England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 June 2015

1. LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the order of the Upper Tribunal of 27 April 2015 refusing permission to seek judicial review of a series of decisions of the Secretary of State in which the Secretary of State refused to treat further submissions as a fresh claim for the purposes of Immigration Rule 353.
2. The background may be stated briefly. The Appellant was born on 2 March 1981. At the age of 15 or 16 he moved to Antigua to seek employment and remained there until 2012. During his time in Antigua he married and he has a child there, although as I understand it he is divorced from his wife.
3. The Appellant entered the United Kingdom on 9 May 2012 in possession of a visit visa. He claimed asylum on 29 October 2012. He claimed that he was entitled to asylum and he also claimed that his removal would be in breach of human rights.
4. The only matter with which I am concerned on this application is the fresh claim point. If I am satisfied that there is material which justifies an order of this court in his favour on that point, I do not need to go into the Secretary of State's certification of the appeal. So I am going to consider the question of the fresh claim first.
5. Rule 353 provides that submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. Then it goes on to say:

"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."

6. These paragraphs do not apply to a claim made overseas, which is not this case.
7. So it is well-established that there is a two stage process in this and that the first question is whether the new material is significantly different in the sense given, namely that the content has not already been considered (that has a limited meaning, "significantly different") and secondly, if, taken together with the previously considered material, there is a realistic prospect of success, notwithstanding its rejection. That latter point involves the court or tribunal putting itself into the position of the ultimate decision maker.
8. This is a case where when the matter came before the First-tier Tribunal, the First-tier Tribunal found that the Appellant was not, as he claimed, bisexual, but that he may have had experimental sexual encounters with men.
9. I take this from the First-tier Tribunal's decision of Immigration Judge Manuel dated 26 February 2013. At paragraph 43, the finding concerning experimental sexual encounters was as follows:

"Conclusion. Considering the totality of the evidence before me, I accept that the Appellant may have in the past had experimental sexual encounters. However, on the basis of his evidence regarding relationships with men, I do not find it reasonably likely that he is bisexual. I find that he has put forward this account assisted by his mother to enable him to settle in the UK with the rest of his family. All his close family members are in the UK, namely his mother, sister and two brothers."

10. Ground 1, if I may summarise it, is to the effect that there is a genuine history of experimental sexual encounters with men which would make him subject to perceived persecution in Jamaica on the grounds of his sexual orientation. His sexual orientation would either be as a bisexual man, which he now claims that he is, or on the basis of perceived bisexuality and as a gay activist.
11. The second ground is this; that the experimental sexual relations referred to in paragraph 43 and set out above have now developed into a more settled bisexual identity.
12. This is a case where there has been a complete cascade of further submissions. That really is not necessarily helpful to his case because it means that it could have the effect of undermining his claim. Therefore, counsel has very sensibly limited the presentation of this application to two particular items.
13. First, in support of ground 1 the report of O Hilaire Sobers at B84, who is a member of the Jamaican bar and who has put in a report dated 2 August 2014 about the risk of persecution on the grounds of sexual orientation.
14. This report, as I read it, is predicated on the basis that the Appellant is a bisexual man and that he fears persecution and discrimination in Jamaica, but it is also arguably capable of going beyond that. Indeed, there have also been attempts to put in further evidence about a perceived sexual orientation in Jamaica.
15. The Secretary of State dealt with this matter at paragraph 6 of the decision letter of 11 August 2014. It seems to me that the response there given by the Secretary of State did not address the real character of the evidence because the Secretary of State says in this letter, with respect to this report, taken with another report by a writer with coincidentally the same surname, that everything provided is "objective", the information is general and in no way relates directly to the Appellant's case. Moreover, it would not be right to refuse permission on the basis that the opening paragraphs were predicated on the basis that the Appellant was a bisexual man. In my judgment, I must have regard to the question whether there is evidence to show that he is liable to persecution on the grounds of perceived sexual orientation. In my judgment, that is indicated, and, on that basis, there must be an arguable point because perceived sexual orientation has not been properly addressed by the Secretary of State. The Secretary of State is the primary decision maker on matters concerned with a fresh claim.
16. On ground 2, Mr Chirico referred me to the letter of Mr McCluskey at page C45 to C46 who is not a personal friend but an employee of Yorkshire MESMAC. That is a charity. It is clearly a charity of some substance. It has offices in many places. Mr McCluskey explains that he has a professional responsibility working among gay communities. He expresses the view that he had been working with the Appellant for over a year now (his later is dated 30 June 2014) and had no doubt that the Appellant was bisexual. He says that the Appellant has spoken to him at length about his bisexuality over the course of a number of one to one support sessions. In that time, Mr McCluskey had developed a deep understanding of his thoughts, concerns and desires as a bisexual person for the future.
17. Clearly a decision maker may, when that evidence is closely examined and cross-examined, form a different view about it, but the test which I have to ask myself is whether there is an arguable case that the content of the fresh claim is substantially different in the sense given in rule 353 in the sense that it was not previously considered. I am satisfied that particular part of the test is fulfilled.
18. I also have to be satisfied that there is a reasonable prospect of success. As I have just explained, the weight to be given to that evidence is a matter for the decision maker. That would not be an answer in the case of every piece of evidence since there may be evidence which is clearly inconsistent with earlier evidence or clearly self serving, but Mr McCluskey's evidence from a person whose occupation is of a professional nature.

It is impossible for this court to go through every item of evidence on a permission application, but those two particular pieces of evidence satisfy me that it would be right to allow this matter to proceed on the basis of the two grounds that have been identified.

I give permission to appeal. I was initially of the view that I should give permission to seek judicial review and direct that the matter be remitted to the Upper Tribunal, but the Civil Appeals Office has drawn my attention to the unanimous decision of this court in R (o/a NB (Algeria)) v SSHD [2012] EWCA Civ 1050 at paragraphs [23] to [25], [37] amd [46] that I have no power to do this. A corrective order must be made for the hearing of an appeal against the order made on the Appellant's application for permission to bring judicial review proceedings. That appeal should be listed for one hour on notice to both parties, and the court will have to determine that appeal unless in the light of this judgment the parties agree that the appeal be allowed by consent, and the matter remitted to the Upper Tribunal. In that event, I will be content to deal with the matter on paper.

I add two points. Firstly, it is accepted that, if the appeal succeeds, the findings of the First-tier Tribunal will remain findings in this case.

Secondly, it seems to me appropriate that, if the appeal succeeds, the Upper Tribunal should have an opportunity to consider case management of future proceedings before it or the First-tier Tribunal. This court is faced with a large number of documents which are not well organised and the Appellant has filed three documents setting out the submissions. If the appeal succeeds, therefore, the appellant should forthwith seek the directions of the Upper Tribunal with regard to case management.