AM (Egypt) v Secretary of State for the Home Department

On a renewed application for permission to bring a second appeal, the court may apply a slightly less demanding approach where the Upper Tribunal has set aside a first-instance decision and remade the decision de novo. Permission still requires a real prospect of success, or an important point of principle or practice or another compelling reason. A challenge which merely disagrees with carefully reasoned credibility and relocation findings is an attempt to reargue the facts. Country guidance must be engaged with, but a tribunal need not reach the conclusion urged by a party. Where findings are emphatic and supported by adequate reasons, there is no real prospect that the Court of Appeal will interfere.

The appellant, a Coptic Christian national of Egypt, appealed after the Secretary of State refused his asylum claim and the First-tier Tribunal dismissed his appeal. The Upper Tribunal set aside the First-tier Tribunal’s decision because it was unclear whether the judge had considered the background evidence summarised in MS (Coptic Christians) Egypt CG [2013] UKUT 00611 (IAC), then remade the decision and again dismissed the appeal.

The appellant renewed an application for permission to bring a second appeal. He argued that the Upper Tribunal had failed to engage with country guidance, his evidence, the reasons for his conduct, and the possibility of internal relocation. The central questions were whether the second-appeal test was relaxed because the decision had been remade de novo, and whether the proposed grounds had any real prospect of success.

1. Permission test. The application was for permission to bring a second appeal. Because the Upper Tribunal had set aside the First-tier Tribunal’s decision and proceeded to remake the decision de novo, the court accepted that the applicable test was slightly less demanding than the ordinary second-appeal test. Even so, the proposed appeal had to have a real prospect of success; alternatively, it had to raise an important point of principle or practice or another compelling reason for an appeal to be heard.
2. Country guidance and factual findings. The complaint that the Upper Tribunal had failed to engage with MS (Coptic Christians) Egypt CG [2013] UKUT 00611 (IAC) was unsustainable. The judge referred to the guidance when setting aside the earlier decision, recorded the submissions concerning it, and stated that the background evidence, including evidence going beyond the guidance, had been considered. The proposed grounds substantially amounted to disagreement with the tribunal’s assessment of the evidence and credibility.
3. Credibility and plausibility. The Court of Appeal would not interfere merely because a party disputed findings of fact. The warning in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 concerning the danger of imposing domestic perceptions of plausibility in cases involving different cultures was borne in mind. It did not assist where the findings were emphatic and carefully explained.
4. Internal relocation. The alternative finding that relocation to Assiut City or another city with a substantial Coptic Christian population would not be unreasonable was not shown to disclose an arguable error. A journey of about one hour from the appellant’s village to Assiut City was not inconsistent with that conclusion, particularly where the credibility findings gave no reason to suppose that the Muslim Brotherhood would pursue him there.
5. Disposition. Whether assessed under the real-prospect test or the second-appeal test, the appellant’s case fell far short. Permission to appeal was refused.

• Court of Appeal (Civil Division): On a renewed application for permission to bring a second appeal, permission was refused: [2015] EWCA Civ 1178.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Chalkley set aside the First-tier Tribunal’s decision because it was unclear whether the relevant background evidence had been considered, then remade the decision and dismissed the asylum appeal.
• First-tier Tribunal: The appellant’s appeal against the Secretary of State’s refusal of his asylum claim was dismissed.