England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
DEPUTY HIGH COURT JUDGE JOHN BOWERS QC
CO/12241/2009, [2010] EWHC 3129 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2011

Lord Justice Elias :

1. This is an appeal against the judgment of John Bowers QC, sitting as Deputy High Court Judge, who dismissed the claim for judicial review of the defendant's decision, dated 8 and 29 October 2009, to refuse to treat the claimant's application for asylum as a fresh claim under rule 353 of the Immigration Rules.
2. Rule 353 is as follows:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. 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:

1. had not already been considered;

2. taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

3. There are therefore two stages in the Secretary of State's analysis. First, he has to consider whether the material relied upon has not already been considered. If it has, then he should go no further. If, on the other hand, it has not been considered, then he has to consider whether, if taken together with the material previously considered, it creates a realistic prospect of success in a further asylum claim.
4. The rule sets what Lord Justice Buxton in WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 7 referred to as a "modest test". In the course of his judgment he set out matters which a court must address when reviewing a fresh claim application (para 11):

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

5. His Lordship also made certain observations on the way in which the Secretary of State should approach the reliability of new material which is relied upon by an applicant. He said this (para 6):

"… The Secretary of State, in assessing the reliability of new material, can of course have in mind how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relatively probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator."

6. Finally, the judge held that the Secretary of State's decision was challengeable only on Wednesbury grounds. Subsequent cases cast doubt on that principle and suggested that the proper approach may be for the court to reach its own conclusion as to whether the evidence constitutes a fresh claim, but it has now been authoritatively established that that approach itself is heresy and that the Wednesbury approach is the appropriate one: see R (On the application of) MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193, per Maurice Kay LJ at paragraphs 13-16.

The background.

7. The appellant is an Algerian national who arrived in the UK in 1998 using a false passport. He claimed asylum. His application was refused in 2001 and the appeal was dismissed in 2003. The basis of his claim was that he had been involved in the Islamic religion and had been detained by the Government in June 1991, and again in May 1992 and in 1993, when on each occasion he was tortured. He said that he was put under pressure to become a member of GIA, a militant Islamic group, and although he never became a member he did pass information to them about the security forces in his area. He did not report for military service because the GIA had issued an edict saying they would execute anyone who did.
8. He said he had decided to leave Algeria because he was put under pressure in 1997 to become active in the GIA and he was unwilling to do so. He eventually left Algeria through Italy using false documents. His fear was that if he returned he would suffer arrest and imprisonment for not completing his military service, and he was also concerned that the GIA would regard him as a traitor and that he would not be properly protected by the State from the GIA. There is no longer any concern about the GIA. Accordingly, the only issue is whether he would be at risk of persecution from the Algerian government on his return.

The adjudicator's decision.

9. The adjudicator accepted that the appellant had been persecuted in custody as he claimed. Nonetheless he was satisfied that he was no longer at risk of persecution for the following reasons:

"However, although he has been ill treated during these detentions, on each occasion he has been released without charge and without any further follow-up. It is highly unlikely that the government would suspect him of being involved in any anti–government activity or terrorist group, or in anti-government activities. It is evident by the fact that after his last release he was able to return to his university studies, leave the country to go to Tunisia and Morocco, to have his passport renewed, and eventually to leave the country to go to Italy in 1997. In fact over a period of at least four years when he was in and out of the country, the government paid no further attention to him. The fact that he was able to leave using his own name and his own passport shows that he was not on any wanted list, and clearly was not wanted by the government."

10. The Adjudicator then went on to note that the applicant was exempt from military service because of two decrees issued in December 1999, and he concluded:

"I find it unlikely therefore that he is regarded by the Algerian authorities as a threat to the State, a terrorist sympathiser, or someone who is anti-Government. Consequently therefore there is little likelihood of him being stopped and questioned for these reasons upon his return."

11. His appeal rights were exhausted in March 2004. Since then, however, he has made a succession of further representations seeking a reconsideration of his case by the Secretary of State on the grounds that there is fresh material to consider.

The history of alleged fresh applications.

12. The first claim challenged the respondent's decision of 7 September 2007 that further representations did not constitute a fresh claim. The basis of that application was that the appellant sought humanitarian protection and also submitted that he would be at risk, being a failed asylum seeker. The Secretary of State refused to treat this as a fresh claim and an application for judicial review was dismissed first on paper by Sir Michael Harrison, and then following an oral hearing by Mr Justice Wyn Williams.
13. The second claim was issued on 20 October 2008 challenging the defendant's decision of 18 October 2008, in which further representations dated 8 October 2008 were held not to give rise to a fresh claim. In that application significant weight was placed on the evidence of a friend of the appellant, Abdurrahman Mostefaoui. He had returned to Algeria for his daughter's wedding and he was detained and imprisoned. Whilst in prison he claimed to have been informed by a Mr Reda Dendani that the appellant should not return to Algeria because it would be dangerous for him to do so. The appellant stated that he was shocked and scared when he received this information, and that he had not earlier disclosed the fact that he knew Mr Dendani to his lawyers because he was afraid that he would be connected with someone facing terrorism charges and that this would adversely affect his case.
14. Again, the Secretary of State refused to accept this as a fresh claim and Mr Justice Collins dismissed on paper an application for judicial review in somewhat robust terms. He described the claim as being "totally without merit", and concluded that the Secretary of State was entitled to reject Mr Mostefaoui's statement for reasons given in the Acknowledgment of Service. The explanation given in that document was essentially that the Secretary of State was entitled to place little weight on this evidence since the evidence did not in fact establish that the claimant would be at risk on return; that there was no evidence to substantiate where the danger was from; that the evidence could have been produced much earlier; and that it only emerged after Mr Habel had told him that he required evidence to support his claim that he was wanted by the Algerian authorities. In addition, this evidence was inconsistent with the freedom with which the claimant been allowed to leave Algeria, as recounted by the Adjudicator in his decision.

The current representations.

15. The latest set of further representations which led to the decision letters challenged in this appeal were made in a letter dated 12 January 2009. There were very extensive representations and lengthy enclosures. Much of this material has become irrelevant to this appeal.
16. The appellant relied principally on three separate pieces of information which were said to amount to a fresh claim. The first, and it has become by far the most significant, was a specific witness statement from one Abdelkader Bendaoud, who claimed that he had been detained when he returned to Algeria in 2006 and that he had been shown a dossier which had details and photographs of various people in it. He was shown pictures of many men, but the only one he recognised was of the appellant. He also saw the appellant's name on a list. He did not admit to the Algerian authorities that he knew who the appellant was. He said that he told the appellant about this, not immediately on his return in May 2006, but shortly thereafter. He was scared to provide the information but said he felt he had to do so because he had believed the appellant would be in real danger were he to be returned to Algeria.
17. In a subsequent witness statement he recounted how he had been in conversation with the appellant's brother, whom he knew well, in 2008. He told the brother about the dossier and the brother asked him to provide information to assist the appellant's case. He dictated a statement to the brother. The brother said that he had taken effectively taken over responsibility for dealing with the appellant's claim because the appellant was suffering from mental problems at the time and was very depressed.
18. Together with this statement there was an expert's report from a Ms Pargeter, who is an expert on, amongst other matters, security issues in North Africa, including Algeria. She had in fact provided a detailed report which had been considered by Mr Justice Collins when he rejected the second judicial review application. In that report she had concluded that if the authorities in Algeria considered the appellant to be a threat or believed he was somehow into militant activism or militant activities abroad, then he would face a real risk of detention and possible mis-treatment if forcibly returned.
19. In a supplementary report she dealt specifically with the evidence of Mr Bendaoud. She observed that the keeping of a dossier of the kind referred to by him was in keeping with the kind of practices the Algerian authorities employed. She also expressed the view that if the authorities had the name and photograph of the appellant then that was a clear indication that they were interested in him and would be keen to establish whether or not he was involved in Islamic activity. She noted that the security situation in Algeria remained tense and her own view was that the appellant would be at serious risk of mis-treatment. It is plain, however, that her view was premised on the assumption that the evidence of Mr Bendaoud was considered to be reliable.
20. A third piece of information was that the appellant alleged that he had received visits from the UK counter-terrorism security services and that this suggested that he may be perceived by the Algerians as having terrorist sympathies.
21. The Secretary of State rejected the submission that these amounted to fresh evidence, whether considered separately or cumulatively. He considered the matter in two letters of 8 and 29 October 2009 respectively. In the 8 October letter he summarised his conclusions with respect to the Bendaoud evidence in the following way (paras 10-13):

"10. Reading this in conjunction with your client's previous representations of 08 October 2008 (sighted in paragraph 8 above) it is considered that the evidence your client has now provided from Mr Bendaoud adds nothing new to that which has already been considered in our letter of 18 October 2008 and at Judicial Review by The Honourable Mr Justice Collins on 18 November 2008 where he stated, ".. and Mr Mostefaoui's statement which, for the reasons give in the acknowledgment of Service (despite the somewhat infelicitous language in the decision letter), the Secretary of State was entitled to reject.". It is therefore considered that this evidence has already been considered and it is therefore rejected.

11. Further…Mr Bendaoud has been granted refugee status in the UK and the fact that he now states that he returned to Algeria in April 2005 directly contradicts that grant of status regardless of any amnesty declared by the Algerian authorities…

12. Notwithstanding the above, the adjudicator in the appeal determination of 02 October 2003 found that your client was not wanted by the Algerian government: "The fact that he was able to leave using his own name, and his own passport shows that he was not on any wanted list, and clearly was not wanted by the government" (paragraph 14). It is considered that Mr Bendaoud's evidence does not establish that your client would be at risk on return to Algeria, furthermore it is noted that Mr Bendaoud's visit back to Algeria when he was allegedly detained for three days was in April 2006, one and a half years before Mr Mostefaoui's trip to Algeria in October 2007 when he was allegedly told your client would be in danger in Algeria. Yet it is noted that Mr Bendaoud was not mentioned in any of your client's representations until now despite stating that he told your client about what happened to him in Algeria 'shortly' after he returned to the UK in May 2006.

13. In light of this, it is considered that your client's submission of this evidence constitutes nothing more than an attempt to re-argue grounds that have already been considered and rejected by the Secretary of State and at Judicial Review on a number of occasions."

22. The principal ground of rejection of the evidence appears to be that it is adding nothing new. Mr Mostefaoui's evidence had already represented that the authorities in Algeria were interested in the appellant and that evidence had been rejected in the light in particular of the Adjudicator's reasoned decision why he would not be. In addition, paragraph 13 which seems to cast doubt on whether Mr Bendaoud ever went to Algeria, and the final sentence of paragraph 12 suggests - although the point is nowhere explicitly stated - that the Secretary of State did not accept the reliability of this evidence, given the circumstances in which it emerged in 2006 and the fact that it had not been referred to in either of the previous applications for judicial review.
23. The addendum to Ms Pargeter's report was provided after 8 October, and that was considered by the Secretary of State in the letter of 29 October. The principal ground on which her evidence was found not to take matters further was because she was relying on Mr Bendaoud's statement. If that was not materially new evidence, her statement added nothing independent.

The judicial review challenge.

24. The appellant challenged the Secretary of State's decision by way of judicial review. Again, his application was rejected on paper, but permission was given following an oral hearing.
25. The application was heard by Deputy Judge Bowers QC. It is common ground that strictly he approached the case in the wrong way because, for understandable reasons given that his decision was before the Court of Appeal ruling in MN, he treated the case as though he himself had to come to a conclusion as to whether the material was capable of constituting fresh evidence or not. He held that it was not and dismissed the application.
26. The judge referred to the decision as a "finely balanced" one, but concluded that Mr Bendaoud's evidence could not reasonably be believed, and that in any event the issue had in broad terms had already been considered. As to the visits from the security services (which were neither admitted nor denied) he concluded that even if they had occurred - and he accepted that the appellant might have been considered credible about that - they had not placed the claimant in any greater risk of danger than would otherwise have been the case.

The grounds of appeal.

27. An appeal was lodged and turned down on paper by Sullivan LJ. However, permission to appeal was given following a renewed oral hearing before Stanley Burnton LJ. He was not at all persuaded that the alleged interviews by the English counter-terrorism security services were of any relevance given that there was no evidence that they would notify the Algerians of this. However, he thought it just arguable that a court might find that the fresh evidence was credible given in particular that the appellant had been found to be credible by the adjudicator.
28. The grounds now advanced focus almost exclusively on the evidence of Mr Bendaoud. Ms Weston, counsel for the appellant, realistically conceded that without this evidence, the visits from the security services and the supplementary opinion of Ms Pargeter would not suffice to constitute a fresh claim. She puts her case in a cogent and succinct way. She submits that it is simply not possible to say at this stage that the fresh evidence of the appellant is not reliable. She emphasises in particular three features. First, she notes that different immigration judges have found that both Mr Bendaoud and the appellant were essentially credible witnesses. Whilst she concedes that this does not demonstrate that they may not have concocted this evidence on this occasion, it was something to weigh in the balance. Second, she refers to the addendum evidence from Ms Pargeter who confirmed the evidence of Mr Bendaoud to this extent, that she noted that it was perfectly plausible to suggest that the authorities would have a dossier profiling those in whom they were interested, and would typically ask those returning from abroad to make observations about these persons. As to the question whether this evidence, even if believed, might entitle an adjudicator to conclude that there was a risk of persecution, she points out that there is the powerful established fact that the appellant has been mistreated in custody in the past. The finding of the Tribunal was that the authorities would have no real interest in the appellant. However, if this evidence was accepted then it would demonstrate that they did have an interest and, as Ms Pargeter's expert evidence suggests, that would place the appellant at risk of further persecution. In any event that was plainly an arguable issue which the appellant should be entitled to advance before an adjudicator. It could not possibly be said that this evidence, if admitted and deemed to be reliable, could not lead an immigration judge to the conclusion that there was sufficient risk to warrant asylum being granted.
29. Mr Greatorex, counsel for the Secretary of State, submits that this evidence is simply inherently incredible. Whether or not the Secretary of State had in terms rejected the application for that reason, there would be no point in remitting the matter to him if in fact the only possible conclusion on any reconsideration was that the claim was bound to fail. He makes the very powerful point that as the appellant concedes, he knew of this evidence even before the first application for judicial review. It is, submits Mr Greatorex, quite extraordinary that if this evidence was known to the appellant at that time, he did not rely upon it in his submissions to the Secretary of State. He was willing to rely upon the evidence of Mr Mostefaoui, the gist of whose evidence was that the appellant was of interest to the authorities in Algeria. Yet this evidence, more cogent because it was not hearsay, had not been relied upon at all. Furthermore, even when the information was revealed to the Secretary of State, no explanation was given for the failure to provide it earlier. There has been a subsequent explanation given by the appellant in the course of these proceedings, namely that he was too frightened to draw attention to this evidence and did not even mention it to his brother. Mr Greatorex does not object to our considering that evidence, notwithstanding that it was not before the Secretary of State, but submits that this explanation also lacks credibility, given that the appellant was not sufficiently frightened to rely upon the Mostefaoui evidence.
30. Mr Greatorex also suggests that the circumstances in which the evidence of Mr Bendaoud has emerged casts doubt on its veracity. The appellant's brother says that at the request of the previous solicitors, Aman Solicitors, he faxed to them the statement he took down from Mr Bendaoud together with a copy of his passport. There is some evidence that a faxed photograph was sent on that date, but no evidence that the letter was sent. The brother says that before the third application for reconsideration was made, the appellant changed solicitors and the brother personally was given the file by Aman and handed it over to the current solicitors, Birnberg Pierce and Partners. The Bendaoud letter is said to have been within the documents provided, and solicitor from Birnberg Pierce confirmed that there was such a letter and that it caused him to follow up matters with Mr Bendouad. However, Mr Greatorex observed that save for a vague observation in an email from a Mr Latif of Aman to the effect that the letter looked familiar, there is no evidence from Aman that they allowed the appellant's file to be transferred in that way, nor why if they had received the letter, they did not use it. (In fact we have received some further evidence from Aman since the hearing, which I touch on below.) Stanley Burnton LJ, in granting permission to appeal, had indicated that it would be sensible to ask those solicitors to waive privilege and to explain precisely what information they had been given, yet that has not been done.
31. Taking all these matters into consideration, Mr Greatorex submits that this was not just a case where the Secretary of State was entitled to disbelieve the evidence. He was entitled to say that it could not reasonably be believed by any immigration judge. Moreover, the fact that Mr Bendaoud and the appellant had both been considered truthful witnesses in the past did not, given all the circumstances, begin to justify the inference that this evidence might be found to be reliable.
32. Mr Greatorex further submitted that even if the evidence were to be considered reliable, nonetheless the Secretary of State was entitled to conclude that it had to be considered in a context where the adjudicator had found on cogent grounds that the appellant would be of no interest to the authorities. The Secretary of State was entitled to conclude that Mr Bendaoud's evidence would not begin to undermine that conclusion. There was no reason why the authorities ought to be interested in the appellant, and the evidence of Mr Bendaoud is too skimpy to create any real concern that they might be. The court ought not to interfere with the Secretary of State's decision.

Discussion.

33. I deal first with the question whether, even if the new evidence were reliable, it could be said that it had already been considered. I do not think that it could. Mr Mostefaoui's evidence had not been believed, and in any event it was thought to be too vague to cast doubt upon the conclusions of the Adjudicator. I do not think it was open to the Secretary of State to conclude that the new evidence, if believed, could not undermine the conclusions of the original adjudicator. The critical finding of the adjudicator was that the appellant would be of no interest to the authorities. If his name and photograph are retained in a dossier then it seems to me that, to put it at its lowest, it is a possible inference that the appellant is of interest to the authorities. Whether or not he would be at risk of persecution would no doubt depend upon an assessment of all the evidence. It does not follow that because the authorities would want to talk to him that they would therefore necessarily persecute him. But given his own history of persecution in the past, and the fact that he has always remained a strong supporter of the Islamic religion and has been hostile to the Algerian Government, there must in my judgment be an arguable case that he would be at risk and I do not think that the Secretary of State could find to the contrary.
34. The key point, therefore, is whether the Secretary of State was entitled to conclude that no immigration judge could sensibly consider this evidence to be credible. In my judgment the Secretary of State is entitled to be very sceptical about the reliability of evidence which is produced at the last moment just days before the appellant was to be removed from this country; where it depends almost exclusively upon the assertion of a third party; where that party claims to have returned to Algeria when he had been granted leave to remain on the basis that he would face persecution if he were to return there; where the evidence could have been advanced in earlier applications to support the appellant's claims; and where the inference from the evidence, namely that the appellant is of interest to the authorities, sits uneasily with the undoubted fact that the claimant was able to leave Algeria thus suggesting that he was of no interest to the authorities. It is not an unreasonable inference that the appellant is simply seeking to stave off the evil day and is looking for any basis on which he can remain in this country.
35. This scepticism is not allayed by three further considerations. First, the late introduction of this evidence is of a piece with earlier applications when last minute material has been relied upon. Second, the appellant's explanation as to why he did not reveal this information earlier, namely that he was too frightened, does not sit at all happily with the fact that he was willing to rely upon Mr Mostefaoui's evidence. Finally, the appellant has had every opportunity to follow up the advice of Stanley Burnton LJ who observed, when giving permission to appeal, that he would be wise to obtain a full statement from the original solicitors, Aman Solicitors, as to whether this material was provided to them, and if so, why it was not used in earlier applications. He has signally failed to do that. Apart from the email to which I have referred in paragraph 30 above, it was only subsequent to the hearing that we were forwarded a letter from a representative of the previous solicitors dealing with these matters. For reasons given by Rimer LJ in para. 46 below, that letter is highly unsatisfactory and in my view does not advance the appellant's case.
36. Taking these matters into account, and even accepting that no court should lightly conclude that evidence is unreliable where it has not been tested in cross examination, in my judgment the Secretary of State was entitled to take a robust view of this material and to conclude in all the circumstances that the only reasonable inference is that this evidence is unreliable, having been concocted at the last moment to delay the appellant's removal.
37. It follows that I would dismiss the appeal.

Lord Justice Rimer:

38. I agree with Elias LJ that the Secretary of State was entitled to take the view that the appellant's yet further representations of 12 January 2009 in support of a fresh asylum and human rights claim added nothing new to what he had produced before and that there was no realistic prospect of an immigration judge thinking that the appellant would be exposed to a real risk of persecution on return.
39. The representations were the appellant's fourth set of further representations following the exhaustion of his appeal rights in March 2004. Their making just two days before he was due to be removed under directions set for 14 January might, in the light of his tireless previous attempts to avoid removal (Collins J had described them on 18 November 2008 as 'legion'), be regarded as by itself raising a question as to their genuineness. If the Bendaoud evidence upon which the appellant then chose to rely was true, it is incredible that he did not deploy it before.
40. Mr Bendaoud claims to have returned from Algeria to the United Kingdom on 12 May 2006 and to have relayed his Algerian experience to the appellant 'shortly afterwards', following which the appellant 'often asked me about whether they asked specific questions about him and was obviously very concerned about it.' This does not square with the appellant's own account, which was that Mr Bendaoud only told him about what had happened 'sometime after 2006'. When faced with removal on 13 September 2007, the appellant's former solicitors, Aman Solicitors ('Aman'), made representations to the Secretary of State on 7 September alleging that he faced a risk of persecution if returned to Algeria. They made, however, no mention of the Bendaoud evidence. The Secretary of State, on the same day, rejected the representations as amounting to a fresh claim for asylum, following which on 12 September the appellant applied unsuccessfully for judicial review of that decision. Amended grounds were submitted on 26 February 2008, with an expert report from Ms Pargeter. Permission was refused on the papers on 6 May 2008, as it also was at a renewed oral hearing on 27 August 2008. The appellant's explanation for the non-use of the Bendaoud information is that he was so scared by it that he had not told anyone about it, not even his brother.
41. The appellant's brother claims, however, that in May 2008 Mr Bendaoud also told him about his 2006 Algerian experience and that he, the brother, then wrote down what Mr Bendaoud had told him in a letter dated 12 May 2008, which Mr Bendaoud then signed. The brother says he then faxed the letter to Aman. He gives no evidence that he told the appellant that this had happened or that he ever had any discussion with him about what Mr Bendaoud had told him. Equally, the appellant, in his witness statement of 30 October 2010, does not suggest that he has ever discussed the Bendaoud evidence with his brother. There is no evidence that the brothers have ever discussed it.
42. If, however, Aman had this information by mid-2008, they did not deploy it in the appellant's next round of representations to the Secretary of State on 8 October 2008. The appellant did, however, then rely on material of a similar nature, namely the statement of Mr Mostefaoui. That was to the effect that Mr Mostefaoui had been detained in Algeria in 2007 when he had been informed by Reda Dendani that the appellant should not return there because it could be dangerous for him. Mr Mostefaoui explained that he relayed this to the appellant upon his return to the United Kingdom, who replied that 'he was fighting a legal case with the Home office to stop him being removed and that he will inform his lawyer of the situation.' Mr Mostefaoui also said that he was providing his statement as the appellant had informed him that 'he requires evidence to prove that he is wanted by the authorities in Algeria.' If that piece of evidence was true, the appellant's willingness to use the Mostefaoui evidence but not the Bendaoud evidence is irrational and incredible.
43. The rejection of the appellant's representations on 18 October led to removal directions being set for 22 October, following which, on 20 October, he made his second judicial review claim and so achieved the deferring of those directions. Collins J refused permission on 18 November, assessing the application to be totally without merit. Removal directions were then re-set for 14 January 2009. Faced with that, the appellant used the Bendaoud evidence in his fourth set of representations presented on 12 January 2009. By then he was represented by Birnberg Pierce & Partners. They did not receive the papers in the case directly from Aman. The evidence of their Mr O'Connor is that the appellant's brother 'had attended our offices on 19 December 2008, with a large amount of papers from [the appellant's] previous solicitors, Aman & Co Solicitors.' Those papers are said to have included Mr Bendaoud's letter of 12 May 2008. That letter was not, however, included with the representations made on 12 January 2009, although Mr Bendaoud's witness statement was.
44. The Secretary of State was entitled to regard the Bendaoud evidence with scepticism and suspicion. Its authenticity is manifestly suspect. The one way in which the appellant could have put some obviously necessary flesh on it would, as Stanley Burnton LJ suggested when permitting this appeal, have been to waive privilege and ask Aman to explain why, having - so the brother says - been provided with the Bendaoud statement in May 2008, they made no use of it when preparing the further representations of 8 October 2008. The appellant chose not to do that, preferring to leave unanswered the obvious suspicions about the genuineness of the Bendaoud story.
45. That is also incredible. The court has, however, been provided with two documents emanating from Aman which cast serious suspicion on the Bendaoud story. The first is an email of 17 June 2011 from Raheel Latif of Aman to Mr O'Connor. It is to the effect that he has 'no reference to Mr Bendaoud's name' on Aman's computer system. He notes, however, 'from a copy of the letter … that you emailed to me that the fax was sent to our fax number on 16^th May 2008.' Whatever Mr Latif was there referring to, there is no evidence before the court corroborating the assertion the letter was faxed to Aman on that date or any other date. Mr Latif also said in his email that he had a meeting on 12 May 2008 with the appellant in relation to his then pending judicial review application. Had he received by fax the Bendaoud letter four days later, he would no doubt have arranged a follow-up meeting with the appellant but the inference from his email is that he did not. Whilst he also says in the email that 'the Letter that you emailed me does look familiar to me', he does not explain when or how he first became familiar with it.
46. Mr Latif's further contribution was made following the hearing of the appeal on 20 June 2011, by way of a short statement dated 28 June. It bears no statement of truth. It is to the effect that Aman retrieved the appellant's files from storage on 27 June 2011 and a review of them showed that they included 'the original letter of Mr Mr [sic] Bendaoud with a copy of his passport …'. The letter referred to is not identified as an exhibit, although a copy of the letter of 12 May 2008 accompanied the statement. Mr O'Connor's evidence, however, had been that the letter was with the Aman documents delivered to Birnberg Pierce in December 2008 and so the question arises how (if Mr Latif is referring to the same letter) Aman can have retrieved it from storage on 27 June 2011. The appellant's evidence was, as I have said, that the letter had originally been faxed to Aman. The copy of the letter accompanying Mr Latif's statement has, however, no fax numbers on it. His statement raises more questions than it answers.
47. I too would dismiss the appeal.