ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DEPUTY HIGH COURT JUDGE JOHN BOWERS QC
CO/12241/2009,  EWHC 3129 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
| THE QUEEN ON THE APPLICATION OF MH (ALGERIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Paul Greatorex (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 20 June 2011
Crown Copyright ©
Lord Justice Elias :
"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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."
"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."
"… 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."
The adjudicator's decision.
"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."
"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."
The history of alleged fresh applications.
The current representations.
"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."
The judicial review challenge.
The grounds of appeal.
Lord Justice Rimer: