MA v The Secretary of State for the Home Department

Where a refusal of permission to appeal by the Upper Tribunal is quashed following a “Cart” judicial review, the Tribunal may grant permission without a hearing only if the High Court’s order reveals why the requirements of CPR 54.7A were met. If the matter is listed, the appellant must provide the judicial-review materials relevant to permission. New grounds advanced in judicial review require an application to amend the grounds before the Upper Tribunal.

Under HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, an openly gay person at risk of persecution has a well-founded fear. Where severe mental illness makes discretion impossible, the question why the person would choose discretion does not arise. Failure to engage with unchallenged psychiatric evidence establishing that inability is a material error of law.

The appellant, a Pakistani national, appealed against the refusal of his protection and human-rights claims. He was accepted to be gay and to face persecution in Pakistan if he lived openly as a gay man. The First-tier Tribunal dismissed the appeal, finding that he would live discreetly for reasons unconnected with persecution.

Permission to appeal was refused by both the First-tier Tribunal and the Upper Tribunal. Following a “Cart” judicial review under the Civil Procedure Rules 1998, the High Court quashed the Upper Tribunal’s refusal but gave no useful reasons for granting permission. The appellant then sought to amend his grounds to rely on psychiatric evidence which had been before the First-tier Tribunal.

The central issues were the procedural effect of the quashing order and whether the appellant’s severe paranoid schizophrenia meant that he could not maintain discretion about his sexuality on return.

1. Appeal allowed. The Upper Tribunal set aside the First-tier Tribunal’s decision and substituted a decision allowing the appeal on protection, Refugee Convention grounds.

2. A successful “Cart” judicial review leaves the underlying application for permission to appeal outstanding. The Upper Tribunal can ordinarily grant permission without a hearing only where the High Court’s grant of permission makes apparent the arguable error of law in the First-tier Tribunal decision and why CPR 54.7A(7) was satisfied. Where the order is opaque, it cannot safely take that course.

3. If an oral permission hearing is necessary, the appellant must ensure that the Tribunal and respondent have the judicial-review materials that may bear on permission. This is especially necessary where the case has materially changed from the original grounds. A “Cart” challenge must identify an arguable legal error in the Upper Tribunal’s refusal in response to the grounds then before it; it is not a third opportunity to perfect a challenge to the First-tier Tribunal. Where judicial-review grounds differ, permission to amend the grounds in the Upper Tribunal is required.

4. Applying HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, the Tribunal held that the appellant’s inability to be discreet was decisive. Unchallenged psychiatric evidence showed that his exceptionally severe mental illness would prevent him from maintaining a discreet life, whatever his wishes or motivations. The inquiry into why a person would choose discretion therefore did not arise.

5. The First-tier Tribunal had accepted the psychiatric opinion but failed to engage with the crucial part of the later report concerning the appellant’s inability to be discreet. That was a material failure to take account of relevant evidence. Since the respondent accepted that an openly gay man would face persecution in Pakistan, the appellant had established a well-founded fear of persecution. The remaining human-rights issues did not require determination.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on protection grounds and substituted that decision.

• High Court: In a “Cart” judicial review, granted permission and quashed the Upper Tribunal’s refusal of permission to appeal. The order did not explain the basis on which permission had been granted.

• Upper Tribunal: Deputy Upper Tribunal Judge Warr refused permission to appeal against the First-tier Tribunal decision.

• First-tier Tribunal: Dismissed the appellant’s protection and human-rights appeal.