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
		5 June 2007

1. MR JUSTICE CALVERT-SMITH: This applicant, Mohammed Aslam Langah, applies for judicial review of the decision of the Secretary of State for the Home Department of 2 May 2006 refusing to treat representations made before that date as a fresh asylum claim. Following the letter of 2 May 2006, the applicant submitted further documents said to be originals of documents hitherto only in faxed copy form.
2. The application for permission was considered by the single judge, Clare Montgomery QC, on 1 August 2006. She granted permission in the following terms:

"The existence of genuine warrants for the arrest of the claimant in Pakistan might give rise to a realistic prospect of success for the claimant in a fresh claim. The Secretary of State was not entitled to conclude that the evidence as to the existence of the warrant was ..... because of 'the ease with which such evidence can be fabricated'. I note that originals of these documents have now been provided to the Secretary of State ..... no further response has been provided."

3. Since then, on 14 September 2006, the Secretary of State has considered the originals and responded in detail in respect of them. All parties are agreed that both the new documents and the Secretary of State's letter of 14 September fall to be considered by the court when deciding the question of judicial review of the earlier decision of 2 May 2006.
4. The original grounds of judicial review were very wide, but helpfully counsel for the applicant has confined himself today to the ground upon which permission was granted, focussing on the question of the warrants and the Secretary of State's consideration of them.
5. It is necessary to deal with some of the history of the case. The claimant, who is now some 47 years old, arrived in this country on 20 July 2004 on a false passport. On 27 July 2004 he claimed asylum. His claim was refused on 23 September 2004 and removal directions were set for 29 September. His appeal against that decision was dismissed in a determination promulgated on 16 December 2004.
6. In the course of her determination the adjudicator made a number of adverse findings against the applicant. In summary, she was not convinced that the appellant, as he then was, was actually a preacher of the Ahmadi faith, that he had not in fact converted anyone to that faith as he claimed, that accounts of particular incidents which he gave as having occurred during the 1990s up to 2000 were fabrications because of their inherent implausibility, and that accounts of complaints in 2003 against him under the blasphemy laws in Pakistan and his apparent ability to get out of them by bribery were incredible. In addition, she found that documents which he then submitted which suggested he was about to be charged had been fabricated. She pointed to the fact that the appellant had been able to obtain a false passport. She was satisfied however that the appellant is a member of the Ahmadi faith, while her conclusion was that he was not an active preacher or follower who attempts to proselytise and has made up that part of his story to support his claim for asylum.
7. Following that determination, permission to appeal was refused. The tribunal stated:

"In my view the over long grounds of appeal are an attempt to re-argue issues of fact and credibility which have adequately been considered by the adjudicator. She has given reasons for her findings ..... sustainable and not arguably erroneous. The grounds do not satisfy me that the appeal has a realistic prospect of success."

8. The applicant did not apply for statutory review of that decision. His appeal rights were exhausted on 19 May 2005. Since then the applicant has put in a number of further submissions. On 20 June 2005 submissions were responded to by the defendant on 4 October. The claimant was detained on 4 October 2005. Further submissions were made two days after that, on 6 October. Those were replied to on 5 January 2006. By that time the defendant had already applied for, and been refused, permission to apply for judicial review of the rejection of the submissions of 4 October 2005. Further submissions were made on 6 February 2006 and they gave rise in due course to a letter of 2 May 2006. The applicant has therefore been in the United Kingdom since 20 July 2004, almost three years.
9. Mr Tattersall submits that the existence of the documents now said to be the originals of two warrants for this applicant's arrest, together with the lawyer's letter advising his client to seek legal advice in this country and warning him of the possible consequences to him if he were to return to Pakistan, are sufficient, without more, to require further consideration of the case by the Secretary of State. He complains, in part from the grant of permission by the deputy judge, that the Home Secretary effectively made a blanket decision without proper consideration of the instant case in deciding in May 2006 not to treat the documents as amounting to a fresh application.
10. It is necessary therefore to look at the documents themselves and then of course at the way in which the Secretary of State has now dealt with them in the letter of 14 September. I refer to the documents in the translations which have helpfully been supplied. The two warrants for the arrest of Mr Langah authorise the arrest of Mr Langah and his production before the courts in Chiniot on 15 December 2006 (presumably an error for 2005) and 12 January 2006. They refer to a prosecution - No 2020 - on 8 August 2005 under Article 298C of the Pakistan Penal Code. It is common ground that that section of the code deals with an offence called blasphemy, that members of the Ahmadi faith are regularly prosecuted under that section as being effectively holders of heretical beliefs.
11. The letter which enclosed the two warrants is from Tariq Nawar Serotra. The relevant parts of it read:

"Mohammed Asif has registered a complaint against you in the Court Area of Magistrates for Chiniot and has started a prosecution against you under Section 298C Pakistan Penal Code on account of your failure to attend the court on due dates. The court has issued arrest warrant against you. Contact any lawyer/barrister in the UK as soon as possible and up-date him/her of the current situation. Also inform the Home Office in the UK. It is now perilous for you to return to Pakistan as you will be arrested immediately. Moreover Mohammed Asif, having lodged a complaint against you, and his associates are highly infuriated and it could run risk of your life on return. My personal legal opinion to you is that immediately inform the relevant department of the British Government about the entire situation of the matter."

That is signed by Mr Serotra, advocate of Chiniot. The letter is undated.

12. In his letter of 2 May 2006 the Secretary of State rehearsed some of the matters found by the adjudicator in December 2004. At paragraph 5 it goes on:

"5 You claimed on 31 January 2006 your client received a letter by fax from his advocate in Pakistan who represented him in a criminal case against him under Section 298C of the Pakistan Penal Code that has been filed by Mr Mohammed Asif for preaching."

The faxed letter is undated. The translated version of the letter states that -

"The Court has issued warrants of arrest against your client for non-appearance in court. Copies of these arrest warrants which have been translated have been submitted. Arrest warrants can be fabricated ..... therefore the ease with which such documents can be fabricated it cannot be considered credible ..... findings of the adjudicator have had to be disregarded."

13. Miss Olley has realistically conceded that bald statement did not do enough to consider and, if appropriate, reject the documents purporting to be arrest warrants and the letter from the advocate. And, in effect, the single judge had no alternative on 1 August, in the absence of any more detailed consideration by the Secretary of State, but to grant permission in the way that she did.
14. However the letter of 14 September 2006 effectively supersedes that somewhat bald rejection. This letter, setting out the history of the matter and dealing with the way in which the Home Secretary has to consider situations such as this, stated at paragraph 18:

"It is noted that documents purporting to be arrest warrants were only sent after your client's statutory appeal rights became exhausted and removal directions were set. No explanation has been provided as to how your client obtained these documents. Likewise, considering your client has been in the United Kingdom since July 2004, no explanation has been provided as to how or who instructed the advocate on behalf of your client. It is a surprising omission especially since it is claimed that your client had informed ..... The inference must be that these documents, as were documents previously, were again referred back ..... This continues to be the position. You are referred to your client's statement submitted in support of his appeal:

'On 14 December 2003 Mohammed Asif filed a complaint at the police station ..... under 298C of the PPC for preaching.'"

Going on, at paragraph 21:

"The documents submitted ..... are not acceptable. Nor can they be considered as credible evidence ..... The adjudicator found your client's account of his asylum claim, including the extract from your client's own statement, not credible. It is also apparent your client's submissions are very similar ..... and issues are exactly the same as his original asylum claim ..... considered by the adjudicator."

At paragraph 24 the letter goes on:

"Alternatively even if the arrest warrant was accepted as genuine, and it is not, it is noted that the purported arrest warrant provides details that Mohammed Asif was registering a complaint against your client in the court. Whilst it may be accepted that any person in Pakistan can register a complaint, it is not evidence that your client's submissions ..... are genuine ..... The explanation of your client faxed by his advocate in Pakistan is not acceptable. It was based on a lack of information ..... Taken as a whole the information is not accepted as evidence that your client would be at risk if returned to Pakistan ..... it is (?) administrative against your client; that is all."

15. Earlier in the letter the Home Secretary had included a quotation from the judgment of Mr Justice Collins in Naseer v Secretary of State for the Home Department [2006] EWHC 1671 in which he said:

"It seems to me, on consideration and having regard to the circumstances of a case such as this [the passage in Rahimi], that that taken in isolation may indicate too strict a test. As I have said in the context of this case, if the Secretary of State reasonably on the material before him takes the view that it is not evidence which could be accepted, and thus would not give a reasonable prospect of success on appeal, he is entitled so to find. What is important in circumstances such as this is that there should be evidence indicating how the relevant documents came into existence and supporting their genuineness."

The letter goes on:

"As Mr Justice Collins made clear in Naseer, what is required is an explanation how it came into existence and obtained and evidence as to genuineness (?)"

It is against that background that the court has had to consider the application for judicial review.

16. I am quite satisfied that the conclusions set out in the letter of 14 September were indeed reasonably arrived at after careful consideration. It was certainly within the range of decisions that a competent decision-maker could make. Although this is irrelevant to my decision, they are conclusions with which the court agrees.
17. The findings of the adjudicator gave ample background to the findings that the letter of the advocate was a recipe designed to prolong Mr Langah's stay in this country and had no basis in reality. This application for judicial review is therefore refused.
18. MISS OLLEY: I am grateful for your Lordship's judgment. I have an application for the defendant's costs of the application. I do not have a schedule. I understand that in those circumstances I must fall back on the discretion of the court. I would suggest that it would be sensible for you to make the order if you were so minded that the claimant do pay the defendant's reasonable costs to be assessed if not agreed. I ask you to make such an order.
19. MR JUSTICE CALVERT-SMITH: The difficulty, Mr Tattersall, is the matter only got to this stage as a result of what was an inadequate initial reaction to the documents in the May letter which generated grant of permission.
20. MR TATTERSALL: I would submit that there is argument for no order as to costs. This matter is privately funded. It is not a matter for which we have legal aid and it was built on an argument that we had an arguable case today. The letter which then followed in September, the subsequent letter, was because of the decision of the learned judge.
21. MISS OLLEY: I acknowledge that there is no legal aid in play in this case. I probably would not have made the application if I had known that that was the case. Given that the action on my side is publicly funded, I think I do have a duty to make the application. I acknowledge the twist that way, and in this case you have found a shortcoming in the original decision. The fact is that a further decision was produced, that is the 14 September 2006 decision. A sensible decision could have been taken as to whether this action should have been pursued. At the end of the day your Lordship has agreed that the Secretary of State's decision was a reasonable one. I do ask for some payment of the defendant's costs to be given as they are being funded by the taxpayer.
22. MR JUSTICE CALVERT-SMITH: Can you give me some idea of what the figure might be?
23. MISS OLLEY: I imagine it might be £1,000 or £2,000, a little more. The Secretary of State's costs are never really more than £5,000. I accept that is an exaggeration, so we are probably looking at £2,000, £1,000 or £2,000. And perhaps there might be adjustments after you have discussed matters with my friend.
24. MR JUSTICE CALVERT-SMITH: The court has a discretion to award a particular sum, has it not, today even if it falls short?
25. MISS OLLEY: Yes.
26. MR JUSTICE CALVERT-SMITH: It may save a certain amount of time if I were to do that.
27. MISS OLLEY: Yes. I suppose you could consider that the costs be capped.
28. MR JUSTICE CALVERT-SMITH: I have to try and balance the point made by Mr Tattersall as to the validity of these proceedings at least until the time elapsed (?) and instructions post 14 September. What I propose to do is to order payment of £500 towards the costs of the defendant in this case.
29. MISS OLLEY: I am grateful.
30. MR JUSTICE CALVERT-SMITH: 28 days.
31. MR TATTERSALL: Yes. May I ask at this stage that we are allowed permission to appeal? It is not based on anything you said today. But there is a general principle which is, first of all, about what the Secretary of State requires from somebody in the position of the claimant to make documents from Pakistan acceptable. I think that would be a very useful guideline from the Court of Appeal because cases like this have only come before you because we do not know the answer, and there is no defence witness. Were there an answer, it would make life very much easier for ourselves and the Secretary of State.
32. The other point I would raise, and the second point, is whether letters, after the settling of grounds, should be acceptable and how they should be acceptable. I think your Lordship has taken that into consideration in the way in which you have awarded costs in this matter. Obviously we have to put in grounds for judicial review well before any final correspondence between those who instruct us and the Secretary of State. That, I think, is an issue which again needs to be looked at at a higher level.
33. The final point is the ease with which documents can be obtained. How do we show? What do we show? And what weight the Court of Appeal should give them. I would submit this is a matter that should be marked for consideration, particularly in light of the four cases which are already going from (sic) the Court of Appeal to the Immigration Appeal Tribunal as to how cases concerning Ahmadis should be tackled. It strikes me that the way in which the adjudicator in this case said, well, it is quite possible to bribe the police to get a passport but does not accept that any police documents are legitimate, there is an imbalance which I think needs to be corrected. I would ask you to grant permission to appeal.

R U L I N G

34. MR JUSTICE CALVERT-SMITH: There are three elements to the application, two of which run together. One is a suggestion that it would be helpful if the Court of Appeal were to set out requirements in some general or more particular form which would amount to sufficient, in a case like this, to create a fresh asylum claim. Allied to that is the question of how generally the Home Secretary is entitled to use the fact that it is in some countries easier than in others to obtain forged documents from State agencies, and how far the Home Secretary is entitled to use that general knowledge in rejecting a particular claim. And finally the status of correspondence and supervening events of the success or otherwise of applications for judicial review, a decision which by the time the court hears the case is out of date.
35. I am not prepared to grant leave to appeal on any of those grounds. On the first two it seems to me that the passage quoted from Naseer decided Mr Justice Collins and other cases make perfectly clear, in general terms, that some form of report will be required and equally make it clear that each claim must be dealt with, so far as it can be, on its individual merits rather than in some blanket way.
36. Secondly judicial review cases are consequently brought to an early conclusion by events. Sometimes something happens that changes the landscape so considerably that there is a need for a review. This case is not such a case. It raises no particular new principle.
37. You will have to go elsewhere, Mr Tattersall.
38. MR TATTERSALL: I am obliged.
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