G & H, R (on the application of) v Secretary of State for the Home Department

Turning to the substance of the claimants’ application, the claimants’ grounds asserted that what was, in effect, a first ground for seeking judicial review raised an important point of principle or practice. I shall refer to it as “judicial review ground 1”. The important point for the purposes of judicial review ground 1 was said at paragraph 12(a) to be:

a.

The application of principles of procedural fairness to asylum appeals where the FTT must in any event apply “anxious scrutiny,” where the appellant is particularly vulnerable (as here – due to trafficking/ sexual exploitation) and where the best interests of the child are of primary importance;

…

Judicial review ground 1 was developed at paragraphs 14 to 26 of the claimants’ grounds. Key elements were:

14.

… In this case the FTT dismissed the Claimants’ appeals largely on the basis of deemed inconsistencies in the first Claimant’s trafficking claim which had already been accepted by the Secretary of State for the Home Department (SSHD) and which were never put to the Claimant at the hearing. Furthermore, the FTT doubted the Claimant’s core claim due to issues such as late disclosure notwithstanding the clear recognition by the SSHD in her own trafficking guidance that victims of trafficking are often bound by voodoo/ juju curses not to disclose their ordeal and those who have suffered sexual exploitation are often debarred by shame and trauma from revealing core details of their claim.

15.

It is critical to note in this case that at the outset of the FTT hearing there was a discussion of preliminary issues and it was agreed between all the parties (and recorded in the FTT determination at [10]) that the SSHD accepted the first Claimant’s account of trafficking to [the trafficking destination country] and that the only issues in the appeal were whether there was a risk of re-trafficking and a risk to the second Claimant from FGM. …

16.

Consistent with this pre-hearing agreement amongst the parties and the concessions made by the SSHD, the Home Office Presenting Officer who represented the SSHD at the FTT asked no questions whatsoever (nor made any submissions whatsoever) regarding the first Claimant’s trafficking claim including no questions about her circumstances in Nigeria before she was trafficked, the rape she had suffered in Nigeria, the job she had held in Nigeria, the way in which she met her traffickers, her transit to [the trafficking destination country], her forced prostitution and sexual abuse/ exploitation in [the trafficking destination country] or her escape from her traffickers and entry to the UK. Cross-examination focussed solely on the ongoing threats from the Claimant’s traffickers to her/ her mother, her family’s situation in Nigeria, and her work in the care industry in the UK. Additionally, the Presenting Officer made no reference to, nor submissions regarding either of the expert reports in this case. The FTT also asked no questions of the Claimant about any of these issues with one exception (see below).

17.

Yet despite all of this, the FTT rejected the Claimant’s protection claim largely on the basis that she had “not been straightforward in her account” of her trafficking claim [29] while highlighting a number of purported inconsistencies. In addition, at [29(vii)(3)] the FTT say with regard to the country expert that they place limited weight on her opinion on the risk of re-trafficking to the first Claimant because it is based upon a “false account from the first appellant of what has happened.”

18.

At [29(1)] the FTT set out six sets of findings with regard to the first Claimant’s trafficking account which they find undermine her credibility, none of which were put to her, barring a point regarding the inconsistency set out at [29(1)(ii)] – which is addressed below. It is averred that in circumstances where the entirety of the first Claimant’s trafficking account had already been accepted by the SSHD, and in light of the preliminary discussions at the FTT identifying the issues to which there was no dispute between the parties (i.e. the trafficking), it was manifestly procedurally unfair for the FTT to go behind the agreement reached by the parties without putting the case to the first Claimant (or her experts) and giving her and her legal representatives an opportunity to address any perceived inconsistencies (particularly where there would have been a proper, well-evidenced rebuttal to each of the negative points raised by the FTT).

…

23.

As mentioned above, the FTT themselves asked no questions of the first Claimant regarding her situation in Nigeria, her recruitment to trafficking, her time in [the trafficking destination country], her escape and her transit to the UK barring one question. This was when the lay member of the FTT panel asked the first Claimant why in her screening interview, when asked to briefly explain why she couldn’t return to her home country, had she said that she had been raped by a gang of boys and worked as a prostitute but not mentioned the trafficking/ forced prostitution. The first Claimant replied (as recorded in the hearing note): “At the time they did the interview I was pregnant and because I was made to swear an oath in [the trafficking destination country], not to tell anyone about the trafficking, at that time when I was pregnant I was still afraid. Because of the oath I did not want anything to happen to my child. That is why I didn’t tell the person the truth at that time.” None of this is recorded in the FTT’s determination at [29(1)(ii)] where they say “her differing explanations about this were unsatisfactory” and where they later go so far as to call her account “false” [29(3)].

24.

The FTT fail to consider that the first Claimant’s explanation as to why she did not disclose her trafficking initially in her asylum screening interview (nor in her Surrey County Council assessment – also conducted largely before the birth of her daughter) is supported by:

a.

Q2 of her substantive asylum interview (notably her asylum interview took place after the birth of her daughter) where in response to the question of “Why do you wish to claim asylum in the UK?” the first Claimant gave a six page answer and within that detailed narrative she explains: “So he [trafficker 2] made me swear an oath [in the trafficking destination country] that whatsoever is going to happen to me I shouldn’t tell anybody. That if I do, when I am pregnant I will die and my baby will die too.”

b.

The evidence of the first Claimant’s witness, [the male witness], who was accepted by the FTT as a “truthful witness” [29(2)]. During cross-examination he said that he believed the first Claimant to be an honest person, that he knew she had been trafficked to [the trafficking destination country], had escaped her traffickers, and had come across someone who helped her out with a ticket and false documents to come to the UK. He said: “I also know she was placed under a curse and wasn’t able to express some of her issues of her past to people caring for her at that time.” When [the male witness] was asked if she had kept things from [him] as well he said: “In the past up to the point when [H] was born I think she was in a place where she was very scared to divulge. After that she started to release more of her story. I believe her now to have been 100% honest in everything she related.” When he was asked more about the curse he said: “She was placed under a juju curse which gave her a fear that she would have potential issues around the birth of her child” (all of which is also recorded in the hearing note).

25.

The first Claimant’s late disclosure and fears are also supported by country expert Ms Olateru-Olagbegi who describes in detail the use of “juju” oaths to control victims of trafficking; the fact that victims are fearful of the repercussions of breaking this oath and thus do not report their traffickers; and that as a result there is a “culture of silence” and a failure by victims to cooperate with authorities.

26.

It was submitted by the Claimants’ counsel at the FTT hearing in closing submissions that late disclosure is well documented amongst trafficking victims and accepted by the SSHD in her guidance entitled “Victims of Human Trafficking: guidance for frontline staff.” This guidance includes inter alia the fact that:

Victims of trafficking may initially be unwilling to disclose details of their experience or identify themselves as a victim, for a variety of reasons.

They may fear

•

punishment at the hands of their traffickers

•

punishment at the hands of the authorities

•

deportation

•

juju or witchcraft rituals

•

discrimination from their community and families

•

being accused of being complicit in an illegal activity connected to their trafficking situation

•

reprisals against them or their children or families. In most trafficking situations, agents know or can easily discover personal information about the victim, their home, family and friends. It is very common for agents and employers to use threats against the victim’s family, especially children, to manipulate and control the victim. The fear of reprisal on themselves or their family will have a huge impact on whether a potential victim of trafficking is willing to cooperate.

And:

Women who have been sexually assaulted may suffer trauma which can affect how they respond during interviews. The symptoms of this may include:

  persistent fear

  a loss of self-confidence and self-esteem

  difficulty in concentration

  an attitude of self-blame

  shame

  a pervasive loss of control and memory loss or distortion.

You must not automatically draw negative assumptions, if a woman cannot recount details of their experience, when you assess their credibility.

And:

Most trafficking cases are identified before an asylum claimant is interviewed but there may be some cases where you identify them during an asylum interview. Such claimants may be reluctant to go into much detail about the full facts of their case…

What I shall refer to as “judicial review ground 2” concerned an important point of principle or practice described at paragraph 12(b) in this way:

b.

The correct application of the preserved findings of the Court of Appeal in PO (Nigeria) [2011] EWCA Civ 132 to all other asylum cases involving Nigerian trafficking victims. There have been no reported cases on this point since the Court of Appeal allowed the appeal in PO (Nigeria) setting aside the decision of the UT (then AIT) and remitting it to the UT for further reconsideration but preserving some key findings for application in the interim. This point of principle thus has broader significance to a large number of Nigerian trafficking/ asylum claims heard by the FTT and UT.

Judicial review ground 2 was developed at paragraphs 27 to 31:

27.

… In 2009 the UT promulgated Country Guidance on the risks facing victims of trafficking who are returned to Nigeria. That case was appealed to the Court of Appeal who in PO (Nigeria) [2011] EWCA Civ 132 allowed the appeal but set out preserved findings which would continue to apply in Nigerian trafficking cases until the UT promulgated new country guidance (which has not happened to date).

28.

At para 192 of their judgment the Court of Appeal set out the preserved country guidance which includes this point on gangs:

(a)

A very careful examination of the circumstances in which the victim was first trafficked must be undertaken and careful findings made. If a victim has been told that she is required to earn a particular sum of money (“target earnings”) for the trafficker or gang, before being free of any obligation to the trafficker or gang, then, if the victim should escape before earning the target sums, there may well be a risk to the victim that on return to Nigeria she may be re-trafficked if found. The extent of the risk of the trafficking will very much depend on the circumstances in which the victim was originally trafficked.

(b)

It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her traffickers before earning the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim’s family, to seek reprisals.

(c)

In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim …

[emphasis added by Ms Mair]

29.

This preserved country guidance was raised explicitly in Counsel’s closing submissions at the FTT to aver that:

a.

There was no evidence to suggest that the first Claimant had been trafficked by an individual (in fact, on the contrary there was ample evidence that a number of people were involved) and nor had the SSHD had not submitted at any stage that the Claimant had been trafficked by an individual.

b.

It was totally credible and plausible that the first Claimant’s traffickers would continue to threaten her mother and to threaten her through her mother, bearing in mind the large sum of money that they claimed was still outstanding. The first Claimant stated in cross examination that her mother had told the traffickers that she may be deported from the UK and they had thus returned just three months thereafter to see whether she had indeed returned.

30.

Nonetheless the FTT make no findings on the “gang point” whatsoever and find that it was not “plausible” that the traffickers would have taken the trouble to track down the first Claimant’s mother when she moved villages or continue to threaten her over the years. Yet in PO, cited above, the Court of Appeal accepted that “traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim’s family, to seek reprisals.” Thus the FTT’s findings are in direct contradiction to the preponderance of the evidence from the first Claimant and her country expert and contrary to the preserved findings of PO (Nigeria), which whilst citing they have failed to apply. Furthermore, while the FTT consider that this “wasted time” looking for the first Claimant could have been better spent acquiring new victims there is no trade-off between the two: visits every year or even every few months to the first Claimant’s mother would not detract in any meaningful way from the traffickers ability to recruit new victims.

31.

The failure of the FTT to apply the preserved country guidance findings is an important point of principle, especially where the UT has yet to promulgate new Nigerian trafficking country guidance notwithstanding the passage of over three years since the Court of Appeal allowed the appeal.

As regards both judicial review ground 1 and judicial review ground 2, the claimants’ grounds also relied on the second limb of the second appeals test. At paragraph 13 the claimants’ grounds stated:

13.

… the clear errors of law in the FTT determination and the UT’s refusal of permission, the high prospects of success on appeal and the extreme consequences for the Claimants should they be returned to Nigeria where they aver they would face a real risk of harm, amount to compelling reasons to grant permission to this claim. In addition, the clear procedural unfairness perpetuated by the FTT, even if the prospects are not deemed very high, would still amount to compelling circumstances … [a citation was then given which was intended to refer to paragraph 24(3) of Carnwath LJ’s judgment in PR (Sri Lanka) set out above].

An additional ground was advanced under the second limb of the second appeals test. I shall refer to it as “judicial review ground 3”. It concerned not only the risks of what might be done to the claimants by the gang responsible for G’s trafficking, but also a different risk which was not expressly identified in the Upper Tribunal’s reasons. This was the risk that H might be forcibly subjected to FGM. As regards both these risks, judicial review ground 3 made two complaints about the FTT’s rejection of expert evidence of Ms Bisi Olateru-Olagbegi. It also made a third complaint that, in relation to the risk to H of forcible subjection to FGM, the FTT had ignored the conclusions of Dr Huws, Surrey County Council, and Ms Olateru-Olagbegi.

Ground 3 was developed in paragraphs 32 to 35 of the claimants’ grounds:

32.

Following on from issues raised in the above two grounds, at [24] of their determination the FTT state that they have taken account of the report provided by Ms Bisi Olateru-Olagbegi but then go on to criticise her in two regards:

a.

On the basis that the Court of Appeal noted (at para 23 of their judgment) in PO (Nigeria) that her evidence had been rationally rejected by the Tribunal on issues which were not in issue before the Court of Appeal themselves; and

b.

On the basis that Ms Olateru-Olagbegi based her opinions on the presumption that the first Claimant was telling the truth.

33.

As regards the first of these points, the FTT fail entirely to note the remainder of para 23 as well as para 24 of Lord Justice Maurice Kay’s judgment in the Court of Appeal:

23…However, it does not necessarily follow that, because her evidence on one or more issues was considered to lack objectivity and was rationally discounted, the same applied to her evidence on other issues. Indeed, the AIT did not say that she was totally unreliable. It accepted that she is “expert in issues of human trafficking in Nigeria” (paragraph 166) and her evidence was found to be “very helpful” (paragraph 172) on one matter which is not the subject of this appeal. Moreover, she was accepted in the Danish report as an important contributor of source material.

24…In these circumstances, I have a deep unease about the way in which Ms Olateru-Olagbegi’s evidence about the shelters was rejected. [emphasis added by Ms Mair]

The Court of Appeal then granted permission on this ground because they felt it improper that less weight had been placed upon Ms Olateru-Olagbegi’s evidence than another witness.

34.

As to the second criticism leveled above, it is unsurprising that Ms Olateru-Olagbegi based her report on an assumption that first Claimant’s claim with regard to trafficking was accepted, bearing in mind that she had read the SSHD’s decision in this case and a letter sent by the SSHD regarding the trafficking claim, in both of which the SSHD had accepted the core of the first Claimant’s trafficking claim. Furthermore, many aspects of Ms Olateru-Olagbegi’s report do not refer to the specifics of the first Claimant’s claim but rather provide objective country evidence and expert analysis with regard to trafficking and FGM. There are no reasons given by the FTT to reject those pivotal aspects of her report.

35.

In finding that there was no real risk of FGM to the second Claimant the FTT say they have “considered all of the evidence in the round” [29(4)] but fail entirely to refer to the conclusions of three expert/ professional reports which find that second Claimant would be at a real risk of FGM: Dr Huws report (see p. 11 and 12 of his report), Surrey County Council (also referred to by Dr Huws at p. 12) and Ms Olateru-Olagbegi’s report at pp. 46-50. It was an error of law for the FTT not to have considered these reports in the round before reaching a conclusion on this risk factor and to have given good reasons for rejecting those experts’ findings. The best interests of the child demand the highest levels of procedural fairness in assessing the evidence regarding any risk of harm to her.

No acknowledgement of service was filed by the Home Secretary: a letter from the Treasury Solicitor explained that the Home Secretary considered that the law in this area was settled by the Supreme Court decision in Cart. An acknowledgement of service by the Upper Tribunal stated that no submission on its behalf would be filed.

Regrettably, there was a delay before the application for permission to proceed came before Stewart J for consideration on the papers. In a decision dated 30 June 2015 he granted permission to proceed. That grant of permission was general: it was not restricted to any particular part of the claimants’ grounds. Under the heading “Observations” Stewart J stated:

I have concerns in this application about the procedural fairness ground.

Legal principles: “High Court role”/“Cart rationale”

Another aspect of the streamlining provided by CPR 54.7A is that the grant of permission may have a special consequence in the form of what is, in effect, a summary disposal in favour of the claimant. CPR 54.7A(9) provides that, unless the defendant or an interested party requests a hearing, the court will make a final order quashing the Upper Tribunal’s refusal of permission.

In the present case the Home Secretary on 9 July 2014 requested a hearing. Thus, as is expressly contemplated by CPR 54.7A, there was no summary disposal. This did not mean that the case should cease to be dealt with speedily. However there was a long delay. On 6 March 2015 the Home Secretary served Detailed Grounds of Defence. I shall refer to them as “the Home Secretary’s grounds”. They were settled by Ms Anderson.

The Home Secretary’s grounds comprised two introductory paragraphs, a section entitled “Factual Summary”, sections setting out submissions on each of the claimants’ three grounds for judicial review, and a conclusion. In paragraph 2 they said, among other things:

2.

Whilst not precluding judicial review altogether, the Supreme Court in Cart emphasised that it would only be in very narrow circumstances that intervention in a decision by way of judicial review would be permissible. The Interested Party submits that the intended very limited approach by the Supreme Court must be adhered to and this case fails to provide the requisite basis to intervene. …

I explain below how this passage became the precursor to a submission (“the Cart rationale submission”) that a special limitation on substantive judicial review applied in the present case. As to the content, in the context of a substantive judicial review, of “the intended very limited approach by the Supreme Court” which “must be adhered to”, the assertions in the Home Secretary’s grounds were enigmatic. Paragraph 2 offered no further information. The sections setting out submissions sought to show that the proposed grounds of appeal to the Upper Tribunal had no merit. Although the Home Secretary’s grounds did not say so expressly, the court was presumably being invited to hold that the proposed grounds of appeal did indeed lack merit, and that accordingly there could be no doubt that the judicial review must fail. Remarkably the Home Secretary’s grounds made no reference whatever to the Upper Tribunal’s reasons as set out in section B above. Nor did they offer any explanation for the failure to refer to those reasons.

The skeleton argument for the Home Secretary was not served until 19 March 2015, the day preceding the substantive hearing of the judicial review before me. It advanced a new contention, not mentioned in the Home Secretary’s grounds. This new contention (“the High Court role contention”) was that, in order to succeed in a claim concerning an Upper Tribunal FTT permission refusal, it will not be enough to show that the Upper Tribunal had made a material error of law. It is “necessary to demonstrate”, so it was said in paragraph 4 of the Home Secretary’s skeleton argument, that both the FTT and the Upper Tribunal had made such an error. I return in section D2 below to the reasons why this was said to be necessary.

Paragraph 5 of the Home Secretary’s skeleton argument then dealt with Cart. In setting out the Cart rationale submission it said, citing a series of paragraphs in the judgments in the Supreme Court, that:

It was not the [Home Secretary’s] submission that the second appeal test criteria had to be demonstrated … , [but] that does not mean that the decision of the Supreme Court in Cart should be discarded as irrelevant. Rather the learning of the Supreme Court judges as to the limited circumstances in which it would be justified to intervene applies and that does not include a difference of opinion as to whether the grounds of appeal to the Upper Tribunal were arguable on the merits.

Paragraph 6 added that that if there were any dispute about the correct approach then this should be tried as a preliminary issue. At the hearing the following day it was plain that there was a dispute about the correct approach. The assertion by the Home Secretary that there should be a preliminary issue was not, however, pursued. In section D2 I give a summary of how the submissions developed.

In section D1 above I set out the first two sentences of paragraph 2 of the Home Secretary’s grounds. At first sight those two sentences failed to recognise the stage that had now been reached. They referred to observations in Cart about “very narrow circumstances” and an “intended very limited approach”. However, the restriction identified as appropriate in Cart was the second appeals test, a test designed for the filtering stage. In the present case the claim had survived the filtering stage: permission to proceed had been granted by Stewart J. Although he did not say so expressly, he had been referred in the claimants’ grounds both to the second appeals test described in Cart, and to the discussion of that test by Carnwath LJ in PR (Sri Lanka). Contrary to a complaint in paragraph 3 of the Home Secretary’s skeleton argument (discussed below), there is no reason to doubt that Stewart J considered that the claimants had met the second appeals test.

The claimants’ skeleton argument, settled by Ms Mair on 11 March 2015, responded to the Home Secretary’s enigmatic assertions by pointing out in paragraphs 10 to 12 that the second appeals threshold had been met. Accordingly, she submitted, issues raised by that threshold were not live for the purposes of the substantive judicial review in the present case. In support of that submission, she cited what had been said by Maurice Kay LJ, with whom Lord Dyson MR and Sharp LJ agreed, in R (AA (Iran)) v Upper Tribunal [2013] EWCA Civ 1523 at paragraph 5. I set out that paragraph, including emphasis added by Ms Mair:

It is important to keep two things in mind. The first is that the decision which is being challenged in the present proceedings is the refusal by the UT on 7 July 2011 to grant permission to appeal against the decision of the FTT dated 22 February 2011. The question is whether that was an unlawful refusal of permission. The second point is that from the moment Judge Gore granted permission to apply for judicial review on 16 March 2012, this has been a substantive judicial review case, freed from the shackles of the second-appeals test which Cart requires to be satisfied when consideration is being given to an application for permission to apply for judicial review in these unusual circumstances. …

As to the test to be applied at the substantive hearing, the claimants’ skeleton argument stated in paragraphs 7 and 8, and the first sentence of paragraph 9:

7.

The Claimants aver that for them to succeed in the substantive hearing in the instant case they simply need to establish that one or more of their grounds is “arguable.” That is the case since this is a challenge to a refusal of the Upper Tribunal (UT) to grant them permission to appeal against the determination of the panel of the First Tier Tribunal (FTT).

8.

As confirmed in the Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 1: Permission to appeal to UTIAC (amended September 2013 & July 2014) at para 12:

It must always be recalled, however, that in dealing with applications for PTA Judges are concerned only with whether there is an arguable error of law, not whether the error is made out...

9.

The Claimants do not need to show that they would succeed at an error of law hearing before the Upper Tribunal. …

The second sentence of paragraph 9 then stated:

9.

… It is clearly at least arguable that the FTT determination discloses a material error(s) of law particularly, as the Honourable Mr Justice Stewart observed, with regard to the procedural fairness point.

On reading this second sentence I concluded that it was referring simply to the fact that Stewart J, in his observations, had specifically mentioned the procedural fairness ground. I did not understand it to be a contention that grant of permission by Stewart J necessarily entailed success at the substantive hearing.

The Home Secretary, however, read the second sentence of paragraph 9 as advancing that contention. The first and second sentences of paragraph 1 of the Home Secretary’s skeleton argument said:

1.

The Claimant’s skeleton argument invites the Court to err in law in its approach to this claim. The Claimant cites the decision in R (AA (Iran)) [2013] EWCA Civ 1523 as authority for the Claimant’s proposition that all that needs to be shown is ‘arguability’ in the grounds of appeal and that the grant of permission for judicial review demonstrates arguability so the applicable threshold for substantive relief is satisfied (§§1, 7-9, 10-12). …

These two sentences involved a misunderstanding of paragraphs 7 to 9 of the claimants’ skeleton argument. The second sentence of paragraph 9 of the claimants’ skeleton argument did not stand on its own. The claimants’ skeleton argument contained in paragraphs 13 to 28 detailed submissions seeking to show why the substantive judicial review should succeed on each of grounds 1 to 3. Nowhere in those detailed submissions was it suggested that they were unnecessary because Stewart J’s grant of permission had the consequence that the applicable threshold for substantive relief was satisfied. Nor was any such suggestion made in Ms Mair’s oral submissions.

The result is that it is not necessary to examine all that was said in sections of the Home Secretary’s skeleton argument which sought to demolish a proposition that had not been advanced. There are, however, certain passages in those sections which call for comment:

The Home Secretary’s skeleton argument nevertheless identified considerations which were plainly relevant to the test at the substantive judicial review. First, paragraph 5 noted that the courts will be slow to intervene in the decisions of specialist tribunals. Second, paragraph 7 noted important warnings given in the context of ordinary judicial review:

7.

… the Interested Party repeats the time-honoured warnings (given in the context of the former system that permitted the unlimited judicial review) that it is important:

“[not] to forget the essential principles of judicial review that apply in this area as to any other” (per Buxton LJ in R v SSHD ex parte Arshad, decision dated 14 July 2000)

and

“The present field is one which it is tempting for the court to stray into taking its own view of the facts. That is a temptation which the court must resist. A court’s function is limited to a review of the challenged decision on one or more of the familiar grounds” (R v IAT ex parte Sahota [1995] Imm AR 500 p 506)

In her oral submissions Ms Mair did not dispute that the court must pay regard to the specialist expertise of Upper Tribunal judges. Nor did Ms Mair dispute that the court must approach the substantive judicial review on the basis described in the Arshad and Sahota decisions. Moreover, far from asserting that the grant of permission would be determinative as regards the substantive judicial review, Ms Mair acknowledged that at the substantive judicial review stage the High Court might conclude that the Upper Tribunal had been right to hold that there was no arguable basis for appeal. In that event the substantive judicial review would fail.

By way of example Ms Mair cited Lang J’s decision in R (Essa) v Upper Tribunal [2012] EWHC 1533 (Admin). In that case it was asserted that the First-tier Tribunal had misunderstood aspects of European Union law relevant to deportation of an EU national. The Upper Tribunal refused permission to appeal. An application for permission to apply for judicial review of that refusal came before Mitting J. Mitting J accepted that the grounds for judicial review met the second appeals test, and accordingly granted permission to proceed. In paragraph 18 of her judgment Lang J recorded that what she described as the “basis” of challenge was error of law on the part of the Upper Tribunal, on the footing that it was an error of law when refusing permission to appeal to fail to recognise arguable errors of law on the part of the First-tier Tribunal such as would justify the grant of permission to appeal:

18.

The basis of the Claimant's application for judicial review was that UTIAC erred in law by failing to recognise arguable errors of law in the FTT's determination, which justified the grant of permission to appeal.

Moreover, Ms Mair pointed to paragraphs 53 and 54 of Lang J’s judgment, where Lang J was considering whether to grant the application for judicial review. For that purpose, Lang J adopted the first part of the claimant’s test:

53.

I accept that the determination did not distinguish between Article 8 and the Regulations on the issue of proportionality, but I consider the court would be imposing too high a standard of decision-writing on an FTT to find that this amounted to an arguable error of law, particularly when the Claimant's skeleton argument also merged the relevant factors under both Article 8 and the Regulations. The FTT was aware of the distinction since the point was addressed in the Claimant's skeleton argument.

54.

In conclusion, I do not consider that the FTT determination disclosed the error of law alleged by the Claimant. Therefore the Upper Tribunal did not err in law in refusing permission on this ground.

For the reasons summarised in paragraphs 53 and 54 of her judgment, at the hearing of the substantive judicial review Lang J concluded that the First-tier Tribunal decision involved no error of law. Accordingly Lang J dismissed the application for judicial review. Ms Mair added that there had been an appeal to the Court of Appeal which had not involved the question now under consideration.

Ms Mair’s oral analysis took as its foundation what had been set out in paragraphs 7 to 9 and 10 to 12 of her skeleton argument: the High Court at the substantive judicial review hearing must consider whether one or more of the proposed grounds for appealing to the Upper Tribunal was “arguable”. If the court concluded that this had been established, then it should quash the refusal of permission. Here and in her oral submissions Ms Mair acknowledged that the claimants could not say simply that the High Court on judicial review should reach a different view from the Upper Tribunal. She accepted that what the claimants must show was that the Upper Tribunal was “wrong in law”. It would, submitted Ms Mair, be wrong in law if it failed to recognise the arguability of the contention that the FTT was wrong in law.

Ms Mair then turned to what I have called the “High Court role” contention: the contention in the Home Secretary’s skeleton argument that in order to succeed the claimants must show that both the FTT and the Upper Tribunal had made a material error of law. In response to that contention Ms Mair submitted that, once the High Court was satisfied that the Upper Tribunal had erred in law at the permission stage by failing to recognise the arguability of the contention that the FTT was wrong in law, it would be no part of the High Court’s role to go on and decide whether or not the FTT had indeed made an error of law. That, submitted Ms Mair, would be to usurp the functions of the Upper Tribunal on the substantive appeal.

As to what had been said by the Home Secretary about Cart, Ms Mair submitted that the Home Secretary failed to recognise that the Supreme Court had concluded that the appropriate limitation on judicial review was the creation of a filtering process as described by the Court of Appeal in R (AA (Iran)).

Ms Anderson in her oral submissions for the Home Secretary acknowledged that the Upper Tribunal FTT permission refusal, being a decision by the Upper Tribunal on permission to appeal, was concerned solely with the question whether the First-tier Tribunal was arguably wrong in law in circumstances which would warrant the grant of permission to appeal. As to legal principles governing the High Court’s task at the substantive stage of judicial review, however, the Home Secretary advanced a number of submissions which differed from those of the claimants.

Before turning to examine those submissions, it is convenient to make some observations about guidance that has been given on the role of the Upper Tribunal when considering whether to grant permission for an appeal from the FTT to the Upper Tribunal. I do this in section D3.

Section A above describes the statutory basis for appeals from the FTT to the Upper Tribunal under section 11 of TCEA 2007. Such appeals lie on a point of law arising from a decision made by the FTT. As Lord Dyson observed at paragraph 133 of his judgment in Cart, in practice there is little if any substantive difference between an appeal on a point of law and judicial review. Thus, as is now well established, an appeal on a point of law will be available under each of the tripartite heads identified by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (“the CCSU case”) [1985] AC 374 at 410 (see section D4.3 below). The Upper Tribunal’s appellate jurisdiction accordingly empowers it to ensure, among other things, that the FTT has correctly understood the law governing the FTT’s functions and given effect to that law, that the FTT’s determination is within the bounds of reasonableness in the well understood public law sense, and that the FTT has respected the principles of procedural fairness.

TCEA 2007 identifies no statutory criteria for the grant of permission to appeal from the FTT to the Upper Tribunal. Here too it is helpful to refer to what was said by the Supreme Court in Cart. At paragraph 42 Lady Hale observed that decisions of the courts have accepted that a certain level of error is acceptable in a legal system which has so many demands upon its limited resources. What was a minimum requirement within the tribunal system (my emphasis) was described by Lady Hale in this way at paragraph 56:

56.

… no system of decision-making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case …

Shortly after the Supreme Court decision in Cart, the then President of UTIAC, Blake J, issued a Guidance Note on permission to appeal under paragraph 7 of Schedule 4 to the TCEA 2007. It is not a source of law, nor is it intended to be “an authoritative statement of law” but “it is intended to promote consistent and high standards in making such decisions” (paragraph 1).

For present purposes it is sufficient to set out paragraphs 12, 13 and 16 of the Guidance Note as it stood at the time of the FTT and Upper Tribunal decisions in the present case:

12.

Judges will be familiar with established guidance on what constitutes an error of law: see e.g. R (Iran) [2005] EWCA Civ 982 and will be aware of subject-specific applications: e.g. that it will normally be an error of law not to follow a starred or country guidance (‘CG’) case. It must always be recalled, however, that in dealing with applications for PTA Judges are concerned only with whether there is an arguable error of law, not whether the error is made out …

13.

There are obvious limits to the circumstances when PTA should be granted: —

a.

A complaint with an assessment of facts that it was legitimate for the FTT Judge to make (even applying the reasonable degree of likelihood approach applicable to material aspects of protection claims) cannot normally be characterised as a matter of law but see as in E&R [2004] EWCA Civ 49.

b.

Whilst disregard or misstatement of evidence that was placed before the FTT may amount to an error of law, or a failure to act fairly, the submission of further evidence following the hearing to contradict a finding (even if it would have been admissible in the original proceedings) cannot usually be said to be an error of law (see CA [2004] EWCA Civ 1165), unless the evidence is submitted to demonstrate unfairness or the decision is based on an entirely false factual hypothesis (see as in E&R [2004] EWCA Civ 49) or concerns questions of jurisdictional fact.

c.

An error of law on a topic that is completely irrelevant to the substance of the decision in hand is unlikely to justify the grant of permission, unless the point itself is of some general importance in the context of immigration and asylum appeals and deserves further consideration on that basis alone.

d.

A point of law that is not arguable whether because the statute is clear, the contention extravagant and unsustainable or there is stable, binding precedent of the higher courts, is unlikely to justify the grant of permission. However, if there is a case for the UT/higher courts to reconsider the point in issue, permission should be granted as a refusal of permission does not give rise to a right of appeal to the Court of Appeal. It will be rare for a judge to decide to grant PTA because he or she considers a binding precedent may be reviewed by a superior court with power to do so. But this may be appropriate in circumstances where, if the matter were before the High Court, the terms of s.12 of the Administration of Justice Act 1969 were engaged and the question of permission to appeal could be leap-frogged to the Supreme Court.

…

16.

On the other hand, PTA should only be refused on the basis that the error was immaterial, if it is a plain case that the error could have made no difference to the outcome. The facts must be capable of bringing the case home. Disputes about materiality are best left to the appeal process itself rather than summarily determined by refusal of permission.

In paragraph 12 and much of paragraph 13 Blake J addresses what may constitute an error of law, stressing that as a matter of generality what is relevant when considering whether to grant permission to appeal is whether there is an arguable error of law, not whether the error is made out. To my mind it is clear from the guidance note as a whole that he is using the word “arguable” to denote a point which has a real, as opposed to fanciful, prospect of success. In this judgment I use the word “arguable” with that meaning.

Where arguable error of law is apparent, however, there may be a further question: would an appeal fail because the error of law was immaterial? Paragraphs 13(c) and 16 make clear the approach taken in the Guidance Note: a question of that kind should be resolved summarily against the would-be appellant only where the suggested error of law was “completely irrelevant” or where it is a plain case that the error could have made no difference to the outcome. Although the Guidance Note does not say so expressly, the upshot is that on this further question too, if materiality is arguable, then permission to appeal should be given.

Here and elsewhere the guidance note appears to me to be fully consistent with Lady Hale’s observations cited earlier. On an application for permission to appeal the Upper Tribunal judge is to look at the case and check for error – not error of fact, but error “on a point of law”.

Indeed in an oral rejoinder Ms Anderson agreed that the test is arguable error of law. While maintaining that she did not accept Ms Mair’s submissions on paragraph 16 of the guidance note, Ms Anderson’s own proposition was that where an arguable error of law was clearly not material to the outcome, then permission to appeal should not be given. I did not understand Ms Mair to submit that, in the context of the present case, any different approach should be taken. In these circumstances I do not need to determine whether Ms Anderson was right to advance additional propositions that it is not obligatory for the judge to have regard to the Guidance Note, and that the Guidance Note is not a document to take legal tests from. I comment only that my initial reaction is that these propositions are expressed in broad terms which, at any rate at first sight, would call for qualification before they could be accepted.

In sections D4 to D10 I turn to examine the Home Secretary’s submissions in support of the “High Court role” contention. I start in section D4 with what can conveniently be described as the Home Secretary’s “usurpation” criticisms.

Under this heading I deal with the main category of reasons said in paragraph 4 of the Home Secretary’s skeleton argument to support the “High Court role” contention. As noted in section D2 above, these reasons complain that the claimants’ approach would breach fundamental principles by inviting the court to usurp the role of the Upper Tribunal. They were expressed in paragraph 4 in this way:

… whilst the test for the Upper Tribunal was arguability, that was for the Tribunal to judge on the merits bringing to bear its specialist expertise as the body that would hear the appeal. It is a fundamental error of law to submit that arguability judged on the merits of the proposed appeal is the test for this Court on judicial review. This underscores the Claimant’s fundamental misapprehension that this is an appeal (with a wider jurisdiction than the original Tribunal that was limited to errors of law not fact and law). This [is] precisely what the warnings of Bingham MR convey – that judicial review does not provide a jurisdiction to usurp the role of the appointed decision-maker so that this Court can make the judgment as if it were the decision-maker. This remains a judicial review so it is necessary to demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal. … The Claimant cannot ask this Court to substitute its own view of the merits of the underlying proposed appeal to decide if in its view the grounds were merely ‘arguable’.

The nub of the Home Secretary’s concern here is that:

In section D4.3 I examine whether the claimants’ approach would indeed involve usurpation. It appears to be submitted in paragraph 4 of the Home Secretary’s skeleton argument that, so as not to commit the fundamental error of usurpation, and because the present claim is by way of judicial review, the approach to be adopted is the approach urged in the “High Court role” contention: an approach under which a successful judicial review must demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal. In sections D4.4 and D4.5 I examine whether the approach urged in the “High Court role” contention would avoid usurpation, and whether that approach must be adopted because the claim is by way of judicial review.

It is of course trite law that the High Court on judicial review must not usurp the functions of the decision-maker. In the present context the crucial role of the High Court, as stressed by the Supreme Court in Cart, is to ensure that decisions are taken in accordance with the law, and not otherwise: see Lady Hale at paragraph 37.

More than 30 years ago, as set out in the speech of Lord Diplock in the CCSU case, the House of Lords identified three heads under which the High Court performs this task. First, under a head which Lord Diplock referred to as “illegality”, it ensures that the decision-maker whose decision is under review (here, the Upper Tribunal) has correctly understood the law governing the decision-maker’s functions and given effect to that law. Second, under a head which Lord Diplock referred to as “irrationality”, it ensures that the decision is within the bounds of reasonableness in the well understood public law sense. Third, under a head which Lord Diplock referred to as “procedural impropriety”, it ensures that the decision-maker has respected the principles of procedural fairness.

Only rarely will the High Court on judicial review of an Upper Tribunal FTT permission refusal be asked to hold that the Upper Tribunal decision was unreasonable in the public law sense or involved procedural impropriety. Applications for judicial review of an Upper Tribunal FTT permission refusal will usually, as here, involve a challenge which says that the Upper Tribunal has either misunderstood the relevant law or failed to give effect to it. It is this type of challenge which I discuss below.

In particular, as here, applications for judicial review of an Upper Tribunal FTT permission refusal may well assert that the Upper Tribunal’s conclusion on “arguability” involved a misunderstanding or misapplication of the law. At one extreme, there will be a group of cases where assertions of this kind, after examination by the court, are rejected because the court considers that the would-be appellant’s allegedly arguable ground of appeal is plainly wrong for the reason given by the Upper Tribunal. In such a case the court will conclude that in this regard there was no misunderstanding or misapplication of the law by the Upper Tribunal. The judicial review, in so far as founded upon the allegedly arguable proposition of law, will accordingly fail.

The extreme position just described is one which the court will often adopt when refusing permission to proceed, and which the Home Secretary will frequently urge upon the court as being the correct position to adopt in cases where permission to proceed is granted. Indeed much of what is said in the Home Secretary’s grounds in the present case, to a greater or lesser extent, takes this course. It might be said that in urging the court to take this course the Home Secretary invites the court to decide whether the grounds of appeal had sufficient merit to be arguable, thereby doing the very thing that the Home Secretary condemns in the claimants’ submissions, the only difference being that the Home Secretary invites the court to agree with the Upper Tribunal’s conclusion, whereas the claimants invite the court to disagree with it.

Yet neither side suggests that an invitation to the court by the Home Secretary to adopt this position is an invitation to usurp the functions of the Upper Tribunal. They are plainly right not to suggest this. The court is not asking itself, “What would I have done if I were the Upper Tribunal?” The court asks a different question: “Did rejection of the ground of appeal as unarguable involve a misunderstanding or misapplication of the law?” It might be said that the court’s reasoning process has required the court to ask a question which the Upper Tribunal had to ask – are the grounds of appeal arguable? That, however, is in my view an over-simplification. What the court is examining is the Upper Tribunal’s decision – and in particular the reasons given by the Upper Tribunal for that decision. Thus the court may well reach the extreme position just described because the Upper Tribunal’s reasoning properly drew on expertise which the court does not possess. Of course the allegedly arguable ground of appeal may be one which does not turn on expertise, but nonetheless the court’s task remains that of examining the Upper Tribunal decision to ensure there has been no misunderstanding or misapplication of the law in that decision. There is no usurpation by the court of the functions of the Upper Tribunal.

I add that in this regard I consider the paradigm case to be one where, after examining the Upper Tribunal’s reasons for rejecting the allegedly arguable ground of appeal as plainly wrong, the court makes a finding that there is no misunderstanding or misapplication of the law in those reasons. It might, however, be – and in certain respects the position in the present case is – that the Home Secretary invites the court to hold that, for a reason not given by the Upper Tribunal, an allegedly arguable ground of appeal is plainly wrong. It is of course open to a court to say that it does not need to examine a reason given by the Upper Tribunal, or even that the reasons given by the Upper Tribunal involved a misunderstanding or misapplication of the law, but nevertheless the judicial review fails because the allegedly arguable ground was plainly wrong for some other reason. Reasoning of this kind calls for particular caution. Among other things, before reaching such a conclusion, the court would have to be sure that the Upper Tribunal’s expertise would not lead it to say that the other reason needed consideration at a full hearing.

At the other extreme, there is a second group of cases where submissions at the substantive judicial review may lead the court to conclude that a ground of appeal advanced by a would-be appellant is plainly right, even after making full allowance for the specialist expertise of the FTT and of the Upper Tribunal. It is not difficult to think of circumstances where, perhaps in the light of a recent decision of the Supreme Court, the High Court is satisfied that an allegedly arguable ground of appeal is plainly right. In such a case the High Court will be bound to conclude that there was a misunderstanding or misapplication of the law by the Upper Tribunal. Subject to any further considerations that may arise, for example as to materiality, the judicial review in this regard will accordingly succeed.

Ms Mair submitted that the court on judicial review could not reach a conclusion that the allegedly arguable ground of appeal was correct. Such a conclusion, she said, would usurp the functions of the Upper Tribunal: it would be deciding the question which the Upper Tribunal would have to decide at a full hearing of the appeal. This was advanced as a general proposition. There may nevertheless, as it seems to me, be at least two specific underlying concerns affecting would-be appellants. First, they would wish to counter the “High Court role” contention, which would appear to require the court to pronounce on the correctness of an allegedly arguable ground of appeal. Second, would-be appellants might fear that if the court felt free to enter into the arguments, then it might be tempted to embark upon a detailed analysis which led it to decide the point in issue against the would-be appellants.

In my view Ms Mair’s general concern about usurpation is, for similar reasons to those given above when discussing the first extreme position, an over-simplification. If a ground of appeal urged by the would-be appellant as arguable is considered by the court to be plainly right, then I think it desirable for the court to say so – not so as to usurp the Upper Tribunal’s function, but so as to give an accurate explanation of the court’s reasoning in concluding that the Upper Tribunal had misunderstood or misapplied the law. Before taking this course the court must be sure that there is nothing that engages the Upper Tribunal’s expertise and might lead the Upper Tribunal to say that the matter is not as plain as the court thinks it to be. As to possible specific concerns of would-be appellants, the first relates to the “High Court role” contention, which I examine in later sections of this judgment. The second focuses on something which calls for an exercise of judgment by the court in the light of the public policy objectives of both TCEA 2007 and the overriding objective under CPR 1. Unless the “High Court role” contention requires consideration of whether an allegedly arguable ground of appeal is right, it will often be undesirable for the court to decide a question which the Upper Tribunal may properly be called upon to decide. If the matter is properly within the court’s expertise, however, and a conclusion that the allegedly arguable ground of appeal is plainly right can be reached without making undue demands on court resources, then it may be consistent with the overriding objective to hear argument on the point and decide it.

Between the two extreme positions discussed above lies a third group of cases where the High Court concludes that the allegedly arguable ground of appeal is neither plainly wrong, nor plainly right, but is indeed – even after making full allowance for the specialist expertise of the FTT and the Upper Tribunal - arguable. This, to my mind, is itself a conclusion as to the current state of the law. It is a conclusion reached on a daily basis by judges up and down the land considering whether or not to grant permission to appeal. If an Upper Tribunal FTT permission refusal condemns as plainly wrong a ground of appeal which the High Court considers, after making full allowance for the specialist expertise of the FTT and the Upper Tribunal, to have a real prospect of success, then the refusal decision involves a misunderstanding or misapplication of the current state of the law.

A would-be appellant may rely on an established or arguable legal proposition, only to find that the refusal decision says that the proposition was immaterial to the outcome before the FTT. If it is arguable, however, making full allowance for the specialist expertise of the FTT and the Upper Tribunal, that the proposition was engaged in the case and could have made a difference to the outcome, then the refusal decision involves a misunderstanding as to the current state of the law, or misapplication of that law.

It follows that in this third group of cases, applying first principles, and subject to any further considerations that may arise, the court will be satisfied that the Upper Tribunal misunderstood or misapplied the law, and in this regard the judicial review will accordingly succeed. For similar reasons to those given earlier, there is no usurpation of the Upper Tribunal’s functions. The court is not considering what it would have done if it were the Upper Tribunal, but is instead asking: “Did rejection of the ground of appeal as unarguable involve a misunderstanding or misapplication of the law?” I add that if the answer to that question is “yes,” then the process identified by Lady Hale under which a judge at a higher level must “look at the case and check for error” has gone awry, and – unusually - the High Court has a role in rectifying it because the second appeals threshold was met.

Paragraph 4 of the Home Secretary’s skeleton argument began by acknowledging that the test for the Upper Tribunal when deciding whether to grant permission to appeal was a test of “arguability”. The fundamental point made by the Home Secretary was that “arguability” was for the Upper Tribunal to judge on the merits, bringing to bear its specialist expertise as the body that would hear the appeal. It was because the judicial review test formulated by the claimants would require the court to consider “arguability judged on the merits of the proposed appeal” that the Home Secretary identified a “fundamental error of law”, indeed so fundamental as to underscore the claimants’ “fundamental misapprehension that this is an appeal”.

The solution, identified later in paragraph 4, is that because the case in the court “remains a judicial review”, what is necessary is “to demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal”. This proposed solution immediately prompts the question, would not that solution also lead to the court usurping the role of the decision maker? Under TCEA 2007 it is for the Upper Tribunal, not the court, to decide at the full hearing of the appeal whether or not there has been a material error of law by the FTT.

It seems to me that if the reasoning in the first part of paragraph 4 of the Home Secretary’s skeleton argument were right, then it would apply equally to the solution proposed by the Home Secretary in the second part of paragraph 4. Indeed, the usurpation would be all the more serious, as the court would, on this hypothesis, be required on the judicial review to take over the role of the Upper Tribunal at a full appeal.

The answer, however, is that the problem does not arise. For the reasons given in section D4.3 above, when the claimants’ submission is properly understood it involves no usurpation.

It was in paragraph 4 of the Home Secretary’s skeleton argument that the Home Secretary first set out what I have called the “High Court role” contention. The formulation used in paragraph 4 was that the necessity to demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal arose because the case “remains a judicial review”. For the reasons given above, however, the requirement urged by the Home Secretary is not needed in order to ensure that the court on judicial review avoids the fundamental error of usurping the functions of the Upper Tribunal. That leaves for consideration whether there is any other aspect of judicial review in general, or judicial review of Upper Tribunal FTT permission refusals in particular, which requires such a result. I examine the submissions advanced by the Home Secretary in this regard in sections D5 to D10 below.

Ms Anderson in her oral submissions acknowledged that once permission had been granted the court on the substantive judicial review was not “looking at the Cart test per se”. This, however, submitted Ms Anderson, did not mean that the court could “discard the rationale for what the Cart test is”. I shall refer to the submission which she then developed as “the Cart rationale submission”. As I understood it, the submission was that the reasoning of the Supreme Court in Cart supported the “High Court role” contention.

In support of the Cart rationale submission Ms Anderson took me through paragraphs 47, 50, 51, 89 to 93, 113 and 128 to 130 of the judgments in Cart. That exercise did not persuade me that there was merit in this submission. As was pointed out by Ms Mair in reply, the concerns identified in those paragraphs were addressed by the decision of the Supreme Court to restrict the numbers of cases that would come to a substantive hearing in the Administrative Court, placing additional restrictions in the form of a threshold akin to that for second appeals to the Court of Appeal.

I add that the Cart rationale submission had at least two surprising features. First, it was accepted by the Home Secretary in R (AA (Iran)) that once permission to proceed had been given the claim was freed from the shackles of the second appeals test required by Cart. Ms Anderson does not suggest that I could come to any different conclusion. To my mind, however, if the Home Secretary wanted to submit that Cart imposed shackles other than the second appeals test, then the Home Secretary could have been expected to have made submissions to that effect in R (AA (Iran)). Second, Ms Anderson does not suggest that the Supreme Court in Cart identified any particular substantive content for the further restriction that she submits is called for by “the rationale” of the Cart decision. It seems to me that if the Supreme Court had thought that the rationale for their decision required some further restriction once permission had been granted then the Supreme Court would have provided at least some hint of what that further restriction was or might be.

Ms Anderson submitted that in R (AA (Iran)), if the test were “mere arguability”, the case would have been decided differently. I do not agree.

Certain aspects of R (AA (Iran)) were dealt with in the claimants’ skeleton argument, as set out in section D2 above. The case had a remarkable procedural history. By the time it reached the Court of Appeal, the only substantial issue concerned failure by the Home Secretary to comply with the tracing duty under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. No point on this, however, was taken while the case was being dealt with by the FTT and the Upper Tribunal. The FTT had considered previous findings, made by the FTT itself in an earlier appeal, that the appellant had not faced persecution in Iran and had not lost contact with his family there. In the decision sought to be appealed to the Upper Tribunal the FTT, after hearing witness evidence, confirmed the findings made in that earlier appeal. The Upper Tribunal, refusing permission to appeal, held that:

The [FTT] reached proper, intelligible and adequate conclusions on the evidence before it and these grounds of appeal do not disclose any arguable errors of law therein.

Mr Richard Drabble QC, for the would-be appellant, the claimant in the judicial review, submitted that His Honour Judge Gilbart, at the substantive hearing of the claimants’ application for judicial review, ought to have quashed the Upper Tribunal refusal of permission. Mr Drabble, noting that the breach of the tracing duty was relied upon at the hearing before HHJ Gilbart, advanced an argument that if the claimant had had the fruits of the proper discharge by the Secretary of State of the tracing duty then the FTT might have believed the claimant when he said he had lost contact with his family. The reasons why this argument lacked merit were set out by Maurice Kay LJ in paragraph 15 of his judgment:

15 As KA and its subsequent application in EU make clear, cases in this area are fact-sensitive. In truth, the failure to comply with the tracing duty in the present case had no impact on the repeated rejection of the appellant's primary case that he is a refugee at risk of persecution by reason of imputed political opinion. That is not a child-orientated assertion. It is an assertion that was categorically rejected within its own terms. Once it was rejected, it was a short step to the inexorable inference that the appellant had not lost contact with the family whose whereabouts remain known to him. Two constitutions of the FTT saw and heard the appellant give evidence. He was cross-examined at some length on the second occasion, resulting in the FTT forming a clear view of its own. Mr Drabble submits that it was wrong to allow disbelief about the essentials of the asylum claim to “morph into” a positive finding of continuing contact. I do not agree. Absent the persecutory background, continuing contact is inherently likely. Although the finding is inferential, it is unassailable. It follows that the case is properly positioned towards the end of the KA spectrum in relation to which there is no causative link between the non-compliance with the tracing duty and the appellant's case on a need for protection. As Mr Neil Sheldon submits on behalf of the Secretary of State, non-compliance with the tracing duty simply does not bite on the appellant's claim.

The whole tenor of paragraph 15 is that there was no arguable basis for suggesting that the claimant would have been better off if the Secretary of State had complied with the tracing duty. The “inexorable inference” from findings of fact by the FTT was that the claimant had not lost contact with his family whose whereabouts remained known to him. The decision is thus entirely consistent with my analysis from first principles in section D4.3 above. The judicial review was highly unusual, for it concerned an issue not raised before the FTT and Upper Tribunal, and thus not considered by either of them. The Court of Appeal reached a clear conclusion that the issue raised by Mr Drabble could not have made any difference to the outcome. The case is simply not concerned with what the position would have been if Mr Drabble’s issue had had a real prospect of affecting the outcome.

In support of the “High Court role” requirement the Home Secretary relied upon a submission that unless there were such a requirement the substantive judicial review would be pointless. The reason was that the case would not reach substantive judicial review unless it had been permitted to proceed under CPR 54.7A. The judge granting permission would necessarily have concluded that there was an arguable case that the First-tier Tribunal had erred in law, and accordingly the decision to grant permission to proceed would be determinative of the outcome.

This submission appears to me to ignore the context in which the permission decision is made:

Accordingly the Home Secretary’s pointlessness submission fails. It misunderstands the filtering stage of judicial review procedure.

Ms Anderson in her oral submissions noted that the FTT had rejected the claimants’ contentions as to a current well-founded fear of persecution. The claimants could only succeed, she submitted, if such a fear were demonstrated objectively, adding that this was the most important point in this case. Although she did not say so expressly, Ms Anderson’s reference to “well-founded fear of persecution” must, I think, have been intended as a shorthand for not just such a fear, but also serious harm within the meaning of the Qualification Directive, or treatment contrary to Article 2 or 3 of ECHR: see section B2 above. Her argument sought to support the “High Court role” contention by saying that the High Court could only intervene if the claimants demonstrated a material error of law by the Upper Tribunal, and the High Court could not take a view on credibility or underlying facts for itself.

Ms Anderson maintained that the FTT’s role of assessor of credibility and assessor of the underlying facts meant that, if the claimants established an error by the Upper Tribunal as to “mere arguability”, then this was not a material error of law. The consequence would be that the judicial review could only succeed if the High Court pronounced upon the allegedly “arguable” propositions, and held that the propositions themselves were made good.

The flaw in this analysis is that it ignores the nature of the decision under review. There is no recognition that the Upper Tribunal permission refusal is a filtering decision, depriving the claimants of an appeal because the Upper Tribunal judge considers that an appeal cannot succeed. An appeal is not an opportunity to re-argue findings of fact or of credibility, but in certain circumstances such findings may be the subject of successful challenge. The legal principles governing challenges of this kind are well established. As a matter of appellate procedure, if a ground of appeal relying upon those principles offers a real prospect that an appeal might succeed, then unless there is some good reason to the contrary it will normally be appropriate to grant permission to appeal. This remains the case whether or not success in the FTT required the claimants to satisfy an objective criterion of the kind identified in section B2 above. As regards the FTT’s role in relation to credibility and fact finding, Ms Anderson’s submissions brush aside principles of law that will often lie at the heart of the decision on whether to grant permission to appeal.

In the course of her submissions Ms Anderson cited Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, [2007] Imm AR 57. It was said to support Ms Anderson’s contentions as to the rigour with which the court must look for material errors of law.

Prior to 4 April 2005, the date upon which the Asylum and Immigration Tribunal (“AIT”) came into being, the Home Secretary had appealed to the Immigration Appeal Tribunal (“IAT”) from a decision of an Adjudicator concerned with refusal by the Home Secretary of Mr Mukarkar’s application for indefinite leave to remain as a dependent relative of persons settled in the United Kingdom. In support of his application Mr Mukarkar relied upon the Human Rights Act 1998. The Adjudicator held in Mr Mukarkar’s favour that the Home Secretary’s refusal was in breach of Articles 3 and 8 of the European Convention on Human Rights.

Under relevant transitional provisions the AIT was required, subject to procedure rules, to deal with the appeal from the Adjudicator as if it had originally decided the appeal and was reconsidering its decision. The procedure rules stated that when performing a reconsideration:

Where the reconsideration is pursuant to an order under Section 103A —

(a)

the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law, and

(b)

if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal should stand.

The procedure rule imposing these requirements included a definition of the expression “material error of law”. The definition was that, for the purposes of the rule, a “material error of law” meant an error of law which affected the Tribunal’s decision upon the appeal. This definition, with the transitional provisions, had the effect that the AIT was required to order that the determination of the Adjudicator should stand unless it decided that the Adjudicator made an error of law which affected the Adjudicator’s decision.

The AIT identified errors of law in the Adjudicator’s decision both as regards Article 3 and as regards Article 8. The Court of Appeal (Auld, Sedley and Carnwath LJJ) agreed with the AIT that the Adjudicator had made a material error of law in relation to Article 3. That, however, would not of itself suffice to overturn the Adjudicator’s decision, for unless the Adjudicator had made a material error of law in relation to Article 8 the decision allowing Mr Mukarkar’s appeal to the Adjudicator was bound to stand. The Court of Appeal considered the two material errors of law in relation to Article 8 which the AIT had found to exist, along with a third suggested material error of law urged upon them by the Home Secretary, and found that no material error of law in relation to Article 8 had been made by the Adjudicator. The appeal to the Court of Appeal accordingly succeeded and the Adjudicator’s decision was restored. The decision in Mukarkar by the Court of Appeal was essentially a straightforward decision that the Adjudicator had identified the correct legal tests on Article 8, and had given reasons which were carefully and fully explained, when deciding the issue of proportionality in favour of Mr Mukarkar.

I have not detected anything in the decision which bears upon the Home Secretary’s contentions in the present case. Nothing in the Mukarkar decision involves any reference to the powers of the court on judicial review. The jurisdiction of the Adjudicator, the AIT, and of the Court of Appeal itself, was statutory. The Court of Appeal did not find it necessary to refer to that court’s own statutory powers. As it happens, under section 103B of the Nationality Immigration and Asylum Act 2002, as inserted by section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the ability to bring an appeal to the Court of Appeal from a decision of the AIT on reconsideration lay “on a point of law”. The Court of Appeal did not consider it necessary to observe that if the AIT wrongly holds an Adjudicator to have made an error on a point of law, then the AIT itself has made an error on a point of law which the Court of Appeal can rectify pursuant to the statutory power to bring “a further appeal on a point of law” to the Court of Appeal. This seems to me to be so obvious as to go without saying.

There is however a general observation by Carnwath LJ, with whom Sedley LJ and Auld LJ agreed, which seems to me to have relevance to the present case. It is found in paragraph 41 of Carnwath LJ’s judgment:

41.

There is a more general point. One of the main purposes of the 2005 reforms was to streamline the appeal process, and reduce the scope for onward appeals. If this legislative policy is to be successful, it must work both ways, and those advising the Secretary of State may be expected to give a lead. That requires restraint by them, as well as by judges considering applications for the grant of leave. If this means living with some decisions which go against the grain of current government policy, that is a price which may have to be accepted in the interests of the wider objective.

In the present case, I have already noted the long delay which occurred between the Home Secretary’s request for a hearing, notified to the court on 9 July 2014, and the provision of the Home Secretary’s grounds on 6 March 2015. When those grounds were lodged they contained only an enigmatic hint of far reaching submissions later advanced in the Home Secretary’s skeleton argument. That skeleton argument was not received until the day before the hearing. When extensive new submissions are lodged at a late stage, with neither opposing counsel nor the court given an adequate opportunity to consider them in advance of the hearing, it is hardly surprising that the hearing could not be completed within the time originally allocated. All these features of the Home Secretary’s conduct of the case were inimical to streamlining. As explained in section G below, the Home Secretary then made a proposal which was both misconceived and notified to the court at far too late a stage, the result being an unintended derailment of the adjourned hearing. I acknowledge that the court’s resources are stretched, leading among other things to the delay in putting papers before a judge for consideration of permission, and to delay in production of the present judgment. If the court is to achieve the objective of streamlining cases of this kind, however, the Home Secretary must take steps which promote rather than frustrate that objective.

Paragraph 4 of the Home Secretary’s skeleton argument involved what I described earlier as a second, and subsidiary, category of reasoning. This is found in the second to last sentence of paragraph 4. According to that sentence, a requirement to demonstrate a material error of law in both the decision of the FTT and the decision of the Upper Tribunal:

is set out in terms by Part 54.7A(7) that requires the application to demonstrate that the decisions of the FTT and Upper Tribunal are ‘wrong in law’.

As I understand it, this is intended to be a reference to paragraph (7)(a) of CPR 54.7A. This paragraph is set out in section C above, but for convenience I repeat it here:

(7)

the court will give permission to proceed only if it considers –

(a)

that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought are wrong in law…

Comparison of paragraph (7)(a) and the second to last sentence of paragraph 4 of the Home Secretary’s skeleton argument immediately reveals the flaw in this second category of reasoning. What paragraph (7)(a) is concerned with is the stage of permission to proceed. Here paragraph (7)(a) imposes two requirements. The first is that there must be an arguable case (in the sense described in section D3 above) that the Upper Tribunal’s decision is “wrong in law”. It is conceivable that across the field of judicial review claims generally there might, exceptionally, be circumstances where despite the absence of an arguable case that the decision-maker was “wrong in law”, permission to proceed should nevertheless be granted. What the first requirement in paragraph (7)(a) does is to rule out the existence of such circumstances as a basis for grant of permission to proceed if the decision sought to be reviewed is an Upper Tribunal FTT permission refusal.

The second element in paragraph (7)(a) is the requirement that there must be an arguable case (also in the sense described in section D3 above) that the decision of the FTT against which permission to appeal was sought is “wrong in law”. In his Guidance Note Blake J pointed out that the existence of reasonable prospects of success is not a pre-condition to grant of permission to appeal. Paragraph 14 of the Guidance Note observed that a point of law might be of such general importance as to justify the grant of permission even though the prospects of the appellant succeeding may not be substantial. Paragraph 14 added that such cases would be rare. What the second requirement in paragraph (7)(a) of CPR 54.7A does is to prohibit the grant of permission to proceed in cases falling within this rare category if the decision sought to be reviewed is an Upper Tribunal FTT permission refusal.

In these circumstances I cannot identify any part of CPR 54.7A(7) in which the Home Secretary’s “High Court role” requirement can be said to be “set out in terms”. No such requirement is set out expressly. Moreover, because CPR 54.7A(7) imposes a filtering requirement, it seems to me that paragraph (7)(a), like paragraph (7)(b), is not concerned to identify a criterion applicable at the substantive judicial review. It is common ground that the Court of Appeal decision in R (AA (Iran)) has the consequence that at the substantive stage the claim is freed from the shackles of paragraph (7)(b). By parity of reasoning, it seems to me that the same must be true of paragraph (7)(a).

For the reasons given above, in my view the High Court may reach a conclusion that an Upper Tribunal FTT permission refusal is vitiated because the Upper Tribunal misunderstood or misapplied the law when holding that the would-be appellant had identified no arguable ground of appeal. Where the High Court reaches that conclusion, it may be because, after making full allowance for the expertise of the FTT and the Upper Tribunal, it considers a ground of appeal to have been plainly right. It may more usually reach that conclusion in circumstances where, after making the same allowance, it considers the ground of appeal to have a real prospect of success. I am not persuaded by the Home Secretary’s contentions that an Upper Tribunal FTT permission refusal will only be vitiated if the High Court determines that the FTT did indeed make a material error of law. On the contrary, for the reasons given above, an Upper Tribunal FTT permission refusal may be vitiated if the Upper Tribunal misunderstands or misapplies the relevant law in refusing permission for an argument which has a real prospect of success. I do not exclude the possibility that there is some good reason for not quashing the refusal decision in the particular circumstances of the case, but there is no general restriction of the kind urged by the Home Secretary’s “High Court role” contention.

The Upper Tribunal’s decision in the present case

For reasons explained in section F below, I conclude that in relation to each of the three grounds for judicial review the Upper Tribunal permission refusal has involved a material misunderstanding or misapplication of the law. The submissions on the grounds for judicial review have, as a direct result of the Home Secretary’s “High Court role” contention, necessarily involved examination of the detailed reasoning of the FTT. In these unusual circumstances, having heard and considered those submissions, I conclude that the claimants’ arguments demonstrate that the claimants’ grounds of appeal, as put before the Upper Tribunal when seeking permission to appeal, were plainly right.

Thus I have not taken the approach identified in section D11 above as the approach which may more usually be taken where, at a substantive judicial review of an Upper Tribunal FTT permission refusal, the court is persuaded that the Upper Tribunal has misunderstood or misapplied the relevant law. I stress that this is not because I accept the “High Court role” contention. It is because the submissions that I have heard enable me to conclude that on the current state of the law, and after making full allowance for the expertise of the FTT and the Upper Tribunal, relevant parts of the grounds of appeal were not merely arguable, but were bound to succeed in law. In section F below I explain why this is so, examining each ground for judicial review in turn.

The three grounds for judicial review

Ground 1 is concerned with something fundamental to the doing of justice: procedural fairness. Relevant passages in the FTT’s Determination and Reasons appear under the heading “Findings upon the appellants’ claim for international protection”, and run to some six pages. They are summarised below, using “DR n” to refer to paragraph n in the Determination and Reasons. DR 28 stated:

28.

We have only made findings on fact and credibility having considered all of the evidence including the country background evidence and any relevant country guidance and after taking great care. We appreciate that asylum seekers may seek to exaggerate or embellish their case, but that nevertheless the core of their account may nonetheless be truthful. I have taken account of the need to evaluate the evidence as a whole.

DR 29 set out findings of fact in four groups. The first group comprised DR 29(1), which began with the following:

(1)

Although the respondent has not disputed that the first appellant was trafficked to [the trafficking destination country], we find that she has not been straightforward in her account of this. We say this for the following reasons:

The reasons given in support of DR 29(1) were in a series of sub-sub-paragraphs numbered (i) to (vi). What I shall call reason (1)(i) observed that G’s witness statement said she had met a man whom I shall call “trafficker 1” three and a half years after a certain event. That did not fit in with what G said when interviewed by immigration officers here. Her account in interview could also not be reconciled with her age. On this, the FTT said:

Having considered all the evidence in the round, we are drawn to the inevitable conclusion that the first appellant’s alteration in her statement as to how long she was working at the restaurant was an attempt by her to make her case fit together.

Reason (1)(ii) stated:

We also take into account that in her screening interview, which we appreciate was not a detailed fact-finding exercise, [G] said that she was working as a prostitute in Nigeria (question 4.2) whereas her case is that she was only forced into this following her arrival in [the trafficking destination country]. When asked about this inconsistency at the hearing, [G] at first denied saying this before attempting to explain this by referring to the fact that she was pregnant at the time of the interview and then said that she had decided to tell them anything. Her differing explanations about this were unsatisfactory. The respondent’s acknowledgement of the trafficking claim has to be seen in the light of [G]’s admission to us that she had decided to tell the respondent anything.

Reason (1)(iii) cited from the assessment report prepared by Surrey County Council (see section B2 above). It set out a passage recording G giving an account of going to the trafficking destination country without making any reference to having been trafficked there. The FTT commented:

This account is completely at variance with [G]’s present claim of having been trafficked to [the trafficking destination country] where she was forced into prostitution.

Reason (1)(iv) summarised what G said in her witness statement to the effect that after arrival in the trafficking destination country she was met by trafficker 2 (see section B2 above) who took her to his place, and that it was after two days that she swore the “juju” oath. However G’s account in interview had been that it was after a week, and in different circumstances, that trafficker 2 had made her swear an oath. The FTT commented that G “has not been consistent as to how long she had been in [the trafficking destination country] when all this happened”.

Reason (1)(v) stated:

v)

[G]’s chronology in interview as to when she left Nigeria and arrived in [the trafficking destination country] also does not make sense, as she claims that she left Nigeria in September …, but arrived in [the trafficking destination country] on 7 December [in the same year]. Her claim is that she flew directly from Nigeria to [the trafficking destination country]. We find that [G] has not given a straightforward account of when she arrived in [the trafficking destination country].

Reason (1)(vi) stated:

We again have taken account of the fact that the screening interview was not a detailed interview, but note that at question 2.5, when asked what document she had used to travel to the UK she said that she had paid someone [a sum of money] for the ID in [a name which was not G’s]. This does not sit well with what [G] said in interview about a customer saying that he would pay for the ID and that when she left [trafficker 2] one afternoon she met up with the customer and he gave her the ID and the ticket. If the customer provided the ID and paid for it as now claimed, we do not accept that she would have previously told the respondent that she had paid [the sum of money] for this document.

The second group of findings of fact concerned what G said in relation to her mother. In this regard DR 29(2) stated:

(2)

[G] claims that her mother has been subjected to threats of violence from the traffickers since [G] left [the trafficking destination country]. We do not accept what she says about this for the following reasons:

What I shall call reason (2)(i) noted inconsistencies in G’s account as to who it was that had been intimidating her mother, and commented:

We do not accept that if her mother was being threatened and attacked that the appellant would have been confused as to who was responsible for this.

Reason (2)(ii) noted that despite G’s claims to be in contact with her mother, there was no supporting evidence from G’s mother about the threats that G described, adding:

Whilst we appreciate that there is no requirement for corroboration in claims for international protection it is nevertheless remarkable that notwithstanding the fact that [G] is in contact with her mother, there is no statement, letter or other evidence from [G’s] mother or her siblings about these threats.

Reason (2)(iii) then stated:

iii)

Looking at all of the evidence in the round, we do not find it plausible that [G]’s mother would have told [trafficker 2] or [trafficker 1] (whichever it was) that [G] is now in the UK.

Reason (2)(iv) stated:

We appreciate that threats made by traffickers to the family of a victim who had escaped them might be designed to extract cash. This might explain why threats to kill had not been carried out. However, we do not find it plausible that they would have taken the trouble to track down [G]’s mother to another village and thereafter have continued to visit [G]’s mother making threats up to as recently as 2013 when on her own account [G] left [the trafficking destination country] and the clutches of her traffickers some six years previously. All their previous attentions had led to nothing and we do not consider that they would have seen any point in wasting further time and effort on [G]. The country background material tells of the high volume of trafficking from [G’s home state]. The traffickers are running an evil trade, but it is nevertheless a form of business. We do not consider it reasonably likely that they would have been wasting their time six years later looking for [G] rather than concentrating on acquiring new victims to make money from.

Reason (2)(v) stated:

v)

We have taken into account the evidence given to us by [the male witness] and [the female witness] who were clearly well intentioned and truthful witnesses. They spoke of [G]’s apparent anxiety and her claimed fear that someone may have come to the house for her. [G] says however that she has managed to live in the UK since 2007 and does not report any incidents in which she has ever felt threatened by anyone here. She also claims to have been working in the care industry; her apparent anxiety has clearly not prevented her from being able to work to support herself by using false documents.

Reason (2)(vi) stated:

vi)

[G] claims to have been aware of these threats to her mother since arrival in the United Kingdom. If she were genuinely fearful of return to Nigeria, then we have no doubt that she would have raised these fears with the respondent in the six years before she was arrested trying to leave the United Kingdom. At no time during this period does she claim to have been under the control of her persecutors.

Reason (2)(vii) stated:

vii)

We have considered the psychiatric report of Dr Rhodri Huws, when assessing the evidence as a whole and considering issues on credibility. [G’s] account to him of what happened to her and how she became a prostitute is at variance with what she said to the official from Surrey County Council. In relation to the claimed rape when she was 16, it is also noteworthy that Dr Huws was told by [G] that the police knew who the four boys were but were unwilling to go ahead with any formal investigation unless her family paid them, which they were unable to do. In her asylum interview however [G] said at question 46 that she could not mention their names. She said at question 49 that there were no other witnesses and at question 54 that she had not reported the incident to the police because she had been threatened. Her account to Dr Huws is another example of where she has not been consistent in relation to important events in her life. We are satisfied that if the police had demanded a bribe to investigate the rape she would have mentioned this in the asylum interview rather than suggest the police had not been told. Dr Huws opines that [G] has been suffering from a depressive illness of moderate severity and has responded to treatment. He says that this was precipitated by her partner leaving her during her pregnancy and worsened following her imprisonment and difficulties with immigration. Dr Huws describes [G]’s experiences in Nigeria and [the trafficking destination country] as being predisposing factors for the depression. Having considered all of the evidence in the round, we find however that [G] has not given a straightforward account of what happened to her in either Nigeria or [the trafficking destination country]. This has a bearing upon the weight to be attached to these opinions.

DR 29(3) concerned information about the position in Nigeria:

(3)

We have taken into account all of the country background material put before us. We have already referred to the expert report prepared by Ms Bisi Olateru-Olagbegi. We find that her opinions on the risk of re-trafficking are based upon a false account from [G] of what has happened. … For the reasons that we have already explained, we are not satisfied that [G] has given a truthful account of what happened to her in [the trafficking destination country], but in any event even if she was trafficked there, we do not accept that she or her family have been subjected to further threats from those traffickers. [G] is in continued contact with her mother. She said that her mother was being supported by her sons in Nigeria. This all demonstrates to us that [G] and her daughter would have a network of family support available to them upon return to Nigeria. We do not accept that she would be of any adverse interest to anyone upon return to her home area. In as much as she has problems with depression and would not have access to the same level of counselling and support from medical sources, she would have the support of her family to turn to instead. We also take into account that according to what she says [G] was able to work here [for a period of six years] and has thus shown herself capable of working to support herself. We also conclude in the light of the interim country guidance and the background material that even if the appellant were to face problems from traffickers, the State is able and willing to afford a sufficiency of protection to her.

DR 29(4) concerned the risk to H of being subjected to FGM:

(4)

There is no dispute that [G] was herself subjected to FGM as a child. Nowhere has [G] said that since the birth of her daughter any suggestion has been made by her mother that [H] should be circumcised. We cannot just assume that because [G] was circumcised 28 years ago that her mother still believes in this practice. [G] herself when interviewed for the Core Assessment by Surrey County Council stated that she knew circumcision was illegal here and described it as a “stupid idea” although she said it was the norm and tradition in her tribe. She claimed that “back in Africa you did not have a choice”. However, in her witness statement, [G] clearly states at paragraph 29 that she does not want her daughter to be circumcised. FGM is illegal in Nigeria and in particular in [G’s home state] albeit that the punishment may be derisory. According to a US State Department report … the majority manage to avoid the practice in [G’s home state]. The report also states that in [G’s home state] the practice is more commonly performed within a few days after birth. [H] is now nearly 11 months old. [G] has in our view shown herself to be a resilient individual. She claims to have escaped from human traffickers and thereafter has managed to support herself through employment in a foreign country. She says nothing about any family pressure to have her daughter circumcised and has expressed her desire not to have this happen. We find having considered all of the evidence in the round that it has not been shown to the low standard [H] with the protection of her mother would face a real risk of being subjected to FGM upon return to Nigeria.

This part of the Determination and Reasons ended with DR 30:

30.

We therefore conclude that [G and H] have not shown to the low standard that they are outside the country, of their nationality owing to a well founded fear of persecution either for a convention reason or at all. Accordingly, we dismiss the appeal under the Refugee convention. For the same reasons, we find that [G and H] are not entitled to Humanitarian Protection and are not at risk of treatment contrary to Article 2 or 3 of the ECHR.

Section C above sets out extracts from paragraphs 14 to 26 of the claimants’ grounds, which themselves substantially reflected the proposed ground 1 of appeal to the Upper Tribunal. What can be seen from those extracts is that the claimants identified unfairness in two of the bases on which the FTT disbelieved G’s core account of being trafficked. The two bases were:

The alleged unfairness can, in my view, be analysed as involving express or implicit assertions as follows:

This was a formidable ground of appeal. If the points identified at paragraphs (1) to (3) of my analysis above gave a correct account of what happened in the FTT, then that account rang obvious alarm bells about procedural fairness. There was no suggestion in the Upper Tribunal permission refusal decision that it was not a correct account. Far from it: as Ms Mair stressed in paragraph 2 of the claimants’ grounds, in the UT’s first and second reasons there is a passage which appears to accept that, arguably at least, the FTT had failed to do what it should have done. With additional numbering added in square brackets for convenience, the passage states:

[2.1] Even if the judge should have put the appellant on notice that the evidence at the hearing led him to question the respondent’s concession about past trafficking …

On judicial review ground 1 the starting point for the Upper Tribunal’s reasons is the passage cited at the end of the preceding section. From this passage it would seem that the Upper Tribunal did not take issue with the features of the case which I have summarised in paragraphs (1) to (3) of my analysis above.

I note in passing that there are two unfortunate slips here and elsewhere in the Upper Tribunal’s reasons. First, while this passage gives the impression that the decision below was made by a judge sitting alone, in fact, as noted in section B above the FTT comprised a judge of the FTT and a lay member. Second, there were two appellants. I stress that these are obvious slips to which no significance should be attached. I am sure that the Upper Tribunal permission refusal decision did not intend to suggest that the FTT decision was anything other than a decision of both the judge and the lay member. As to giving the impression that there was just one appellant, the Upper Tribunal adopted terminology in the grounds of appeal, which referred to “the Appellant and her daughter”.

The Upper Tribunal’s reasons for refusing permission to appeal on ground 1 are set out in the remainder of the Upper Tribunal’s first and second reasons, and in the first sentence of the Upper Tribunal’s third reason. With additional numbering (“identifiers”) added in square brackets for convenience, they are:

1.

The issue before the panel, as set out in the determination, was whether [G] would be at risk on return from the traffickers.

2.

… [2.2] [the FTT] was fully entitled, for the detailed reasons which [it] gave, to find that [G’s] evidence about a present threat was not credible. [2.3] That was clearly the focus of the hearing. [2.4] The [FTT] was not obliged to put each and every point to the appellant. [2.5] No claim to fear return was raised until six years after [G’s] arrival in the UK [and] after her arrest for using a forged ID card. [2.6] Overall [the FTT’s] reasons for rejecting [G’s] evidence are clear and sustainable.

3.

[3.1] The expert evidence was properly considered and rejected on the basis that, even if the appellant was trafficked to [the trafficking destination country], she had not been subjected to further threats. …

What is apparent from the above is that the main element in the claimants’ first ground of appeal that is rejected by the Upper Tribunal is the assertion, repeated in paragraph 14 of the claimants’ judicial review grounds, that the FTT dismissed the appeals “largely on the basis of” the inconsistencies complained of. This assertion constitutes paragraph (4) of my analysis above.

Consistently with this, at [2.2] and [3.1] the Upper Tribunal refers specifically to the FTT’s detailed reasons concerning G’s evidence about a present threat and the alleged further threats said to support the existence of a present threat, rather than the FTT’s detailed reasons concerning G’s evidence on the trafficking claim. The only apparent exception is at [2.4]. In saying that there was no obligation to put each and every point, the Upper Tribunal appears to be addressing the complaint that five of the six “inconsistencies” had not been raised with G during the course of her evidence. Even here, however, the Upper Tribunal is not going back on the assumption explicitly made in [2.1] that the FTT should have put G on notice of an intention to question the Home Secretary’s concession. Accordingly I treat the exception at [2.4] as immaterial.

Thus the Upper Tribunal, for the purposes of refusing permission to appeal, does not dispute that the FTT decision was in breach of principles of procedural fairness, and thereby “wrong in law”, in going behind the Home Secretary’s concession without notice to the claimants. With one immaterial exception, the reasons given by the Upper Tribunal for refusing permission to appeal on the claimants’ first ground of appeal are all reasons which say, in broad terms, that any such breach by the FTT made no material difference to the outcome.

The claimants’ stance, in broad terms, was that it was not possible to compartmentalise the FTT’s reasoning leading to its rejection of the claimants’ case on the dangers to them if they were returned to Nigeria. Accordingly principles in the leading case of R. (Maheshwaran) v SSHD [2002] EWCA Civ 173 entitled them, despite the Upper Tribunal’s reasoning on materiality, to maintain their complaint about going behind the concession. I examine this stance, and additional points made by the claimants, in sections F1.5 to F1.8 below.

Turning to the Home Secretary’s stance, there are two preliminary matters to mention. The first is that the detailed grounds of defence did not dispute that the claimants’ grounds accurately described the concession made by the Home Office presenting officer prior to the start of oral testimony. It was nevertheless suggested by the Home Secretary in oral submissions that the court was bound by the description given by the FTT at DR 10 (see section B2 above). I do not agree. Ms Mair was at the hearing before the FTT. The Home Secretary has known from the outset of these judicial review proceedings that Ms Mair’s recollection of the concession was that the Home Secretary accepted G’s account of trafficking to the trafficking destination country, and that it was not a mere concession that G had been trafficked to that country. Consistently with this, Ms Mair’s contemporaneous note of the concession was that the Home Secretary accepted that there had been trafficking in this case “as claimed”. No evidence was produced by the Home Secretary that the concession involved anything other than an acceptance of the accuracy of what was said in G’s witness statement about being trafficked. There is nothing in the FTT Decision and Reasons to indicate any consciousness on the part of the FTT that its reasoning might be open to criticism for going behind the concession without adequate warning, and thus no reason to think that the FTT in paragraph 10 was seeking to give a precise account of the extent of the concession. In these circumstances I have no hesitation in accepting the claimants’ account as to the extent of the concession that was made.

The second preliminary matter concerns the opening words of DR 29(1). Those words acknowledged that the Home Secretary had not disputed that G was trafficked to the trafficking destination country, and went on to say that although this was the case, “we find that [G] has not been straightforward in her account of this.” This is the first of the “findings of fact” referred to at the outset of paragraph 29. However, so far as the actual history was concerned, the general proposition that G had not been straightforward in her past accounts was not in dispute, nor could it have been. Consistently with this, the claimants’ concern is not about the opening words of DR 29(1), but about the reasons which were then set out, and the impact that those reasons had on other findings made in paragraph 29. Particular features of the reasons set out in DR 29(1) included at the very outset, in reason (1)(i), that having “considered all the evidence in the round” the FTT was drawn “to the inevitable conclusion that [G’s] alteration in her statement [produced for the hearing before the FTT] as to how long she was working [at a particular place in Nigeria prior to being trafficked] was an attempt by her to make her case fit together.” At reason (1)(ii) [G’s] differing explanations on a particular matter were described as “unsatisfactory”. At reason (1)(iii) it was noted that the account given by [G] to Surrey County Council was, on the aspect in question, “completely at variance with [G’s] present claim of having been trafficked to [the trafficking destination country] where she was forced into prostitution”. These, and the remaining reasons in DR (1), were all reasons which did not merely support an uncontentious conclusion that G had not been straightforward in her historical accounts. They were reasons for saying that G’s account in her witness statement to the FTT concerning being trafficked was untruthful. Moreover the FTT expressly stated at DR 29(3) that for “the reasons already explained, we are not satisfied that G has given a truthful account of what happened to her”.

As to the substance of the Home Secretary’s stance, the Home Secretary’s grounds did not dispute that the FTT’s decision amounted to a “rejection” of G’s trafficking claim. Nor did the Home Secretary’s grounds dispute that the FTT’s decision went behind the concession made by the Home Secretary at the outset of the hearing. Instead, the Home Secretary’s grounds effectively asserted that there was no procedural unfairness on the part of the FTT in going behind the concession. Moreover they identified additional reasons for saying that, if there was procedural unfairness, it was immaterial to the outcome.

For completeness, I add that:

Below I deal in section F1.5 with the decision of the Court of Appeal in Maheshwaran. I turn in section F1.6 to examine the Home Secretary’s reasons for saying that there was no procedural unfairness in going behind the concession. In section F1.7 I examine the Upper Tribunal’s reasons for reaching the conclusion that any procedural unfairness in this regard was immaterial. I then turn in section F1.8 to examine additional reasons given by the Home Secretary for reaching this conclusion. In each of sections F1.6 to F1.8 I leave over for later consideration the question whether the specialist expertise of the FTT and the Upper Tribunal may have a bearing on my reasoning. In section F1.9 I consider that question and I summarise my conclusions.

It is common ground that Maheshwaran is the leading case in the Court of Appeal on this aspect. That case concerned a proposition, advanced on behalf of Mr Maheshwaran, that:

if the Home Secretary does not challenge an assertion of fact made by a claimant before an adjudicator and the adjudicator does not raise with the claimant doubts about the veracity of his assertion, the adjudicator is bound to accept that assertion as proved if not to do so may be material to his determination

The Court of Appeal considered that this proposition was too broadly framed. They accepted submissions by Ms Anderson, who appeared for the Home Secretary in that case, that it was not a proposition “to be rigidly applied to all situations”. On the facts in that case an adjudicator’s reasons expressed scepticism as to whether Mr Maheshwaran’s evidence about his sister joining the LTTE could be believed. That evidence had not been challenged at the hearing. The High Court held that the adjudicator acted unfairly, but the Court of Appeal disagreed: the adjudicator's scepticism on this aspect had not been a basis for the more general finding by the adjudicator that Mr Maheshwaran was not to be believed.

The Court of Appeal’s judgment dealt extensively with the role of adjudicators, and with the general requirements of procedural fairness. Among other things, the judgment stated in paragraphs 3 to 6:

3.

Those who make a claim for asylum must show that they are refugees. The burden of proof is on them. Whether or not a claimant is to be believed is frequently very important. He will assert very many facts in relation to events far away most of which no one before the adjudicator is in a position to corroborate or refute. Material is often adduced at the last minute without warning. From time to time the claimant or the Home Secretary are neither there nor represented and yet the adjudicator carries on with his task. He frequently has several cases listed in front of him on the same day. For one reason or another not every hearing will be effective. Adjudicators can not be expected to be alive to every possible nuance of a case before the oral hearing, if there is one, starts. Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before and at the hearing. They will look carefully at the documents that have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given.

4.

Undoubtedly a failure to put to a party to litigation a point which is decided against him can be grossly unfair and lead to injustice. He must have a proper opportunity to deal with the point. Adjudicators must bear this in mind. Where a point is expressly conceded by one party it will usually be unfair to decide the case against the other party on the basis that the concession was wrongly made, unless the tribunal indicates that it is minded to take that course. …

5.

Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that ‘least said, soonest mended’ and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal's attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.

6.

The requirements of fairness are very much conditioned by the facts of each case. This has been stressed in innumerable decisions — see the many citations to this effect in Rees v Crane [1994] 2 A.C.173 . We have no doubt that the claimant's submission is framed in terms which are far too wide and in words which are not to be rigidly applied to every situation. Whether a particular course is consistent with fairness is essentially an intuitive judgment which is to be made in the light of all the circumstances of a particular case — see R v Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531 per Lord Mustill at p.560D. …

As to whether there was procedural unfairness, the fundamental stance taken by the Home Secretary was that the claimants’ submissions on Maheshwaran were wrong. This was a bold stance. At first sight paragraph 4 of the Court of Appeal judgment, in what it said about cases where there has been a concession, is directly applicable to the present case.

In my view this stance was too bold:

For all these reasons I conclude that the FTT’s rejection of G’s core account of trafficking, and the reasons put forward by the FTT in that regard, involved elementary and serious breaches of the principles of procedural fairness.

Below I discuss the Upper Tribunal’s reasoning on materiality. For convenience only I use the identifiers set out in section F1.3, and at the end of section F1.2, above. I stress that the Upper Tribunal’s reasons are not to be read as if they were in a statute. They are to be read as a whole, and against the background of the grounds of appeal.

The Upper Tribunal’s first reason was that the issue before the panel was whether G would be at risk on return from the traffickers. This is referred to again in sentence [2.3], pointing out that this was the focus of the hearing. However, while “risk on return from the traffickers” was the main focus of the hearing for present purposes, the reasoning in DR 29(1) was relied on by the FTT as diminishing the claimants’ ability to rely generally on the reports of Dr Huws, Dr Nutt and Ms Olateru-Olagbegi. Moreover, the context, as partially set out in the passage at [2.1], is that there has been procedural unfairness. The enquiry as to materiality arises because in DR 29(1) and elsewhere the FTT has concluded, in a manner that was procedurally unfair, that G lied in the account of trafficking given in the witness statement submitted to the FTT with the inevitable corollary that she gave inaccurate information to Dr Huws, Dr Nutt, and Ms Olateru-Olagbegi.

At [2.2] and [3.1] the Upper Tribunal asserts that the FTT was fully entitled, for the detailed reasons which it gave, to find that G’s evidence about a present threat was not credible. In context, the Upper Tribunal could only have reached this conclusion if satisfied that the FTT’s decision on “present threat” would have been the same even if the FTT had not concluded that G had lied in her witness statement, and to the authors of the expert reports, in what she said about being trafficked. As to that, however:

Thus the Determination and Reasons repeatedly attaches strength, significance and pervasiveness to the FTT criticisms, in DR 29(1) and elsewhere, of G’s account of trafficking. It does not say that the FTT’s decision would have been the same in the absence of those criticisms. In these circumstances it is not possible to conclude, in relation to “present threat”, that the FTT’s decision would have been the same if there had been an adequate warning that the FTT had in mind specific criticisms with a view to concluding that G’s account of trafficking had been invented.

At [2.5] the Upper Tribunal said that no claim to fear return was raised until six years after G’s arrival in the UK and after her arrest for using a forged ID card. As to that, the lateness of the claim to fear return was expressly relied upon by the FTT at reason (2)(vi). I find it difficult to see how this can be given substantial weight if, as had been conceded by the Home Secretary, the account of trafficking given in G’s witness statement was true. The aspect of fear being addressed in reason (2)(vi) concerns treatment from the traffickers. It is right that G did not assert fear of return to Nigeria until arrested. At that stage she was pregnant, and made no mention of the trafficking. The fears that she raised concerned other dangers that would arise on return to Nigeria. It was only after H was born that G first gave any account of being trafficked. Thus the account of trafficking came even later than G’s account of fear as to what would happen on return to Nigeria. The Home Secretary plainly did not consider that if G were trafficked she would have revealed this earlier than H’s birth. It is obviously inconsistent with this for the FTT to say that the position is different in relation to revealing fear of what the traffickers would now do. I add, although it is not necessary to do so for present purposes, that the obvious reason why the Home Secretary and the Competent Authority accepted G’s account of trafficking, despite it being given so late, was that G had not disclosed that account earlier because she feared what would happen as a result of disclosure.

The Upper Tribunal’s second reason concluded by saying at [2.6] that overall the FTT’s reasons for rejecting G’s evidence were “clear and sustainable”. For the reasons given above I do not consider that this is consistent with the premise at [2.1].

In this section I summarise, and comment upon, the Home Secretary’s arguments on materiality.

The Home Secretary sought to advance a counter-argument to the contention that little significance should be attached to late disclosure, it being commonplace in trafficking cases given the shame and other matters associated with trafficking. The counter-argument made an assertion that “the FTT did not rely on late disclosure or even the very belated nature of the asylum claim (despite the legal obligation to consider this), so the opportunity to make such submissions could not make any difference”. However this assertion ignores reason (2)(vi). Moreover it seems to me that when asserting inconsistencies the FTT did indeed rely on late disclosure of matters first revealed in February 2013 and April 2013. The result is that this counter-argument is unfounded.

The Home Secretary asserted that the FTT’s concern was about inconsistencies in various accounts that had been given by G. I agree that this appears to have been a major part of the FTT’s concerns. For the reasons given in section F1.7 above, that fact does not mean that the FTT’s breach of procedural fairness had no impact upon the outcome.

It was said in paragraph 17 of the Home Secretary’s grounds that the claimants’ claim was bound to fail regardless of the rejection of the earlier trafficking since there had been a failure to prove “a current well founded fear of persecution or Article 3 ill treatment”, and that accordingly the Upper Tribunal had been correct to refuse permission to appeal. I assume that the words quoted were intended to encompass the humanitarian protection claim under the Qualification Directive, and the claims for breaches of Articles 2 and 8 of ECHR. On that footing, this is an argument which relies on the FTT’s reasoning on lack of well founded fear of persecution, lack of risk of serious harm, and lack of grounds to rely on Articles 2, 3 and 8 of ECHR. The argument depends on an underlying proposition that that reasoning was not materially influenced by the conclusion that G had lied to the FTT, to Dr Huws, to Dr Nutt and to Ms Olateru-Olagbegi in her account of being trafficked. However, for the reasons given in section F1.7 above, the underlying proposition cannot be made good.

At paragraph 28 of the Home Secretary’s skeleton argument the Home Secretary advanced the following submission:

28.

At paragraph 29(2) of its decision the FTT goes on to note the inconsistencies in [G’s] evidence in relation to her account of her alleged traffickers intimidating her mother to support a current risk to persecution. Whatever [G] believed about the account of being trafficked … there was no ground to consider that the fundamental basis of her alleged current fear of persecution was not in issue. It follows that her procedural unfairness point is immaterial as well as unfounded.

As to this, of course it is right that G plainly knew that her account of threats to her mother was in issue. The conclusion that the procedural unfairness point is “immaterial”, however, does not follow. The reason is that it is necessarily premised on the underlying and unsound proposition noted above.

Oral submissions for the Home Secretary added that the FTT’s reasoning in the fourth sentence onwards of DR 29(3) shows that the FTT’s conclusion and reasoning on G’s account of trafficking were immaterial to the outcome. As noted earlier, however, DR 29(3) does not state that the FTT has, for the purposes of that sub-paragraph, put on one side the criticisms identified in DR 29(1). Moreover, on all the matters dealt with in the fourth sentence onwards, the claimants relied on the reports of Ms Olateru-Olagbegi, Dr Huws and Mr Nutt as to G’s ability to take steps to safeguard herself and H. It is clear, as it seems to me, that the FTT’s conclusions on all these matters are conclusions which were reached after discounting those reports because, in the FTT’s view, G had lied to the authors about having been trafficked.

The Home Secretary’s oral submissions relied on other parts of the FTT’s reasoning, which were said not to be “infected” by the FTT’s breach of procedural fairness. I do not need to examine them, however, for nowhere does the FTT say that the remaining parts of the reasoning, on their own, would lead to dismissal of the claimants’ appeals.

Two additional authorities were relied on by the Home Secretary in oral submissions. The first was R (Ashraf) v Secretary of State for the Home Department [2013] EWHC 4028 (Admin), a decision of Mr Justice Cranston. The case concerned attempts by Mr Ashraf to prevent his removal to Pakistan. As it happens, one of those attempts had come before me for consideration on the papers in October 2013. Mr Ashraf at that stage relied upon submissions recently submitted on his behalf to the Home Secretary. I refused the application on the ground that those submissions had now been considered and rejected. What was then described as a “medico legal report” was prepared in November. That report was considered by the Home Secretary, but further submissions relying upon it were rejected. The rejection letter explained that the Home Secretary accepted that Mr Ashraf had mental health problems, but did not accept, that he had ever been subjected to torture. Ground one for seeking judicial review asserted that the Home Secretary had failed to give reasonable consideration to matters raised in the medico legal report. Cranston J described that ground as unarguable. He drew attention to earlier authorities in which it was stressed that a doctor’s expertise and qualifications do not necessarily mean that the doctor’s views must be accepted without question. A doctor’s conclusions will sometimes be seen to be flawed if it transpires that the factual account given by the patient is not credible. If a report merely recounts a history which the decision maker is minded to reject, and contains nothing which does not depend upon the truthfulness of the patient, the part which it can play is negligible. In the particular case of Mr Ashraf, Cranston J noted that he had been held by the First-tier Tribunal to be a practised liar.

I do not accept that the Home Secretary derives assistance in the present case from the decision in Ashraf. The question in the present case is whether the FTT was entitled to hold that the authors of the expert reports had been given an inaccurate account of events. The Home Secretary’s concession was highly relevant to that question.

The second additional authority was R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin), a decision of Silber J. Paragraph 28 and 29 of Silber J’s judgment cited observations in earlier cases about the role of the court on judicial review. I do not need to set them out. As regards judicial review ground one in the present case, the citations from Westech College were said to support a proposition that the court on judicial review cannot intervene on what are essentially findings of fact as to future risk. None of the passages relied upon by the Home Secretary, however, was concerned with the questions which arise in the present case. In particular, none involved a tribunal which, by relying upon conclusions and reasoning that were founded upon breaches of procedural fairness, discounted relevant opinions expressed in expert reports. Accordingly the Westech College decision provides no assistance to the Home Secretary on judicial review ground one.

I have set out above reasons why it appears to me clear that in relation to judicial review ground one there has been a misunderstanding by the Upper Tribunal of the law governing its task, or at least a misapplication of that law. With one proviso, that is not just because ground one of appeal had reasonable prospects of success: rather, for the reasons that I have given, ground one of appeal was bound to succeed.

The proviso is that, for reasons noted in section D4.3 above, it is important that I make full allowance for the special expertise of the First-tier Tribunal and the Upper Tribunal in relation to immigration and asylum. Here it is relevant that judicial review ground one is essentially concerned with questions of procedural fairness and the impact of a breach of procedural fairness. Questions of procedural fairness are pre-eminently a matter within the expertise of this court. In earlier sections of this judgment I have set out my analysis of the extent to which the FTT’s breach of procedural fairness had an impact on the reasoning of the FTT in deciding upon the overall outcome. I have not identified any aspect of that analysis which might be affected by the particular expertise of the Upper Tribunal or the FTT. I therefore conclude that, after taking full account of the expertise of the Upper Tribunal and the FTT, it is in accordance with the overriding objective for me to base my decision upon my conclusion that ground one of appeal was right.

A section of the Decision and Reasons headed “Country Background Material” began with DR 22 and 23:

22.

We have considered the country background material provided to us. The fact that we have not mentioned a specific item of evidence or report or any particular part of a report or item of evidence, does not mean that we have not taken it into account, where relevant, when considering this appeal.

23.

We were referred to the decision of the Court of Appeal in PO. The contents of paragraphs 191 and 192 in the determination of the Upper Tier are to be regarded as interim guidance. These state as follows:

Ability and Willingness of the Nigerian Authorities to offer Protection to Victims of Trafficking

191.

Our consideration of the background materials clearly demonstrates to us that in general the government of Nigeria is both able and willing to discharge its own duty to protect its own nationals from people traffickers. In particular:

(a)

The Danish Information Service Report: The Protection of Victims of Trafficking in Nigeria: a Fact Finding Mission to Lagos, Benin City and Abuja, 9/26 September 2007 (April 2008) points out that the government of Nigeria have recognised the problem of traffickers and, since 2003, the legal and institutional foundation for combating trafficking and, equally important, support for victims of trafficking, have been in place in Nigeria.

(b)

The National Agency for the Prohibition of Traffic in Persons and other related matters (NAPTIP) is the principal organisation created by the Nigerian government to combat trafficking. The Trafficking in Persons (Prohibition) Law Enforcement Administration Act, 2003 established NAPTIP and was enacted as a direct result of Nigeria wishing to fulfil its international obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

(c)

NAPTIP's own Legal and Prosecution Department were said in the April 2008 report, to have concluded six cases and another five were said to be pending. 58 victims of trafficking have been rehabilitated, while another 24 were waiting rehabilitation. We accept that with more funds, NAPTIP could do more to help victims, but the same could be said of any government agency with a finite budget.

(d)

The US State Department Report suggests that whilst Nigeria is not complying with minimum standards, it is “ making significant efforts ” to do so and has “ demonstrated a solid commitment to eradicating trafficking ”. It also spoke of NAPTIP making solid efforts to investigate and prosecute trafficking cases, although the numbers of convicted traffickers remained low. There are clearly several reasons for that, but not, on the evidence before us, any lack of governmental effort or desire.

Risk to Victims of Trafficking in being Re-trafficked on Return to Nigeria

192.

It must be born in mind, however, that a claimant may still have a well-founded fear of persecution if she can show that the Nigerian authorities know or ought to know of circumstances particular to her case giving rise to this fear, but are unlikely to provide the additional protection her particular circumstances reasonably require. To that end:

(a)

A very careful examination of the circumstances in which the victim was first trafficked must be undertaken and careful findings made. If a victim has been told that she is required to earn a particular sum of money (“target earnings”) for the trafficker or gang, before being free of any obligation to the trafficker or gang, then, if the victim should escape before earning the target sums, there may well be a risk to the victim that on return to Nigeria she may be re-trafficked if found. The extent of the risk of the trafficking will very much depend on the circumstances in which the victim was originally trafficked.

(b)

It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her traffickers before earning the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim's family, to seek reprisals.

(c)

In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim. Within trafficking gangs, individual members perform different roles. One might, for example, be a photographer who takes the photograph which is used within the victim's passport, whether or not the passport is a genuine one. One gang member may, for example, be a forger who is involved in the preparation of false passports or other documents for use by the victim; one might be a corrupt police official, or a border guard, whose role is to assist in facilitating the victim's passage in some way. Gang members may perform any number of different roles but it is essential to bear in mind that if a victim has been trafficked by a gang of traffickers, as opposed to a single trafficker, then the risk of re-trafficking may be greater for someone who escapes before earning the target earnings set by the trafficker, because the individual gang members will have expected to receive a share of the target sum and will, therefore, be anxious to ensure that they do receive that share or seek retribution if they do not.

I deal in section F3 below with DR 24, which concerned the report provided by Ms Olateru-Olagbegi. DR 25 dealt with material, much of which was in Ms Olateru-Olagbegi’s report, relied upon by the claimants as suggesting that problems in Nigeria relating to trafficking had worsened since the interim country guidance in PO. As to that, paragraphs 26 and 27 of the Decision and Reasons stated:

26.

Having taken into account all of the background evidence provided to us, we conclude find that although the problems in Nigeria relating to human trafficking have continued there is not sufficient evidence before us to justify departing from the present interim country guidance.

27.

We confirm that we have also taken into account the other background evidence before us with regard to the efficacy of the police, FGM and the availability of mental health services in Nigeria.

The FTT’s approach to country guidance was the subject of judicial review ground two. Extracts from the claimants’ grounds in this regard are set out in section C2.2 above. Those grounds asserted that the Upper Tribunal findings in paragraphs 191 and 192 of their judgment set out in the annex to the Court of Appeal’s decision in PO [Nigeria] constituted, as at the date of the FTT decision, interim country guidance on Nigeria. The FTT plainly took the same view: see the second sentence of DR 23, quoted in section F2.1 above.

Key aspects of judicial review ground two were:

These aspects of judicial review ground two reflected arguments advanced as ground four in the claimants’ proposed grounds of appeal lodged with the Upper Tribunal.

The Upper Tribunal dealt with the country guidance aspects in a single sentence. This was the second sentence of the Upper Tribunal’s third reason. For convenience I repeat it here:

3.

… There was no misapplication of the country guidance case – each case is decided on its individual merits.

The Home Secretary’s arguments on judicial review ground two involved two main strands. The first was that the FTT can depart from country guidance where it is appropriate to do so in an individual case. This was essentially the same point as had been made by the Upper Tribunal at [3.1]. As to that, however, the claimants had not contended otherwise.

The second strand asserted, in my view rightly, that judicial review ground two was a “reasons” challenge. The point that had been strongly made on behalf of the claimants at the hearing before the FTT was that trafficker 1 and trafficker 2 were members of a gang which complained of G’s failure to earn what they required, with the consequence that the gang was “very likely to go to extreme lengths… to seek reprisals”. The FTT’s reasons did not engage with this. They identified certain aspects of the reported threats as being implausible, but did not explain why. As to this, the Home Secretary argued that, as set out in paragraph 31 of the Home Secretary’s skeleton argument:

30.

… the FTT did not say that the traffickers would never bother to pursue a former trafficked individual. Rather, it was accepted that there could be pursuit of the Claimant. However, it was a matter of assessment that fell properly to the FTT as to whether it was plausible that the traffickers would continue to pursue a seemingly hopeless and repetitive pattern of returning to the Claimant’s mother again and again over a period of 6 years with no hope of change of outcome at any point.

This argument suffered from the same defect as the claimant had identified in relation to the FTT’s reasoning. It simply did not engage with what was said in paragraph 192(b) of the interim guidance.

A further argument was advanced by the Home Secretary. It was said that in a “reasons” challenge it must be shown that the alleged inadequate reasoning evidences a likely underlying material error of law that justifies quashing a decision. Reliance was placed on Westech College (see above) for this proposition. That reliance is misplaced: the court was there citing well known observations by Lord Brown-Wilkinson in R v Bishop Challoner School ex parte Choudhury [1992] 2 AC 182 at 197 E. If a challenge is advanced on the basis that the decision maker misunderstood or misapplied the law governing the decision maker’s powers, then the relevant misunderstanding or misapplication must be identified. That is not the complaint advanced in judicial review ground two. The complaint in judicial review ground two is that the FTT’s reasons simply do not meet the substance of the argument advanced on this aspect. In my view the claimants are plainly entitled to succeed on this ground.

I add that the claimants’ skeleton argument said in paragraphs 22 to 25:

22.

… The Claimants rely upon the following sources for the proposition that if the FTT wished to depart from the preserved Country Guidance findings then the panel should have had and should have given good reasons for so doing, and that having failed to do so constitutes an error of law.

23.

See para 12.2 of the Practice Directions of the Immigration and Asylum Chambers of the First Tier Tribunal and the Upper Tribunal:

…[S]uch a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a)

relates to the country guidance issue in question; and

(b)

depends upon the same or similar evidence.

24.

And at para 12.4:

Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.

25.

See also R (Iran) v SSHD [2005] EWCA Civ 982 at para 27 where Lord Justice Brooke summarised the jurisprudence on this issue and found:

It will have been noticed that Ouseley J said that any failure to apply a CG decision unless there was good reason, explicitly stated, for not doing so would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in para 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account…

For the reasons given above, in order to conclude that judicial review ground two succeeds I do not need to rely upon the additional points made by the claimants at paragraphs 22 to 25 of their skeleton argument. The points advanced in paragraphs 22 to 25 were not advanced in the grounds of appeal and I do not have the benefit of the Upper Tribunal’s views upon them. In those circumstances I say no more about them.

It will be apparent from the above that I have reached the conclusion that judicial review ground two succeeds without the need to refer to any special learning concerning country guidance cases. I have instead relied on well established principles concerning the need of a tribunal to give adequate reasons for its decision. In these circumstances I conclude that there is no reason to think that my reasoning would be affected by the specialist expertise of the FTT and the Upper Tribunal.

I noted in section F2.1 above that DR 24 dealt with the report of Ms Olateru-Olagbegi. What the FTT said in paragraph 24 was this:

24.

We have taken account of the report provided by Ms Bisi Olateru-Olagbegi. We have however borne in mind that the Upper Tier in PO had concerns with her evidence and it is clear from the speech of Lord Justice Maurice Kay in the Court of Appeal at paragraph 23 that her evidence had been rationally rejected on issues which were not in issue before the Court of Appeal, most strikingly the question of sufficiency of protection against traffickers provided by the Nigerian police and criminal justice system. It had been noted that Ms Olateru-Olagbegi was a campaigner and her evidence was not as objectively based as it might otherwise have been. It is also clear to us that Ms Olateru-Olagbegi has based her opinions on the presumption that everything [G] has said is true. We say this because in paragraph 0.4, the report states that the facts in the case are as summarised in the introductory paragraphs in her report. This summary is a précis of [G’s] claim. We take the view that the conclusions in this report are based upon [G] having given a truthful account of all the circumstances relating to the claim rather than properly considering the possibility that everything [G] has said might not be true. This has a bearing upon the weight to be attached to those conclusions.

Judicial review ground three (see section C3.2 above) made two complaints. The first is that relevant reports were discounted on the basis that G had given the author an inaccurate account of being trafficked. For the reasons given in section F above, this complaint is well founded and of itself has the consequence that the Upper Tribunal’s refusal of permission to appeal cannot stand.

The other complaint concerns the way in which the FTT dealt with Ms Olateru-Olagbegi’s evidence and rejected it. The claimants’ grounds cited what was said by Maurice Kay LJ in PO in a passage which was simply ignored by the FTT in the present case. In that passage Maurice Kay LJ explained that, even though on certain aspects Ms Olateru-Olagbegi’s evidence was open to criticism, it did not follow that she was unreliable on other aspects. It is plain from this citation that Ms Olateru-Olagbegi has not been discredited as an expert witness. As with any other expert witness, however, if the objectivity of the expert is challenged then it is for the tribunal to assess the expert’s objectivity. If the tribunal concludes that the expert has not approached the matter objectively, then the expert’s evidence may be “rationally discounted”.

These aspects of judicial review ground three reflected complaints which constituted ground three of appeal in the application for permission to appeal to the Upper Tribunal.

The Upper Tribunal permission refusal dealt with the claimants’ point concerning expert evidence in the first sentence of its third reason. For convenience, I set it out here:

3.

The expert evidence was properly considered and rejected on the basis that, even if the appellant was trafficked to [the trafficking destination country], she had not been subjected to further threats.

The Upper Tribunal’s reasons simply did not deal with the complaint about the way in which the tribunal had treated Ms Olateru-Olagbegi as discredited. At [3.1] the only complaint that was dealt with by the Upper Tribunal concerned discounting of expert reports by the FTT on the basis that the author had been misled by an invented account of trafficking.

The Home Secretary’s detailed grounds of defence similarly failed to deal with this particular complaint. The same was true of the Home Secretary’s skeleton argument. It was said in oral submissions on behalf of the Home Secretary that the expert evidence could only have limited weight, and that the points advanced by Ms Olateru-Olagbegi had been considered and rejected by the FTT. To my mind this simply cannot be an adequate answer. The FTT, when considering and rejecting points made in the report, was approaching the matter on the footing that the author of the report had been treated in PO as discredited. As was pointed out by the claimants, this was a misreading of what had been said by the Court of Appeal in PO.

Here too I conclude that, applying well established principles of public law, judicial review ground three succeeds. Nothing in my reasoning involves any question on which specialist expertise of the FTT or the Upper Tribunal might have an impact.

A consent order proposed as a “practical course”

At the end of section D9 above I referred to aspects of the case which had not been streamlined. There is one that calls for particular mention. I noted in section D9 that the hearing on 20 March 2015 could not be completed within the time originally allocated. The hearing was adjourned, and was in due course fixed to resume on Monday 22 June 2015 in Nottingham. For that purpose the court set aside a day which would otherwise have been used to accommodate parties needing a hearing before a High Court judge on the Midland circuit.

Late on the afternoon of Friday 19 June 2015 I received a proposed consent order for the Upper Tribunal permission refusal to be quashed. An accompanying statement of reasons said:

… It is considered that the most practical resolution would be for the refusal of permission to appeal by the Upper Tribunal [to] be quashed and the matter remitted to the Upper Tribunal for a new decision.

A covering email from the Government Legal Department said that the order was sought in order to avoid wasting judicial time and incurring unnecessary costs.

I declined to make the proposed consent order. It seemed to me that the statement of reasons was unsatisfactory. It is in my view elementary that a decision of the Upper Tribunal cannot be quashed merely because this is thought to be "the most practical resolution".

The Home Secretary’s legal team had assumed that I would agree to the proposed consent order. They were therefore not present when the hearing resumed on the morning of 22 June. I adjourned the hearing to 2pm in order to enable their attendance. When they attended an apology was tendered on behalf of the Home Secretary. It was acknowledged that it was the Home Secretary who had proposed the consent order, that the court had been told nothing about it until the afternoon of the last working day before the hearing, and that any application to vacate the hearing ought to have been made much earlier.

As to the merits of the proposed consent order, I was told by Ms Anderson that the Home Secretary did not accept that there was any such public law error as would vitiate the Upper Tribunal permission refusal. The only ground on which the Home Secretary asked the court to quash that refusal was that budgetary constraints made it desirable, instead of incurring the costs of a further day’s hearing, to ask the Upper Tribunal to consider the matter afresh. Ms Anderson submitted that this would be in accordance with the overriding objective. She asserted that a consent order is without consideration of the merits. Ms Anderson added that, as to the statement of reasons required by paragraph 17 of Practice Direction A to CPR 54, it is no longer the practice to consider the merits, and the courts nowadays will quash for wider reasons.

In the event the matter was adjourned so that the substantive hearing continued in London on 6 October 2015. Neither party sought to maintain that I should make the proposed consent order. It was thus unnecessary for me to rule on whether the court has power to make a quashing order in circumstances where it is not in a position to conclude that there are good grounds on the merits for quashing the decision in question. I wish nevertheless to emphasise that if, in relation to applications for judicial review, there is a practice of the kind which Ms Anderson describes, I am not aware of any judicial consideration of the validity of that practice. Unless on some future occasion I am persuaded to the contrary, in my view the position remains as described by Laws J in Kingsley (Deceased) v Secretary of State for Transport [1994] COD 358:

In public law cases, certainly in judicial review, the role of the court is quite different from its role in private law claims. In judicial review, the court guards the public interest as it may be affected by the decision under challenge, and it is a commonplace that such decisions often have critical implications for third parties not before the court; so, manifestly, do challenges to road orders, planning appeal decisions, and so forth. Where, in such a case, the respondent concedes that relief should be granted, there is no question but that the court has to approve any order carrying that into effect.

A decision of the Upper Tribunal can be corrected, suspended, set aside or reviewed by that tribunal in certain limited circumstances: see Jacobs, Tribunal Practice and Procedure (3^rd ed, 2014), in particular the discussion in chapter 15, “Post Decision”. If those circumstances are absent, then the decision has full legal force and effect, subject only to a ruling by the court that the decision is not to have that force and effect. I do not know of anything in the court’s powers on judicial review that entitles the court to quash such a decision on grounds of convenience only.

I acknowledge that CPR 54.7A(9) and (10) have the effect that once permission to proceed has been granted there will, unless a hearing is sought, be a summary determination quashing an Upper Tribunal FTT permission refusal. That is, however, only on the footing that neither the defendant nor any interested party seeks a hearing. By not seeking a hearing, as it seems to me, they are in effect conceding that the reasons for granting permission to proceed are reasons which warrant the quashing of the decision under review. The high hurdle which must be surmounted in order for there to be a grant of permission to proceed may well in those circumstances warrant the conclusion that the defendant and any interested party are right to concede that there is good ground to quash the decision under review.

Conclusion

For the reasons given above I conclude that the Upper Tribunal permission refusal was wrong in law and must be quashed, and that the matter must be remitted to the Upper Tribunal accordingly. I ask counsel to seek to agree on the terms of consequential orders.