Introduction

The case Do v Secretary of State for the Home Department [2020] CSIH 35 presents a significant judicial review concerning the refusal of an asylum claim by a Nigerian national, Do, and the subsequent denial of permission to appeal the decision. The petitioner, Do, sought asylum in the United Kingdom on the grounds of potential persecution upon return to Nigeria, citing threats from an abusive ex-husband and societal stigma associated with mental health issues. The key issues revolve around the adequacy of the decision-making process by the First-tier Tribunal (FTT) and Upper Tribunal (UT), the credibility of expert testimony, and the application of procedural and substantive law in asylum cases.

Summary of the Judgment

The petitioner, Do, appealed against the Secretary of State for the Home Department following the refusal of her asylum claim by the FTT and the subsequent denial of permission to appeal by the UT. Her asylum claim was based on fears of persecution related to her status as a single female parent vulnerable to her ex-husband's violence and potential accusations of witchcraft due to her mental health issues. The FTT rejected her appeal, questioning the credibility of her claims and the reliance on expert testimony that introduced the witchcraft element, which was not initially part of her claim. The UT upheld the FTT's decision, leading to the appeal to the Court of Session. The Court of Session ultimately refused the petition, affirming that there was no real prospect of success in challenging the UT's decision and that no compelling reasons were present to allow the appeal to proceed.

Analysis

Precedents Cited

The judgment references several key precedents that influence the court's decision-making process:

• PA v Secretary of State for the Home Office [2020] CSIH 34: Discusses the function of the Lord Ordinary in permission cases.
• Wightman v Advocate General 2018 SC 388: Establishes the standard for assessing the "real prospect of success" in appeals.
• RSPB v Scottish Ministers 2017 SC 552: Highlights the necessity of identifying material errors of law in petitions.
• SA v Secretary of State for the Home Department 2014 SC 1: Emphasizes the clarity and succinctness required in decisions on permission to appeal.
• TR (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152: Discusses the irrelevance of certain factors like access to medication when assessing serious harm risks.
• Additional references include cases on the assessment of expert reports and the importance of coherence between evidence and claims.

These precedents collectively underscore the judiciary's approach toward ensuring decisions are well-reasoned, based on credible evidence, and adhere strictly to legal standards governing asylum and appeals.

Legal Reasoning

The court's legal reasoning centered on two main pillars: the identification of a material error of law and the presence of a compelling reason to allow the appeal to proceed under section 27B(3)(c)(ii) of the Court of Session Act 1988.

• Material Error of Law: The court examined whether the Upper Tribunal made any significant legal misinterpretations or omissions. It concluded that the UT's decision was clear, succinct, and did not misapply the law. The petitioner's arguments that the UT failed to adequately consider the witchcraft risk were dismissed as the witchcraft element was not part of her initial claim and was introduced through expert testimony, which the FTT rightfully gave limited weight.
• Compelling Reason to Proceed: The petitioner argued that there were compelling reasons related to the mishandling of her witchcraft claims and the assessment of state protection in Nigeria. However, the court found these arguments insufficient to meet the stringent threshold required for judicial review. The existence of conflicting evidence and the lack of coherence in the expert report diminished the petitioner's case.

The court emphasized that for an appeal to succeed, it must demonstrate more than just arguable points; it needs to present clear material errors that undermine the tribunal's decision. In this instance, the petition did not meet this burden.

Impact

This judgment reinforces the importance of coherent and consistent asylum claims. It underscores the judiciary's expectation that applicants provide clear and substantiated reasons for fearing persecution. Additionally, it highlights the necessity for tribunals to critically assess expert testimony, especially when it introduces new elements not originally part of the claim.

Future cases may cite this judgment to illustrate the high threshold for appealing asylum decisions and the limited scope for introducing new allegations post-initial claim. It serves as a reminder for applicants to present comprehensive and consistent evidence from the outset and for tribunals to maintain strict scrutiny over expert reports to ensure they are directly relevant and supported by the claimant's evidence.

Complex Concepts Simplified

Judicial Review

Judicial review is a legal process where courts examine the decisions of public bodies to ensure they are lawful, reasonable, and procedurally fair. In this case, Do sought judicial review to challenge the refusal to allow her appeal of the asylum decision.

Material Error of Law

A material error of law occurs when a court or tribunal misinterprets or fails to apply the law correctly, affecting the outcome of the decision. The petitioner needed to demonstrate such an error to overturn the tribunal's decision.

Compelling Reason

A compelling reason is an exceptional circumstance that justifies bypassing standard procedures, such as the strict criteria for permission to appeal. The petitioner argued that her specific circumstances warranted such consideration.

Expert Testimony and Credibility

Expert testimony refers to specialized knowledge provided by professionals to support or refute claims. In this judgment, the credibility of Professor Aguilar's report on witchcraft was pivotal. The tribunal found the report introduced new elements that were not part of the original claim, undermining its reliability.

Conclusion

The case of Do v Secretary of State for the Home Department [2020] CSIH 35 highlights the judiciary's rigorous standards in assessing asylum claims and the appeals process. The refusal to grant permission to appeal underscores the necessity for clear, consistent, and substantiated claims in asylum applications. It also emphasizes the critical evaluation of expert testimony and the importance of aligning such evidence with the claimant's original assertions. This judgment serves as a precedent for maintaining stringent oversight in immigration cases, ensuring that decisions are both legally sound and grounded in credible evidence.

For legal practitioners and applicants alike, this case reiterates the importance of presenting a well-founded and coherent asylum claim from the outset and the limited scope available for introducing new elements during the appeal process unless they are directly relevant and substantiated by the claimant's narrative and evidence.