliable without stating that conclusion or explaining the
basis upon which it had been reached. There is also an argument of some substance that in
failing to recognise the arguable error of law on the part of the FtT, the UT also erred in law.
[15]
It follows that we consider that the test in section 27B(3)(b) is satisfied. There is a real
prospect of persuading a judge at a substantive hearing that the UT judge erred in law,
because he failed to recognise that there was an arguable error of law on the part of the FtT.
[16]
We turn then to section 27B(3)(c). The petitioner does not suggest that the
application would raise an important point of principle or practice (section 27B(3)(c)(i)).
7
He maintains that there is "some other compelling reason for allowing the application to
proceed" (section 27B(3)(c)(ii)).
[17]
In PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 at
paragraph 23 the Court of Appeal identified the following observations of Lord Dyson JSC
in R (Cart) v Upper Tribunal (Public Law Project intervening) and R (MR (Pakistan)) v Upper
Tribunal (Public Law Project intervening) [2012] 1 AC 663 at paragraph 131 as being among the
main points which emerged from the judgments in Cart, MR, and Eba:
" ... the second limb of the test (`some other compelling reason') would enable the
court to examine an arguable error of law in a decision of the FTT which may not
raise an important point of principle or practice, but which cries out for
consideration by the court if the UT refuses to do so. Care should be exercised in
giving examples of what might be `some other compelling reason', because it will
depend on the particular circumstances of the case. But they might include (i) a case
where it is strongly arguable that the individual has suffered what Laws LJ referred
to at para 99 as `a wholly exceptional collapse of fair procedure' or (ii) a case where it
is strongly arguable that there has been an error of law which has caused truly
drastic consequences."
[18]
Sullivan LJ delivering the judgment of the Court of Appeal observed:
"22. We accept Mr Beloff's submission on behalf of PLP [Public Law Project] that it
is important not to lose sight of Lord Dyson JSC's warning that `Care should be
exercised in giving examples of what might be `some other compelling reason'
because it will depend on the particular circumstances of the case'. Undue emphasis
should not be laid on the need for the consequences to be `truly drastic'. Lord Dyson
JSC was expressly giving two, non-exhaustive, examples. However, the second of
his examples makes it clear that very adverse consequences for an applicant (or per
Baroness Hale JSC, the `extremity of consequences for the individual') are capable, in
combination with a strong argument that there has been an error of law, of
amounting to `some other compelling reason'.
23. While the test is a stringent one it is sufficiently flexible to take account of the
`particular circumstances of the case'...
26. In our view para 36 of the PR case [2012] 1 WLR 73 is consistent with the Cart
case [2012] 1 AC 663, indeed it would be surprising if it was not. As we read the
judgment in the PR case, the court was emphasising the fact that, in the absence of a
strongly arguable error of law on the part of the UT, extreme consequences for the
8
individual could not, of themselves, amount to a free-standing `compelling reason'.
The court noted at para 36 that Baroness Hale and Lord Dyson JJSC had
`acknowledged the possible relevance of the extreme consequences for the
individual'. It did not suggest that such consequences were irrelevant to the
consideration of whether there was a `compelling reason', it merely stated, in our
view correctly, that absent a sufficiently serious legal basis for challenging the UT's
decision, extreme consequences would not suffice.
27. We have deliberately used the phrase `sufficiently serious legal basis for
challenging the UT's decision' because the threshold for a second appeal must be
higher than that for an ordinary appeal - real prospect of success. How much higher,
how strongly arguable the legal grounds for the challenge must be, will depend
upon the particular circumstances of the individual case and, for the reasons set out
above, those will include the extremity of the consequences of the UT's allegedly
erroneous decision for the individual seeking permission to appeal from that
decision. It may well be the case that many applicants in immigration and asylum
cases will be able to point to the `truly dire consequences' of an erroneous decision.
As Mr Husain [senior counsel for an appellant] pointed out, a decision to remove an
asylum applicant from the United Kingdom's jurisdiction to the place where he
claims to fear persecution will be irreversible. Just as there is no case for applying a
different test to applications for permission to appeal from the Immigration and
Asylum Chamber of the UT (see Lord Dyson JSC at para 125 of the Cart case [2012] 1
AC 663), so also there is no reason to minimise the significance of the consequences
of a decision in the immigration and asylum field merely because legal errors in that
field are often capable of having dire consequences for appellants."
[19]
We are mindful that if an appellant has lost twice in the tribunals system, that ought
almost always to be the end of the road. It ought to be only in rare and exceptional cases
that the court ought to conclude that there is a compelling reason for a further appeal or for
judicial review. The circumstances ought to be such that they cry out for the matter to be
looked at again by the court. The requirement of a compelling reason is a stringent one,
but it is sufficiently flexible to take account of the particular circumstances of the case
(JD (Congo v Secretary of State for the Home Department, supra, paragraph 23). It involves the
court making an evaluative judgement.
[20]
In the present case, we think that it is strongly arguable that the UT erred in law, all
as discussed above. That brings us to the consequences for the petitioner if he is indeed an
undocumented Bidoon and if he were to be returned to Kuwait. The country guidance in
9
NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 356 details the major
difficulties and deprivations faced by undocumented Bidoons, and it is common ground
that because of them undocumented Bidoons are at risk of persecution. We are conscious
that undue emphasis should not be laid on the need for consequences to be "truly drastic"
(JD (Congo) v Secretary of State for the Home Department, supra at paragraph 22). While it is not
difficult to posit cases of persecution where the consequences are more extreme than in the
present case, the consequences for the petitioner are nevertheless very serious and adverse.
In our opinion the combination of the strongly arguable error of law and those serious
adverse consequences for the petitioner were he to be returned constitute a compelling
reason to allow the petition to proceed. They cry out for permission to be granted.
[21]
In the result, we shall allow the appeal, recall the Lord Ordinary's interlocutor of
8 July 2020, and grant permission to proceed.
