BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable PDF version]
[Help]
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 42
P891/20
Lady Paton
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LADY PATON
in the petition
by
BA
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 11 August
2020 refusing permission to appeal to itself
Petitioner and Appellant: Winter; Drummond Miller LLP (for Latta and Co, solicitors, Glasgow)
Respondent: A. McKinlay; Office of the Solicitor for the Advocate General
10 August 2021
Introduction
[1]
In this appeal under section 27D(2) of the Court of Session Act 1988, the
Lord Ordinary's decision of 15 December 2020 (refusing to grant permission for the
2
appellant's judicial review petition to proceed) is challenged. The appellant claims to be at
real risk of being trafficked or killed if she is returned to Nigeria. She seeks asylum on that
basis. The Home Office does not accept that she has been the victim of trafficking, and has
refused her claim.
[2]
In refusing permission to proceed, the Lord Ordinary was exercising the jurisdiction
prescribed by section 27B(3)(b) and (c) of the Court of Session Act 1988. The Lord Ordinary
could only grant permission if she 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, para [33]).
[4]
While the first ground of appeal in the petition for judicial review is based on an
alleged error of law by the Upper Tribunal ("UT"), the second and third grounds 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 para [9] of Waqar Ahmed v Secretary of State for the Home Department
[2020] CSIH 59). Parties 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 6 January 1985. She is Nigerian. On 13 January 2017 she
claimed asylum in the UK on the basis that she was at real risk of being trafficked (traded for
commercial sexual exploitation) or killed as a punishment for disobeying traffickers if she
3
were returned to Nigeria. On 15 November 2018 the respondent refused her claim. She
appealed to the FtT. The evidence before the FtT included the appellant's statements, a
psychologist's report, a country information report, and the appellant's oral evidence.
[6]
The appellant's account was that she worked in a restaurant in Edo city, Nigeria, for
about 2 years. A female customer (known as "Mummy") offered her a better life working in a
restaurant in Europe. The appellant was eventually persuaded, and in 2007, aged 22, she
took the decision to leave Nigeria. She did not tell her parents. Prior to leaving Nigeria, she
was taken to a native doctor who performed various voodoo rituals, including a curse and an
oath, convincing her that, by the use of voodoo, they could control her actions, and that, if she
failed to comply or if she ran away, she would be killed.
[7]
The appellant then travelled from Nigeria to Italy (Verona and Bologna). All the
travel arrangements were made for her. The appellant described finding herself forced to
work as a prostitute. At one stage, she lived alone with Mummy in her house in Verona.
When Mummy moved to Turin, the appellant remained in Verona.
[8]
In 2013, the appellant was issued with a Nigerian passport. The appellant explained
that the passport application was made by her traffickers, with her co-operation. She had
travelled alone to Rome to assist in obtaining the passport.
[9]
In 2016 the appellant accidentally became pregnant. One of her clients named Paulo
offered assistance. The appellant explained that Paulo paid for and arranged a visa and flight
tickets to London and onwards to Glasgow. The appellant described the difficulties of the
journey, and ultimately her arrival in December 2016 at Helen Street police station in
Glasgow. On 13 January 2017 she made a claim for asylum and humanitarian protection. As
noted in para [1] above, her application was refused, and she appealed to the FtT.
4
The FtT decision and subsequent applications
[10]
By decision dated 30 April 2020, the FtT refused her appeal. The FtT judge noted,
amongst other things, inconsistencies in the appellant's statements; vagueness in significant
aspects of her account; the absence in the psychologist's report of any discussion of the effect
of voodoo upon the appellant; a lack of detail concerning the acquisition of a permanent
resident permit in Italy; aspects of her account which seemed inconsistent with the claim that
she was forced to live in Italy and forced to work as a prostitute (for example, being able to
travel alone to Rome to apply for the Nigerian passport, and then having access to that
passport); and her delay in claiming asylum on arrival in the UK. Having considered all the
evidence, including the appellant's statements, her oral evidence, the psychologist's report,
and the country information, the FtT was not persuaded that the appellant's account of
having been trafficked to Italy, or of making her way from Italy to the UK, was founded in
fact. The tribunal held that there was no entitlement to asylum or to humanitarian protection
or to reliance upon the European Convention on Human Rights.
[11]
The appellant then applied to the FtT for permission to appeal to the Upper Tribunal
(UT). That application was refused. The appellant applied directly to the UT, for leave to
appeal. On 11 August 2020 that application was refused. It is that decision of the UT which is
the subject of the current petition for judicial review.
The UT decision dated 11 August 2020
[12]
The UT decided that the FtT could not be considered to have erred by finding that the
account provided by the appellant to the psychologist contained material discrepancies.
Similarly the FtT was entitled to form the view that the psychologist did not engage with the
question of voodoo. Nothing in the decision suggested that the FtT made adverse findings on
5
matters which had not been previously raised or should have been anticipated by the
appellant and her solicitors. The claim of procedural unfairness was not sufficiently
particularised. The FtT had given cogent reasons for finding that the appellant's account
lacked credibility. The UT ultimately refused leave to appeal.
Petition for judicial review
[13]
In October 2020, the appellant raised the current petition seeking judicial review of the
decision of the UT dated 11 August 2020.
[14]
By decision dated 15 December 2020, the Lord Ordinary 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). The Lord Ordinary further held that the petition did not raise any
important point of principle or practice, nor was there "some other compelling reason for
allowing the application to proceed" (section 27B(3)(c) of the 1988 Act).
Appeal against the Lord Ordinary's refusal
[15]
The appellant appealed against the Lord Ordinary's refusal. In written grounds of
appeal, three grounds are advanced.
First ground of appeal: wrong test
[16]
The UT held that the appellant's grounds of appeal contained no material errors of
law, whereas the correct test was whether the grounds contained any "arguable" material
errors of law. As a result, the UT had applied the wrong test, and had acted in a procedurally
unfair manner by deciding the merits of the appeal (as opposed to the arguable merits)
without the benefit of oral submissions.
6
Second ground of appeal: the psychologist's report
[17]
The psychologist's report diagnosed PTSD, a condition which gave a reasonable
explanation for certain credibility issues, and also for any delay in the appellant's escape; but
the FtT gave the report little weight. In particular, the FtT failed to read the report as a whole
in terms of whether the psychologist had been aware of the voodoo element.
Third ground of appeal: credibility findings made without adequately evaluating the
supportive country information
[18]
The country information was broadly consistent with the appellant's account. For
example, the information demonstrated what a powerful hold a voodoo curse had on
trafficked persons, and that those controlling the appellant need not be in her proximity. T he
FtT made credibility findings without adequately evaluating the probative value of the
evidence in light of the country information (Horvath v Secretary of State for the Home
Department [1999] Imm AR 121 at pp 130-131).
Submissions in the appeal hearing
Submissions for the appellant
[19]
On behalf of the appellant, Mr Winter submitted that the UT appeared to have
applied the wrong test. In seeking to identify an argument which might have merit, the
tribunal had made no reference to "arguability". Thus the tribunal had not carried out its
statutory function in a legally correct manner. If that submission was well-founded, there
had been a collapse of fair procedure in that the merits had been decided without hearing
oral submissions (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73).
There was a strongly arguable error on the part of the UT, which, when coupled with the
7
drastic consequences for the appellant in the event of refusal of permission, was such that
permission to proceed should be granted.
[20]
Presenting the second and third grounds of appeal together, counsel listed
inconsistencies noted by the FtT, and submitted that there was a gap or lacuna in the FtT
decision in that it did not consider whether such inconsistencies could be explained by the
appellant's mental health and symptoms. The psychologist's report provided sufficient
material to give a reasonable explanation. Reference was made to paragraph 3.14
(concentration difficulties); 3.25 (distress caused by reference to past events, and a tendency
to avoid anything which would trigger memories); 4.9 (concern about the appellant's fitness
to give evidence, which was relevant in the context of an asylum interview where
inconsistencies had occurred); 4.3 (diagnosis of PTSD, depression and anxiety with reference
to the appellant's experience of coercive control and traumatic events, all affecting the
appellant's perception). While it was not suggested that the FtT judge had failed to take the
report into account, he should have gone further and considered whether the mental health
issues could explain inconsistencies. Contrary to the FtT's criticism of the report as lacking
engagement with the issue of the voodoo curse, the report, read as a whole, demonstrated
that the psychologist was well aware of the voodoo element. Reference was made to
paragraphs 3.3, 3.4, 3.9, and 4.3 of the psychologist's report.
[21]
The gap in the FtT's assessment of the evidence was enhanced when the
psychologist's report was taken with the country information report. The two reports
provided material which could explain the appellant's change of attitude in 2016, her failure
to tell the police about her plight, the absence of detail in her account about her 9 or 10 years
in Italy, and the reason why she had not escaped earlier. These matters could all be explained
by the degree of coercive control exercised over the appellant. The FtT had taken both
8
reports into account, but had failed to read them in a holistic manner, and to give them
appropriate weight.
[22]
The second and third grounds were strongly arguable, and when taken with the truly
drastic consequences which faced the appellant were she to be returned to Nigeria, amounted
to a legally compelling reason such that the appeal should be allowed, and permission to
proceed granted.
Submissions for the respondent
[23]
Mr McKinlay 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.
[24]
In relation to the first ground, the UT dealt with applications for permission to appeal
on a regular basis. The test for permission was so familiar to the UT (an expert tribunal) that
the inference that the correct test had not been applied because the word "arguable" was not
expressly mentioned could not reasonably be drawn. An equivalent proposition might be
that a Lord Ordinary had applied a "beyond reasonable doubt" standard of proof in a civil
case instead of "on a balance of probabilities". Such a proposition would not be impossible,
but some clear indication would be needed. On a proper reading of the decision, the correct
test had been applied. It followed that there had been no defect in the procedure.
[25]
The second and third grounds concerned issues of fact-finding and the weight to be
given to the evidence. No error of law had been identified (such as a failure to have regard to
relevant factors; a failure to give adequate reasons; an irrational finding, or a finding which
was not open to the tribunal). Such an error was essential for there to be a legally compelling
reason for an appeal. The appellant was simply attempting to re-argue the merits of the
decision.
9
[26]
It was clear from the decision that the tribunal had assessed credibility in the light of
both the psychologist's report and the country information. The weight to be attached to
evidence was a matter for the tribunal. The psychologist's report did not state that the
appellant's condition might explain the inconsistencies. There was nothing in the report
which explained or supported the claimed effect of the voodoo curse on the appellant. The
country information report showed that people in Nigeria did suffer from voodoo
experiences, but did not assist the appellant in proving that she had indeed had such an
experience and had been coerced and controlled by voodoo.
[27]
Counsel submitted that there was no real prospect of success, for all the reasons given
above. This was not a case which cried out for the intervention of the Court of Session. The
appeal should be refused.
Discussion and decision
First ground of appeal
[28]
In our opinion, reading the UT's decision as a whole and in context, it is clear that the
UT applied the correct test, namely whether any arguable error of law could be identified.
The UT was acting in its sifting role, with a view to identifying any argu able ground of
appeal which would result in permission to appeal followed by appropriate appeal
procedure. The express use of the word "arguable" was not necessary. The UT did not
determine the merits, as submitted by the appellant. Rather the UT carried out its proper
sifting task seeking to identify any arguable error of law on the part of the FtT. It follows that
there was no procedural unfairness. We are not persuaded that there is any merit in the first
ground of appeal.
10
Second and third grounds of appeal
[29]
We consider that the FtT gave full and careful consideration to the psychologist's
report, the country information, and all other relevant factors, when assessing the appellant 's
credibility. The tribunal was entitled, for example, to form the view that there was a lack of
detail about significant aspects of the appellant's claim; to note discrepancies in the account
which she gave to the psychologist; to consider that there was an absence of discussion about
the effect of voodoo in the particular circumstances of the appellant's case; and to take the
view that country information might be broadly consistent with an applicant's account but
nevertheless the applicant's claim should not succeed. The weight to be given to evidence,
and ultimately the findings-in-fact made, were properly matters for the tribunal. We are not
persuaded by either the second or the third Ground of Appeal.
Decision
[30]
In the result, we agree with the Lord Ordinary that section 27B(3)(b) the requirement
that there is a "real prospect of success" is not satisfied. For completeness we add that we
are not persuaded that there is a legally compelling reason in terms of section 27B(3)(c).
[31]
The appeal is refused. We reserve all questions of expenses.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSIH_42.html
