Outer House dismisses asylum seeker’s challenge to Upper Tribunal refusal of permission to appeal

About this case:

• Citation:
  [2026] CSOH 102
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Tait

Lady Tait held that section 11A of the Tribunals, Courts and Enforcement Act 2007 imposed a demanding threshold for judicial review of an Upper Tribunal decision refusing permission to appeal. Even an error of law would not suffice unless the decision involved one of the exceptional procedural defects preserved by the legislation.

Winter, instructed by Drummond Miller LLP, appeared for the petitioner, Romesh Warnakulasuriya. Dingley, instructed by the Office of the Advocate General, appeared for the respondent. Mr Warnakulasuriya entered the UK in 2009 and claimed asylum in 2018 on the basis that he would be at real risk from the Lanza family if returned to Sri Lanka. His claim and subsequent appeal were refused.

He made further submissions in 2022 and was given another in-country right of appeal after those submissions were rejected. He relied on a purported Sri Lankan arrest warrant, a lawyer’s letter said to confirm its existence and evidence from country expert Dr Chris Smith, who considered the warrant authentic and believed the petitioner would be at real risk.

Arrest warrant not established as reliable

The First-tier Tribunal refused the appeal in December 2024. It made adverse credibility findings and was not satisfied that the documents relied upon, including the arrest warrant, had been shown to be reliable.

Among the matters considered were the absence of a direct account from Mr Madawala, a third party said to have attended court and verified the warrant, contradictions in the petitioner’s own evidence and the inconclusive nature of attempts to verify the document. The tribunal was also not persuaded to depart from adverse credibility findings made in his earlier 2019 proceedings.

After the First-tier Tribunal refused permission to appeal, the petitioner applied directly to the Upper Tribunal. His grounds included an argument that insufficient weight had been given to Dr Smith’s evidence and that the Home Office had been under a duty to verify the documentary evidence.

The Upper Tribunal refused permission. It held that the First-tier Tribunal was entitled to take account of the absence of a direct account from the person said to have carried out the verification and that the two categories of hearsay were qualitatively different. It also held that the exceptional duty to verify documents had not arisen because the proposed process could not be said to be achievable without much difficulty.

‘Fundamental breach’ required

The judicial review focused on section 11A of the 2007 Act, which provides that an Upper Tribunal refusal of permission to appeal is final and not liable to be questioned or set aside in another court, subject to limited exceptions. These include cases where the Upper Tribunal did not have a valid application before it, was improperly constituted, acted in bad faith or acted in such a procedurally defective way as to amount to a fundamental breach of natural justice.

Lady Tait noted that the Inner House had previously confirmed in Singh, Petitioners that section 11A redefined rather than abolished the supervisory jurisdiction. Mr Warnakulasuriya argued that serious inadequacy in the Upper Tribunal’s reasons could itself amount to such a breach. The respondent accepted that proposition in principle but maintained that the alleged defects were no more than disagreements with the tribunal’s evaluation of the merits.

Expert evidence

On the country expert issue, Lady Tait rejected the contention that the Upper Tribunal had misunderstood the First-tier Tribunal’s approach. The concern was not simply that Dr Smith had relied on hearsay. His opinion depended on steps said to have been carried out by Mr Madawala, who had provided no statement and had not been before the tribunal.
Lady Tait held that treating this differently from hearsay evidence given by the petitioner about what a relative had told him involved no contradiction. Nor was the First-tier Tribunal bound to accept Dr Smith’s evidence merely because his expertise was not disputed. A fact-finder could assess the evidential foundation of an expert opinion and reduce the weight attached to it where that foundation was insufficiently vouched.

The treatment of the expert evidence was therefore an evaluative judgment rather than a procedural defect capable of engaging section 11A.

No exceptional duty to verify

The petitioner also argued that the Upper Tribunal had relied on a point not advanced by the Home Office when it concluded that verification of the arrest warrant could not be achieved without much difficulty.

Lady Tait rejected that argument. Whether a simple verification process existed was an integral part of the legal test governing the exceptional duty to verify documents, rather than a new issue introduced by the Upper Tribunal. The petitioner bore the burden of establishing that the conditions giving rise to the duty were satisfied. The Home Office’s failure to dispute one element did not amount to a concession, and the tribunal was obliged to determine the legal question for itself.

The petitioner had himself raised possible methods of verification, including attendance at the relevant court in Colombo and enquiries of the lawyer said to have supplied the document. There was therefore no unfairness in considering whether those methods amounted to a simple and conclusive verification process.

Dr Smith’s own evidence indicated that authentication would require physical attendance at the Sri Lankan court, locating the relevant court file and cross-checking the warrant. When that process had previously been attempted, the court would not provide documentary confirmation. Lady Tait said the proposed process was therefore incapable of producing the kind of simple, conclusive verification contemplated by the relevant authorities.

Reasons ‘concise but entirely intelligible’

Lady Tait held that the Upper Tribunal’s reasons were sufficient. Reasons for refusing permission could properly be short provided the informed reader was not left in genuine and substantial doubt about the basis of the decision. Here, the petitioner knew why permission had been refused. Lady Tait said his real complaint was not that he could not understand the decision but that he disagreed with it, adding that “a reasons challenge cannot be deployed as a vehicle for a merits challenge”.

Even if an inadequacy had been established, reduction would serve no practical purpose because independent elements of the First-tier Tribunal’s reasoning remained intact, including the petitioner’s contradictory evidence and earlier adverse credibility findings. Lady Tait concluded that the Upper Tribunal had applied the correct legal tests and given reasons which, although concise, were lawful and adequate.

She emphasised that section 11A was intended to make refusals of permission final except in “extremely specific and exceptional circumstances”. An evaluative error, even if it amounted to an error of law, would remain unreviewable unless it crossed the statutory threshold into a fundamental breach of natural justice.
The court dismissed the petition and reserved expenses.