AR (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2021] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> AR (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2021] ScotCS CSOH_10 (27 January 2021) URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_10.html Cite as: [2021] ScotCS CSOH_10, 2021 GWD 26-354, [2021] CSOH 10

Petitioner: Winter; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)

[1] In this petition for judicial review the petitioner seeks reduction of a decision by the

Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) which refused the

petitioner’s application for permission to appeal to the UT against the First-tier Tribunal

(Immigration and Asylum Chamber) (“the F-tT”)’s dismissal of his appeal against removal

directions. On 9 September 2020 Lord Brailsford granted permission to proceed. The matter

[2] The petitioner is a Pakistani national. He claimed asylum on 21 June 2013 on the

ground that he was homosexual and that he would face a real risk of persecution in Pakistan

were he to be returned. That claim now has a very long history. The first 4 years of that

history are described in AR v Secretary of State for the Home Department [2017] CSIH 52, at

paragraphs [2]-[25]. In brief, on 13 October 2015 the F-tT dismissed the petitioner's appeal

against the respondent’s removal directions. On 14 January 2016 the UT refused the

petitioner’s appeal. The petitioner appealed to the Court of Session, having been granted

permission to appeal by the Court of Session. On 4 August 2017 an Extra Division of the

Inner House quashed the UT’s decision and remitted the petitioner’s appeal to the F-tT for

determination by a judge who had had no previous involvement in the case (AR v Secretary

of State for the Home Department, supra). The F-tT heard the appeal on 30 May 2019, and on

[3] In view of the fact that the petitioner has claimed asylum, I have anonymised this

opinion. That exercise has extended to anonymising certain features of the First Information

Report (“FIR”) (see infra) which would be likely to assist in identifying him, namely the

police station where the FIR was prepared (which I shall refer to as “[x]”) and the FIR

number (which I shall refer to as “[y]”). For the same reason, I have anonymised the name

of the record keeper in the Document Verification Report mentioned below. I shall refer to

[4] The petitioner gave evidence through an interpreter. He lodged a report dated

5 November 2018 prepared by Dr Fraser Morrison, Consultant Clinical Psychologist.

Dr Morrison was of the view that the petitioner suffered from a generalised anxiety

disorder. At the outset of the hearing his counsel invited the F-tT to treat the petitioner as a

vulnerable witness, and he suggested that questions should be as focussed as possible. The

F-tT noted (paragraph 4.2) that at one point during his evidence the petitioner indicated he

was losing his concentration. As a result, the hearing was adjourned for 15 minutes.

[5] The petitioner’s evidence was that he is a homosexual; that he began engaging in

homosexual relations with older males when he was a boy growing up in Pakistan; and that

in adulthood he had frequent homosexual relations with a variety of men. He maintains

that in February/March 2003 he was charged by the police with having unnatural carnal

relations after he and an 18 year old man, M, were seen by police having sex in a field. They

were taken to [x] police station in Multan where they were beaten and the petitioner was

charged. A friend of the petitioner bribed a policeman, and with the policeman’s assistance

the petitioner escaped from custody while in transit from the police station to court. He

returned home, but his family had read a newspaper report of the incident and they

disowned him. The petitioner sold one of his kidneys to finance travel to the UK. An agent

arranged the sale and the travel. He took a flight from Lahore, but he had turned back from

the airport more than once on days when he was booked to fly because of police presence.

He arrived in the UK on 1 January 2004 on a 1 year work permit visa. In 2010 he applied for

leave to remain under the legacy scheme. His asylum claim was made 3 years later. In

Scotland, while he had disclosed that he was gay to a close friend T, generally he had not

been open about his sexuality. Nevertheless, he had gone to gay clubs in Glasgow since

about 2013 when funds had permitted. He produced a membership application form for

40 Fox Street and a typed letter bearing to be from the manager there confirming he had

been a member since August 2013. He also produced a weekend pass for Pipeworks (valid

[6] T’s evidence was that he had known the petitioner for 10 or 11 years. After a couple

of years the petitioner had confided to him that he was gay. T confirmed that to his

knowledge the petitioner had attended gay clubs in Glasgow. T had regularly dropped him

[7] The F-tT had a good deal of documentation before it. In support of his account the

petitioner relied on an FIR said to have been prepared by the police at [x] police station; on

court documents relating to his prosecution in Pakistan on the charge described in the FIR;

and on a newspaper report dated 31 March 2003. The petitioner explained that a friend in

Pakistan had obtained and sent him the FIR, the court documents, and the newspaper report

in about 2013. The petitioner also relied upon two reports prepared by Waheed Ahmad,

[8] A translation of the FIR indicated that it was dated 2 March 2003 and numbered [y];

and that it recorded a complaint against the petitioner by M’s father that the petitioner had

sodomised M against his will. It narrated that M’s father and others had witnessed this and

had taken the petitioner to [x] police station, but that the petitioner had later tricked the

police and escaped. Box 3 of the FIR contained the entry: “Brief details of the offence…

P.P.C. 377”. The petitioner insisted that it was the police who had seen the incident, not M’s

father. In so far as the FIR suggested the latter, it was not correct. M’s father may have

[9] Translations of the court documents indicated that they appeared to be court

interlocutors, signed by a magistrate, relating to a criminal prosecution by the state against

the petitioner. They were dated 3 April 2003, 18 April 2003, 3 May 2003, 17 May 2003 and

31 May 2003. The interlocutor of 3 April 2003 recorded the presentation and registration of

“criminal case [y] dated 02-03-2003 u/s 377 PPC” against the petitioner and summoning him

to attend on 18 April 2003. The interlocutor of 18 April 2003 recorded that the petitioner was

absent when the case was called; that “the report is abscondance”; and that the petitioner

“be summoned vide bailable warrant of arrest surety Rs. 10,000/- for 03-05-2003.” The

interlocutor of 3 May 2003 indicated that when the case called the petitioner was absent. On

that occasion the petitioner was summoned “vide non bailable warrant of arrest” to be

arrested by and to be presented at court by a police officer from [x] on 17 May 2003. On

17 May 2003 the petitioner was absent when the case called. The police officer from [x] was

directed to appear at court on 31 May 2003 to explain why he had not presented the

petitioner at court. On 31 May 2003 when the case called the petitioner was absent. The

court was informed that the petitioner had absconded due to fear of arrest. The petitioner

was declared to be a perpetual absconder, confiscation of his property was directed, and the

case file was “consigned to the record room be (sic) produced before the court as and when

[10] A translation of the newspaper report indicated it was an article from a Multan daily

paper dated 31 March 2003. It reported the petitioner’s commission of the offence on

2 March 2003, his arrest, and the fact that he had not remained in police custody. The first

headline suggested that he had escaped, but the second headline and the text of the article

indicated that the police had released him. The petitioner’s evidence was that similar

information had appeared in the press at the time of the incident, which is how his family

[11] The first report prepared by Mr Ahmad was dated 12 January 2019. It indicated that

having homosexual relations is a crime contrary to section 377 of the Pakistan Penal Code

and is punishable by a sentence of up to life imprisonment. It stated that under Hudood

laws the punishment for homosexual sex is death by stoning. It noted that in 2013 the

Washington-based Pew Research Centre found that of 39 countries studied Pakistan was the

least accepting of homosexuality, with 87% of those surveyed saying homosexuality should

[12] Mr Ahmad’s supplementary report dated 13 March 2019 dealt with the FIR and the

court documents. Mr Ahmad sent instructions to a colleague practising in Multan (which is

“5. My Colleague from Multan Miss Mahjabeen Advocate Randhawa Bhutta Law

Chambers on my request visited [x] Police Station in Multan for the verification of

6. Miss Mahjabeen also visited Court for verification of court documents which was

7. AS per her letter dated 01-03-2019 the FIR registered against [the petitioner] and

the court papers are genuine documents. Her letter is attached as Annexure A with

Annexure A was a letter dated 1 March 2019 from Miss Mahjabeen to Mr Ahmad which

I can confirm your instructions to verify a FIR report that has been produced by

I visited the [x] Police Station in Multan, Pakistan to verify a FIR report dated

I can also confirm that I physically visited the police station on 25th February 2019

and asked to see the FIR report dated 2nd March 2003, and FIR number [y].

When the said FIR was requested the record keeper produced that same FIR which

I can confirm that the FIR is genuine and held in the records of [x] Police Station,

I further confirm that the offence cited on the FIR I saw was that of the original FIR

produced by [the petitioner] under s 377 of PCC (Pakistan Penal Code).

After examining the FIR I can confirm that it is genuine and the relevant records are

In addition to this I can also confirm that after verifying with the courts that the court

If you require any further information please do not hesitate to contact me.”

[13] The respondent lodged a Document Verification Report dated 21 August 2017 (“the

DVR”) on the FIR. The report was prepared by an Immigration Liaison Adviser at the

“I called the record Keeper of [x] Police Station Multan and provided him the FIR

number and date. The record Keeper after checking the record confirmed that details

of FIR Number [y] of 02/03/2003 of [x] Police Station Multan provided does not

match to the details in the records of [x] Police Station Multan, he confirmed that the

copy of FIR Number [y] dated 02/03/2003 of [x] Police Station Multan provided by

He further added that FIR Number [y] of [x] Police Station Multan is not dated

02/03/2003 but is in fact dated 31/07/2003 in the police station records; the offence is

not section 377 of PPC (Pakistan Penal Code) as claimed but the offence in police

In light of the above information the copy FIR Number [y] of 02/03/2003 of [x] Police

[14] At paragraph 5 of its decision the F-tT noted that the petitioner claimed international

protection in terms of the Refugee or Person in Need of International Protection

Regulations 2006, and also claimed that he was entitled to Humanitarian Protection. It

“The burden is on the Appellant to show as regards his protection appeal that

returning him will expose him to a real risk of an act of persecution for a reason set

out in section 6 of the 2006 Regulations; as regards his Humanitarian Protection

Appeal that he has shown substantial grounds for believing he would face a real risk

of serious harm as defined by paragraph 339C of the Immigration Rules, or a real risk

The standard of proof is to the lower standard namely ‘a reasonable likelihood’ or ‘a

Lord Justice Buxton stated in the case of GM (Eritrea) and others -v- SSHD

[2008] EWCA Civ 833: ‘the burden of showing that he has a well-founded fear of

persecution falls on the applicant, but the standard that he has to meet is not a

demanding one. Its most convenient expression is in terms of a reasonable degree of

likelihood that he will be persecuted for a Convention reason if returned to his own

country: R-v- Home Secretary Eritrea p Silvakumaran [1988] 1 AC 958 at page 994F

It is that standard which I apply to the issues upon which the burden falls on the

In relation to persecution, the F-tT quoted paragraphs 12-16 of Lord Hope of Craighead’s

judgment in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596.

[15] The F-tT did not find the petitioner’s account to be credible, and it dismissed the

appeal. It drew attention to various matters all of which could be said to bear upon

credibility. It referred to matters on which the evidence had been either vague, or difficult to

follow, or in respect of which the petitioner’s evidence had been unsatisfactory. It attached

significance to the fact that there was no statement or other evidence from the witness in

Pakistan who had obtained the FIR, the court documents, and the newspaper report. It

drew attention to internal inconsistencies in the evidence of the petitioner, and in the

evidence of T; and to inconsistencies between their evidence. It found that between 2004

and 2013 the petitioner’s lifestyle had evinced no indication that he was gay. That was in

sharp contrast to the picture which he painted of being a very sexually active homosexual in

Pakistan who had many partners. The F-tT concluded that the petitioner was not gay, and

that he only began to claim that he was in order to bolster his asylum claim. The gay club

[16] The F-tT dealt with Mr Ahmad’s supplementary report and the annexed letter at

“19.1 … On a straight-forward construction of the letter dated 01-03-2019, the

Advocate simply verifies that the police station records hold an FIR report dated

2nd March 2003 bearing FIR number [y]. In my judgement there is no discussion by

the Advocate of any source document which she might have studied to check against

records held in Pakistan; and so, I am unable to give the opinion material weight in

19.2 The author of the letter of 01-03-2019 goes on to say: ‘I further confirm that the

offence cited on the FIR I saw was that of the original FIR produced by [the

petitioner] under section 377 of the PCC (Pakistan Penal Code)’; but again, there is

no detailed discussion of any study or comparison of documents undertaken by her.

For aught known, the document seen by the Advocate may have been in a different

format and with a different content; and yet mentioned section 377.

19.3 The author of the letter of 01-03-2019 then states; ‘After examining the FIR I can

confirm that it is genuine and the relevant records are held in [x] Police Station’; but

the ‘FIR’ mentioned previously is the FIR produced by the record keeper in Pakistan.

If the author intended to refer to ‘the original FIR produced by [the petitioner]’, she

does not expressly state that; …; she does not go into any detail about the format or

contents of the document seen by her; and she does not give any detail of the

comparison which she undertook so as to reach the conclusion that the source

document from [the petitioner] is a replica of the original documents seen at [x]

19.4 The Advocate opines ‘In addition to this I can also confirm that after verifying

with the courts that the court case against [the petitioner] is also still pending.’ In

grammatical terms the author appears to use a ‘conjunction’ to connect actions by

saying ‘after verifying’ certain matters; but then does not specify the action or time

which arises after the verification. However, on a reasonable construction, the

author may be saying that she verified with the courts that the court case against [the

petitioner] is still pending. However, there is no detail given of any steps taken in

the methodology of verification. So, there is no mention of the court which is seized

of the case, no mention made of the arrangements to secure access to material held at

court about the case, no mention of discussion with agents who might have appeared

at court for either party to the case; and no mention of research undertaken to

inform the author of the details of the case which she was expected to research on

19.5 I note that neither Waheed Ahmed (sic) or Mahjabeen explain whether it is

normal to see a self-contradictory account within a FIR …; or why one original FIR

might give rise to two translations which differ in material respects as noted above…

I note that there is no explanation for the absence of court interlocutor relating to the

date on which the appellant was due to be in court; but managed to escape police

custody. I note that there is nothing said about the obvious spelling error in the use

of the word ‘magistrate’ which someone analysing court documents for authenticity

would be bound to comment upon. I note that although the respondent’s DVR is

dated 21/08/2017 and appears in RB2 lodged on 26 October 2018, neither Waheed

Ahmed nor Mahjabeen have enquired directly with Record Keeper [z] (mentioned

19.6 I conclude that the report of Waheed Ahmed and the supplementary report with

“16.26 The contents of the DVR give me cause to doubt the authenticity of the FIR

“27.1 I weigh in the balance of assessing the appellant’s claim to the lower standard

of proof that the respondent produces material which does not support the claim

Paragraph 16.25 described the contents of the DVR. Paragraph 16.4 stated:

“16.4 The process or procedure in which FIRs are generated in Pakistan is referred to

at RB3 – p23 of 40 in the CPIN for Pakistan. At 15.1.2 it is reported that ‘it is

relatively simple to fraudulently produce police-issued FIRs using existing FIR book

numbers… the existence of an FIR does not therefore constitute evidence that the

[17] An application to the F-tT for permission to appeal to the UT required to be made

within 14 days of the decision being issued to the petitioner. The last date for making an

application was 10 July 2019. The petitioner’s solicitors maintain that on 9 July 2019 they

faxed an application for permission to the F-tT. Part B of the application form IAFT-4

contained a box for providing reasons why an application was made late. The solicitors

entered “N/A” in that box. On about 25 July 2019 they discovered that the F-tT had not

received the faxed application. They emailed the application to the F-tT on that date. On

20 August 2019 the F-tT refused permission to appeal. Its reasons stated:

“The application is out of time, an issue which has not been addressed. As such, I

find there are no special circumstances which merit an extension of time.

The F-tT went on to indicate that even if time had been extended the application would have

been refused because the grounds of appeal did not disclose an arguable error of law.

[18] Revised grounds of appeal were drafted to accompany an application to the UT for

permission to appeal. However, on 23 September 2019 the petitioner’s solicitors completed

a form IAFT-4 (a form provided by the F-tT for an application to it for permission to appeal)

rather than a form IAUT-1 (the form the UT made available for an application to it for

permission). The contents of both forms are very similar. It was not obligatory for an

applicant for permission to use either form, as long as the application was in writing

(Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Rules”), rule 21(3)) and it complied

with the other requirements of rule 21. The box in Part B of the form submitted was left

“We herewith enclose duly completed IAFT-4 form and supporting documents for

your information. We further advise that an initial appeal was lodged on 9th July

2019 via fax however this was not received by the tribunal due to an Administrative

Error, the appeal was then lodged again on 19th July 2019 via email. We request that

The covering email, form and grounds of appeal were then emailed per incuriam to the F-tT’s

email address instead of the UT’s email address. However, the F-tT forwarded the

application to the UT, who treated the application as having been made to it.

[19] The petitioner advanced five grounds of appeal. Ground 1 was that the F-tT had

erred in law because it had assessed the evidence in a compartmentalised way which failed

to look at matters in the round. Ground 2 was that the F-tT had erred in law in assessing the

documentary evidence - in particular the FIR, the court documents, the supplementary

report and annexed letter, and the DVR. It had given inadequate reasons for attaching no

significant weight to the supplementary report and annexed letter. The court documents

were central to the appeal and they ought to have been verified by the respondent in the

circumstances. The F-tT had erred in law in failing to recognise that. Ground 3 was that the

F-tT had acted in a procedurally unfair manner because it had founded on criticisms that the

evidence of the petitioner and T lacked detail and contained inconsistencies, when it had not

explored those matters with the petitioner and T and given them the opportunity to answer

them. Ground 4 was that the F-tT had failed to assess, or to adequately assess, whether the

petitioner’s anxiety may have caused or contributed to the F-tT’s perception that there were

inconsistencies, or lack of detail, or omissions in his evidence, or may have explained the

manner in which he gave evidence. Ground 5 was that the F-tT erred in law in

[20] On 20 January 2020 the UT refused permission to appeal, holding that none of the

grounds of appeal disclosed an arguable error of law by the F-tT. The UT made no reference

to the fact that the F-tT had not admitted the application to it for permission to appeal. The

UT did not indicate whether or not it had admitted the application to it for permission to

[21] Mr Winter submitted that the petitioner had complied with the requirement in

rule 21(7)(a) of the Rules. The covering email of 23 September 2019 had explained the

circumstances in which the application to the F-tT for permission to appeal had been late.

The UT ought to have decided whether the application to it for permission to appeal ought

to be admitted, but it had not done so. It required to decide that matter even if the covering

email of 23 September 2019 had not been forwarded to it by the F-tT. On either scenario, it

ought to have considered whether it was in the interests of justice that the application to it

for permission ought to be admitted (rule 21(7)(b)). If the UT decided to refuse to admit a

late application it required to send a written notice to that effect to the petitioner (rule 22(1)).

Reference was made to NA (Bangladesh) v Secretary of State for the Home Department

[2016] EWCA Civ 651, per Clarke LJ at paragraphs 12-23; Bhavsar (late application for PTA

procedure) [2019] UKUT 00196 (IAC), at paragraph 55; Ahmed (rule 17; PTA; family court

materials) [2019] UKUT 00357 (IAC), at paragraph 33; R (Onuwu) v First Tier Tribunal (IAC)

(extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC), paragraph 13. Here,

the UT had not sent such a notice to the petitioner. Moreover, the UT can waive any

procedural irregularity (Smith (appealable decisions; PTA requirements; anonymity)

[2019] UKUT 00216 (IAC), at paragraph 51; rules 2 and 7 of the Rules). If any of the petitioner’s

substantive grounds was/were well founded, the UT’s decision should be reduced and the

whole matter remitted to a differently constituted UT to consider (i) whether the application

for permission to appeal should be admitted; and, if so, (ii) whether permission to appeal

[22] Counsel for the respondent accepted that the UT had not addressed the issue of

admission of the application. However, that failure would be a live issue only if one or more

of the substantive grounds of appeal was/were well founded. If they were not, the UT’s

error would be immaterial. In the event that the UT’s decision was reduced and the

application was remitted back to the UT, it would be for the UT to decide whether it is in the

[23] Mr Winter’s oral submissions focussed on three matters.

[24] First, the F-tT had erred in law in its approach to the FIR, the court documents,

Mr Ahmad’s supplementary report, and the respondent’s DVR. The F-tT had effectively

dismissed the supplementary report, but its reasons for doing so were inadequate

et separatim unreasonable. The F-tT had not given the supplementary report, the FIR, and

the court documents the anxious scrutiny which they ought to have received. The FIR and

the court documents were central to the appeal. In the whole circumstances, and

particularly in light of the terms of the supplementary report, the respondent ought to have

undertaken a verification check of the court documents (PJ (Sri Lanka) v Secretary of State for

the Home Department [2015] 1 WLR 1322, paragraphs 11-12 and 29; AR v Secretary of State for

the Home Department, supra, at paragraphs [31] and [35]). If the court documents were

genuine they would confirm the petitioner’s account. The F-tT erred in law because it failed

to recognise the respondent’s failure to verify the court documents and to assess the import

of that failure for the appeal. In light of Miss Mahjabeen’s letter, and of the fact that it knew

that her evidence was based on her inspection of the FIR at the police station whereas the

author of the DVR had not inspected the FIR, the F-tT erred in dismissing the former and in

[25] Second, the F-tT had taken a compartmentalised approach to the evidence, instead

of considering it in the round: AM (Afghanistan) v Secretary of State for the Home

Department [2018] 4 WLR 78, at paragraph 19(a). It had failed to give proper consideration

to the factors which favoured the petitioner, and it had concentrated instead very much on

criticisms which could be made. It had not given the evidence anxious scrutiny. On a fair

examination of the F-tT’s approach it had not in fact kept in view the low threshold which

the petitioner had to overcome. The language of the decision (eg paragraphs 15.3, 16.26,

17.3, 18, and 24.1) very much suggested that the correct test had not in fact been applied

[26] Third, the F-tT failed to have due regard to the evidence relating to the petitioner’s

anxiety when assessing his evidence (cf AM (Afghanistan) v Secretary of State for the Home

[27] Each of these matters gave rise to an arguable error of law. The UT erred in law in

[28] Mr Maciver submitted that neither the respondent nor the F-tT had questioned the

credibility or bona fides of Mr Ahmad and Miss Mahjabeen. The thrust of the F-tT’s decision

was that it was not clear from Miss Mahjabeen’s letter that the FIR which she was shown by

the record keeper was the same FIR upon which the petitioner relied; and that what she

said about the court case was so vague as to be of very little assistance. On the other hand,

the DVR was clear and the F-tT attached material weight to it. The F-tT had given adequate

reasons for reaching those conclusions. They were conclusions which it had been entitled to

reach. In the circumstances it had not been incumbent upon the respondent to attempt to

verify the court documents; and it had not been incumbent upon the F-tT to proceed on the

basis that the respondent was in breach of any such obligation. In any case, even if the

respondent ought to have attempted to verify them, the only consequence of her failing to

verify would be that it would not be open to her to challenge their authenticity (PJ (Sri

Lanka) v Secretary of State for the Home Department, supra, paragraph 31). However, the

respondent had not called the court documents into question. It was the F-tT which

questioned them. It had been entitled to reject them for the reasons which it gave.

[29] Mr Maciver submitted that the contention that the F-tT had taken a

compartmentalised approach to the evidence was ill-founded. It had properly considered

the evidence in the round. The language of the decision in the present case did not to give

rise to concerns that the correct tests had not been properly applied (cf MF, Ptr, supra).

[30] The F-tT had made appropriate adjustments to take account of the petitioner’s

psychological state. The psychology evidence did not support the contention that any of the

features of the petitioner’s evidence upon which the F-tT founded may have been caused or

[31] The petitioner had not identified any arguable error of law in the F-tT’s decision.

The UT had not erred in law in deciding that the grounds of appeal disclosed no such error.

[32] In order to obtain reduction of the UT’s decision the petitioner requires to show that

the UT erred in law in a material respect. Sometimes an error of law can be apparent on

the face of the UT’s decision, in which case it is usually unnecessary to look at the

underlying decision of the F-tT in order to demonstrate the error. However, in other cases

the suggestion may be that the UT’s error in law was that it failed to recognise that the

grounds of appeal disclosed one or more arguable errors of law by the F-tT on a material

matter: see, eg, Khodarahmi v Secretary of State for the Home Department [2020] CSIH 45, at

paragraph [5]; Waqar Ahmed & others v Secretary of State for the Home Department

[33] In the present case the petitioner maintains that the UT erred in law in a number of

material respects. One of those errors was that, although the F-tT had not admitted the

application to it for permission to appeal, the UT failed to decide the question whether the

application to it for permission should be admitted. The remaining errors of law are all said

to be failures by the UT to recognise that the grounds of appeal disclosed one or more

arguable errors of law by the F-tT on a material matter (or material matters).

[34] I can deal briefly with the submission that the UT erred in law in failing to decide

whether the application to it should be admitted. It ought to have been clear to the UT from

the F-tT’s reasons for its decision of 20 August 2019 that the F-tT had refused to admit the

application to it for permission to appeal. In my opinion, whether or not the email of

23 September 2019 had been forwarded by the F-tT to the UT, the UT required to decide

whether the application to it ought to be admitted or not. In my opinion its failure to decide

that question was an error of law. However, that error would be immaterial unless the

petitioner is right that the UT ought to have recognised that the grounds of appeal disclose

[35] I turn then to the grounds of appeal. In AR v Secretary of State for the Home

“[35] We remind ourselves of the need to examine the facts with care (sometimes

referred to as ‘anxious scrutiny’), and of the low standard of proof applicable in cases

of this nature. We are persuaded that these factors have been given insufficient

weight and attention in the more recent decisions. We recognise that there may be

cases where the concerns over the veracity of a claimant's account may be so

clear-cut that the decision-maker is driven to rejection of supporting documents,

even though on their face they appear to be authentic; but even then, given what is

at stake, we would expect some consideration to be given to easily available routes to

check authenticity. There is no question that these documents are at the centre of a

request for international protection. The decision-maker should stand back and view

all of the evidence in the round before deciding which evidence to accept and which

[36] In my opinion it remains the case that the FIR and the court documents are central to

the appeal. If they are genuine, then the petitioner’s account that he was apprehended and

charged in connection with committing a homosexual act is truthful. That would be the

context in which all of the other evidence would require to be assessed.

[37] Moreover, in my view there is a clear nexus between the FIR and the court

documents. The interlocutor of 3 April 2003 recorded the presentation and registration of

“criminal case [y] dated 02-03-2003 u/s 377 PPC” against the petitioner, viz the case

described in the FIR. All of the court documents bear to relate to the petitioner’s prosecution

for the offence described in the FIR. If the court documents are genuine that would support

the petitioner’s account that he was apprehended and charged in connection with a

homosexual act. It would also provide a very strong indication that the FIR is indeed a

[38] Presumably mindful of the expectation which the court had expressed that some

consideration be given to easily available routes to check authenticity, the respondent

obtained the DVR relating to the FIR; but she did not attempt to verify the court documents.

For his part, the petitioner obtained the supplementary report from Mr Ahmad.

[39] In my opinion it is fair to say that the F-tT effectively dismissed the supplementary

report and Miss Mahjabeen’s letter. The thrust of the dismissal was that it was not clear

from Miss Mahjabeen’s letter that the FIR which she was shown by the record keeper was

the same FIR upon which the petitioner relied. For present purposes it suffices to say that in

my opinion it is eminently arguable that that was a wholly unreasonable construction of the

supplementary report and the letter; and that, on any fair reading of them, Miss Mahjabeen

confirmed that the FIR report upon which the petitioner relies is in the same terms as the FIR

report which she was shown by the record keeper at the police station. In my judgement, it

is equally arguable that to suggest otherwise, as the F-tT did, was a failure to exercise

anxious scrutiny. Accordingly, in my opinion it is arguable that the F-tT’s approach to the

evidence about the FIR in the supplementary report involved an error of law in respect of a

material matter. In failing to recognise that, the UT erred in law in a material respect.

[40] In reaching that conclusion I do not overlook the fact that the F-tT attached material

weight to the DVR. However, if the F-tT had not made the suggested error in relation to the

supplementary report and the letter there would have been evidence from a credible source

that the FIR which the petitioner relied upon was genuine. In my opinion, on that scenario it

cannot be said that the F-tT would necessarily have preferred the evidence in the DVR to

Miss Mahjabeen’s evidence; or, if it did prefer it, that it is clear that there would have been

good reasons for doing so. One of the factors which might be relevant to that issue is that

Miss Mahjabeen’s evidence was based on having seen the FIR at the police station, whereas

the author of the DVR had not seen it but had obtained his information second hand in the

course of a telephone call. The latter process might be thought to involve greater scope for

confusion or misunderstanding than the former. Another relevant factor may be

Miss Mahjabeen’s evidence that she had confirmed with the court that the case against the

petitioner was still pending. I recognise, of course, that the F-tT was not inclined to attach

any real weight to that piece of evidence because of its brevity and its vagueness. While the

F-tT may have taken the same view of it even if it had not fallen into the suggested error

concerning Miss Mahjabeen’s evidence relating to the FIR, I am not persuaded that it is

inevitable that it would have done so. Its assessment of the court documents might well

have been very different if its starting point had been that there was credible evidence

suggesting that the FIR was genuine. Evidence as to the genuineness of the FIR would tend

to point to the genuineness of the court documents, and vice versa.

[41] In my opinion it is also arguable that the respondent ought to have verified the court

documents. As already observed, the FIR and the court documents were central to the

appeal. I can understand that the respondent may have thought that, since the DVR

indicated that the FIR was not genuine, and there was a clear nexus between the FIR and the

court documents, verifying the latter was superfluous. That strategy was always a risky

one, depending as it did upon the DVR being accepted. However, once the supplementary

report became available it became even riskier. The supplementary report came from a

credible source which bore to confirm that the FIR was genuine and that there was a

pending court case against the petitioner. In view of the competing reports about the FIR

the issue whether or not the court documents were genuine assumed even greater

significance. By that stage, at the very latest, in my opinion the circumstances had become

sufficiently exceptional to impose an obligation upon the respondent to attempt to verify the

court documents (cf PJ (Sri Lanka) v Secretary of state for the Home Department, supra,

Fulford LJ at paragraphs [30]-[31]). In my view it is arguable that the F-tT erred in law in

failing to recognise and take account of the import of the respondent’s failure to do that.

The issue was plainly a material one: the veracity of the court documents was central to the

pursuer’s claim. In failing to recognise that arguable error of law on the part of the F-tT the

[42] I am not impressed by the submission that the respondent did not challenge the

authenticity of the court documents; and that therefore, even if the respondent was in

breach of an obligation to verify them, the only consequence was that she could not impugn

them; and that the F-tT was free to make of them what it would without making any

allowance for the respondent’s failure. In my opinion it is disingenuous to suggest that the

respondent did not challenge the authenticity of the court documents. She cannot

reasonably be described as having adopted a neutral position in relation to them. The stance

which she took was that the FIR was not genuine, and that the whole story of the crime and

[43] I am also persuaded that the F-tT’s approach to the assessment of the evidence was

arguably defective, largely because of the two arguable errors of law which I have already

identified. I think it is arguable that the result was that the F-tT did not stand back and view

all of the evidence in the round, applying anxious scrutiny and balancing the factors which

were in favour of the petitioner, before it decided which evidence to accept and which to

reject, and the proper disposal of the appeal. In my view the UT erred in law in not

recognising that the grounds of appeal disclosed that arguable error of law on the part of the

[44] I am not persuaded that it is arguable that the F-tT erred in law by failing to have

due regard to the evidence relating to the petitioner’s anxiety when assessing his evidence.

Nor am I persuaded that it is arguable that the F-tT acted in a procedurally unfair way (a

matter raised in the grounds of appeal but not advanced in oral argument); or that ground

of appeal 5 discloses any further arguable and material error of law on the part of the F-tT.

[45] It follows that in my opinion the UT erred in law in failing to recognise that the

grounds of appeal disclosed arguable errors of law on the part of the F-tT in relation to

material matters. The UT also erred in law in failing to determine whether the application to

it for permission to appeal ought to be admitted. In view of the former errors, the latter

error is material. The UT’s decision should be reduced. It will then be for the UT to

consider afresh the application for permission. That consideration ought to be by a UT

judge who has had no previous involvement in the case. The UT will require to decide

whether it is in the interests of justice that the application for permission should be

admitted. One of the factors relevant to that assessment will be whether the UT considers

that the grounds of appeal disclose an arguable error of law, or arguable errors of law, on

the part of the F-tT. If the application is admitted, the grant or refusal of permission will

depend on whether the UT is satisfied that the grounds of appeal disclose an arguable error

[46] I shall sustain the petitioner’s second plea-in-law, repel the respondent’s fourth

plea-in-law, and grant decree of reduction of the UT’s decision of 20 January 2020. I shall

reserve meantime all questions of expenses.

Scottish Court of Session Decisions