Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 198
P237/13	OPINION OF LORD ARMSTRONG in the Petition of H F Petitioner; for Judicial review of a decision of the Upper Tribunal (Immigration & Asylum Chamber), dated 20 November 2012 ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: Maciver; Office of the Advocate General

19 December 2013

Introduction
[1] The petitioner is a Pakistani national who was born on 21 June 1985. She claimed asylum on 21 June 2012, in circumstances where her student visa was about to expire on 28 June 2012. Prior to coming to the UK, she was married on 15 December 2006 and lived with her husband and his parents near Lahore until 20 April 2011. Both she and her husband are Sunni muslims. Having arrived in the UK on 25 February 2011, on her own and on a student visa, she began studying English at college in London and there formed a relationship with Mr Y, eventually moving in with him. She became pregnant in December 2011 but lost contact with Mr Y in about May 2012. Her claim in support of asylum was that if she was required to return to Pakistan, she would be in great danger because she had committed adultery and would be a victim of domestic abuse in circumstances where there was an insufficiency of protection afforded by the Pakistani authorities.

[2] Her claim for asylum was refused on 18 July 2012. Her appeal to the First Tier Tribunal (Immigration and Asylum Chamber), ("the FTT"), was dismissed on 7 September 2012. She applied to the FTT for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber), ("the UT"). That was refused by a decision dated 1 October 2012. She then applied to the UT for permission to appeal. That was refused by decision dated 20 November 2012. The refusal by the UT of permission to appeal is unappealable. The petitioner now seeks judicial review of that decision.

[3] The matter came before me at a first hearing on the respondent's second plea in law, specifically on the preliminary question of whether, applying the test set by the Supreme Court in Eba v Advocate General [2012] SC UKSC 1, the petition falls within the supervisory jurisdiction of the court. Under reference to the decisions in that case and in the cases of R (Cart) v Upper Tribunal [2012] 1 AC 663, Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, P R (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, and S A v Secretary of State for the Home Department [2013] CSIH 62, a petition of this type, in order to proceed further before the court, must aver a specific error in the refusal of permission to appeal and either an important point of principal or practice not yet established or other compelling reason why an appeal should be allow to proceed. The test is a stringent one, designed to allow review only in rare and exceptional cases in order to ensure that no compelling injustice occurs, the relevant error on the part of the UT normally requiring to be one which "cries out for consideration" and is not merely potentially arguable.

Submissions for the petitioner
[4] In terms of the decision letter, dated 18 July 2012, it was accepted that the petitioner had become pregnant while in the UK. The Home Office had carried out a check on Mr Y but no information had been found in relation to such a person. It was also accepted that, in Pakistan, honour killings of women do occur. The immigration judge did not find the petitioner to be a credible witness. At paragraph 14 of the FTT decision, dated 7 September 2012, she stated that had she found the petitioner's claims in relation to her personal circumstances to be credible, then it was likely she would have allowed the appeal. However, in paragraphs 16-28, the petitioner was found not to have been credible in so far as the detail of her claim was concerned. The FTT found that she had failed to prove that she lived with Mr Y in the UK, that he was the father of her child, that he had abandoned her in about May 2012 and that this had led her to claim asylum. In paragraphs 39-42, on assessment of the available evidence, the FTT found that the petitioner had failed to establish that her husband was not in the UK and was not the father of the child she was expecting.

[5] At the hearing before the FTT, it was submitted on behalf of the petitioner that it was significant that whereas the Home Office had attempted to trace Mr Y, no attempt had been made to trace the petitioner's husband. Before me, counsel for the petitioner developed that theme in the context of the need in such cases for anxious scrutiny (Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514, 531 F-G). Under reference to the well-known passage set out in the case of Dangol v Secretary of State for the Home Department 2011 SC 560, at paragraph (9), to the effect that a "decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the (petitioner) has been left out of account in the review of the evidence", it was submitted that the concept had been developed in the subsequent case of M J (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UK UT 00253 (IAC). In that case, reliance was placed on behalf of the appellant on certain documentation which in the decision letter was referred to, against a background in submission of possible forgery, as unreliable. The UT placed emphasis on the case of Singh v Belgium, a decision of the ECHR, Application No. 33210/2011, in which an appeal court had believed that documents apparently emanating from the UNHCR were easy to falsify, and because the petitioners had failed to provide originals, did not attach weight to them. At paragraph 45, the UT stated:

"45. The court went on at paragraph 103 to note the importance of Article 3 and the irreversible nature of the harm likely to be caused in a case of the realisation of the risk of ill-treatment and that as a consequence it was the responsibility of the national authorities to show that they were as rigorous as possible and carry out a careful investigation of the grounds of appeal drawn from Article 3 and that such an investigation must remove all doubt, legitimate as it may be, as to the invalidity of the request for protection regardless of the competences of the authority responsible for the control."

and went on:

"46. At paragraph 104 the court went on to say that the removal of documents which were at the heart of the request for protection, not only by the CGRA but also the CCE, by judging them not to be convincing, without previously checking their authenticity, when it would have been easy to do this at the UNHCR, could not be viewed as a careful and rigorous investigation expected of national authorities within the meaning of Article 13 of the Convention and did not give an effective protection against any treatment contrary to Article 3 of the Convention."

47. In Tanveer Ahmed [2002] Imm AR 318, a starred decision of the Immigration Appeal Tribunal, the following principles were set out after a careful assessment of the case law.

'37. In summary the principles set out in this determination are:

1. 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.

2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.'"

At paragraph 50, the UT stated this:

"...Upon consideration we do not think that what was said in Singh is inconsistent with the quotation we have set out above from paragraph 37 of Tanveer Ahmed. Tanveer Ahmed does not entirely preclude the existence of an obligation on the Home Office to make enquires. It envisages, as can be seen, the existence of particular cases where it may be appropriate for enquiries to be made. Clearly on its facts, Singh can properly be regarded as such a particular case. The documentation in that case was clearly of a nature where verification would be easy and the documentation came from an unimpeachable source."

[6] Against that background, the submission for the petitioner was that the Home Office should have carried out a tracing check in relation to the petitioner's husband in order to verify his presence, if any, in the UK. The immigration judge had opined that such a check might well be inconclusive but that observation was to be regarded as speculative. In circumstances where the fact of the whereabouts of the petitioner's husband was fundamental to the FTT's decision and where, in that regard, the petitioner was in the position of having to prove a negative fact, by failing to carry out such a check, the Home Office had in effect frustrated anxious scrutiny. In any asylum case anxious scrutiny must enter the equation. A decision will be irrational if it is not taken on the basis of anxious scrutiny (WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337, at paragraph (10)). For the purposes of the test in Eba (supra), irrationality of that sort would amount to perversity which in turn would amount to a compelling reason.

[7] The fact that the Home Office had failed to carry out a check for the petitioner's husband was founded upon in her application to the FTT for permission to appeal to the UT. In the decision of the FTT, dated 1 October 2012, refusing permission, it was erroneously stated that "no trace of the claimant's husband could be found by the respondent". The reality was that no check had in fact been undertaken.

[8] The grounds of appeal to the UT for permission to appeal asserted that the immigration judge had speculated that the petitioner's husband had entered the UK and had been living with her, in circumstances where there had been no evidence to that effect. The decision of the UT, dated 20 November 2012, refusing permission to appeal, supported the "cogent reasons (of the FTT) for finding that the (petitioner) had fabricated her account of a pregnancy with a man who was not her husband" and confirmed the earlier finding by the FTT that the grounds disclosed no error of law.

[9] It was submitted that if findings were made without any evidential foundation, then interference by the court was merited. The FTT had placed reliance on the fact that it was not accepted by the Secretary of State that the petitioner had separated from her husband and the implication to be drawn from that to the effect that he had travelled to the UK and had been living with her. Reliance was placed on HA v Secretary of State for the Home Department 2008 SC 58, at paragraph (17):

"If a decision on credibility is one which depends on its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation."

The comments made by the FTT that, even if a check had been undertaken, the name of the petitioner's husband would not necessarily have appeared, was entirely speculative. The fact that the UT had misdirected itself as to the correct approach in assessing whether it could interfere with adverse findings by the FTT in relation to the issue of credibility amounted to a compelling reason to allow the petition to proceed.

Submissions for the respondent
[10] It was important at the outset to characterise accurately the nature of the petitioner's claim for asylum. It was that she was vulnerable to the risk of danger if returned to Pakistan because she was pregnant by Mr Y, a man who was not her husband. The burden of proof to demonstrate the claim rested on her. The findings by the FTT on the petitioner's credibility, as set out in the FTT decision, dated 7 September 2012, at paragraphs 15-28, discredited the petitioner as a truthful witness. That was sufficient to undermine her claim. On that analysis, the whereabouts of the petitioner's husband were immaterial to the substance of the claim.

[11] The petition disclosed no compelling reason. The decision of the UT was not perverse or plainly wrong. The ground relied upon before the UT was not related to the case presented to the FTT to the effect that Mr Y was the father of the petitioner's child. Rather it was that no evidence had been presented to the effect that the petitioner's husband was the father. Although it was suggested that the UT had misdirected itself as to the matter of interfering in questions of credibility, credibility as an issue did not feature in the UT decision. The criticism made of the UT was, in any event, in relation to a non-material finding. The relevant finding in the FTT decision was not one to the effect that the petitioner's husband was present in the UK, but rather, at paragraph 42, that the FTT was not satisfied that the petitioner had proved that he was not present. Whether her husband was present or not was immaterial because the claim was advanced on a different basis, namely that Mr Y was the father.

[12] As regards the consideration in the case of M J (Afghanistan) (supra) of the case of Singh v Belgium, the proposition for the petitioner was that it would have been open to the Home Office to make enquiries to establish whether or not the petitioner's husband was in the UK. However, given the basis in which the claim was presented (not that her husband was not the father, but rather that Mr Y was the father) there was no reason to initiate such a check and, secondly, as was recognised by the FTT at paragraph 41 of the its decision, such a check could not necessarily provide certainty as to the position. In any event, the nature of the check suggested was of a different order to that contemplated in Singh. In Singh, the check involved confirmation of the validity of purported UNHCR copy statements. The European Court held that dismissal was wrong in these circumstances where authentication could easily have been achieved. That case was concerned with authentication of documents, not facts as here. As the UT in M J held, the facts of Singh were those of a particular case where three factors were involved, viz: (1) documentation was concerned and (2) verification would have been easy from (3) an unimpeachable source. These limited circumstances did not apply to the present case. Although the concept of anxious scrutiny involved the taking into account of all that might be favourable to an appellant, it did not extend to inverting the burden of proof so as to require the recovery of further evidence not already part of the appellant's case.

[13] In so far as the guidance at paragraph 17 of H A (supra) was concerned, credibility was not in fact a matter which was raised before the UT in terms of the application for permission to appeal and did not feature in the decision of the UT. In any event, the three requirements set out in H A in that context had not been breached. The finding by the FTT as to the position of the petitioners' husband was not a finding of credibility, the reasons stated were adequate and it was plain that cultural differences had been taken into account.

[14] In short, no compelling reason had been demonstrated. The petition did not have high prospects of success and it should be dismissed.

Discussion
[15] The submissions for the petitioner are to the effect that compelling reasons are demonstrated, justifying the future progress of the petition, in respect that the UT was in error by failing to grant permission to appeal where, it is said, it was incumbent upon it to intervene in circumstances where the FTT had reached findings on the issue of credibility on a flawed basis, such as to render the FTT decision perverse, all in circumstances where a failure to properly exercise anxious scrutiny itself rendered the FTT decision irrational to the extent of perversity.

[16] I regret to say that I am not persuaded by either of the arguments. As regards the question surrounding the observations of the FTT in relation to the whereabouts of the petitioner's husband, I agree with the characterisation of the claim as submitted on behalf of the respondent. The case was presented to the FTT on the principal basis that the father of the petitioner's expected baby was Mr Y. It was for her to prove the critical fact that Mr Y was the father and in that, on grounds of lack of credibility, she failed. At best, the fact of the whereabouts of her husband was ancillary to that principal issue. That being so, I agree that any observation in that regard, whatever its origin, whether by inference or otherwise, was immaterial to the ultimate decision. I do not consider, as was asserted on behalf of the petitioner, that the fact of the absence of the petitioner's husband from the UK was fundamental to the decision of the FTT, or indeed to its assessment of the petitioner's credibility. While there is no doubt that the FTT referred to the matter, I interpret the fact that it did as indicative of a desire to achieve completeness in relation to an assertion made on behalf of the Secretary of State during the hearing, all in the context of a full and detailed written decision. While the evidence, had it been available, might well have emerged in a manner which could have added support to the petitioner's case, by bolstering her credibility in relation to certain matters, I do not consider the references in the decision of the FTT as to the whereabouts of the petitioner's husband to be findings on credibility in themselves. In that context, reference to the passage quoted from paragraph 17 of the decision in H A (supra) is not apt.

[17] As regards the application of anxious scrutiny to the case, I consider that the course which it was submitted ought to have been taken by the Home Office is somewhat of an overdevelopment of what was considered appropriate in Singh v Belgium. The comments of the UT, at paragraph 50 of the decision in M J (supra) are careful and measured, and properly prescribe the limits of what was being considered in Singh which was, in relation to the salient facts bearing on the issue of possible authentication of documents, a particular case. What anxious scrutiny entails is well understood. In my view, whilst of course it must include consideration of all available facts and circumstances which might be favourable to an appellant, it does not extend to a requirement for consideration of evidence which is not yet available, does not form part of the evidence marshalled on behalf of the appellant, and would require first to be recovered. Since the burden of proof lies on the appellant, it is not for the Secretary of State to contribute to the presentation of the appellant's case, and the operation of anxious scrutiny does not have the effect of inverting that onus in the generality, even to a minimal extent, in order to bring about such a result.

Decision
[18] On neither limb of the submissions for the petitioner do I consider that the UT was in error of law. I do not view the petition as having high prospects of success and I do not detect a legally compelling reason justifying its further progress. I am not satisfied that the criteria as set out in Eba (supra) and S A (supra) are met. That being so, I repel the petitioner's second plea in law, sustain the respondent's second plea in law and dismiss the petition as incompetent. I reserve, meantime, all questions of expenses.