England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21st April 2005

1. MR JUSTICE MUNBY: This is an application for judicial review in which the claimant seeks to challenge the decision of the Secretary of State for the Home Department, dated 14th July 2004, in which he refused to consider the representations made by the claimant's legal representative as a fresh human rights claim. There had, of course, been previous proceedings, including a hearing before the Adjudicator in which the claimant's claims had been rejected, in large part on the ground that his story was lacking in credibility.
2. The question before the Secretary of State as to whether or not the claim put before him qualified as a fresh claim fell to be determined by reference to paragraph 353 of the Immigration Rules, requiring that the claim, if it was to qualify as a fresh claim, had to be founded on material "significantly different from the material that has previously been considered", that condition in turn being satisfied only:

" . . . if the content --

(1) had not been considered; and

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

3. The underlying claim which the Secretary of State was invited to consider was the claim by the claimant that if returned to Cote d'Ivoire he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention by reference generally to circumstances not specific to his own case but, as he asserts, affecting large sections of the community in Cote d'Ivoire and, in part, by reference to circumstances specific to his own case, that is to say his medical condition. The medical condition had been considered by the Adjudicator who had decided that it did not, of itself, give rise to any Human Rights Act claim.
4. Mr Cooray, on behalf of the claimant, for whose succinct submissions I am grateful, correctly accepted that the claimant's medical condition did not, standing on its own, give rise to any realistic claim under Article 3. But he did submit that it fell to be considered together with what he described as the "anarchic situation" in Cote d'Ivoire. Considered in that light, the combination of the claimant's particular situation and the general conditions in Cote d'Ivoire gave him at least a realistic prospect of success within the meaning of paragraph 353 of the Rules, in as much as those two matters taken together meant that he would, so the claimant asserted, face a "real risk" of being subjected to treatment contrary to Article 3.
5. Permission to apply for judicial review was granted by Wilson J on 3rd November 2004. That prompted the Secretary of State to consider the matter further, and he issued a further decision letter dated 9th December 2004, still refusing to accept the claim as amounting to a fresh human rights claim. Mr Cooray submits that the decision letter dated 9th December 2004 discloses, on its face, clear legal error amounting to misdirection in law on the part of the Secretary of State. That alleged misdirection in law does not appear on the face of the earlier decision letter but as it seems to me, if it be the case, as Mr Cooray submits, that the Secretary of State misdirected himself on 9th December 2004, that misdirection must equally affect his earlier decision, bearing in mind that there is nothing explicit on the face of the decision letter dated 14th July 2004 to show that he correctly directed himself.
6. The basis of Mr Cooray's submission is that in paragraph 9 of his decision letter dated 9th December 2004, the Secretary of State referred to the Tribunal decision on 23rd June 2004 in the case of AZ (risk on return) Ivory Coast CG [2004] UKIAT 00170. The Secretary of State accurately summarised the effect of the Tribunal decision in that case and went on in paragraph 10 of his decision letter, correctly, to state that at paragraph 64 of its judgment the Tribunal had applied the "real risk" test as set out in the decision of the Court of Appeal in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 607, namely that the return of failed asylum seekers to the Ivory Coast did not satisfy the test of showing there was "a consistent pattern of gross and systematic violation of fundamental human rights".
7. That is, indeed, the test which in AZ the Tribunal had applied. In paragraph 64 of its judgment the Tribunal referred to the judgment of the Court of Appeal in Hariri as making it clear that:

" . . . absent anything personal to a claimant which puts him at real risk of serious ill-treatment, it is not enough to show that the ill-treatment feared occurs frequently or routinely. In order to satisfy the 'real risk' standard, it must be shown that there is a consistent pattern of gross and systematic violation of fundamental human rights."

That is, indeed, an accurate summary of what the Court of Appeal said in Hariri.

8. The difficulty in the way of the Secretary of State, and the point taken by Mr Cooray, is that the law has moved on since the Court of Appeal decided Hariri in the early part of 2003. Later that year, on 5th November 2003, the Court of Appeal in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489 [2004] INLR 126, expressed its concern about some of the language used in Hariri. In his judgment in Batayav, Sedley LJ at paragraph 37 said:

"The authority of this court has been lent, through the decision in Hariri . . . to the formulation that ill-treatment which is 'frequent' or even 'routine' does not present a real risk to the individual unless it is 'general' or 'systematic' or 'consistently happening'."

He went on in paragraphs 38 and 39:

"Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri . . . suggests a higher threshold than the Tribunal's more cautious phrase in Muzafar Iqbal v Secretary of State for the Home Department [2002] UKIAT 02239 (unreported) 28th June 2002, 'a consistent pattern', which the court in Hariri sought to endorse.

There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is."

Those observations of Sedley LJ in Batayav are not mere obiter dicta. They were expressly agreed to, both by Mummery LJ and by me, and represent the unanimous view of the Court of Appeal as to what the law is.

9. Mr Cooray's point is a short one. It is that the Tribunal in AZ, notwithstanding that its decision followed some six months after the decision of the Court of Appeal in Batayav, failed to take into account that clarification of the law and consequently, as it thought loyally following the earlier decision of the Court of Appeal in Hariri, fell into the very error exposed by Sedley LJ. Moreover, he submits that it is apparent from the Secretary of State's decision letter dated 9th December 2004 that by expressly adopting what had been said by the Tribunal in AZ, the Secretary of State likewise fell into precisely the same error.
10. Mr Johnson, on behalf of the Secretary of State, made submissions as equally focussed and succinct as had been the submissions of Mr Cooray to which he was responding. He sought to persuade me, by examination of the whole of the Secretary of State's decision letter of 9th December 2004, that the Secretary of State had not misdirected himself as Mr Cooray would have it. He pointed out, as is the case, that both in paragraph 8 and again in paragraph 13 of his decision letter, the Secretary of State had correctly stated the test as being "a real risk" of suffering treatment contrary to Article 3.
11. If the Secretary of State's decision letter had taken the matter no further, if it had not contained in paragraphs 9 and 10 explicit reference to the decision of the Tribunal in AZ and the decision of the Court of Appeal in Hariri, then it may well be that Mr Johnson's argument would have succeeded. He would then have been able to assert that the decision letter, on its face, appeared to set out the correct test, namely "a real risk", and that there was nothing beyond that in the decision letter to suggest that the Secretary of State was in fact applying some different and erroneous test. The difficulty in his way, of course, is that the decision letter is not silent, and he has to meet what, in my judgment, is for his purpose the insuperable obstacle presented by paragraphs 9 and 10.
12. It seems to me, on a fair reading of the decision letter taken as a whole, that the Secretary of State was directing himself in accordance with the application to Cote d'Ivoire cases by the Tribunal in AZ of the test in Hariri. In those circumstances, it seems to me that the Secretary of State misdirected himself in law. He can perhaps be forgiven for doing so because the error, if error there was, lay more in the seeming failure of the Tribunal in AZ in June 2004 to appreciate that, as a result of the decision of the Court of Appeal in Batayav, the previous decision of the Court of Appeal in Hariri was no longer a safe guide to the law. Be that as it may, Mr Cooray succeeds, in my judgment, on his fundamental submission that the Secretary of State has, in those circumstances, misdirected himself in law.
13. Mr Johnson, very fairly, having taken explicit instructions, accepted that if Mr Cooray succeeded on that point, namely if Mr Cooray succeeded in demonstrating the Secretary of State had misdirected himself in law, it had to follow in the particular circumstances of this case that the claim for judicial review had, in consequence, to succeed. In those circumstances, and because, as I have said, the Secretary of State has, in that crucial respect, misunderstood and misapplied the law, it follows that this application for judicial review succeeds.
14. The Secretary of State, when he reconsiders the matter, will no doubt do so taking into account Sedley LJ's explanation of the law in Batayav. Likewise he will no doubt take into account not merely the information which was presented to him on a previous occasion, but also the additional information, some, at least, of it post-dating his previous decisions, which was shown to me by Mr Cooray in support of his submission that on the facts, and in particular having regard to the background country information, this is a case in which it can sensibly be argued that the claimant is at real risk of return.
15. The materials to which Mr Cooray referred me include not merely the UNHCR report of January 2004, but the IND's country information bulletin of April 2004, and a letter from Lord Avebury to Baroness Scotland of 7th April 2004, being materials which were in existence and some at least of which were considered by the Secretary of State when he made his decision in July 2004; also more recent materials: the IRIN news item of 6th November 2004, two statements by Human Rights Watch dated 4th and 11th November 2004, and an Amnesty International press release dated 8th March 2005. In the circumstances, and bearing in mind that this matter will have to go back for reconsideration in the light of misdirection in law, it seems to me that, beyond identifying the materials upon which Mr Cooray was relying, the less I say about the merits of the underlying case the better.
16. Mr Cooray, you presumably want an order quashing the decisions of 14th July 2004 and 9th December 2004.
17. MR COORAY: My Lord, may I ask for my costs.
18. MR JUSTICE MUNBY: When you are saying your costs, that is the costs, as it were, since your solicitor came on the record?
19. MR COORAY: Yes.
20. MR JUSTICE MUNBY: I am very grateful to you, and I hope your client appreciates how grateful he should be to you, that you came into this at such short notice and identified the point on which he succeeded in circumstances where I strongly suspect that the point might not have been identified at all had you not been here. When did your solicitor first become involved in the case?
21. MR COORAY: On 7th April. He applied for emergency Legal Aid on 13th April but so far no decision has been communicated.
22. MR JUSTICE MUNBY: So what you are asking for is an order for costs against the Secretary of State from 7th April onwards.
23. MR JOHNSON: My Lord, there is a further matter of costs.
24. MR JUSTICE MUNBY: I appreciate there are other matters of costs which you wish to raise. That is why I was seeking to ascertain from Mr Cooray that he was not seeking any order for costs in relation to the earlier period.
25. MR JOHNSON: I am grateful for that indication. Nonetheless, my Lord, the point on which the claimant succeeded was raised for the first time this morning. The skeleton argument was made available yesterday but the critical page --
26. MR JUSTICE MUNBY: -- was missing.
27. MR JOHNSON: -- until this morning so the Secretary of State had no opportunity to reflect on the ground which was advanced successfully before my Lord.
28. MR JUSTICE MUNBY: The only difficulty, Mr Johnson, is that the Secretary of State, albeit at the last hour, was presented with the choice of hauling down his flag or going into battle. He decided to go into battle.
29. MR JOHNSON: He had no real opportunity because we came to court this morning and had no opportunity to take instructions on the point. The proof of the pudding, if one wants to engage in what might or would have happened had there been an earlier indication of the point, and what in fact happened in response to grant of permission by Wilson J, which was the Secretary of State did reflect and did make another decision. It would be rash, in my submission, to seek to make decisions like that in the space of minutes when faced with the extra page of the skeleton argument on the morning of the hearing.
30. My Lord, in addition to that, the great expense in this case has been taken up with a number of interlocutary hearings where this point had not been taken. Of course, we will deal with that separately. In my submission the fair and just order for the costs of today, and indeed since 7th April, would be no order as to costs.
31. MR JUSTICE MUNBY: Yes.
32. MR COORAY: My Lord, I take the point that my learned friend did not have the skeleton argument but, on the other hand, I have relied on a case which has been reported a long time ago. It would have been obvious that that decision would be raised. In any event, even in December 2004 the Secretary of State did not follow that and followed rather dated law. In my submission, while I understand the difficulty that the claimant had, it is clear that even my solicitors had difficulties in getting all the papers, and the speed which they had to, despite the difficulties, is something which has to be taken into account.
33. MR JUSTICE MUNBY: I have to tell you, Mr Cooray, and this goes to the question of how obvious the point was, as you are aware, I dealt with this case on a previous occasion and notwithstanding the fact that I was a member of the Court of Appeal in Batayav, the point had completely passed me by, notwithstanding that on a previous occasion I had read the decision letters and seen the reference to Hariri. It is perhaps a little bit difficult for you to argue that the point was so obvious that the Secretary of State should have seen it. Nonetheless, I think, on balance, this is a case where justice will best be done between the claimant and the Secretary of State if the Secretary of State pays the claimant's costs from 7th April onwards.
34. Mr Johnson, I entirely take your point that the Secretary of State could not, if presented with a skeleton argument last night or this morning -- Mr Cooray, obviously had professional difficulties in delivering it sooner -- I quite understand the point that the Secretary of State cannot be expected to produce another decision letter in that short time. But the fact is that the Secretary of State chose, perfectly properly and understandably, to fight the claim on the point identified and he has lost. I think that overall the fair, just and appropriate order in the circumstances, albeit rather unusual circumstances, is that the claimant should have his costs but only in relation to the period since 7th April.
35. MR JOHNSON: My Lord, then the other matter.
36. MR JUSTICE MUNBY: We will move on to the other part of the case. Mr Cooray, I imagine, is not involved in that.
37. MR COORAY: I am not.
38. MR JUSTICE MUNBY: So far as the judicial review is concerned there will be an order in the usual terms that the judicial review claim has succeeded, that the decision of the Secretary of State is quashed, and there will be the order for costs in the term I have mentioned. Mr Cooray, you say there is a Legal Aid application, is there?
39. MR COORAY: There is an outstanding application, my Lord. Just in case --
40. MR JUSTICE MUNBY: I will give a direction in the standard form for Legal Aid costs, and that will be on the basis of the usual form that you must lodge the certificate within 21 days. Mr Cooray, thank you very much. I am grateful to you.