RG and others -v- The Upper Tribunal (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2024-BHM-000080

In the High Court of Justice
King’s Bench Division
Administrative Court

23 October 2024

Before:

His Honour Judge Simon

Between:

RG and others

-v-

The Upper Tribunal

and

Secretary of State for the Home Department
(Interested party)


Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant

ORDER by His Honour Judge Simon sitting as Judge of the High Courr

1. The application for anonymity of the Claimants is granted.

2. The application for judicial review is refused.

3. No order for costs.

Reasons

1. This application for permission to apply judicial review is a challenge to a decision of the Upper Tribunal. It is to be determined in accordance with the provisions of section 11A of the Tribunals Courts and Enforcement Act 2007. Generally, such challenges are excluded by reason of section 11A(2) of the 2007 Act. Permission to apply for judicial review will be granted only if the claim falls within any of the exceptions at section 11A(4) and/or (5) of the 2007 Act.

2. This claim does not fall within any of the exceptions. For that reason, the claim falls outside the jurisdiction of the High Court’s judicial review jurisdiction, and is dismissed.

3. By a decision dated 7 February 2024 (sent on 15 February 2024), Upper Tribunal Judge Gleeson refused the Claimants’ application for permission to appeal the decision of the First-tier Tribunal (Judge Hobson), dated 29 September 2023. The First-tier Tribunal dismissed the Claimants’ appeal against a refusal by the Interested Party of RG’s claim for asylum, with the remaining Claimants as his dependents. This claim seeks to challenge those decisions as wrong in law.

4. For the same reasons given within the Tribunal proceedings, namely the age of some of the Claimants and their relationship with the remaining Claimants, it is necessary to grant the application for anonymity on the usual terms, such that nothing will be made publicly available that identifies or could reasonably lead to the identifying of any of the Claimants.

5. As this is a Cart claim, it must satisfy the test set out by the Supreme Court in that case (and subsequent case law). There must be an arguable case that the Upper Tribunal’s decision to refuse permission to appeal and the First-tier Tribunal decision being appealed are wrong in law. If that is established then the claim must either raise an important point of principle or practice or, alternatively, there must be some other compelling reason to hear it.

6. There are two grounds advanced that are interconnected. The first is that Upper Tribunal committed a fundamental breach of natural justice by failing to address the second ground advanced before it, namely that the First-tier Tribunal committed a fundamental breach of natural justice by not treating the evidence of RG and the fourth claimant, KG in accordance with the Presidential Guidance. That guidance relates to the identification of vulnerability and the need to express how any identified vulnerability has been treated when assessing the vulnerable witness’ evidence. Naturally, this touches on many cases on credibility, which then contributes to the overall outcome. The second ground is the same point but aimed directly at the First-tier Tribunal.

7. The Upper Tribunal decision characterised the appeal grounds as a “vigorously expressed disagreement with findings of fact and credibility by the First-tier Judge”. It went on to state that the grounds did not reach the high standard of showing the “the Judge’s assessment of fact and credibility” was plainly wrong or rationally insupportable. Rather, the conclusions were considered to have been “properly, intelligibly and adequately reasoned”.

8. Intrinsic in this assessment of the First-tier Tribunal decision is consideration of whether, when assessed in the round, the absence of a direct reference to the application of the Presidential Guidance indicates such a flaw in the procedure as to amount to a breach of natural justice. The grounds advanced before the Upper Tribunal (and the First-tier Tribunal when considering the Claimants’ application for permission to appeal) were long and detailed. The specific ground in respect of the Presidential Guidance appears at paragraph 2 of 7 and asserts “a lack of due regard” to the Presidential Guidance. It was not asserted in that ground that there had been a breach of natural justice.

9. The First-tier Tribunal Judge considering the grounds of appeal was not persuaded that there had been such a lack of due regard to the Presidential Guidance that there was an error of law. The Upper Tribunal Judge was entitled to come to the same conclusion. In both cases they will have assessed the First-tier Tribunal’s decision as a whole for any arguable error of law, including the vulnerability issue. The decision makes clear that the First-tier Tribunal acknowledged the presence of vulnerability and the potential for reasonable adjustments. No break seems to have been necessary during RK’s evidence. If it had been necessary, doubtless his representative would have requested it. It is not suggested that a request was made and refused or that any other procedural irregularity took place that would materially have altered the outcome. It is only after the event that complaint is made. The same applies to questions asked of the Claimants during the hearing. The statement from their representative does not advance the argument as to the conduct of the hearing.

10. The fact that a witness is to be treated as vulnerable due to mental health issues does not mean that their evidence has some special quality that protects it from proper scrutiny in and of itself as well as in the context of the rest of the available evidence. The First-tier Tribunal has assessed the evidence of the two Claimants in detail and in the context of the identified vulnerabilities and has reached conclusions which are indeed properly, intelligibly and adequately reasoned.

11. The Upper Tribunal’s treatment of the “prolix” grounds, including ground 2, as a single set of grounds rather than addressing each ground individually does not therefore amount to an arguable error of law or breach of natural justice. The First-tier Tribunal’s failure to make direct reference to the Presidential Guidance similarly does not amount to an arguable error of law or breach of natural justice when the decision is considered in the round.