Cameroonian woman who fears forced marriage wins permission to appeal asylum ruling

A judge in the Court of Session granted leave to appeal after ruling that the challenge had “substantial prospects of success”.

Lord Drummond Young heard that the 35-year-old citizen of Cameroon, “MCB”, applied for a residence card as the spouse of a Czech national in January 2012, but that application was refused by the Home Secretary.

Asylum application

Her marriage subsequently broke down and she was served with a removal notice, but by that time she had a child born on 21 December 2012 as her dependent.

She claimed asylum on the ground that she feared forced marriage and female genital mutilation if returned to Cameroon because of her membership of a particular social group, but her claim was refused by the Home Secretary by letter dated 2 September 2015.

The applicant appealed to the First-tier Tribunal and her appeal was granted on 1 July 2016, but the Home Secretary appealed to the Upper Tribunal, which by decision dated 19 September 2016 allowed the appeal, set aside the ruling, and remitted the case to the First-tier Tribunal to be heard by a different judge.

Thereafter the applicant applied to the Upper Tribunal for permission to appeal to the Court of Session, but that application was refused by a decision of 20 February 2017.

‘No justification’ for refusal

The applicant then applied to the court for permission to appeal, in terms of section 13 of the Tribunals, Courts and Enforcement Act 2007, challenging the Upper Tribunal’s refusal to grant permission to appeal.

Counsel for the applicant, Tim Haddow, submitted that the Upper Tribunal had accepted that the applicant had a “potentially arguable” case, but permission to appeal was refused on the ground that the “second appeals test” was not satisfied, as the appeal did not raise an “important point of principle” or practice and there was “no other compelling reason” to allow the appeal to proceed.

However, in those circumstances it was submitted that there was “no justification” for refusing permission to appeal, in view of the wording of section 13.

It was argued that different provisions are made for England and Wales and Northern Ireland on one hand and Scotland on the other hand in relation to the second appeals test.

In the former case subsection (6) applies, and according to the terms of that subsection both the Upper Tribunal and the relevant appellate court are bound by the second appeals test, but in Scotland, by contrast, subsection (6A) says nothing about the Upper Tribunal.

‘Arguable ground of appeal’

Counsel for the applicant founded on the difference between subsection (6) and subsection (6A) to argue that in cases in Scotland the Upper Tribunal was “not empowered” to apply the second appeals test.

Consequently, if it considers that there is an arguable point of law, it must grant permission to appeal and cannot refuse it on the ground that the appeal does not raise an important point of principle or practice or that there is some other compelling reason for granting permission.

Counsel for the Home Secretary, Christopher Pirie, conceded that the Upper Tribunal was not entitled to apply the second appeals test, a move the judge described as an “unfortunate conclusion”, since the “obvious intention” of section 13 of the 2007 Act was that the second appeals test should be applied at all stages where permission to appeal to the Court of Session, or the Court of Appeal in England and Wales or Northern Ireland, is considered.

“In the light of the concession” Lord Drummond Young added, “it appears that the Home Secretary accepts that, if the Upper Tribunal considers that there is a sufficiently arguable ground of appeal, it should grant permission to appeal”.

The second ground on which the applicant sought permission to appeal was based on the standard second appeals test.

It was submitted that the reasoning of the Upper Tribunal was “defective” in that the test applied in considering the adequacy of the reasoning of the First-tier Tribunal, as laid down in a substantial number of earlier cases, had been “misapplied”.

Counsel for the Home Secretary contended that the test for the adequacy of the grounds of appeal was not arguability but a test of “real prospects of success” which, it was submitted, was not satisfied in the present case.

‘Substantial prospects of success’

However, the judge granted permission to appeal after ruling that the criticisms of the reasoning of the Upper Tribunal had “sufficiently substantial prospects of success”.

In a written opinion Lord Drummond Young said: “In the first place, in the light of the concession made by counsel for the Home Secretary as to the test that should be applied by the Upper Tribunal in deciding whether to grant or refuse permission to appeal, I consider that the applicant can argue that the reasoning of the Upper Tribunal was defective, in that it refused permission to appeal on the basis of the second appeals test; that is very clear from the shortly stated decision of the Upper Tribunal refusing permission to appeal further. This raises significant questions about the powers that the Upper Tribunal has in any such application, and I consider that it is a matter of general importance.

“The more important question relates to the merits of the proposed appeal. In my opinion the grounds put forward by the applicant have reasonable prospects of success, on the basis that the Upper Tribunal misapplied the criteria for determining whether the reasoning of the First-tier Tribunal was inadequate.”

He added: “I am further of opinion that the second part of the second appeals test is satisfied in that the proposed appeal raises an important point of principle or practice. The fundamental issue of substance in the present case relates to the test for assessing the adequacy of reasoning of the First-tier Tribunal. It is true that reasons tests have been the subject of a considerable number of decided cases in many different areas of the law, including a number of decisions by the Upper Tribunal in immigration cases. Nevertheless, the present case raises an unusual form of tension, between a decision based on the assessment of the credibility and reliability of an applicant for asylum and her principal supporting witness on one hand and general information about the country on the other hand.”