AM (Egypt) v Secretary of State for the Home Department

LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal, and it is an application for permission to bring a second appeal in that the decision sought to be appealed is the decision of Upper Tribunal Judge Chalkley made in August of 2014.

Put very simply, the appellant is a Coptic Christian, a national of Egypt. It is not entirely clear to me when he was born, in that paragraph 1 of the determination says that he is 25 but that he was born in December 1983, which would make him I think 30 or 31 at the time of the determination, but nothing turns on that, he is to be regarded as a young man. The position is that the Secretary of State refused his claim to asylum. His appeal to the First Tier Tribunal failed. The decision of the First Tier Tribunal was set aside by Judge Chalkley on the basis that it was unclear whether the judge in the First Tier Tribunal had taken into account the background evidence set out in the country guidance case of MS (Coptic Christians) Egypt CG [2013] UKUT 00611 (IAC). The judge proceeded to remake the decision and again the appeal against the decision of the Secretary of State was dismissed.

Miss Patel, who this morning has made submissions on the applicant's behalf, submits that bearing in mind that the judge here proceeded de novo to make a fresh determination, and notwithstanding that this is a second appeal, the test pursuant to which the court must be satisfied before granting permission to appeal should be regarded as slightly less demanding than the normal second appeal test which demands of the applicant the raising of an important point of principle or practice or some other compelling reason for an appeal to be heard. I am prepared to accept that the test is in these circumstances slightly less demanding, but the question arises whether an appeal has any real prospect of success.

Miss Patel suggests that the judge has made errors of law, but in my judgment all the matters to which she has referred amount to a contention that the judge has failed to make findings of fact in accordance with what Miss Patel says was the weight of the evidence.

Miss Patel suggests that the judge did not engage with the country guidance case, but I find that difficult to accept bearing in mind that the judge refers explicitly to the country guidance in paragraph 7 when explaining why he is setting aside the previous decision, and he refers to the country guidance case again at paragraph 22 when he is rehearsing the submissions which were made to him. The judge recites at paragraph 29 that he has considered the background evidence that had been placed before him which goes above and beyond that which appeared in the country guidance case, and when introducing his findings of fact, the judge indicated that he had carefully considered all of the evidence before him. Miss Patel suggests that the judge made his credibility findings in isolation from the country guidance case, but for the reasons I have just indicated, that is a very difficult submission to sustain.

Miss Patel suggests that the judge has failed to consider the appellant's own evidence which he gave in rebuttal of the reasons for refusal given by the Secretary of State and that he does not engage with the evidence, but when we turn to specific examples of that suggestion, for example in relation to his explanation for failing to claim asylum immediately on his arrival in Italy, we find at paragraph 42(h) that the judge has indeed set out in considerable detail the account given by the appellant in his evidence of why it was that he did not feel safe in Italy, because of other Egyptians living in the area who told him that he was wanted in his home area of Egypt, and the judge indicates that he did not accept that account. The reasons why he did not accept the account are set out in some detail in paragraphs 42(a), (b), (c), (d), (e), (f), (g) and (h). The judge introduced those paragraphs by saying that beyond the bare bones of the story, which he summarises in paragraphs 42(1) to (4), he did not believe anything else which the appellant had said which was material to his asylum claim. The judge proceeded to explain why that was the case and concluded at 42(i):

Another example where it is said that the judge failed to engage with the appellant's own explanation for his conduct is in relation to the circumstance that he did not report the alleged incident concerning an accusation that he had had an improper liaison with a Muslim woman to the local police, and Miss Patel prays in aid his evidence to the effect that the authorities were taking no interest in matters of that sort, but the judge grapples with that point and points out that at the relevant time the authorities were opposed to the Muslim Brotherhood and that the authorities were prepared to deal with the Muslim Brotherhood.

What this reveals is that the ground upon which this appeal is sought to be made is simply that the appellant disagrees with the findings of fact made by the judge.

Miss Patel in her sustained, careful and helpful submissions reminds me that the standard of proof in cases of this sort is not high, and she reminds me also of the warning given by Neuberger LJ, as he then was, in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 to the effect that judges must be careful not to superimpose their own perceptions of what is likely when they are determining the plausibility of a story concerning the treatment of persons in an overseas country with different cultures. I bear that well in mind, but the judge's findings of fact here are so emphatic and so carefully explained that it seems to me that there is no real prospect of this court overturning those essential findings of fact.

Yet a further example of that is furnished by the judge's finding as to internal relocation, it being said that this appellant is from a rural area where there is, according to the country guidance, a greater risk, but the judge indicated that even if he were wrong in his credibility findings, there was no reason why, or it would not be unreasonable to expect, this appellant to relocate to Assiut City or another city where there is a large Coptic Christian population. Miss Patel complains that that fails to take into account that the appellant's own village is only one hour away from Assiut City, but it seems to me that a travelling time of one hour is not inconsistent with the judge's expectation that there would be nothing unreasonable about relocation and that given the implausibility of the story told by the appellant, there is no reason to believe that the Muslim Brotherhood would think it worthwhile following him to that area, where he would have the support of a large Coptic Christian community.

As I have indicated, this is, as Vos LJ thought when refusing permission to appeal on the papers, an attempt to reargue the facts upon which the appellant was disbelieved. Whether I am considering this from the point of view of the ordinary test of looking for a real prospect of success, or the second appeals test of looking for some important point of principle or practice or other compelling reason for an appeal to be heard, it is plain that this appellant falls far short.

In all those circumstances, notwithstanding the helpful and comprehensive submissions that I have heard from Miss Patel, I refuse permission to appeal.