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URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_31.html
Cite as: 2022 GWD 12-192, 2022 SCLR 193, [2022] ScotCS CSOH_32, [2022] CSOH 32, 2022 SLT 583, 2022 Fam LR 50

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OUTER HOUSE, COURT OF SESSION

[2022] CSOH 31

P678/21

OPINION OF LORD CLARK

In the Petition of

FAZAL AHAD (AP)

Petitioner

for

Judicial Review of a decision of the Upper Tribunal et separatim a decision of the

Secretary of State for the Home Department

Petitioner: Caskie; Drummond Miller LLP

Respondent: Olson; Office of the Advocate General

8 April 2022

Introduction

[1]

This is an application seeking judicial review of two decisions. The first is the

refusal by the Upper Tribunal (UT) to grant permission for the petitioner to appeal against a

decision by the First Tier Tribunal (FtT). It is argued that the UT failed to recognise arguable

errors of law on the part of the FtT. The second is the decision by the Secretary of State for

the Home Department (SSHD), following upon the refusal by the UT of permission to

appeal, to remove the petitioner from the United Kingdom and return him to Pakistan. It

is argued that the SSHD was obliged to provide reasons for her decision to remove the

petitioner to Pakistan, rather than to Italy, and failed to do so.

Background

Chronology of events

[2]

The petitioner is a national of Pakistan. He was born on 16 February 1990. He

originally lived in what is named the Bajwar Agency in the Federally Administered Tribal

Areas in Pakistan. In 2007 he moved to Rawalpindi. He explained in his evidence before

the FtT that while living in Rawalpindi he sold clothes and other items. In September or

October 2011, he was living in a room with two other people who were also selling goods.

He was out one night and when he returned "everything was turned upside-down and there

was no sign of the people I stayed with". He thought they must have been taken away by

either the police or security services. He was so scared he left immediately, taking a bus to

Karachi. He then spent time in Iran and in due course travelled through Turkey and Greece,

and arrived in Italy in February 2012. He claimed asylum in Italy in 2013 and was granted

subsidiary protection status. He later decided to come to the UK. He arrived in May 2015

and made a claim for asylum in the UK. He was notified by the SSHD by letter of 17 July

2015 that his application would not be considered because he had subsidiary protection in

Italy. It was proposed to remove him to Italy and the SSHD wrote to the relevant authorities

in Italy to request removal. Confirmation was received from the police in Italy that the

petitioner could be removed from the UK to Italy, with a request for information. Directions

for removal to Italy were issued, and the date was set for 7 August 2015. However, the

petitioner was not removed, with no clear evidence as to why that did not occur. The

petitioner had a travel document issued by the Italian authorities which was valid until

29 November 2016. He made no attempt to return to Italy. On 29 November 2018 he

contacted the Voluntary Returns Service in the UK saying he wanted to return to Italy. He

was advised that they would contact the Italian Border Police. However, on 2 January 2019

the petitioner was informed that it had been realised this was not a case for the Voluntary

Returns Service, and he would need to contact the Third Country Unit (the TCU). Their

number was provided to the petitioner. There was no suggestion that he then made contact

with the TCU.

[3]

On 10 September 2019, the SSHD noted that "Subsidiary protection cases will now be

considered substantively in the UK" and re-opened the petitioner's asylum claim. As a

consequence of this change of position by the SSHD, the petitioner was given a substantive

interview on 8 January 2020 and his asylum claim was considered. It was refused on

24 January and he was given a right of appeal. The petitioner appealed to the FtT but on

19 March 2021 his appeal was refused. He sought permission from the FtT to appeal to the

UT and that was also refused. He then sought permission from the UT to appeal to the UT.

On 28 June 2021 that application was refused. On 25 August 2021 removal directions were

issued by the SSHD, stating that the petitioner was to be removed from the UK to Pakistan

on 8 September 2021.

Subsidiary protection and humanitarian protection

[4]

Subsidiary protection is dealt with in Directive 2004/83/EC (the Qualification

Directive). In essence, subsidiary protection allows a person who does not qualify as a

refugee, but who has subsidiary protection status, to reside in the member state which

grants it for at least three years, with a renewable permit, and to have rights as a resident.

The key provisions in the Qualification Directive for present purposes in relation to

subsidiary protection are:

"CHAPTER I

Article 2

Definitions

For the purposes of this Directive:

(a) `international protection' means the refugee and subsidiary protection status as

defined in (d) and (f);

(e)

`person eligible for subsidiary protection' means a third country national or

a stateless person who does not qualify as a refugee but in respect of whom

substantial grounds have been shown for believing that the person concerned,

if returned to his or her country of origin, or in the case of a stateless person,

to his or her country of former habitual residence, would face a real risk of

suffering serious harm as defined in Article 15, and to whom Article 17(1)

and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail

himself or herself of the protection of that country;

(f)

`subsidiary protection status' means the recognition by a Member State of a

third country national or a stateless person as a person eligible for subsidiary

protection;

CHAPTER V

QUALIFICATION FOR SUBSIDIARY PROTECTION

Article 15

Serious harm

Serious harm consists of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in

the country of origin; or

(c)

serious and individual threat to a civilian's life or person by reason of

indiscriminate violence in situations of international or internal armed conflict.

Article 16

Cessation

A third-country national or a stateless person shall cease to be eligible for

subsidiary protection when the circumstances which led to the granting of subsidiary

protection status have ceased to exist or have changed to such a degree that

protection is no longer required.

In applying paragraph 1, Member States shall have regard to whether the

change of circumstances is of such a significant and non-temporary nature that the

person eligible for subsidiary protection no longer faces a real risk of serious harm.

...

CHAPTER VI

SUBSIDIARY PROTECTION STATUS

Article 18

Granting of subsidiary protection status

Member States shall grant subsidiary protection status to a third country national or

a stateless person eligible for subsidiary protection in accordance with Chapters II

and V.

Article 19

Revocation of, ending of or refusal to renew subsidiary protection status

Concerning applications for international protection filed after the entry into

force of this Directive, Member States shall revoke, end or refuse to renew the

subsidiary protection status of a third country national or a stateless person granted

by a governmental, administrative, judicial or quasi-judicial body, if he or she has

ceased to be eligible for subsidiary protection in accordance with Article 16.

Member States shall revoke, end or refuse to renew the subsidiary protection

status of a third country national or a stateless person, if:

...

(b) his or her misrepresentation or omission of facts, including the use of false

documents, were decisive for the granting of subsidiary protection status.

Without prejudice to the duty of the third country national or stateless person

in accordance with Article 4(1) to disclose all relevan t facts and provide all relevant

documentation at his/her disposal, the Member State, which has granted the

subsidiary protection status, shall on an individual basis demonstrate that the person

concerned has ceased to be or is not eligible for subsidiary protection in accordance

with paragraphs 1, 2 and 3 of this Article."

[5]

The terms of the Qualification Directive were revised in Directive 2011/95/EU (the

recast Qualification Directive). This was not adopted by the UK and consequently the UK

is not bound by it or subject to its application. The recast Qualification Directive largely

restates the terms of the Qualification Directive but makes certain changes, including the

addition of the following sub-paragraph to Article 16:

"3. Paragraph 1 shall not apply to a beneficiary of subsidiary protection status who

is able to invoke compelling reasons arising out of previous serious harm for refusing

to avail himself or herself of the protection of the country of nationality or, being a

stateless person, of the country of former habitual residence."

[6]

The effect of the Qualification Directive has been incorporated in the UK's

Immigration Rules, using the expression "humanitarian protection" rather than "subsidiary

protection":

"Grant of humanitarian protection

339C A person will be granted humanitarian protection in the United Kingdom if

the Secretary of State is satisfied that:

...(iii) substantial grounds have been shown for believing that the person concerned,

if returned to the country of return, would face a real risk of suffering serious harm

and is unable, or, owing to such risk, unwilling to avail themselves of the protection

of that country;..."

Rule 339CA defines "serious harm", using principally the definition in Article 15 of the

Qualification Directive.

Rule 339GA states:

"Humanitarian protection ceases to apply

339GA. This paragraph applies where the Secretary of State is satisfied that the

circumstances which led to the grant of humanitarian protection have ceased to

exist or have changed to such a degree that such protection is no longer required.

In applying this paragraph the Secretary of State shall have regard to whether the

change of circumstances is of such a significant and non-temporary nature that the

person no longer faces a real risk of serious harm."

Refusal of claim for asylum in the UK

[7]

In the refusal letter of 24 January 2020, the SSHD rejected the petitioner's claim for

asylum. In relation to whether he should be granted humanitarian protection in accordance

with Rule 339C, the SSHD said that having carefully considered his claim, taking account of

the evidence, she had concluded that there were no substantial grounds for believing that

there was a real risk of serious harm should he return to Pakistan. It was said to be obvious

from his own account that the petitioner had come to the UK for illegal work rather than to

seek international protection. The letter stated that he had also failed to provide an

internally consistent account of why he feared return to Pakistan. Further, he had not

provided any details of specific threats by the authorities or incidents relating to him

directly in Pakistan. He had lived in Rawalpindi for some years without incident and his

younger brother was also now living and working there. It was considered there was no

direct threat to the petitioner from the authorities in Rawalpindi or his home village. His

account was found not to be plausible and the view reached was that he could relocate back

to his home area, or Rawalpindi, or Lahore without suffering any ill-treatment.

Appeal to the FtT

[8]

The appeal to the FtT was based on several grounds, but the key contention for

present purposes is that, on the basis that the petitioner faced a real risk of serious harm, he

should be granted humanitarian protection. Reliance was placed upon the fact that he had

previously been granted such protection by the Italian authorities.

[9]

The FtT judge refused the appeal, finding the evidence given by the petitioner not to

be credible. It was accepted on behalf of the respondent that the FtT judge erred in stating

that the petitioner may have been granted humanitarian protection in Italy on the basis of

his age. It was also accepted that she erred in her arithmetic in calculating that the petitioner

would have been treated as a minor, just under 18, according to his false date of birth of

16 February 1994, when he claimed asylum in Italy on 17 February 2013. That was wrongly

counted because based on that false date of birth he would have been just over 19 years old

at that date. However, it was also accepted on behalf of the petitioner that leaving these

errors to one side, the FtT judge reached her findings on credibility on a number of other

grounds.

[10]

In summary, the FtT judge concluded that the petitioner was not telling the truth for

several reasons. These included that while the petitioner claimed that he had worked as an

aid worker in his local area (helping with a polio vaccine programme) and this had resulted

in him being targeted by the Taliban, he had in fact left that area in 2007, before the

programme was stopped in 2008 because it was too dangerous. After he left the area, he

then remained in Pakistan for four years or so. Further, in his screening interview when

seeking asylum in the UK, the petitioner did not mention events that he now claimed in his

witness statement had occurred in Rawalpindi in 2011, which he said caused him to fear the

authorities, rather than the Taliban, and leave Pakistan. The FtT judge stated (at para [42]):

"I find that the appellant has failed to explain satisfactorily or credibly why he had

not mentioned his fear of the Pakistan authorities, rather than only the Taliban, in

the screening interview."

[11]

The FtT judge also concluded that it was seriously damaging to the petitioner's

credibility that he introduced a further point at the hearing of his appeal, which he said he

had already provided to the Italian authorities, but had not mentioned it before either in the

interview or to his legal representatives when they prepared his statement. The further

point he made was that a First Information Report (FIR) had been issued by the police

naming the petitioner as one of the accused as a result of whatever took place in Rawalpindi

and caused his room-mates to be taken away. He had also given false information, for

example having told the Italian authorities that he had been born in 1994. There was also a

Pakistan identity document which showed his year of birth as 1998. He had mentioned

three different dates of birth. Despite his claim that the place in Pakistan where he was from

would result in persecution by state agents, his family had in fact returned to their home

area and were not the victims of persecution. One of his brothers lives and works in

Rawalpindi without any problems.

[12]

The FtT judge (at para [55]) held that

"...there are significant problems in the appellant's evidence which go to the core of

his claims and which he has not satisfactorily explained to the low standard of proof

which rests with him. The cumulative effect of these matters which I have discussed

above is such that in my view no credence can be given to his claims as to the reasons

he left Pakistan.

...I do not believe for reasons I have explained above that the appellant has

established that he suffered any particular problems there [Rawalpindi] or that he

was or is wanted by the authorities. Rather, I find that the appellant left the country

for the sole reason of seeking economic betterment..."

The FtT judge also considered, and set out in some detail, the background country

information.

Refusal of permission by the UT

[13]

The grounds of appeal submitted to the UT alleged that the FtT judge had materially

erred in law in reaching her decision and also had not given adequate reasons for it. The

Upper Tribunal judge refused permission to appeal, stating that the FtT judge's reasoning

for concluding that the petitioner was not a witness of truth, found in paras [33] to [51] of

the decision, comprised proper, intelligible and adequate reasons for arriving at a conclusion

which was properly open to the judge. The UT judge stated that overall, the FtT judge made

findings of fact which she was entitled to make on the evidence, for the reasons given, and

there was no arguable error of law.

Submissions

[14]

The court had the benefit of detailed notes of argument and oral submissions on

behalf of each party, including additional submissions about Article 19(4) that I requested

while the case was at avizandum. The contents have been taken fully into account. At the

substantive hearing, counsel for the petitioner adopted a more refined stance than in the

detailed petition, although certain additional points were also made.

Submissions for the petitioner

[15]

The basis upon which Italy granted subsidiary protection to the petitioner is not

known and was not put before the FtT judge. Bilali v Bundesamt für Fremdenwesen und

Asyl [2019] 4 WLR 124 illustrated that even if the kind of evidence given by the petitioner

was not credible (which the petitioner does not accept) there may be other reasons as to

why the Italian authorities had granted subsidiary protection. That case explained that

subsidiary protection can be lost if a member state identifies a change in circumstances.

Such a change cannot be identified if the starting point is not known. Neither the FtT judge

nor the SSHD made any assessment of whether, for example, the petitioner had been

granted subsidiary protection in Italy on the same basis as in Bilali and, if so, whether the

situation had altered. There could also be domestic protection provisions in Italy outside the

scope of the recast Qualification Directive which could have formed the basis of the decision

to grant subsidiary protection.

[16]

If a person has an expired residential permit, he still has subsidiary protection.

The Italian authorities must have granted subsidiary protection on the basis of Article 15(b)

or (c) of the recast Qualification Directive. That Directive also added paragraph 3 to

Article 16 of the original Qualification Directive. The UK authorities could not apply that

provision. The Italian authorities would require to apply Article 16(3) to address whether

there were compelling reasons from what has arisen before for the petitioner not to be able

to return to Pakistan. The fact that he had waited for five years for a decision and made a

life in the UK might be relevant. Article 19 laid out the procedural requirements to be gone

through to cease entitlement to subsidiary protection. The Italian authorities would require

to provide the petitioner with the opportunity to make arguments on the matter. The SSHD

must be taken to have known about this requirement. The failure to consider Article 16(3)

avoided a significant question.

[17]

There were attempts by the petitioner to obtain evidence from the Italian authorities

as to the basis upon which Italy had granted him subsidiary protection. It would not be

normal for the person granted subsidiary protection to be given detailed reasons at the time

as to why that had occurred. He sought and was refused a direction from the FtT ordering

the SSHD to make inquiries of the Italian authorities. There was an obvious and clear

distinction between an individual who has not been in Italy for more than five years, but

previously had been granted subsidiary protection there, making an inquiry about his old

asylum claim and a state-to-state inquiry on the point.

[18]

On an assessment of the petitioner's application for permission to appeal the UT

should have recognised that there was at least an arguable error in law in the decision of the

FtT judge, including in light of the dicta in R v Immigration Appeal Tribunal Ex p Shen

[2000] INLR 389, at [27]-[32]. That case indicated that the UT should have had regard to a point

that ought to have been clear to the UT, even though not raised in the grounds of appeal.

Looking at the FtT decision and the UT decision, it was glaringly obvious that no thought

had been given at any stage to the basis upon which the Italian authorities had granted

subsidiary protection being a significant matter. In particular, no engagement occurred as

to whether or not the basis of the grant might have been Article 15(b) on the same sort of

grounds as in the Bilali case. As the FtT Judge had considered whether it was appropriate to

end the petitioner's humanitarian protection it was or should have been clear that the law

placed an obligation on the SSHD to at least attempt to obtain information from the Italian

authorities as to the basis upon which humanitarian protection had been granted: see MJ

Afghanistan [2013] UKUT 00253 (IAC). The FtT judge failed to recognise that there was an

obligation on the state and then held the failure to fulfil that obligation against the appellant

in terms of his credibility. The UT failed to ask the question "is it material that he was

lying?"

[19]

There was also a failure by the FtT judge to give appropriate consideration to the

five-year gap after leaving Italy. The FtT failed to consider that period and failed to give

adequate reasons as to why the delay was not taken into account in assessing credibility.

The FtT judge placed reliance upon matters referred to in the preliminary information given

by the petitioner and the subsequent interview. These were to provide more information,

years after the Italian authorities had made their decision.

[20]

As to the second ground, it was made clear in Bilali that the ending of a grant of

subsidiary protection is not inevitably followed by the ending of a right to reside in the state

that granted that protection. That is particularly so where the state in question is obliged by

Article 16(3) of the recast Qualification Directive to not revoke protection in specified

circumstances. In those circumstances the SSHD was obliged to provide reasons for her

decision to remove the petitioner to Pakistan and not Italy. Reference was made to

paragraph 18.53 et seq of Clyde and Edwards, Judicial Review 2000. For the first time, in its

answers to the petition, the respondent indicated there was no obligation on the SSHD to

provide reasons because there was no reason to think the petitioner would be admitted to

Italy. The respondent may not provide reasons in answers to a petition for judicial review

that were not provided with the impugned decision. Reference was made to Absalom v

Governor of HM Prison, Kilmarnock [2010] CSOH 109. There were questions that needed

answers from the Italian authorities and simply no reasons given for the decision to send

him back to Pakistan. The respondent states that there was no reason to think the Italian

authorities would take the petitioner back, but the answer to that point was that Article 16(3)

would require to be applied by them.

Submissions for the respondent

[21]

In essence the issue before the court had been accurately summarised in the FtT

judge's decision. Time had passed and circumstances had changed. The petitioner had

subsidiary protection in Italy only for a limited time and reconsideration would have taken

place at the necessary time for reconsideration. The focus of the FtT judge was on whether

there was a risk of serious harm in returning to Pakistan now and that was the task before

her. The petitioner had claimed asylum from the UK, properly treated as a claim for

humanitarian protection. So, the FtT judge directed herself to the correct question and there

was no error of law in her judgment or the UT's decision.

[22]

Article 16(3) in the recast Qualification Directive deals with matters that the

beneficiary of subsidiary protection can raise. It is a defence that the beneficiary can use

when the host country is of the view that he can return to Pakistan. It is for the beneficiary

to explain any compelling reasons. That is not a matter for the member state to embark

upon when considering the point in Article 16(1) of the Qualification Directive. It was

wrong for the petitioner to contend that the Italian authorities would have let him in to Italy

to answer that question. If the petitioner was returned to Italy he would not benefit there

because the subsidiary protection has been revoked by the UK. In any event, it was of no

relevance to the FtT judge's decision because what she had to do was consider whether or

not the petitioner was eligible for humanitarian protection when he appeared in front of her.

The UK tribunals are concerned with the UK laws that apply. Further, no compelling

reasons were identified. Counsel for the petitioner simply hypothesised that these may

exists but did not say what they were.

[23]

The case of Bilali was of no assistance. It was not authority for the proposition that

there is a more general entitlement to subsidiary protection than in the UK. The reason why

the person in that case was granted subsidiary protection concerned how he was at risk of

being exposed to inhuman treatment. The argument for the petitioner seemed to be that if

he was sent to Italy the authorities may have a more favourable interpretation of Articles 15

and 16 than he would get in the UK. There was no evidence or other basis for saying that is

in fact the case in Italy.

[24]

The reliance by the petitioner on the need for a change of circumstances before

subsidiary protection could be ceased did not take full account of Article 16(1). If the

circumstances allowing subsidiary protection had not, on the evidence, existed in the first

place then that must mean that his entitlement to subsidiary protection ceases when he is

found to have lied. There was no need to look for a change. It did not matter what the

Italian authorities thought when granting him subsidiary protection. The question is

whether or not as a matter of fact the circumstances were such that he was entitled to

subsidiary protection. The findings of the FtT judge on credibility dealt with the issues

in Article 15(b) and (c) and there was no other issue left extant.

[25]

The position taken by the petitioner's solicitor in front of the FtT judge was that his

claim must stand or fall on the issue of credibility. The FtT judge had regard to the evidence

in full, including the fact that the screening interview was not done in detail and the period

of five years having passed. In relation to how the FtT judge dealt with information

regarding Italy, she simply noted that there was no information about it. There was no error

of law in her decision or the decision of the UT and no "Robinson obvious" point based on

Bilali and an interpretation of the two Directives.

[26]

Turning to ground 2, it was accepted by the petitioner that the SSHD can return a

person to the country of his nationality. Where the SSHD has reason to believe another

country would accept the person she could direct that he be removed to that country. It

was patently obvious from the papers and from the judge's decision that there is no reason

to believe that Italy would accept the petitioner. So the only one country to return the

petitioner to was Pakistan. The petitioner argues that there is no explanation of why she

does not have a reason, but he does not say, for example, that the petitioner has made

enquiries and the Italian authorities will take him. On the contrary, he had made no such

enquiries and does not know if that is possible. In these circumstances the SSHD was not

under any obligation to give any reasons as to why she did not direct that he be removed to

Italy.

[27]

A member state is obliged under EU law, if a person is not entitled to subsidiary

protection, to remove him. An order on the SSHD to make further enquiries would have

discovered whether he had told two different stories or the same, not credible, story, so such

an order was pointless. It was for the petitioner to establish his claim for asylum or

humanitarian protection. It is not for the state to make investigations other than in special

circumstances identified in MJ Afghanistan. That case involved very specific circumstances

where there were documents in dispute. The law as explained in Tanveer Ahmed [2002] Imm

AR 318 (starred) applied here.

Decision and reasons

Ground 1

[28]

The petitioner made an asylum claim in the UK in 2015, having been granted

subsidiary protection in Italy two years earlier. That opened up the possibilities of either the

SSHD not dealing with the matter and directing that he be returned to Italy, or the SSHD

considering his application in the UK. The former course was initially taken, but the

petitioner did not go to Italy. The latter course was then followed. It was not suggested that

the SSHD's decision to consider the petitioner's asylum application in the UK was in any

way wrong in law.

[29]

The FtT judge was dealing with an appeal against the decision by the SSHD. The

key contention made by the petitioner was that he suffered a real risk of serious harm if he

returned to Pakistan. This was the central issue to be determined by the FtT judge. It was

for the petitioner to identify why he had that real risk of serious harm. He was given a full

opportunity to state his case and to put forward the evidence he relied upon. In reaching

her conclusions on credibility, the FtT judge properly assessed all of the relevant evidence.

[30]

The FtT judge was not made aware of the basis upon which subsidiary protection in

Italy had been granted, apart from the general point that the petitioner feared serious harm

if he were to be returned to Pakistan. The petitioner argues that in those circumstances

grounds such as those in Bilali v Bundesamt für Fremdenwesen und Asyl might have been the

reason for subsidiary protection being granted. In my opinion, the case of Bilali provides

no assistance to the petitioner. In that decision, humanitarian protection was granted "on

account of the high level of unemployment, lack of infrastructure and continuing instability

in Algeria". As a result, the person was described as being exposed to "inhuman

treatment". A person making an application in the UK for asylum on the basis of a risk of

serious harm requires to satisfy the test in the Immigration Rules (defined in very similar

terms to those in Article 15). As quoted above, Article 15(b) refers to "inhuman or

degrading treatment". The person is given a full opportunity to explain his position. In

effect, the suggestion for the petitioner is that there can be reasons why Italy granted

subsidiary protection which are not affected by the FtT judge's credibility finding, albeit the

petitioner did not know what they were and had not expressed any evidence about them. It

is not, in my view, open to speculation that some other basis for subsidiary protection

existed than that put forward in the evidence. Accordingly, the absence of information

about the basis upon which subsidiary protection was granted did not, in my view, create

the possibility that the Italian authorities had made their decision based upon matters that

were not affected by the decision of the FtT judge on credibility.

[31]

It is also incorrect to say that the UT erred in failing to pick up this point, if it did

have substance, on the ground that it was "Robinson obvious" (see R v Secretary of State for

the Home Department, ex parte Robinson [1998] QB 929, discussed and applied in R v

Immigration Appeal Tribunal Ex p Shen). It was not Robinson obvious that some other ground,

not affected by the findings on credibility, might have been the case for Italy granting

subsidiary protection. The suggestion that there was a failure by the FtT judge, in assessing

credibility, to give appropriate consideration to the period of more than five-years having

elapsed after the petitioner left Italy also carries no weight. The petitioner could not

reasonably be expected to have forgotten why he had a real risk of serious harm.

[32]

In relation to whether subsidiary protection status previously granted by the Italian

authorities remained in place, the FtT judge was not able, on the information provided, to

reach a view on that matter. She noted that the petitioner's representative submitted that

the petitioner had lost his opportunity to return to Italy because of the alleged delay by

the SSHD in deciding his asylum claim. While that was the submission on his behalf, the

petitioner himself stated that he still had subsidiary protection in Italy. His representative

acknowledged this claim but submitted that the petitioner's Italian documents which he

brought with him to the UK had expired and said it may be that the status itself had also

expired. The petitioner's solicitors had made contact with certain Italian authorities stating

that the petitioner had been granted subsidiary protection in Italy and requesting

information on, among other things, his current status, whether and if so when it had

expired, whether he had any rights to return to Italy, and the basis upon which his

subsidiary protection status was granted. No reply was obtained.

[33]

If the petitioner still had subsidiary protection in Italy, that was a matter for the

petitioner to put before the FtT judge. As that did not happen, the existence of any such

subsidiary protection was not made out. In relation to whether the SSHD should have

enquired of the Italian authorities, the decision in MJ Afghanistan (at [47]-[51]) relied upon

by the petitioner discusses the earlier case law. One of these decisions is Tanveer Ahmed, a

starred decision of the Immigration Appeal Tribunal, where it was held that in asylum and

human rights cases it is for an individual claimant to show that a document on which he

seeks to rely can be relied on. That case did not entirely preclude the existence of an

obligation on the Home Office to make enquiries about documents and in Singh v Belgium

(ECtHR Application no 33210/11) such an obligation arose because the documentation

was clearly of a nature where verification would be easy and it would come from an

unimpeachable source. However, the cases make clear that where evidence is verifiable that

of itself does not impose an obligation on the decision -maker to seek to have it verified. In

AS (Cameroon) v The Advocate General for Scotland [2022] CSIH 16, Lord Turnbull, giving the

Opinion of the Court (at paras [31]-[38]) considered these cases and the discussion of them

in PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1 WLR 1322. The Court

concluded that the duty to verify documents produced and relied upon by an appellant was

not engaged. That is also the position in the present case where there was no document

presented by the petitioner to the SSHD supporting subsidiary protection still existing and

which the SSHD was asked to verify. The case law referred to does not support there being

an obligation on the SSHD to contact the Italian authorities to inquire about a matter which

the petitioner was unable to give information about (the existence of subsidiary protection).

It was for the petitioner to vouch his claim. The FtT judge properly noted that it was not

the SSHD's responsibility to ascertain the petitioner's status in Italy, when he has claimed

asylum in the UK based upon a fear of return to Pakistan. That reasoning does not give rise

to an arguable error in law.

[34]

However, in any event, it was the clear position of each party that, even if the

petitioner still had subsidiary protection, it was open to the FtT judge to cease or revoke that

protection. They expressly agreed in the pleadings that the SSHD and FtT were obliged

under Article 19 of the Qualification Directive to revoke, end or refuse to renew the

petitioner's subsidiary protection status if he ceased to be eligible for subsidiary protection

in accordance with Article 16. The respondent admitted in its answers to the petition that

the Qualification Directive remained in force in the UK despite Brexit. However, in

response to a point I raised while the case was at avizandum, discussed below, the

respondent altered its position and submitted that as a result of the Immigration and

Social Security Co-ordination (EU Withdrawal) Act 2020, section 1 and Schedule 1, the

Qualification Directive ceased to be recognised and applicable in domestic law. The

petitioner did not demur but argued that the SSHD and FtT had to apply Rule 339GA which

had transposed Article 19 into UK law. It is not at all clear to me that Rule 339GA applies to

subsidiary protection granted by another state. But if cessation or revocation of subsidiary

protection was indeed required and, as parties submitted, it was open to the FtT judge to do

so, in substance that occurred.

[35]

The FtT judge said:

"86. The bottom line in this case is this. Whether or not the appellant has lost the

subsidiary protection he was given in Italy when the evidence is he claimed to be

4 years younger than he was, the fact is that time has passed and circumstances

changed. The appellant would only have had subsidiary protection for a limited

time and reconsideration would take into account the circumstances in Pakistan at

the time of reconsideration. That has been the task for me, i.e. to ascertain whether

it is safe for the appellant to return to Pakistan now, without a real risk and

wellfounded fear of persecution. I have found that he can."

The reference to claiming to be 4 years younger than he was, while correct, appears to be

somewhat peripheral. The actual basis for the references to subsidiary protection granted

by the Italian authorities being for a limited time and subject to reconsideration was not

spelled-out. That said, there is support in the case law (see eg AME v The

Netherlands 51428/10 and Mohammed Hussein and Others v the Netherlands and Italy 27725/10)

for a limitation of the Italian residence permit for subsidiary protection, in those cases being

for three years. However, the simple and central point is that the FtT judge was deciding on

humanitarian protection under UK law, the petitioner having applied for asylum here based

upon a real risk of serious harm in Pakistan.

[36]

It was also argued on behalf of the petitioner that whether the requirements in

Articles 16 and 19, as transposed in the Immigration Rules, were met could not be

determined without having sufficient information of the basis upon which the Italian

authorities granted subsidiary protection. That information is said to be needed in order

to establish a change in circumstances. As noted above, no basis in law was given for the

SSHD or FtT having a duty to obtain such information. It was a matter for the petitioner to

provide it. In my view, an account given by the petitioner of the reason for a risk of serious

harm in Pakistan which is found by the FtT judge to be wholly non-credible properly

demonstrates a change in circumstances, again having regard to the fact that the petitioner

had the full opportunity to explain his position. The FtT judge, as quoted above, expressly

referred to the circumstances having changed.

[37]

Another issue is whether Article 16(3) in the recast Qualification Directive, which

does not apply to the UK, has any relevance. While parties jointly submitted that the FtT

judge was able to cease or revoke subsidiary protection, the question is whether the UK

can do so even where the member state that granted subsidiary protection is bound by

Article 16(3). The FtT judge made no specific reference to Article 16(3), but there was

nothing in the evidence supporting the existence of compelling circumstances under

Article 16(3). In the absence of any such material, the FtT judge did not, in my view, require

to consider whether the Italian authorities should deal with that point and there was no

arguable error of law on that matter.

[38]

While the case was at avizandum, I raised with parties the reference in Article 19(4)

of the Qualification Directive to "the Member State, which has granted the subsidiary

protection status" having to demonstrate that the person concerned has ceased to be or is

not eligible for subsidiary protection. As noted above, the respondent submitted, and the

petitioner accepted, that the Qualification Directive did not apply in the UK as a result of

Brexit and the legislation cited. I have already dealt with the points made on behalf of the

petitioner about the SSHD and the FtT judge not knowing the basis upon which subsidiary

protection was granted by the Italian authorities and whether circumstances had changed.

The petitioner founded upon Rule 339GA in that regard. I was given no reason for

concluding that Article 19(4) had any relevance to the decisions made by the SSHD and

the FtT.

[39]

Finally, it was submitted on behalf of the petitioner that it was relevant to note that

the Lord Ordinary who granted permission for this petition to proceed was satisfied that the

test in Eba v Advocate General for Scotland 2012 SC (UKSC) 1 was met, in particular that the

matters raised were strongly arguable. That test only applies at the permission stage and,

while I respectfully note the Lord Ordinary's decision, it was reached only on the basis of

the unadjusted pleadings and of course without full and detailed submissions on the merits.

[40]

For the reasons given, there was no failure by the UT to recognise any arguable

errors of law on the part of the FtT. I therefore reject the petitioner's position on ground 1.

Ground 2

[41]

Ground 2 focuses on the absence of reasons for returning the petitioner to Pakistan

rather than Italy. It was accepted by both parties that, where the SSHD has reason to believe

that another country would accept the person, she could direct that the person be removed

to that country. In the present case, there was no material giving rise to a reason to believe

that Italy would accept the petitioner. Nothing to that effect was put before the SSHD or the

FtT judge. No proper legal basis for any obligation upon the SSHD to return the petitioner

to Italy was identified. The asylum claim concerned a real risk of serious harm on return to

Pakistan, and that was rejected. The decision of the FtT judge, followed by the SSHD in its

direction to return, was about the petitioner being returned to Pakistan. It is therefore clear

that there was only one option open to the SSHD, that is, returning the petitioner to

Pakistan. In such circumstances, there were no further reasons why that decision was

reached.

Disposal

[42]

I shall sustain the respondent's pleas-in-law, repel the petitioner's pleas-in-law and

refuse the petition, reserving in the meantime all questions of expenses.