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AC FOR JUDICIAL REVIEW [2023] ScotCS CSOH_5 (02 February 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_5.html
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2023 GWD 6-68,
[2023] CSOH 5,
[2023] ScotCS CSOH_5
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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 5
P576/22
OPINION OF LORD SANDISON
in the petition of
AC
Petitioner
for Judicial review of a decision by the Upper Tribunal (Immigration and Asylum Chamber)
to refuse the grant the Petitioner Permission to Appeal
Respondent
Petitioner: Caskie; Drummond Miller LLP (for McGlashan MacKay, Glasgow)
Respondent: Maciver; (Advocate General for Scotland)
2 February 2023
Introduction
[1]
AC is a national of the Kingdom of Morocco in his mid-thirties. He currently resides
in Glasgow, pending the resolution of a claim he has made to be entitled to asylum in the
United Kingdom because of what he maintains is a genuine fear of persecution were he to be
returned to Morocco.
[2]
AC arrived in the United Kingdom around January 2018 and made his claim for
asylum at the end of March that year. The Secretary of State for the Home Department
refused that claim in May 2020, and AC appealed that refusal to the First-Tier Tribunal
(Immigration and Asylum Chamber) in terms of section 82 of the Nationality, Immigration
and Asylum Act 2002 as amended. In August 2021 the FTT dismissed his appeal, and
2
subsequently refused him leave to appeal that decision to the Upper Tribunal. In April 2022
the Upper Tribunal itself refused him leave to appeal to it.
[3]
In this petition for judicial review, AC seeks reduction of the decision of the Upper
Tribunal to refuse him leave to appeal to it. To be entitled to such an order, he would
require to demonstrate that the Upper Tribunal erred in law by ruling that the FTT had
made no arguable error of law in its decision.
Background
[4]
So far as relevant for present purposes, the background to the present application
includes the following features. The petitioner left Morocco by air for Türkiye in 2015. |For
a little over two years he travelled in Greece, Macedonia, Serbia, Croatia, Slovenia, Austria,
Switzerland, Italy and France, before entering the United Kingdom in the back of a lorry
coming from Belgium. He made an asylum claim in Switzerland and another such claim
was made in his name in Italy. He did not remain in those countries to await the
determination of those claims. He waited for two or three months after arriving in the
United Kingdom before making an asylum claim here.
[5]
The nature of the petitioner's asylum claim in the United Kingdom was unusual.
According to him, he was a founding member of, and a leading light in, the "Green Boys"
group of football "ultras" supporting the Raja Casablanca football team. That bro ught him
into conflict with members of the ultra group supporting the other main Casablanca football
team, Wydad, which group is known as the "Winners". Matters had come to a head in
October 2013 when he had taken an opportunity to seize a banner belonging to a Winners
group and had, along with other Green Boys, been photographed holding the banner upside
down, an act which was perceived as grossly insulting to the Winners. The photograph had
3
gone viral on social media and in consequence he became the obj ect of revenge attacks by
members of the Winners. That had started in January 2014 when he was kidnapped,
stabbed and burned in Casablanca before being released against an assurance that he would
supply the Winners with a Green Boys banner, presumably for them in turn to insult. He
had spent some time in hospital being treated for the consequences of this attack, and had
been questioned by police as to how he had come by his injuries, but had not co -operated
because he feared infiltration of the police by the Winners. Instead, he had upon release
from hospital left Casablanca and lived for a while in other places in Morocco. However, he
had subsequently been seriously attacked again, both in Fez and in Casablanca, being
released on each occasion against a repetition of his promise to secure a Green Boys banner
for the Winners. He had again refused to co-operate with the police in their enquiries and
had decided instead to flee Morocco altogether.
[6]
After hearing the petitioner's evidence and considering the other material placed
before it, the FTT did not entirely accept that version of events. It accepted that ultra groups
existed in Moroccan society and that they constituted gangs with a sense of their own
honour and dignity which could result in revenge attacks on those perceived as having
insulted the group. It accepted that the petitioner was a founder member of the Green Boys
and that he had indeed stolen and insulted the banner of a local Winners group in
Casablanca. However, it did not accept that that incident had become the subject of intense
social media attention, nor that the Moroccan police had been infiltrated by the ultra gangs,
and held instead that the police would intervene in any incident of public violence coming
to their attention. While accepting that the petitioner had indeed been kidnapped and
attacked at least once by members of the Winners in Casablanca, and might continue to face
some risk from that particular band of Winners whose banner he had directly insulted, it did
4
not accept that that insult was likely to be known, remembered or acted upon by members
of the group more widely, particularly outside Casablanca itself. It found the petitioner's
account of having been kidnapped and assaulted repeatedly and then released by dint of
having repeated the same promise to pass over a Green Boys banner to be incredible, the
Winners not being at all likely to be mollified by such a promise once it had been first made
and unfulfilled. It found, under reference to Horvath v Secretary of State for the Home
Department [2001] 1 AC 489, that sufficient police protection was available in Morocco for
such degree of risk that the petitioner might face upon return there, and that the petitioner
had the personal qualities to relocate safely with in the country should he wish to do so.
[7]
The FTT also, under reference to section 8 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004, determined that the petitioner's credibility in
general was seriously damaged by the facts that he had passed through ten countries, taking
more than two and a half years, before arriving in the United Kingdom; that he had made an
asylum claim in Switzerland; that he had been inconsistent about whether or not he had
caused an asylum claim to be made in his name in Italy; and that he had waited for a period
of months after arriving in the United Kingdom before making an asylum claim here,
without acceptable explanation.
Petitioner's submissions
[8]
In written and oral argument on behalf of the petitioner, Counsel acknowledged that
the FTT judge had correctly recognised that, although the onus of proving a need for
humanitarian protection was on the petitioner, the standard of proof required of him was
lower than the normal civil standard of proof and was properly expressed as simply
requiring him to demonstrate his claim on a "reasonable degree of likelihood" (R v Secretary
5
of State for the Home Department, ex parte Sivakumaran [1988] AC 958), or else that there were
substantial grounds for believing the relevant evidence. However, against that background,
the judge had arguably erred in law in approaching and evaluating the evidence in the
following various regards.
Medical evidence
[9]
Firstly, the judge had had the benefit of a medical report dated February 2021 which
supported, from an examination of the scars on his body and an assessment of his mental
condition, the petitioner's evidence that he had been attacked on more than one occasion,
separate in time and location from each other. It was not at all clear why the judge had
apparently rejected that evidence supportive of the petitioner's case. The judge had
arguably erred in law by failing to give adequate reasons for that rejection, which went not
only to the petitioner's credibility in general, but also to the validity of his specific claims
about the inadequacy of police protection and the likely inefficacy of internal relocation.
Expert report
[10]
The FTT had before it an expert report by Professor Abderrahim Bourkia, a professor
and head of the Political Science and Governance Department at Mundiapolis University in
Casablanca. He had researched the ultra football fan scene in Morocco since 2009 and had
been asked to comment on the plausibility of the petitioner's case, the significance of the
banner incident, the sufficiency of protection and the viability of internal relocation. The
FTT judge had concerns about how the report was expressed, describing the language used
as "at times impenetrable", and noting that the report was unclear as to how, and on the
basis of what material, certain conclusions had been reached. Counsel submitted that the
6
judge's approach to the report had been coloured by her disapproval of the way in which
the expert had expressed his views and her unmerited criticism of its empirical basis. She
had arguably erred in law by failing in those circumstances to take proper advantage of the
material before her. Under reference to Hamden v. Secretary of State for the Home Department
[2006] CSIH 57, Counsel submitted that that error fell to be presumptively regarded as
having tainted the judge's assessment of each the matters she had to determine by reference
to the expert report.
Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
[11]
Counsel next submitted that the FTT had arguably not understood the proper
approach to the potential application of section 8 of the 2004 Act, which, so far as material, is
in the following terms.
"8 Claimant's credibility
(1) In determining whether to believe a statement made by or on behalf of a person
who makes an asylum claim or a human rights claim, a deciding authority shall take
account, as damaging the claimant's credibility, of any behaviour to which this
section applies.
...
(4) This section ... applies to failure by the claimant to take advantage of a reasonable
opportunity to make an asylum claim or human rights claim while in a safe
country."
[12]
Under reference to JT (Cameroon) v Secretary of State for the Home Department
falling within the ambit of the section did not necessarily require to be regarded by a
deciding authority (an expression which includes both the Secretary of State and the FTT
itself) as damaging to an applicant's credibility. Rather, that matter should be viewed in all
7
the circumstances, including in particular the availability of other material supportive of the
applicant's position, such as existed here in the medical and expert reports.
Cumulative effect
[13]
Counsel finally submitted that, even if any of the matters raised and discussed above
was not regarded by the Court as in itself of sufficient materiality to constitute an arguable
error of law on the part of the FTT, they ought together or in any combination to be so
regarded.
Respondent's submissions
[14]
On behalf of the Advocate General for Scotland, responding to the petition as
representing the Home Secretary, counsel submitted that the petition should be dismissed as
irrelevant, or else simply refused as ill-founded.
Medical evidence
[15]
On a proper construction of the medical report, it provided no confirmation of the
petitioner's account of having been attacked on more than one occasion. The examining
doctor had explicitly noted that her task was not to assess the petitioner's credibility. All
that she had done was examine his physical scars and assess his mental condition,
ultimately going no further than opining that the petitioner's account of what had happened
to him was a plausible explanation of what she was able to observe. In these circumstances
the limited support which the medical evidence gave to the petitioner's account had been
taken into account by the FTT but was not evaluated as outweighing the features of the case
which led the FTT to reject at least the crucial aspects of the petitioner's claim to have a well-
8
founded fear of persecution in the event of his return to Morocco. While one might agree or
disagree with the view that the FTT had taken of the evidence, disagreement would not
justify a conclusion that that view had been arrived at under the influence of any arguable
error of law.
Expert report
[16]
Essentially similar points could be made in relation to the expert report. The FTT
had expressed general concerns about its comprehensibility and the paucity of its citation of
source material, but had nonetheless given credence to certain aspects of the report and
explained in which respects, and why, it felt unable to afford to other aspects the full import
which the petitioner claimed should be taken from them. Again, while one might disagree
with the conclusions of the FTT on these matters, such disagreement instructed no arguable
error of law.
Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
[17]
Although there was no dispute that the proper interpretation of section 8 was indeed
that set out in JT (Cameroon), the FTT had not arguably fallen into the error which the
petitioner ascribed to it; rather, it had explained why it regarded the behaviour of the
petitioner falling within the ambit of the section as adverse to his credibility, that
explanation being in essence that one would have expected a person truly in the position in
which he claimed to be to have made an asylum claim significantly in advance of the point
in time at which he had in fact made the claim under consideration.
9
Relevancy of the petition
[18]
Finally, Counsel submitted that the petitioner sought to make no attack on the FTT's
ultimate and critical finding that he would not be at relevant risk should he return to
Morocco. That in itself was fatal to the success of the petition and rendered it irrelevant on
its face, notwithstanding that, as an attack on a relevant decision of the Upper Tribunal, it
had been granted permission to proceed under the particularly demanding provisions of
section 27B(3) of the Court of Session Act 1988
Decision
Medical Evidence
[19]
An examination of the medical report reveals that it will not bear the weight which
the petitioner seeks to place on it. The author acknowledges that it is not for her to come to
any conclusions about the petitioner's credibility, but rather to perform a critical and
objective analysis of the injuries and symptoms displayed. The report narrates the
petitioner's account of the kidnappings and assaults to which he had been subject, the
salient parts of which have already been set out. Considering firstly the results of the
physical examination of the petitioner, and using the taxonomy of the UN's Istanbul
Protocol (2004), it concludes that, of 12 observable scars, one was consistent with his
explanation of how it had occurred, eight highly so consistent and three typical of the kind
of assaults he described. Nothing observed was deemed inconsistent with his account. On
that basis, the report opines in general terms that it is clinically plausible that the petitioner's
account explains the pattern of injuries observed. Considering the petitioner's psychological
state, it concludes that his account, supported by clinical observations, of a persistent change
in his mental state following a series of traumatic incidents would be consistent with a
10
diagnosis of Post-Traumatic Stress Disorder, and that there was no evidence that his
symptoms were feigned or exaggerated.
[20]
What the report does not do is suggest that there is any medical evidence which
supports the petitioner's specific claims as to when, where or in what precise circumstances
any injury was sustained by him. Moreover, the petitioner attributed only one relevant scar
to an attack other than the initial claimed attack on him in Casablanca in January 2014. That
was a scar on his head which he attributed to a blow with either a bottle or stone during the
claimed assault in Fez in 2015. While the report accepted that the scar was typical of that
which would be left by a scalp laceration due to blunt force trauma, and was highly
consistent with being struck by a bottle or stone, it could not and did not support any
suggestion that any such attack had occurred in Fez, in 2015, at the hands of Winners ultras,
or why it might have taken place.
[21]
It follows that there was nothing in the medical report which the FTT required to
"reject" in order to come to the conclusion that the petitioner was not in fact at relevant risk
of persecution should he return to Morocco. The medical report provided support for the
petitioner's position that he had been attacked and seriously injured, but not specifically that
he had been attacked on several occasions by different groups of Winners in different
locations because of his treatment of a Winners banner. It was that claim of persistent and
generalised risk from Winners members throughout Morocco that underlay his claim for
asylum. While the medical evidence was consistent to the very limited extent already
described with the petitioner's account of a generalised risk, other evidence before the FTT
(such as the availability of police protection) was unsupportive of it, and the judge found it
to be inherently unlikely on its own terms (for, amongst other reasons, the lack of evidence
of widespread and persistent awareness on the part of Winners groups throughout Morocco
11
of the petitioner's behaviour towards the banner, and the apparent oddness of what might
be called the "catch and release" policy which the petitioner claimed had been consistently
applied to him). These matters were taken into account by the FTT along with the evidence
in support of the petitioner's account, and a reasoned conclusion reached that, while the
petitioner had indeed established to the satisfaction of the judge and to the legal standard
correctly identified by her that he had been subject to one serious attack by the Winners, his
wider claim of an unmanageable and generalised risk from them on his return to Morocco
had not been so established. That conclusion was not arguably attended by any error of law
on the part of the FTT towards the medical evidence.
Expert report
[22]
The expert report is couched in terms with which a political scientist or sociologist
would be more familiar than would be a lawyer. Some flavour of how it generally reads
may be gained by the following example:
"The universe of the Ultras presents itself in an ambivalent relationship of rupture
and continuity with everyday social life. The arena has become a place of choice for
self-staging where supporters take on a role and perform it ... The settling of scores
or `vendetta' is common in the world of supporters, and is often described as the
culmination of an antagonistic process of acculturation. Indeed, there is what can be
called a chain of verbal incivilities, which are part of symbolic violence and which
can end in fights between the antagonists."
[23]
It may be that this somewhat indefinite language is simply reflective of the
somewhat indefinite underlying concepts being described. However, despite the effort
which sometimes has to be put in to follow the report, it is not ultimately impossible to
understand what is being said and why, although it is fair to say that some passages do
more than others to maintain the integrity of their mystery. It is also fair to say that the
nature and provenance of some of the source material relied upon is obscure if not indeed
12
obscurantist, and that the learned author has a tenden cy perhaps only natural in one pre-
eminent in a particular field to cite his own research as definitively authoritative, lending a
distinctly self-referential air to the whole exercise.
[24]
It is possible though, one must hope, unlikely that a judicial office holder may be
so irked by the way in which expert evidential material is presented as to subjectively
devalue its content in a way which has no proper justification, and thus fail to take proper
advantage of whatever insights it may truly h ave to offer. One would, however, expect to
see some clear sign of that approach having been taken, such as unmerited or excessive
criticism of the material, or unexplained and inexplicable rejection of well-reasoned and
supported conclusions contained in it. Nothing of the sort is apparent in the judgment of
the FTT. At its highest and it may be that this is putting it too highly all that appears is a
degree of mild irritation that quite so much effort has had to be put in to understand what
might have been capable of much simpler explanation. Further, far from rejecting the
content and conclusions of the report out of hand, the judge accepted some points which it
made in the petitioner's favour concerning the nature of ultra groups and the potential
consequences of the petitioner's treatment of the banner. She pointed out correctly that
the report was in fact unsupportive of the suggestion that the police had been infiltrated by
ultras or of the idea that a legally-adequate degree of police protection would not be made
available to the petitioner, and finally drew attention to the lack of any reasoned basis in the
report for a suggestion that the petitioner would not be able to relocate safely within
Morocco. Whether or not one agrees with the judge's treatment of the content of the report,
it is not possible to maintain effectively that she approached it with any degree of prejudice
such as could arguably amount to an error in law. There being no arguable error in law in
the judge's approach to and treatment of the expert report, the question of whether or not
13
the existence of such an error would have resulted in Hamden-type contagion of the other
reasons given by the judge for reaching the ultimate conclusion which she did on the
validity of the petitioner's asylum claim does not arise.
Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
[25]
Parties were not in dispute about the true import of section 8. In summary, it is not
to be read as a prescriptive direction as to how relevant decision-makers should reach their
conclusions beyond its mandatory minimum requirement that the factors mentioned in the
section have to be taken into account in assessing the credibility of an applicant. A global
assessment of credibility which should not unduly concentrate on minutiae to the detriment
of considering the wider picture continues to be required. What weight should be accorded
to any of the s 8 factors is entirely a matter for the decision -maker. There may be cases,
albeit unusual ones, where a factor or factors falling within the ambit of section 8 may
properly be regarded as having no weight in any assessment of the applicant's credibility
JT (Cameroon), supra, per Pill LJ at paras 19 21.
[26]
Viewed in the light of that summary, it is not possible to arrive at the conclusion that
the FTT erred in its application of section 8. The judge was required to take into account the
factor that the petitioner had failed to make a prompt claim for asylum after his arrival in
the United Kingdom. There is no suggestion in the judgment of the FTT that the judge
considered that she was bound to regard that factor as detrimental to the petitioner's
credibility, but it was certainly open to her to do so, and she chose to do so for reasons
which she set out. The judge was also entitled (but not bound) to take into account factors
not falling within section 8 such as the lengthy journey of the petitioner through numerous
countries en route to the United Kingdom, his previous making of asylum claims in other
14
countries without prosecuting them to a conclusion, and his inconsistent accounts of the
circumstances of his Italian claim in her assessment of the petitioner's credibility. She
chose to do so and to regard those matters as seriously affecting that credibility because, in
essence, she again regarded them as indicative of behaviour other than that to be expected of
an honest asylum seeker. Nor did the FTT give these factors an excessive weight, having
previously expressed views adverse to the petitioner's credibility arising out of the
substance of his claim to have a well-founded fear of persecution rather than as a result of
his behaviour as a putative asylum seeker. Indeed, even had there been an identifiable
arguable error of law in the FTT's treatment of that behaviour, it would have been very
difficult to form the view that any such error would have affected its ultimate decision,
given the various other and perhaps more weighty reasons, both relating to the petitioner's
credibility and otherwise, stated by the judge as requiring the rejection of his claim.
Other points
[27]
Since I have determined that there is no validity in any of the arguments advanced
by the petitioner in respect of the medical evidence, expert report and section 8, the question
of the materiality of the effect in combination of any or all of those arguments does not arise.
As counsel for the respondent aptly put it, thrice nothing is still nothing. On the
respondent's suggestion that the petition might be dismissed as irrelevant, rather than being
refused on its substance, I consider firstly that, despite the absence of a direct attack on the
FTT's assessment of the risk to the petitioner should he return to Morocco, it is incorrect to
say that the petitioner's attacks on the judge's treatment of the medical and expert evidence,
had either or both been made out, were nonetheless incapable of being regarded as having
potentially a strong, albeit oblique, effect on the validity in law of her conclusions on that
15
assessment of risk. Further, the merits or otherwise of the petition could not be determined
simply by an examination of its own terms, but required the underlying factual material to
be considered in detail. In these circumstances the appropriate order is one refusing the
prayer of the petition rather than simply dismissing it.
Conclusion
[28]
The Upper Tribunal refused the petitioner permission to appeal to it for the
following succinct reasons:
"The grounds are not arguably more than disagreement with the weighing of
selected aspects of the evidence. They ignore the principal reasons given by [the
FTT]. They identify no error on a point of law by which the decision might arguably
be set aside."
[29]
It is not possible to improve on that statement as a summary of the position
presented both to the Upper Tribunal and to this Court by way of the present application.
For the reasons stated, I shall sustain the respondent's fourth plea in law, repel the
remainder of the parties' pleas insofar as not already disposed of, and refuse the prayer of
the petition.
