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Petition of Romesh Warnakulasuriya for Judicial Review (Court of Session)
Factual and Procedural Background
The Petitioner, a national of Country A, entered the United Kingdom in 2009 and later claimed asylum, alleging a risk from the Lanza family. His claim and subsequent appeal were refused. Further submissions were also refused, although he received a further right of appeal. [1][2]
The Petitioner relied on an alleged arrest warrant, a letter from a lawyer in Country A, and expert evidence supporting the documents’ authenticity. The First-tier Tribunal (“FtT”) refused the appeal, finding adverse credibility findings and concluding that the documents had not been shown to be reliable. [2][3]
The FtT refused permission to appeal, and the Upper Tribunal (“UT”) subsequently refused permission on Grounds 2 and 3. Ground 2 concerned the treatment of expert and hearsay evidence; Ground 3 concerned an alleged duty on the Respondent to verify the documents. [4][5][6][7]
The Petitioner sought judicial review and reduction of the UT’s decision, with remittal for reconsideration of permission to appeal. [8][9]
Legal Issues Presented
- Whether the petition was competent under section 11A of the Tribunals, Courts and Enforcement Act 2007, particularly the exception for conduct involving a procedural defect amounting to a fundamental breach of natural justice. [9][10]
- Whether the UT’s reasons concerning the expert evidence, hearsay, and country information disclosed such a procedural defect in relation to Ground 2. [11][12]
- Whether the UT unlawfully relied on the difficulty of verification, rather than a reason advanced by the Respondent, and whether that disclosed such a procedural defect in relation to Ground 3. [13][12]
- Whether reduction should be refused in any event because the outcome would inevitably have been the same. [14][15]
Arguments of the Parties
Petitioner’s Arguments
- A serious inadequacy in the UT’s reasons could constitute a fundamental breach of natural justice under section 11A(4)(c)(ii). [16][17]
- In relation to Ground 2, the UT wrongly relied on country information concerning false documents and failed to address an alleged inconsistency in the FtT’s treatment of hearsay evidence. [18][19][20]
- In relation to Ground 3, the UT relied on the difficulty of verification even though the Respondent had not advanced that reason and had not disputed that simple verification was possible. [21][22][23]
- The alleged errors were material because the documents were central to the claim and there was a real possibility that the UT would have reached a different decision. [20][24]
Respondent’s Arguments
- The section 11A(4)(c)(ii) exception was narrow and demanding. The Petitioner’s complaints were, in substance, attempts to reopen evaluative permission decisions which section 11A made final. [25][26]
- The UT’s reference to false documents was contextual and did not amount to a finding or assumption that the documents were forged. [27][28]
- The difficulty of verification was an integral part of the applicable legal test, and the Petitioner bore the burden of establishing that the exceptional verification duty arose. [29][30]
- The UT’s reasons were concise but intelligible, and any possible inadequacy would not justify reduction because the outcome would inevitably have been the same. [30][31]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535 | A contradictory approach to material evidence may constitute an error of law or irrationality. | The Court found no relevant contradiction in the FtT’s treatment of the two categories of hearsay. [32] |
| Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 | Irrationality and the effect of an error on the weight given to evidence. | The Court treated the FtT’s assessment as an evaluative judgment rather than irrationality. [33] |
| Tara Kazadi Mbuyi-Biuma [2019] CSOH 93 | The exceptional verification duty may arise where a simple process would conclusively resolve authenticity and reliability. | The Court distinguished the present multi-stage, inconclusive verification process. [34][35] |
| RS (aka RUS), Ptr [2015] CSOH 19 | Verification and the reliability of documentary evidence. | The authority was relied on in the Petitioner’s submissions but did not establish a section 11A procedural defect. [36] |
| PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1 WLR 1322 | The significance of authenticating documents and explaining findings concerning documentary evidence. | The Court held that the FtT had a sound basis for treating the documents as unreliable. [34][37] |
| AR [2017] CSIH 52 | The verification duty and the availability of alternative verification methods. | The Court held that the present case lacked the simple and conclusive verification process found in the authority. [34][38][35] |
| AR [2021] CSOH 10 | The significance of actual verification and competing verification results. | The Court found that no conclusive verification had been obtained in the present case. [39][35] |
| QC (verification of documents; Mibanga duty) China [2021] UKUT 00033 (IAC) | The exceptional verification duty requires a simple process capable of conclusively resolving authenticity and reliability. | The UT correctly treated difficulty and conclusiveness as cumulative elements of the test. [7][40][41] |
| R (LA (Albania)) v Upper Tribunal [2024] 1 WLR 1673 | Section 11A narrows, but does not entirely exclude, supervisory review. | The Court applied the limited statutory categories preserved by section 11A. [42][16] |
| Singh, Petitioners 2025 SLT 146 | Section 11A redefines the supervisory jurisdiction and preserves only narrow exceptions. | The Court emphasised finality and the exceptional nature of review. [43][44][45] |
| Watt v Lord Advocate 1979 SC 120 | The historical scope of supervisory review. | The authority was identified as the earlier formulation of the restricted review jurisdiction. [43] |
| R (Karim) v Secretary of State for the Home Department [2024] 1 WLR 5135 | A serious inadequacy in reasons may in principle amount to the relevant procedural defect, but ordinary error or insufficiency is insufficient. | The Court distinguished reviewable fundamental procedural defects from unreviewable evaluative errors. [16][46][12] |
| R (Chowdhury) v Secretary of State for the Home Department [2025] 1 WLR 5507 | No gloss should be placed on the statutory wording; the focus is procedural fairness rather than substantive merits. | The Court applied the statutory threshold and rejected a merits challenge disguised as a reasons challenge. [17][47][48] |
| J (or AJ) v Secretary of State for the Home Department 2012 SLT 162 | A decision-maker cannot find or assume that a document is forged without evidential support and reasons. | The Court held that neither tribunal found forgery; they merely found insufficient proof of reliability. [49][50][51] |
| RP (Proof of Forgery) Nigeria [2006] UKAIT 86 | A finding or assumption of forgery requires evidence and express reasons. | The Court used the principle to distinguish forgery from inadequate authentication. [50][52] |
| Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 00439 | Documentary evidence may be assessed holistically without a binary finding of authenticity or forgery. | The Court held that reduced weight could lawfully be given to an insufficiently authenticated document. [53][54] |
| Tesco Stores v Dundee City Council 2012 SC (UKSC) 278 | Materiality and the possibility of a different decision. | The Court held that no relevant procedural defect had been established and, alternatively, that any error was immaterial. [24][14] |
| Khan v Secretary of State for the Home Department 2015 SC 583 | The high onus required to show that the outcome would inevitably have been the same. | The Court accepted the Respondent’s alternative materiality argument. [24][14][15] |
| T v Secretary of State for the Home Department [2022] CSOH 72 | Holistic credibility assessment does not require uncritical acceptance of expert evidence; verification duties arise only exceptionally. | The Court upheld the FtT’s reduced weighting of the expert evidence. [55][41] |
| AZ (error of law; jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC) | A tribunal is not necessarily confined to reasons expressly advanced by the successful party when determining a legal question. | The UT was entitled to assess for itself whether the verification preconditions were met. [56] |
| SA (by her litigation friend, David Wedgwood) v The Secretary of State for the Home Department [2025] EWCA Civ 357 | The tribunal may determine the legal issue before it rather than relying only on parties’ pleaded reasons. | The authority supported the UT’s consideration of verification difficulty. [56] |
| South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 | Reasons are adequate where the informed reader is not left in genuine and substantial doubt about the decision’s basis. | The Court found the UT’s concise reasons intelligible and adequate. [57] |
| Elkabany v Advocate General for Scotland 2025 SLT 871 | Section 11A decisions are immune from review except in extremely specific and exceptional circumstances. | The Court stressed the emphatic finality of UT permission decisions. [58][59] |
| R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin) | Fairness depends on context, including the statutory framework and legislative purpose. | The Court interpreted fairness consistently with section 11A’s purpose of finality. [60][61] |
Court's Reasoning and Analysis
Section 11A makes a UT refusal of permission final and generally immune from judicial review. Review remains available only within the narrowly defined exceptions, including a procedural defect amounting to a fundamental breach of natural justice. [62][42][43][63][64][65]
The Court distinguished an ordinary error of law or evaluative misjudgment from a fundamental procedural defect. A serious inadequacy in reasons may qualify in principle, but only if it reaches the statutory threshold; the Court must not use the exception to reconsider the substantive merits of the permission decision. [66][47][67][12]
As to Ground 2, the UT’s reference to country information concerning false documents was contextual. It explained why the absence of a direct account from the third party undermined the authentication chain; it did not constitute a finding that the arrest warrant was forged. [68][51][54]
The Court also rejected the alleged hearsay contradiction. The Petitioner’s own account could be assessed directly through his evidence, whereas the expert opinion depended on an unrecorded verification exercise by a non-witness. Those were materially different evidential situations. [69][32]
The FtT was entitled to give reduced weight to expert evidence where the factual foundation of the opinion was not directly corroborated. That was an evaluative judgment, not irrationality or a procedural defect by the UT. [55][33]
As to Ground 3, the Court held that whether verification could be achieved without much difficulty was an integral part of the legal test for the exceptional verification duty. The UT was required to determine that issue for itself, and the Respondent’s silence did not relieve the Petitioner of the burden of establishing the test’s cumulative requirements. [70][41][56]
The Court further held that the Petitioner had had an opportunity to address feasibility before both tribunals. The operational duty to conduct verification, if it arose, was distinct from the anterior judicial question whether the duty arose at all. [56][71]
The evidence showed that the proposed verification depended on a multi-stage, unrecorded chain involving the expert’s driver and an unidentified court official. An attempted verification had produced no confirming document. The process therefore could not conclusively resolve authenticity and reliability and was not the simple process required by the applicable test. [39][35]
Finally, the Court held that any alleged error would be immaterial. The decisions rested cumulatively on the absence of direct corroboration, the Petitioner’s contradictions and prior adverse credibility findings, and the inconclusive nature of verification. Those matters independently supported refusal of permission. [14][15]
Holding and Implications
Petition dismissed and orders sought refused. The Court held that the section 11A(4)(c)(ii) exception was not engaged. The UT had applied the correct test and provided concise but lawful and adequate reasons. [72][12]
The decision confirms that disagreement with evaluative reasoning, or an alleged error of law, does not overcome section 11A’s finality rule. Judicial review remains available only for the narrowly defined statutory exceptions, and no broader new precedent was stated. [73][59][74]
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