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 WC2A 2LL
		22 November 2007

1. DEPUTY HIGH COURT JUDGE: In this judicial review the claimant challenges the defendant's decision dated 17 May 2006 to refuse to treat further submissions as a fresh claim for asylum. I will describe the background.
2. The claimant, who was born in July 1960, is a national of Pakistan. He arrived in the United Kingdom on 10 September 2001 on a visitor's visa and was given leave to enter until 11 November 2001. He claimed asylum on 13 September 2001. He completed his statement of evidence form (SEN) on 21 September 2001 and was interviewed on 15 October 2001. The claimant's claim was refused on 16 October 2001. He was also served on this date with notice of his liability to removal and/or detention.
3. The claimant appealed to an adjudicator. His grounds relied on Articles 2, 3, 5, 6, 7, 9, 10, 11 and 14 of the European Convention on Human Rights, which points were responded to by the defendant in a further Reasons for Refusal letter dated 10 October 2002. The claimant's appeal was heard on 7 January 2004. In a determination promulgated on 5 February 2004 the appeal was dismissed by the adjudicator on both asylum and human rights grounds.
4. The claimant's appeal to the Immigration Appeal Tribunal was dismissed on 17 December 2004. As the tribunal noted at paragraph 3:

"The [claimant's] case was based on a fear of persecution he claimed to entertain as an Ahmadi from Pakistan at the hands of Khatme Nabbuwwat. He claimed to be a preacher and to have suffered two violent attacks on 16 April 2001 and 20 July 2001."

The tribunal, at paragraph 4, said:

"The adjudicator accepted that the appellant is of the Ahmadi faith and active within his religion but did not accept that he was a preacher and found the evidence concerning the attack on 18 July 2001 'totally unbelievable'. The adjudicator also had doubts about the assault that took place on 16 April 2001. At paragraph 56 of the determination the adjudicator said that the only aspects of the appellant's account she found credible were the fact that he is an Ahmadi, that his cousin had been attacked and stabbed five times and that the appellant fled on a visit visa obtained under false pretences."

The tribunal concluded at paragraph 8:

"The reasons given by the adjudicator support her findings, and her conclusion that the appellant had not been attacked in Pakistan in the past, was not a preacher of the Ahmadi faith and therefore not at risk in the future discloses no error of law. The grounds, as we have indicated earlier, amount to arguments that the adjudicator should for other reasons have taken a different view of the evidence ..... "

5. Those acting for the claimant made further submissions on 30 December 2004. These submissions consisted of, first, a First-Information Report (FIR) relating to an offence under the Pakistan Penal Code 288 C, a blasphemy charge against the claimant's wife, son and nephew. Second, there was an assertion that the claimant's sister's family had been granted refugee status in the United Kingdom on 16 November 2000. Thirdly, there was an assertion that the claimant's cousin and nephew had been granted refugee status in China on 26 November 2004. On 4 May 2006 a form IS1 51, a notice of liability to detention/removal, was served on the claimant. Further submissions were made on 5 May 2006.
6. In a decision of 17 May 2006, the defendant refused to grant leave on the basis of the claimant's further submissions and refused to treat those submissions as amounting to a fresh asylum and human rights claim. In this claim the claimant challenges the decision of 17 May 2006 on Wednesbury grounds because the defendant inappropriately relied on the adjudicator's credibility findings, gave inadequate weight to the FIR and the fact that various members of the claimant's family had been granted refugee status in the United Kingdom and China.
7. When the matter came before Mr Justice Munby on the papers he granted permission in the following terms:

"1 With some reluctance, I am persuaded that this case is arguable.

2 I note that the crucial allegations in paragraph 3 of the grounds are lacking in particularity and detail - NB the comment in the final sentence of paragraph 16 of the summary grounds of defence. The claimant would be well advised to supplement what is said by providing the full facts, with full supporting documentation (and, where appropriate, translations), in relation to these other cases."

8. The test whether submissions ought to be treated as a fresh asylum or human rights claim, thereby generating a fresh in-country right of appeal, is set out in paragraph 352 of the Immigration Rules HC 395, as amended by HC 112, which states:

"When a human rights or asylum claim has been refused 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 the submissions 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) has 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."

9. In the latest authority, WM (DRC) v Secretary of State for the Home Department and Secretary of State for the Home Department v AR (Afghanistan) [2006] EWCA Civ 1495, the Court of Appeal confirmed that the task of the court in a judicial review of a decision of the Secretary of State that there is no fresh claim is to decide, applying anxious scrutiny, whether the Secretary of State's decision was irrational. The decision would be irrational if it was not taken on the basis of anxious scrutiny, and did not ask the right question. The task of the court is therefore to address, first, whether the Secretary of State has asked himself the correct question, that is, is there a realistic prospect of the claimant succeeding on appeal; secondly, whether the Secretary of State has satisfied the requirement of anxious scrutiny.
10. As I have already indicated, the alleged new material in this case consists of the three matters to which I have referred. I have also indicated that Mr Justice Munby had serious concerns about the documentation and indicated that steps had to be taken, first, to authenticate that documentation and then to give full particulars of the matters alleged.
11. What has happened for this hearing is that in respect of the FIR, that is the First-Information Report - the first item of the allegedly new material - there was handed in this morning to the court a document that purports to be a true copy of the FIR. However it is not possible, in my judgment, to discern exactly what this document is. It is accompanied by no explanation as to the nature of the document and, even more importantly, the provenance of the document has not been properly put in evidence. Counsel, on instructions, said that this document had been obtained by the claimant's wife in Pakistan. However as matters stand before the court at the moment, that, in my judgment, is an inadequate basis upon which weight of any true significance could be given to this document. I should also add in relation to the FIR that, as pointed out in the decision letter, the FIR does not take the matter very far because it is evidence simply of a complaint and not actually of conduct that would be sufficient to ground an asylum claim.
12. Therefore my conclusion would be that the production of this document, without a proper explanation of what it is and without a full explanation of its provenance, given in particular that it was obtained in 2006, is not sufficient, standing alone, to establish a realistic prospect of success on any appeal.
13. In relation to the second and third matters, again at the hearing the position was taken very little further. Put in evidence again this morning, on the day of the hearing, is a letter from the Muslim Association which says:

"We confirm that the above named person and his family"

that is Mr Farook Ahmed

"continue to suffer religious persecution. Mr Farook Ahmed's wife and remaining children in Pakistan are on constant move in hiding in Pakistan.

We further confirm that the above named's sister, Mrs Jamila Begum Mobasher (date of birth 01.01.1948), a member of our community in the UK, has been recognised as a refugee in the UK. Based on the information received from our headquarters and as set out in the attached letters, his family members and his cousin, Mr Jamil Ahmad and nephew, Mr Mohammad Zakria have also been granted refugee status by the UNHCR in China.

We are, therefore, of the very firm opinion that in view of the situation of his son, the above named would be readily identified and subjected to severe persecution if he is forced to return to Pakistan."

14. In my judgment again, and that is even putting aside the very late production of this document, it does not in terms give sufficiently particularised and reliable information either in relation to the second matter, namely the assertion the claimant's sister's family have been granted refugee status in the United Kingdom, or the assertion that the claimant's cousin and nephew have been granted refugee status in China on 26 November 2004, which were the two further matters relied upon in the claim form, so as to establish that there would be a realistic prospect of success by reason of the assertions that have been made and by the production of that sole document.
15. Therefore for those reasons I have concluded that the material, such as it is, that has been advanced and has been, to some extent, a limited extent, in my view, supplemented today, would not create a realistic prospect of success on appeal. Therefore for those reasons I dismiss this application for judicial review.
16. MISS OLLEY: I am grateful for your judgment.
17. MISS FISHER: My Lord, my client is legally aided. There may be an issue as to costs and legal aid taxation. The respondent had to put in for costs, but that would be legal aid taxation. I do not know if there is a full certificate.
18. DEPUTY HIGH COURT JUDGE: The usual form of order you may wish to draw up and help the associate.
19. THE ASSOCIATE: Detailed assessment.
20. DEPUTY HIGH COURT JUDGE: Yes.
21. MISS OLLEY: I am taking instructions on a point. Could you bear with me?
22. DEPUTY HIGH COURT JUDGE: Yes. (Pause)
23. MISS OLLEY: I do have an application for the defendant's costs. I am not in a position to put a schedule before the court. I wonder if it would it be acceptable to send that as soon as possible so you - - - - -
24. DEPUTY HIGH COURT JUDGE: Yes. You may be able to agree the amount.
25. MISS OLLEY: That would be desirable.
26. DEPUTY HIGH COURT JUDGE: And have the order drawn up in the usual terms.
27. MISS OLLEY: I am grateful.
---