England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE SYCAMORE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd March 2012

Lord Justice Pill:

1. This is an appeal by MB against an order of HHJ Sycamore sitting as a High Court judge in the Administrative Court made on 3 December 2010. The judge dismissed the appellant's claim for judicial review of a decision of the Secretary of State for the Home Department ("the respondent") made on 15 September 2007. That decision was a refusal to treat further submissions made by MB, following refusal of his claim for asylum, as amounting to a fresh claim pursuant to paragraph 353 of the Immigration Rules.
2. Paragraph 353 provides:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection""

3. MB was born on 15 November 1968. He left Algeria in 1994. In October 2001 he arrived with his family in the United Kingdom and claimed asylum. That claim was promptly rejected by letter of 26 November 2001. MB appealed against that refusal and his appeal was considered at an oral hearing at which he was represented by counsel. The appeal was dismissed.
4. The adjudicator carefully considered the submissions made and concluded at paragraph 22(a):

"I have to say that I do not find that he does have such a fear and if he did I do not find it would be well founded. His activity in FIS was of a very low level, it was ended many years ago, his brother having served a sentence of imprisonment (as I am told and do not reject ) is now released, free, subject to some civil liberty restrictions most of which have expired."

And at paragraph 22(b):

"I have to say that bearing all these matters in mind in the light of the findings of fact which I have set out above I do not think that this man is at any particular risk in returning to Algeria."

A part of the submissions made to the adjudicator was the submission that the applicant had spent a lot of time in Saudi Arabia, which it was claimed would make the Algerian authorities suspicious of his Islamic leanings. It was also alleged that the fact that his wife is from Bosnia would create a suspicion in the Algerian authorities. Those submissions are summarised at paragraph 70 of the decision.

5. The adjudicator also rejected a human rights appeal at paragraphs 23 and 24. The Bosnian connection was also considered under that heading. An application for permission to appeal against that refusal of asylum was rejected by the Immigration Appeal Tribunal. The Vice President, considering the application, stated in the course of more detailed findings:

"His activity in FIS was of a very low level. It was ended many years ago, his brother having served a sentence of imprisonment, released, free, subject to some civil liberty restrictions most of which expired. The adjudicator saw nothing in the objective evidence which [a word I can't read] the applicant's injuries could alert the Algerian authorities to some dissident activity.

These findings are well reasoned, perfectly valid in the light of the evidence before the Adjudicator and disclose no misdirection in law."

6. Permission was then sought to apply for judicial review of the tribunal's decision. That was refused on a consideration of the papers by Moses J, as he then was. It was refused at a renewed application on oral hearing on 4 December 2002. On 30 January 2003 submissions were made in support of a fresh claim and a report was submitted by Dr Spencer, who is an expert on Algerian affairs. By decision of 17 January 2005 the respondent refused to treat the submissions as a fresh claim within the meaning of paragraph 353. Detailed consideration was given in that letter to the points raised on behalf of the appellant.
7. On 16 May 2005 further submissions were made in support of what was claimed to be a fresh claim. By letter of 27 November 2006 the respondent declined to treat the further submissions as a fresh claim within the meaning of the paragraph. Neither the decision of the 17 January 2005 nor the decision of 27 November 2006 was challenged by way of judicial review. Yet further submissions were made on 14 September 2007, including a second report from Dr Spencer. By letter of 15 September 2007 the respondent refused to treat the further submissions as giving rise to a fresh claim within the meaning of the paragraph. The following day application for permission to apply for judicial review of that decision was made and that is the application which has now found its way to this court. Lloyd Jones J on 17 September had directed a restraint on removal pending the resolution of the judicial review proceedings.
8. The application for permission was refused on a consideration of the papers by Mackie J. It was stated that it was based on a necessarily speculative update by the expert of her earlier report and some speculation about what may happen in a pending country guidance case. The judge continued:

"Given the Adjudicator's original findings that the Claimant was of no interest whatsoever to Algeria and the materials relied on by the defendant she was entitled to conclude that there is no prospect of the Immigration Judge forming any different view as a result of considering the fresh material relied on."

9. A further report, this one from Professor Seddon, was submitted on 18 August 2008. First copies and then originals of what were claimed to be Algerian police summonses were disclosed, the originals on 28 August 2008. In a very detailed letter of 25 August 2009 the respondent refused to treat the further submissions as a fresh claim.
10. On 18 November 2009 a renewed application for permission to apply for judicial review was granted by Mr Christopher Symons QC, sitting as a deputy High Court judge following an oral hearing. Detailed grounds of defence were submitted by the respondent. We do not have the reasons which Mr Symons had in mind when granting permission. The case came before HHJ Sycamore, who dismissed the application, as I have said, on 3 December 2010. On 21 December 2010 application was made to this court against that refusal. On 7 February 2011 the application was adjourned on a consideration of the papers by Buxton LJ to await the decision of this court in MN (Tanzania) v SSHD [2011] EWCA Civ 193 which involved a consideration of the test to be applied under paragraph 353.
11. The application then came for consideration on the papers by Elias LJ on 15 July 2011. He stated that in his judgment there was no realistic prospect of challenging the conclusion of the judge in the judicial review application. It is now accepted that he was right to apply a Wednesbury test.
12. I interpose that that had plainly been established in MN, the case in this court pending the resolution of which Buxton LJ had adjourned the present application. Giving the leading judgment in a court also including Moses and Sullivan LJJ, Elias LJ held in MN that the rationality test which had been laid down in earlier cases was the test to be applied and other suggested tests were rejected. Reference was made to a decision in DK (Laws LJ), at paragraph 8, that another case cited did not "provide authority for the proposition that anything other than the Wednesbury approach is apt for the court's supervision on decisions taken under paragraph 353". I return to the reasons given by Elias LJ:

"The judge was right to focus only on the third refusal; that was the refusal letter in issue. It did not follow that he was ignoring the history of the case, and he had regard to relevant material. In my judgment, he considered all matters material to the decision under challenge."

13. The application for permission was renewed at an oral hearing before Ward LJ on 9 November 2011. Ms Fielden appeared for the applicant, as she does today. Ward LJ gave permission on two grounds. The first was that it was arguable that HHJ Sycamore should have taken into account and considered the decision letter of 25 August 2009. The judge had stated that it was not material. He stated at paragraph 21 the factors to be considered, and at paragraph 22:

"In relation to the letter of 25 August 2009 again no application for permission has been made. Any application would in any event be now well out of time. The issues to be considered therefore relate only to the rationality of the decision of 15 September 2007."

Miss Fielden persuaded Ward LJ that it was arguable that the judge erred in considering the August 2009 letter. He referred to the finding of HHJ Sycamore and stated:

"Arguably he was wrong to do so."

14. The second ground on which permission was granted was that the judge had misdirected himself, at paragraph 9 of his judgment, on the application of the test to be applied when considering paragraph 353 of the Immigration Rules. Ward LJ stated that he gave permission to appeal "with a high degree of reluctance."
15. Ms Fielden has submitted detailed written submissions for the use of this court and has made full oral submissions this morning. Her underlying point is that put at pages 9 and 10 of her most recent skeleton argument. New factors had arisen since the decision of the adjudicator in 2002. First, there had been a prolonged delay, which in the opinion of Dr Spencer in her expert report would create suspicion in the minds of the Algerian authorities. Secondly, the appellant had spent many years in Islamic countries. That would further increase their suspicion. Further, he was married to a Bosnian and had Bosnian links and that would further create suspicion. A combination of these suspicions would put him at risk on return. Ms Fielden submitted, at her paragraph 33, that:

"An Immigration Judge may well believe that the expert's forecast of risk on return is to be believed."

16. In my judgment the court has to consider the rationality of the decision of the 15 September 2007. I agree with HHJ Sycamore that consideration of the 2009 decision does not arise on this application for judicial review. This is not a point pursued by Ms Fielden in relation to the earlier decisions of 17 January 2005 and 27 November 2006. In my judgment the judge was correct to confine his attention to the 15 September 2007 decision. Ms Fielden has placed before the court a letter from the Treasury Solicitor dated 9 May 2008. That indicates that the Secretary of State was willing for the renewed application then involved not to be heard on the date on which it had been listed, 13 May 2007. The reason given was that there was a pending case, Fettah AA/09630/05 and it was agreed that the case "be adjourned to the first available date after the AIT's determination in the case of Fettah". The appellant's solicitors were put under an obligation to serve a copy of that determination on the Treasury Solicitor and the Administrative Court as soon as possible after it had been promulgated. There is no acceptance in that letter that any further application under 353 would as a result be considered. Moreover, it is not said on behalf of the Secretary of State that, if Fettah (which we understand was a country guidance case) did involve a significant change in the in-country evidence to be applied, the Secretary of State would make a fresh decision.
17. We heard Ms Busch, for the respondent, on the letter of 9 May 2008. I have to express some surprise at it being written in the form it was because in my view a decision post-2007 could have no bearing on the rationality of the decision of the Secretary of State on the paragraph 353 claim determined in September 2007. It may have been a situation where the Secretary of State was endeavouring to be helpful to the appellant and keeping open the door to a fresh application for judicial review but in the event no fresh application has been made. It was not made then. It was not made following the decision in Fettah. It was not made following the further decision in August 2009 relating to a fresh application under paragraph 353. In my judgment the judge was entirely correct in adopting the approach he did and the 9 May letter does not affect the import of his statement.
18. Ms Fielden's persistent submission is that there is irrationality in the approach of the Secretary of State because of the fresh material which has become available since 2002. She has continued, notwithstanding the indication given by the court to her on the point just considered, to claim that the later material should be considered in this court. She says that in her skeleton argument reference was made to it. That in my judgment is no substitute for a claim properly before the court. She describes the August 2009 letter as a supplementary letter. However one defines it, it is not a letter which required consideration in the judicial review proceedings either by the judge or in this court.
19. The second submission made by Ms Fielden following the statement of Ward LJ is that the judge misconstrued paragraph 353 of the rules. Reliance is placed on the way he put it at paragraph 9 of his judgment. This point evaporates in my judgment, having regard to the points put to Ms Fielden and to her acceptance that all the judge was doing in paragraph 9 was summarising, and she accepts accurately, the decision of this court in WM (DRC) v The Secretary of State [2006] EWCA Civ 1493. The judge set out paragraphs from the judgment of Buxton LJ in that case and summarised and followed them. Ms Fielden has not pointed to any subsequent decision of this court which casts doubt upon that approach. What she says is that one has to have regard to the wording of the rule and, on that wording, the approach followed by the judge was incorrect and the point made is that the material to be considered, relatively new material, is to be assessed as a part of the consideration of the merits of the case. It should not be considered separately as to whether it is new material. There is an overall question to be asked, which is whether a realistic prospect of success has been created and whether it is rational for the Secretary of State to take a different view.
20. I cannot criticise the judge's approach, especially when one considers his judgment in its entirety, the approach he has and the considerations he has properly borne in mind. Moreover, in the final paragraph of his judgment, paragraph 34, he states:

"34. I add that in my opinion had it become necessary for the Defendant to consider the second hypothetical [and that is referred to in a previous paragraph as being 'whether the whole material creates a realistic prospect of success'] then the only rational conclusion would have been that the material could not create a realistic prospect of success. I say that against the background of my observations in relation to AF. There is nothing in the Claimant's profile which is exceptional in the terms considered in AF and that, taken with the previously considered material, would not give rise to a realistic prospect of success before an Immigration Judge."

21. In my judgment that approach and that conclusion cannot be criticised in the circumstances of this case. Moreover, what has to be established is not an error in the judge below but an error in the approach taken by the Secretary of State in the decision letter. We have considered that approach. There is a reference to paragraph 353 of the Rules. In my judgment the test is appropriately stated:

"Submissions will amount to a fresh claim if they are significantly different from the materials previously considered. The submission would only be significantly different if the content had not already been considered and, taken together with the previously considered material, created a realistic prospect of success and notwithstanding its rejection. Other points raised in your submissions were considered when the earlier claim was determined. They dealt with in the letter giving reasons for refusal dated 1 December 2001 and the appeal determination promulgated on 2 May 2002. Further representations were subsequently dealt with in our letters of 27 November and 6 December 2006 and a letter dated 11 December 2007. The remaining points raised in your submissions taken together with the material previously considered would not have created a realistic prospect of success"

22. That is a correct statement of the test to be applied and in my judgment the test was correctly applied, having regard to the need for the appellant to prove irrationality in the Secretary of State's decision when the conclusion was reached.
23. The Secretary of State, in providing a very detailed further letter in August 2009, was acting conscientiously and helpfully to the appellant. I repeat this claim fails on the quite basic point that in any event there is no challenge against that letter by way of judicial review. Any application in relation to that letter, as HHJ Sycamore said, would now be well out of time and what is more I have referred to the background to the decision of 2007 to indicate in my judgment the lack of any underlying merit in this case:
24. When the decision was taken in 2007, and at any other time when decisions have been taken whether before or after 2007, the Secretary of State was obliged to take into account the decision and reasoning of the adjudicator in 2002. That had regard to relevant factors and stated a clear conclusion as to the profile, or lack of profile for purposes of risk, of the appellant. Persistently though the appellant has subsequently attempted to provide material, material which has been carefully considered at each stage, there is in my judgment nothing in it which renders any of the decisions of the Secretary of State irrational. I repeat that it is only one decision with which we are concerned and that decision can only be considered in the light of the material then available. But nothing has been brought to the attention of this court which in my view as a matter of substance casts any doubt on the approach taken by the Secretary of State. The Bosnian wife and the residence in other countries were taken into account by the adjudicator. The lapse of time was alleged, and was considered in the decisions of 2005 and 2006, which have not been challenged in this court.
25. I see no merit in this appeal and I would dismiss it.

Lord Justice Moses:

26. I agree.

Lord Justice Sullivan:

27. I also agree that the appeal should be dismissed for the reasons given by Pill LJ. In my judgment there was no error in HHJ Sycamore's decision not to consider the decision letter of 25 August 2009. It was plainly a fresh decision letter, but as HHJ Sycamore said, there had been no application for permission to apply for judicial review in respect of that decision either by way of making a new application for permission to apply for judicial review or by way of making an application to amend the existing judicial review proceedings in respect of the 2007 decision letter. It is important to note in this context that the respondent served detailed grounds of defence under cover of a letter dated 10 February 2010. Those detailed grounds made it clear that the decision in issue was the decision dated 15 September 2007. In paragraph 17 of the respondent's detailed grounds in the Administrative Court the decision letter of 25 August 2009 was referred to, but it was expressly contended:

"The claimant has not sought judicial review of this decision nor has permission been granted in relation to it."

In those circumstances it was simply not acceptable for the challenge to the lawfulness of the 2009 decision letter to be raised for the first time in a skeleton argument presented to HHJ Sycamore at the end of 2010 well over a year after the fresh decision had been issued. I have nothing further to add on the second ground of appeal. I too would dismiss the appeal.

Order: Appeal dismissed