BP (Pakistan) v Secretary of State for the Home Department

MRS JUSTICE ARDEN: This is an renewed application for permission to appeal against the decision of the Upper Tribunal dated 28 November 2013. Any appeal to this court would be a second appeal and, accordingly, if there is a point on which to give permission for a second appeal, then the task in relation to other matters is considerably lightened. Equally, if there is no second appeal point, then I do not need to be involved with other points that might have been raised if there was not a second appeal requirement. The second appeal requirements are, of course, very well known but just to reinforce the point, permission is only granted in a second appeal case if the court considers that the proposed appeal would raise some important point of principle or practice or there is some other compelling reason for the relevant Appellate Court to hear the point.

Mr Russell Wilcox, who has argued this very closely on behalf of the appellant, put forward the second appeal point of principle as one of general importance, namely whether the First-tier Tribunal is capable of placing itself in the position of the Secretary of State with regard to an asylum claim in a factual situation like the present.

The position is that the appellant is a citizen of Pakistan. She came in 2010. She is of the Ahmadi faith. She claimed asylum on the basis that she would be persecuted for her views on her return.

There was a decision by the Secretary of State which was the subject of judicial review proceedings. There was then a settlement of the judicial review proceedings by consent. Part of that consent order provides that the defendant, having agreed to make a further immigration decision (and that is a reference to the Secretary of State) and in doing so to consider the further submissions made by the claimant dated 2 September 2011 (that refers to the evidence of a doctor about the mental state of the claimant), then it was ordered by consent that the claimant had leave to withdraw the application for judicial review, and there were provisions as to costs.

What happened thereafter was that the Secretary of State did not make a decision which considered the further evidence to which I have referred and so there was an appeal from the decision, which came before the First-tier Tribunal, Judge Kimnell, and he decided that there was no prospect of the Secretary of State making another decision, so that he would proceed on the basis of the material that he had. So he went on to consider the matter. He obviously had before him Dr El-Khoury's evidence, which the Secretary of State ought to have considered before making a fresh decision, but in the end he considered that that evidence was not such as to substantiate the asylum claim.

So the position that is taken is this: that what the First-tier Tribunal should have done was send the matter back to the Secretary of State with a direction that the Secretary of State should make a decision on the basis of Dr El-Khoury's evidence and that the First-tier Tribunal should not have attempted to do so itself.

In my judgment, this does not raise an arguable point. The consent order gave the appellant a choice of options. She could either try to enforce the agreement (which is set out in the recital to the order) or she could appeal the previous decision. She took the latter course. Once she did that, she entered the appeal process in the normal way and the Tribunal had all its normal powers. The Tribunal thought carefully about whether to give a further adjournment but decided, as I have explained, that that was not an appropriate course and therefore the Tribunal simply could not do anything else but go on and make an evaluation of Dr El-Khoury's evidence for itself. So, in my judgment, the point that is raised is simply not capable of constituting a second appeal point.

There are further points raised but they are not raised as second appeal points and I am really only concerned with them if they were points that seemed to me to give rise to some compelling reason why this court should give permission. But they are points which really turn on the evaluation by the First-tier Tribunal of the evidence, for instance the First-tier Tribunal rejected the daughter's evidence that there was a brother-in-law living in London who would have been the person to look after the claimant in Pakistan. Likewise, the First-tier Tribunal, as I say, formed a view about Dr El-Khoury's evidence as not being capable of substantiating an argument that it undermined a previous finding in these proceedings about the credibility of the claimant and that is because it simply did not speak to any past point in time. The judgment of the First-tier Tribunal was very carefully put. Neither of these points is, in my judgment, a compelling reason for giving permission to appeal.

In the circumstances, therefore, despite appreciating the helpful arguments put to me both in writing and orally by Mr Wilcox, this is an application which I refuse.