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APPEAL BY BFH AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT FOR JUDICIAL REVIEW [2021] ScotCS CSIH_51 (05 October 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSIH_51.html
Cite as:
[2021] CSIH 51,
[2021] ScotCS CSIH_51,
2021 GWD 38-513
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 51
P558/20
Lady Paton
Lord Turnbull
Lord Doherty
OPINION OF THE COURT
delivered by LADY PATON
in the Appeal
by
BFH (AP)
Petitioner and Appellant
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
for
Judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 28 April 2020 refusing permission to appeal to itself.
Petitioner and Appellant: Winter; Drummond Miller LLP
Respondent: Maciver; Office of the Solicitor for the Advocate General
5 October 2021
Introduction
[1]
In this appeal under section 27D(2) of the Court of Session Act 1988, the
Lord Ordinary's decision of 11 December 2020 (refusing permission for the appellant's
judicial review petition to proceed) is challenged. The appellant claims to be at real risk of
2
being the victim of a male honour killing if he is returned to Iraq. He seeks asylum on that
basis. The Home Office does not accept that he is at real risk of harm, and has refused his
claim.
[2]
In refusing permission to proceed, the Lord Ordinary was exercising the jurisdiction
prescribed by sections 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 Advocate General
[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, paragraph [33]).
[4]
While the ground of appeal in the petition for judicial review (ground of appeal 1
sub-paragraphs (i) to (v)) is based on an error of law by the Upper Tribunal ("UT"), certain
sub-paragraphs focus upon the alleged failure by the UT to recognise an arguable error of
law on the part of the First-tier Tribunal ("the FtT") (cf paragraph [9] of Waqar Ahmed v
Secretary of State for the Home Department [2020] CSIH 59). Counsel therefore agreed that it
was necessary to examine not only the decision of the UT, but also the decision of the FtT.
Background
[5]
The appellant was born on 1 October 1994. He is a citizen of Iraq. He arrived in the
UK on 13 November 2018, and claimed asylum on the basis that he was at real risk of being
the victim of a male honour killing if he were to be returned to Iraq in consequence of a
forbidden relationship with a woman SB, the daughter of a prominent military official. On
3
23 August 2019 the respondent refused his claim. He appealed to the FtT. The evidence
before the FtT included the appellant's statements, photographs, a report by Dr Fateh dated
6 November 2019 concerning honour killings in Iraq, country information notes dated
August 2017 and February 2019, and the appellant's oral evidence.
[6]
The appellant's account was that he ran a corner shop. He began a relationship with a
female customer, BS. They kept their meetings and communications secret. After some time,
the appellant's family approached BS's family seeking permission to marry. That was
refused. The appellant described a continuing clandestine relationship, which he said led to
his being attacked and beaten by a brother of BS and two companions. When he heard from
BS that her father would kill him, he and his family decided that he should leave Iraq for his
own safety. He left Iraq on 21 July 2018. He arrived in the UK on 13 November 2018 and
made a claim for asylum and humanitarian protection. As noted in paragraph [1] above, his
application was refused. He appealed to the FtT.
The FtT decision and subsequent applications
[7]
By decision dated 4 February 2020, the FtT refused his appeal. The FtT judge accepted
the opinion of Dr Fateh regarding the risks that can arise for men in Iraq as a result of honour
killings; accepted that the appellant owned and operated a small grocer's shop; accepted that
he met BS at his shop in October 2016 and began a relationship with her; and accepted that BS
was the daughter of a senior military officer in the PUK. However in paragraphs 32 to 34 the
judge concluded:
"32.
... Given the inconsistencies in the account provided by the appellant, and my
adverse findings on credibility, I am unable to reach any conclusion as to whether or
not her family were aware of this relationship.
33.
I do not accept, even to the lower standard of proof, three important aspects of
4
the appellant's account. Firstly, that his mother and father and other family members
approached SB's parents in late 2017 and early 2018, proposing marriage. I take this
view due to the inconsistencies in the appellant's account of when those approaches
were made and how many approaches there were. Secondly, that he was attacked by
SB's brother and others. I take this view as he has given two very different accounts
of this incident, including when it took place. Thirdly, that he was advised by SB that
her father had become aware of their continued relationship and intended to seriously
harm both of them. I therefore also reject his claim that he and his family fled Iraq in
fear of his life, because of this threat. I take this view for three reasons. Firstly, I do
not regard as credible the appellant's account that neither he nor SB had any
discussion regarding going into hiding together or even establishing a means of
maintaining contact. Secondly, his failure to take any steps following their separation
to establish contact with her or to check whether she was safe. Thirdly, his claim that
his family fled Iraq at around the same time as him is directly contradicted by the
information he provided at the screening interview.
34.
I have accepted the appellant was involved in a relationship with SB. I have
accepted that she is the daughter of a military figure in the PUK. However, I do not
consider the appellant is at any risk from KB [the father ], should he be returned to
Iraq. I therefore refuse his appeal on asylum grounds."
[8]
Paragraph 35 then deals with the question of the appellant's passport, ID card or other
Iraqi documentation, with which this appeal is not concerned, holding that there was no
entitlement to humanitarian protection or to reliance upon the European Convention on
Human Rights.
[9]
The appellant applied to the FtT for permission to appeal to the Upper Tribunal (UT).
That application was refused. The appellant applied directly to the UT. On 28 April 2020
that application was refused. It is that decision which is the subject of the current petition for
judicial review.
The UT decision dated 28 April 2020
[10]
The UT decided that it was open to the FtT to find that the appellant's evidence had
been inconsistent in the important respects identified; that the documents tendered had
plainly been taken into account by the FtT in reaching conclusions as to credibility; that it
5
was open to the FtT to draw an adverse inference from the fact that the appellant provided in
his screening interview a detail which he subsequently omitted from his claim; that the
findings reached by the judge were unarguably adequate to dispose of the appeal without a
specific finding about SB's family's awareness; that the judge demonstrably bore in mind the
evidence given by Dr Fateh; and that his finding that the appellant could return safely to Iraq
was unarguably open to him. Permission to appeal was refused.
Petition for judicial review
[11]
The appellant raised the current petition seeking judicial review of the decision of the
UT dated 28 April 2020.
[12]
By decision dated 11 December 2020, the Lord Ordinary noted that it was not
suggested that the petition raised any important point of principle or practice. He refused to
allow the petition to proceed, holding that there was no real prospect of success
(section 27B(3)(b) of the Court of Session Act 1988), and that there was no "other compelling
reason for allowing the application to proceed" (section 27B(3)(c) of the 1988 Act).
Appeal against the Lord Ordinary's refusal
[13]
The appellant appealed against the Lord Ordinary's refusal. In written grounds of
appeal, one composite ground is advanced, subdivided into five sub-paragraphs (i) to (v).
The composite ground of appeal submits that "[t]here is a real prospect that the UT erred in
law when refusing permission to appeal... by failing to recognise that the FtT had arguably
erred in law as outlined in the petition". The arguments noted in the written grounds of
appeal were presented at the appeal hearing.
6
Submissions at the appeal hearing
Submissions for the appellant
[14]
On behalf of the appellant, Mr Winter submitted that the appeal should be allowed,
the Lord Ordinary's interlocutor recalled, and permission to proceed granted. There was a
real prospect of success, and a compelling reason for allowing the application to proceed in
the form of strongly arguable errors of law, and truly drastic consequences for the appellant
were he to be returned to Iraq. A legally compelling reason could be established if the
reasons given by the UT were generic, suggesting that the UT had not adequately engaged
with some or all of the grounds (TJM, petitioner [2015] CSOH 131).
[15]
The first ground of appeal relied on a lacuna in the FtT's judgment relating to the
medical documents. The documents disclosed that the appellant attended hospital and
underwent an MRI scan of his right knee. The documents were prima facie evidence
supporting the appellant's account of going to hospital, and should have been treated as
such. The second ground of appeal was that there was no true inconsistency in the accounts
concerning the whereabouts of the appellant's family: the appellant's position was that his
family "were going to Iran", not that they "had gone to Iran". The third ground concerned
case-law establishing that caution should be exercised wherever there was a discrepancy
between what the appellant said at the screening interview, and what he said at later stages
in the appeal procedure. The FtT had failed to exercise such caution. In relation to the fourth
ground, as set out in the appellant's grounds of appeal, the FtT should have made a finding
about whether or not the appellant's girlfriend's family knew about the relationship. The
fifth ground concerned the inadequate treatment of Dr Fateh's report. The tribunal's final
summary in paragraph 33 might become indefensible, depending on which (if any) of the
above errors the court decided were well-founded. The appellant's submission was that the
7
UT had erred in law by failing to identify all or any of the above defects as being arguable
errors of law on the part of the FtT.
Submissions for the respondent
[16]
Mr Maciver for the respondent invited the court to refuse the appeal. No arguable
error of law had been identified. In any event, the second appeals test was not satisfied.
[17]
The first ground of appeal was a disagreement of fact. The tribunal had clearly taken
the medical documents into account, but had found them of no assistance in reaching a view
about the nature of the injuries, and how they had been sustained. Such a matter was one for
the fact-finder. The UT had not erred in law in rejecting this ground. The second ground
concerned discrepancies in the appellant's accounts concerning the whereabouts of his
family. The appellant's accounts (given during the screening interview on 13 November
2018, the asylum interview on 26 July 2019, and the hearing before the FtT on 9 and
20 January 2020), contained plain inconsistencies. The FtT was entitled to rely on such
inconsistencies, and had made no error of law. In relation to the third ground, it was
accepted that where an interviewee answered questions at a screening interview (SCR), when
tired and having travelled a long journey, a tribunal should be slow to criticise a lack of detail
where more detail was offered at a later stage (YL (rely on SEF) China [2004] UKIAT 00145,
para 19). However the present case was the opposite: details were offered at the SCR but
departed from in later accounts. In those circumstances it was legitimate to compare the SCR
with later accounts, and the UT had not erred in law. As for the fourth ground, the key issue
was whether there was a real risk for the appellant. The FtT in paragraph 33 relied upon
three separate threads leading to a conclusion that there was no such risk. In so doing, the
FtT was carrying out a legitimate fact-finding exercise, which the UT was entitled to uphold.
8
The fifth ground had not been advanced with any force. The tribunal judge stated in terms
that he took into account and accepted Dr Fateh's expert report, but did not find that report
assisted in establishing the circumstances of the appellant's particular case. In upholding that
approach, the UT had not erred in law. The appeal should be refused, and the court should
refuse permission to proceed.
Discussion and decision
First ground: inadequate findings relating to the appellant's medical documents
[18]
The FtT accepted the medical documents, and took them into account when making
findings in fact. When deciding what had been established, the FtT was entitled to note
limitations in the documents, namely that they did not assist in establishing what injuries
were suffered, and how they came about. In so doing, the FtT was carrying out a proper fact-
finding exercise. The FtT did not err in law. Nor did the UT err in law when rejecting this
ground of appeal.
Second ground: no true inconsistency concerning the whereabouts of the appellant's family
[19]
There were undoubtedly inconsistencies in the appellant's accounts concerning the
whereabouts of his family. When making findings in fact, including making decisions about
credibility and deciding what evidence to accept, what to reject, and what weight to give to
evidence which was accepted, it was for the FtT to assess these inconsistencies, and to decide
what to make of them. In so doing, the FtT made no error of law, nor did the UT when
finding no merit in this ground of appeal.
9
Third ground: failure to exercise caution in relation to omissions or inconsistencies arising
from the screening interview
[20]
We accept that there is authority for the proposition that a tribunal should be slow to
criticise a lack of detail at a screening interview (SCR) when more detail is offered at a later
circumstances of the present case were different. The appellant offered certain details at the
screening interview, but departed from them in subsequent accounts. In these circumstances
we agree with counsel for the respondent that it was legitimate for the FtT to compare the
account given at the screening interview with later accounts. We are not persuaded that there
was any error of law on the part of the FtT, or on the part of the UT in rejecting this ground of
appeal.
Fourth ground: whether a specific finding should have been made about whether the
appellant's partner's family were aware of the relationship
[21]
The crucial issue was whether the appellant faced a real risk of harm were he to be
returned to Iraq. In paragraph 33 of its decision, the FtT found as a fact that there was no
such risk, setting out the reasoning leading to that conclusion. The approach adopted by the
FtT cannot be criticised. We have been unable to identify any error of law on the part of the
FtT or on the part of the UT in rejecting this ground of appeal.
Fifth ground: inadequate treatment of Dr Fateh's report
[22]
The FtT clearly accepted the guidance contained in Dr Fateh's report, and took that
guidance into account when reaching a view based on all the evidence in the case. We have
not been persuaded that the FtT's treatment was inadequate, or that any error of law has
10
occurred.
Postscript
[23]
We note the appellant's position in sub-paragraph (vi) that if some or all of the
grounds of appeal were held to be well-founded, there must be a re-assessment of the issue
concerning the lack of a passport and identification documents.
Decision
[24]
In our view, the arguments presented on behalf of the appellant have no merit. We
are not persuaded that there was any error of law on the part of the UT. It follows that we are
not satisfied that the application has a real prospect of success, or that the appellant has made
out a legally compelling reason for allowing the application to proceed (PR (Sri Lanka) v
Secretary of State for the Home Department [2012] 1 WLR 73 paragraphs 35 and 36). The
requirements of section 27B(3)(b) and (c) have not been satisfied, and the appeal is refused.
