AS (Gambia) v The Secretary of State for the Home Department

This is a renewed oral application for permission to appeal in relation to a decision of the Upper Tribunal dated 6 October 2014 in which the appellant’s immigration appeals on both asylum and human rights grounds, including by reference to domestic violence principles, was dismissed.

The Upper Tribunal refused permission to appeal. The application for permission to appeal is of course in relation to a second appeal and the court will not give permission unless it considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. Applying those principles, Rafferty LJ refused permission to appeal on the papers on 30 March 2015.

The application was renewed before me today on four grounds. First, it is said that the Upper Tribunal treated itself as reviewing the lawfulness of the decision of Judge Clayton, even though that decision had already been overturned on the law by Upper Tribunal Judge Gleeson in a decision of 27 August 2013. In my view, on a fair reading of the Upper Tribunal’s decision under challenge, it clearly did understand itself to be remaking the decision for itself (see paragraphs 17 to 22). Again, in the operative part of its decision it made it clear that it had reconsidered the expert evidence for itself (see paragraph 86, and indeed paragraphs 47 to 74 in particular show a detailed review by the Upper Tribunal for itself of the expert evidence in the case). I do not consider that there is a real possibility of persuading this court that the Upper Tribunal erred on this point simply by reference to paragraph 88 of the decision, where it noted that it did not consider the First-tier Tribunal judge had erred in law. It was entitled to make that observation whilst at the same time understanding that it was re-determining the matter for itself, as it clearly understood itself to be doing. Still less does that ground meet the second appeal test.

The second ground relied upon was that the Upper Tribunal wrongly imposed some requirement of an application in formal terms to reopen issues in relation to domestic violence. The appellant relies in this regard on paragraph 83, where the tribunal said: “We considered first the application to re-open the issue of domestic violence…” However, in the context of the decision, on a fair reading, all that the tribunal was doing there was addressing itself to the Devaseelan guidance which had in turn been addressed by Judge Clayton at first instance (see in particular paragraphs 9 to 11 of the decision and in particular the use of this language in paragraph 11, “Judge Clayton refused to re-open the previous findings in relation to domestic violence… in the context of the Devaseelan guidance”).

In my view, there is no real possibility of success in the Court of Appeal on that ground either. The Upper Tribunal properly understood its role and properly applied itself to that role in the operative part of its decision at paragraphs 83 to 88; again, still less does that ground meet the second appeal test.

The third ground relied upon is that it is said that the Upper Tribunal erred in relying on adverse credibility findings in earlier determinations which had been set aside for error of law. Again, in my view there is no real possibility of success on that ground of appeal either. It was properly open to the Upper Tribunal to review the expert evidence for itself and, in the light of that, to consider whether, following the Devaseelan guidance, it was still appropriate to rely on previous findings of fact as to the credibility of the appellant made by tribunals in earlier decisions. In my view, the Upper Tribunal acted lawfully properly in proceeding in that way. Again, still less does this ground meet the second appeal test.

The fourth ground relied upon today is that it is said that the Upper Tribunal failed to make findings as it should have done on the expert evidence before it. I regard this as a hopeless contention in the light of the manifest care with which the Upper Tribunal reviewed the expert evidence for itself and then gave reasons at paragraphs 86 and 87 in particular for the weight, or lack of weight, which it attributed to that expert evidence.

For all these reasons, I dismiss this application. On no view do I think that this case comes close to satisfying the second appeal test.