AS (Gambia) v The Secretary of State for the Home Department

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. An Upper Tribunal remaking a decision may reconsider the evidence for itself, including expert evidence, and may assess whether earlier factual findings remain appropriate to use under the Devaseelan guidance. A tribunal’s reference to reopening an issue does not necessarily impose a formal procedural application where the decision, read fairly, shows that the tribunal addressed the relevant guidance and remade the decision itself.

The appellant’s asylum and human rights appeals, including issues concerning domestic violence, were dismissed by the Upper Tribunal in a decision dated 6 October 2014. The Upper Tribunal refused permission to appeal, and Rafferty LJ refused permission on the papers on 30 March 2015.

Sales LJ heard the renewed oral application on four grounds. They concerned whether the Upper Tribunal had reviewed or remade the decision, whether it had required a formal application to reopen domestic-violence issues, whether it could rely on earlier credibility findings, and whether it had properly considered the expert evidence.

1. Application refused. The proposed appeal did not satisfy the second appeal test. Permission would require an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case. None of the four grounds came close to meeting that threshold.
2. On a fair reading, the Upper Tribunal understood that it was remaking the decision for itself. Paragraphs 17 to 22 showed its understanding of that role, while paragraph 86 and paragraphs 47 to 74 demonstrated its own detailed review of the expert evidence. Its observation in paragraph 88 that the First-tier Tribunal judge had not erred in law did not show that it had confined itself to reviewing lawfulness.
3. The reference in paragraph 83 to an application to reopen the domestic-violence issue did not impose a requirement for a formal application. In context, the Upper Tribunal was addressing the Devaseelan guidance, which had itself been considered by Judge Clayton. The operative reasoning in paragraphs 83 to 88 showed that the Upper Tribunal had properly understood and applied its task.
4. It was properly open to the Upper Tribunal to reconsider the expert evidence for itself and then decide, in accordance with the Devaseelan guidance, whether earlier findings about the appellant’s credibility remained appropriate to rely upon. The fact that earlier determinations had been set aside for error of law did not prevent that evaluative exercise.
5. The challenge to the treatment of the expert evidence was hopeless. The Upper Tribunal had reviewed it with manifest care and gave reasons, particularly in paragraphs 86 and 87, for the weight it attributed to that evidence.

The formal order was: application refused.

• Court of Appeal (Civil Division): On 24 November 2015, Sales LJ refused the renewed oral application for permission to bring a second appeal.
• Upper Tribunal (Immigration and Asylum Chamber): The appellant’s asylum and human rights appeals were dismissed on 6 October 2014, and permission to appeal was refused.
• Permission stage: Rafferty LJ refused permission on the papers on 30 March 2015.