Case No: C4/2010/1367 
Neutral Citation Number: [2011] EWCA Civ 443
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR CHRISTOPHER SYMONS QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 10th March 2011

Before:

LORD JUSTICE LONGMORE
and
SIR RICHARD BUXTON
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Between:

	The Queen (on the application of) AA	Appellant	
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	Secretary of State for the Home Department 	Respondent	

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Mr Shuyeb Muquit (instructed by Farani Taylor LLP) appeared on behalf of the Appellant.

Mr Paul Greatorex (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment

Sir Richard Buxton:

1.	This is an appeal in respect of an application to move for judicial review of a decision of the Secretary of State in a fresh claim for asylum.  The background is as follows.

2.	The applicant, Mr AA (as I will continue to call him), made an unsuccessful claim for asylum in 2009.  He is a citizen of the republic of Pakistan, who came to this country in April 2009 and very shortly thereafter made his claim for asylum.  That was based on the alleged facts that he was a member and claimed to be a ward president or chairman of a political party, the MJF, and he was personally in dispute with a gentleman called Mr Tahir, who was a member of the National Assembly of Pakistan as a supporter of the Pakistan Muslim League, a party opposed to the MJF.  

3.	In circumstances that are not clearly before the court, a colleague of Mr AA, a Mr Awan, was unfortunately killed.  Mr AA at least thought Mr Tahir to be responsible for that death.  

4.	In October 2008 Mr AA's house, he claimed, was burgled in aggressive circumstances by men who made adverse reference to his association with the MJF.  He complained to the police, but nothing was done.  As I have said, he came to this country in April 2009 on a valid visit visa.  Whilst here he was told that criminal proceedings had been started against him in respect of a murder that had taken place in May 2009, that is to say of course when he was already in this country.  He believed that this false charge, as on its face it plainly was, had been promulgated and provoked by Mr Tahir with a view to punishing him for his involvement with the MJF.  His fear was that engagement in the criminal process, quite apart from the likelihood of his being imprisoned prior to trial, would lead to a criminal process which in a case of murder in Pakistan might result in his execution.  He considered that this process, as I have said, was intended to produce that result.  It was intended by Mr Tahir to produce that result not directly by Mr Tahir but through the processes of the court. 

5.	His application for asylum was rejected by the Secretary of State and he appealed to a Immigration Judge, Mrs Grant-Hutchinson, at a hearing that took place on 6 August 2009.  She rejected the evidence with regard to Mr AA's role in the MJF.  In paragraph 25 of her determination she criticised the substance of Mr AA's evidence with regard to the MJF, finding it vague and unpersuasive.  In paragraph 30 she expressed scepticism -- to put it at its lowest -- as to Mr AA's reaction to the alleged burglary in October 2008, pointing out that Mr AA had not behaved thereafter like one would expect from a man who feared for his life.  And in paragraph 32 she again expressed scepticism as to why the targeting (as was alleged) of Mr AA had taken place more than a year after the elections which were the source of the alleged trouble with Mr Tahir.

6.	Various documents were produced to demonstrate that indeed the charges had been brought against Mr AA, one of them being a document called an “FIR”, a First Incident Report, which was shown to the Immigration Judge.  She was doubtful about its genuineness but did not consider that she needed to come to a final resolution of that point, because she was satisfied, in terms to which I shall have to revert later in this judgment, that in any event, even if Mr AA was going to be on return to Pakistan subjected to the legal process that he complained of, he would not at the end of that process  be convicted and therefore have no need fear the outcome that he alleged of prolonged imprisonment or death as a result of a criminal conviction.

7.	The first application for a fresh claim was made to the Secretary of State by Mr AA's solicitors in October 2009.  That advanced a number of documents. Those were letters from Mr AA's lawyer in Pakistan claiming to demonstrate that he was indeed the subject of a politically motivated allegation, evidence about his diabetic condition, evidence about prison conditions in Pakistan, the effect of which it was said combined with his diabetic condition would be to cause him great pain and possibly death, and general evidence of what was described as the failure of the courts in Pakistan to deal with corruption.

8.	That fresh claim was fairly summarily dismissed by the Secretary of State. When he opened the case to us this morning Mr Muquit for the appellant said that he did not make any complaint about that determination.  It transpired, as argument progressed, that that statement on his part had to be to some extent nuanced.  I will come to that in due course.

9.	Then a further amount of evidence was submitted by the appellant alleged to constitute a new fresh claim.  The Secretary of State points out to us today that this evidence was only produced the day before the application for judicial review was due to proceed to an oral hearing.  That evidence having been produced, that hearing had to be adjourned for two months until it was disposed of in May 2010, the disposal from which we hear this appeal.

10.	The further evidence produced on that day in February 2010 was a sealed warrant for the arrest of the appellant issued by a sessions judge, a further letter from the appellant's lawyer in Pakistan broadly in the terms of his previous letter, a certificate from the President of the MJF in the district concerned confirming that the appellant had indeed held office in the party, some further evidence as to prison conditions in Pakistan, and two further FIRs.  

11.	In assessing that evidence the Secretary of State has to apply Rule 353 of the Immigration Rules, which I will set out for reference purposes.  The relevant part is this:

“The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and 
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” “

12.	In applying that rule the Secretary of State is governed by the decision of this court in WM( DRC) [2006] EWCA Civ 1495, recently confirmed by the decision of a constitution of this court presided over by the Vice President in MN (Tanzania) [2011] EWCA Civ 193, that having decided that the material is significantly different the Secretary of State has to consider whether it creates a realistic prospect of success in a further asylum claim.  Importantly that judgment involves judging both the reliability of the new material and also the outcome of tribunal proceedings based on that material, that is to say how it would appear in a tribunal case heard by what was in those days an adjudicator.  The court also held, and this is of some importance in this case as I will explain in due course, that in assessing the Secretary of State's determination a court, including this court, should apply the test of Wednesbury unreasonableness, and should not try to decide for itself whether it would have taken the same decision as did the Secretary of State.  

13.	Now the Secretary of State addressed the new material in a decision letter, which is the decision letter principally under criticism here, dated 23 March 2010.  The Secretary of State in that letter did not do was set out the guidance that she had received in the case of WM (DRC) and in particular the obligation that she had to consider how the new material would be assessed or might be assessed by an adjudicator looking at it in the context of the material that had already been before the original adjudicator.

14.	Mr Greatorex, for the Secretary of State, said that that was simply an error of form.  It made no difference to the validity of the Secretary of State's decision, provided that the substance of that decision was in accordance with the guidance given by this court in WM (DRC).  Although at the end of the day this court will not disqualify a determination of the Secretary of State simply because the Secretary of State has not, as it were, recited the guidance given by this court in WM (DRC), I do have to say in the context of this case that it really is highly desirable that the Secretary of State should make it clear on the face of the document that she has followed the guidance in WM ( DRC).  That is for two reasons.  First because the reason for the guidance is that if the decision maker has to consider how the material might appear in tribunal proceedings she will first of all have to remind herself that it is not her final conclusion as to the material that matters, but the conclusion that might be reached by an expert adjudicator in looking at it.  Secondly, as a purely practical point, if the Secretary of State does not make it clear that she has followed that guidance, her decision is bound to be appealed and it is difficult for a court considering whether permission should be granted in such an appeal to say with confidence, without hearing argument, that it would not have made any difference whether or not the Secretary of State had followed that guidance.

15.	I turn then to what the Secretary of State actually said.  I do not propose to go through this in detail.  We heard a lot of argument about it.  Broadly speaking, the Secretary of State's complaint was that she was sceptical about whether the original documents were indeed genuine and set out a number of reasons why she was doubtful about that.  The letter complained that she had not received the originals of the documents and said that in particular the FIRs did not support Mr AA's complaint that he was wanted for murder.  A number of those points are contestable.  In particular, on the whole of the documents, assuming them to be genuine, it does seem that they show that Mr AA is wanted for murder both in terms of the summons and in terms of the FIR.  Secondly, it is not in my view clear that an adjudicator faced with something that is a photocopy and not an original document would in this jurisdiction, where the rules of evidence are not applied in a stringent way, disqualify them for that reason.

16.	A further objection taken by the Secretary of State was that the documents were issued after Mr AA's arrival in the United Kingdom, indeed were issued shortly before the legal process started, and it was difficult to see if he was indeed a threat to security why they had not been produced earlier.  However, the main difficulty about the Secretary of State's letter is that it does not clearly distinguish, as it should have done, between questions as to whether the documents were genuine and the question of whether, if they were genuine, they demonstrated what they were claimed to demonstrate.  To say, as the Secretary of State does in the second sentence of the paragraph under consideration, that she questions the documents’ " validity" makes it unclear in my view as to whether she is saying the documents are not genuine or whether she is saying that they do not do not support the facts as alleged.

17.	I would therefore have to say that I have some difficulty in thinking that in those respects the Secretary of State has satisfactorily discharged her duty, even tested, as it has to be tested, against the Wednesbury test.  That, however, is far from being the end of the matter.  

18.	I turn to consider the grounds on which the appellant claims that he would be subject to persecution.  He originally sought to rely upon his condition as a diabetic, but Mr Muquit indicated that he did not rely upon that in isolation because the evidence is not sufficient to show that Mr AA would be subject to persecution, let alone Article 3 conditions, were he to be returned to Pakistan as a diabetic.  Secondly, the matter of prison conditions in general was originally relied on, but the evidence falls short of any suggestion that those conditions are a matter of persecution rather than of simply inconvenience and severity as a result of the legal process.

19.	The real complaint is that which I set out earlier: that Mr AA is going to be subject to a corrupt trial and a corrupt sentence of imprisonment or death.  The difficulty about that claim, indeed the complete answer to it, is that it was considered by the original Immigration Judge Mrs Grant-Hutchinson. She took the trouble of drawing the parties' attention to the country guidance case MI (Fair Trial – Pre-Trial Conditions) Pakistan v SSHD CG [2002] UKIAT 02239 as to the state of the legal system in Pakistan.  In a careful determination that extended over ten paragraphs, she considered whether indeed the launching of a false claim against Mr AA would result in his being convicted and imprisoned and she concluded at paragraph 43: 

"Despite the shortcomings in the judicial process in Pakistan at all levels, due to inadequate resources, heavy workloads, delays, corruption in the lower courts, the updated objective evidence in the July 2009 Report [that was a country of origin report, that was before her and was available to the parties] shows that all the judges fired by Musharraff who had a reputation for independence have been restored.  They had been sacked to be replaced by judges more willing to support the executive.  Although the Appellant may face a trial process with shortcomings, it falls short of establishing as it stated in MI a real possibility of a thoroughly unfair trial.  I have made my position clear on the fact that there would be no punishment because of the Appellant's cast iron alibi [that is the fact that he was actually in the United Kingdom when this murder took place].”

20.	That finding demonstrates that even if the Secretary of State should have accepted fully that Mr AA had been subject to a corrupt legal charge, that would not result in his being convicted or sentenced, that is to say that the claim that he now makes, taken together with the previously considered material, did not create a realistic prospect of success.  Similarly, and in addition, the Immigration Judge expressed further scepticism on two scores, firstly in paragraph 32 that no attack had been made on the appellant during the period after the election in February 2008 until he came to the United Kingdom in April 2009, and secondly, a somewhat similar point, that there is no obvious reason why those who wanted to persecute the appellant if they were in a powerful position to do so should have chosen the convoluted route of the false allegation.  Neither of those points are really addressed in the submissions to us.  

21.	That appeared to be the end of the case and indeed is the end of the case.  However, at a comparatively late stage in his oral submissions Mr Muquit said that he had a further point.  He drew our attention back to the material that had been placed before the Secretary of State in the original application in respect of a fresh claim in 2009.  That included a report from a human rights organisation called State of Human Rights in 2008, which raises serious questions about jail conditions in Pakistan and indeed suggests or may suggest that even if people are acquitted they may be detained improperly in the prisons in that country.  I will be forgiven for not going into that more fully because, the matter not having been drawn to the court's attention in advance of the hearing, the document had not been read in detail.

22.	Mr Muquit said that an adjudicator, faced with that material, might conclude that Mr AA would be detained in prison even if acquitted, and might conclude that that was likely in particular to be the case because he was at odds with people who were influential in the government of Pakistan.  

23.	Two things have to be said about that.  First of course it was wholly unsatisfactory that this point was raised in this way, but secondly and more particularly it is impossible to see how it can be said that the Secretary of State had come to an unreasonable decision when this is a matter that had never been put before her.  I say that with confidence because although the report from which Mr Muquit draws these conclusions was indeed included within the documents submitted by his solicitors in October 2009, their covering letter did not make, or ask the Secretary of State to infer, the allegations that Mr Muquit now draws from it.  They did draw attention to the poor custody conditions in Pakistan and pointed out that Mr AA would be particularly handicapped by reason of his diabetes, but that is all in the context of a handicap before he is tried.  It was not suggested that he would in any event be retained in detention after he had been tried.  Secondly, even in the Amended Grounds of Appeal to this court, when the October 2009 documents were being described, it was never suggested that there could be drawn from them the conclusion that Mr Muquit now wishes to put.  Reference is made to the evidence of prison conditions in Pakistan in that submission, but not to any suggestion that the applicant would be detained without trial or after an acquittal.

24.	It is not simply a matter of legal technicality that the test that has to be applied to the Secretary of State's determination is one of Wednesbury  unreasonableness.  The reality is that in making a fresh claim the parties have got to make it clear what is the claim that they are making, and it is not open to them to do what is sought to be done in this case, to produce an entirely different case that has not been before the Secretary of State in an attempt to undermine her decision.  Had this matter been put to the Secretary of State in 2009 she would of course have been obliged, under her duty, to address it. What she would have said we do not know.  She might or might not have been properly sceptical about how the report fitted with the findings of the Immigration Judge about a functioning judiciary in Pakistan and so on, but none of that was before her.  She therefore cannot be criticised for not dealing with it, and what MN (Tanzania) does is finally to establish that the court will not substitute itself for the Secretary of State in order to make the decision for itself: possibly, as is sought to be done in this case, on evidence that was not before her.

25.	For those reasons, therefore, although I trust what I have said about the way in which the Secretary of State went about this case will be noted, there is no ground here for allowing this appeal and I would dismiss it.

Lord Justice Longmore:  

26.	I agree.  

Order: Appeal allowed