APPEAL BY DO AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The Appellant, a Nigerian national, arrived in the United Kingdom in 2013 with her two children. The children's father is the Appellant's ex-husband residing in Nigeria. The ex-husband had initially arranged a family holiday to the UK. Subsequently, the Appellant had a child with another man living in the UK. On 8 August 2017, the Appellant claimed asylum on grounds of risk from her ex-husband, who had been violent and had divorced her upon discovering her pregnancy by another man. The asylum claim was refused on 16 January 2018. The Appellant appealed to the First-tier Tribunal (FTT), which initially refused her appeal. However, the Upper Tribunal (UT) found a material error of law, set aside the decision, and remitted the appeal to the FTT for redetermination.

The Appellant's claim was based on a well-founded fear of persecution as a single female parent vulnerable to a violent ex-husband, risk of losing her children, and potential accusations of witchcraft due to her mental health conditions (anxiety and depression). The FTT again refused the appeal on 21 January 2019, criticizing the expert report submitted by the Appellant and finding insufficient evidence of risk. The Appellant sought permission to appeal to the UT, which was refused on 10 April 2019. The Appellant then sought judicial review of the UT's refusal, which was denied permission to proceed by the Lord Ordinary on 18 September 2019. The present appeal concerns that refusal.

Legal Issues Presented

1. Whether the Lord Ordinary was correct to determine that the petition for judicial review had no real prospect of success in challenging the Upper Tribunal's refusal of leave to appeal.
2. Whether there was any compelling reason to allow the judicial review to proceed under section 27B(3)(c)(ii) of the Court of Session Act 1988.
3. Whether the Upper Tribunal erred in its assessment of the expert report regarding the risk of accusations of witchcraft and the sufficiency of state protection in Nigeria.
4. Whether the Upper Tribunal and First-tier Tribunal provided adequate reasons for their decisions, particularly concerning the witchcraft risk and internal relocation.

Arguments of the Parties

Appellant's Arguments

• The Upper Tribunal failed to adequately address the danger arising from accusations of witchcraft, leaving the reasoning unclear and insufficient.
• The risk of witchcraft accusations is legally separable from the risk posed by the ex-husband and should have been given proper anxious scrutiny.
• The expert report's findings on witchcraft and state protection were not contradicted by background materials or the Appellant’s own evidence.
• The Upper Tribunal erred in law by failing to engage properly with the grounds of appeal, including misapplying relevant directives and case law concerning future ill-treatment and mental health stigma.
• The possibility of internal relocation was irrelevant due to the state-wide nature of the witchcraft risk.
• The failure to consider the country information in its entirety amounted to inadequate assessment and reasoning.

Respondent's Arguments

• The petition had no real prospect of success; the Upper Tribunal’s reasons were clear and sufficient regarding the risks posed by the ex-husband and accusations of witchcraft.
• The First-tier Tribunal properly discounted the expert report on witchcraft due to its digressive academic nature and lack of direct relevance to the Appellant’s claim until after the report was prepared.
• The Appellant’s evidence contradicted claims of risk from the ex-husband, who had not contacted her for five years and expressed a desire not to see her or the children.
• The First-tier Tribunal’s reliance on background information about Nigeria’s functioning police and mental health services was justified.
• No compelling reason such as perversity or procedural unfairness was demonstrated to warrant allowing the appeal to proceed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining whether the petition disclosed a real prospect of success in challenging the Upper Tribunal's refusal of leave to appeal. This required identifying a material error of law going to the root of the matter. The court found no such error. The Upper Tribunal had provided clear, adequate reasons for refusing permission, particularly in relation to the expert report on witchcraft and the risk from the ex-husband.

The court noted that the First-tier Tribunal had critically assessed the expert report, finding it digressive and inadequately reasoned, especially concerning the witchcraft risk, which had not been part of the original claim. The FTT also found the Appellant's own evidence contradicted the assertion of risk from her ex-husband, who had not contacted her for years.

The court accepted that the Upper Tribunal was entitled to rely on background evidence about Nigeria’s political stability, functioning police force, and availability of mental health services. The UT’s refusal to grant permission to appeal was based on a proper evaluation of the evidence and did not disclose any material error of law.

Regarding the requirement for a compelling reason to allow the judicial review to proceed, the court applied a stringent standard. It found no such compelling reason, noting that the petition did not raise important points of principle or practice, nor did it demonstrate any irregularity or injustice necessitating review.

The court emphasized that decisions on permission to appeal should be succinct and need not be essays on the merits. The petitioner's case was straightforward and failed because the evidence did not support the claimed risks.

Holding and Implications

The court's final decision was to REFUSE THE APPEAL.

The direct effect of this decision is that the Appellant's petition for judicial review challenging the Upper Tribunal's refusal to grant permission to appeal is dismissed. No new legal precedent was established. The ruling confirms the stringent standards for permission to proceed with judicial review in immigration and asylum cases and affirms the discretion of tribunals to assess expert evidence and credibility. The decision reinforces the principle that permission will not be granted absent a real prospect of success or compelling reason.