QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of YH)
|- and -
|Secretary of State for the Home Department
Jeremy Johnson (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 26 August 2008
Crown Copyright ©
Mr Justice Cranston :
"9.1 The chronology of the appellant's account simply does not make sense. In particular I do not understand why he left Iraq before the date of the decree formally banning his trading activities, nor why a warrant would have been issued before that decree; nor why he would not have received the warrant in the 19 days before its issue and his leaving the country. There is also considerable force in the Home Office submission that if the authorities had wanted to arrest him they had ample opportunity to do so between May and September. In these circumstances I attach no weight to the warrant and find the appellant's evidence as to the basis of his fears not likely to be true.
9.3 For the sake of completeness, the appellant's fears, had they been found to be genuine, amount to a fear of prosecution for a criminal offence that he was at the time well aware he was committing [T]he objective evidence (CIPU report October 2002, paragraphs 5.111 to 5.114) made clear that although prison conditions in Northern Iraq have improved in recent years following the intervention of the ICRC, there continued to be private undeclared prisons to which there is no access to ICRC officials and there were reports of torture by both the KDP and PUK authorities Had I found the appellant's account credible I would on this evidence have been unable to exclude any real risk of treatment contrary to Article 3 if he were to be returned to the KAA (sic)."
Permission to appeal to the Immigration Appeal Tribunal was refused. On 21 February 2006 the claimant signed an IS101PA (Notice of withdrawal of an Application for Asylum/intention not to exercise appeal right/withdrawal of Appeal) and voluntarily returned to Iraq.
"[C]laims to have been tortured four months ago whilst in custody of the Iraq Police. [S]uspect is pending deportation and requests injuries are noted as part of appeal. [S]olicitors "Wilkins" will have advised client."
The doctor saw him and recorded "[A]lleged torture marks. Arm. Right." The claimant was transferred soon after to the Oakington Centre to be detained.
" account has been taken of the fact that, by your own admission, your representations are based on the same reasons as those given in your previous asylum claim, which was refused on 29 January 2003. No evidence has been produced in support of your claim to have been arrested and tortured on your return to Iraq, for what, in any event, would be a criminal matter."
Reference was then made to the reasoning of the Adjudicator dismissing the claimant's previous appeal, the finding on credibility, and the letter concluded that:
" your submissions seek to rely on the reasons put forward in your previous asylum claim and add no new significant information or evidence to support your account of events on your return to Iraq "
The letter ended by setting out paragraph 353 of the Immigration Rules and that the decision maker was "not persuaded that the submissions you have made, taken together with previously considered material, create a realistic prospect of success."
"It appears from the BIA's letter of 27 March 2008 that the claimant's credibility was rejected by the Adjudicator. The new grounds contain little objective that would lead to the conclusion that the Secretary of State cannot argue that the decision to reject the fresh claim was at least arguably justified "
A subsequent application to vary the order was refused. The Secretary of State filed an Acknowledgment of Service on 17 April 2008, attaching a further decision letter. The following points were made in that letter:
(i) The expert had not mentioned any cases where he had been accepted as an independent assessor of the probity of documents, and there was nothing in his skills and experience to show that he was an expert on this matter;
(ii) The expert had referred to a statement from the claimant which had not been disclosed to the defendant;
(iii) The expert himself accepted that his "tests" were not necessarily conclusive;
(iv) It was not clear from the report whether the expert had examined the original arrest warrant;
(v) The expert had said that one of the principal tests related to the quality of the paper on which the arrest warrant was printed but he made no mention of the outcome of this test;
(vi) The expert had given an explanation for how the claimant might have obtained the arrest warrant. However, the claimant had not himself explained this to the Secretary of State, and the expert did not provide any support for his assertions;
(vii) The expert had said that he had not seen a forged arrest warrant which cited articles 289 and 298 of the Iraqi Penal Code, but in the absence of any account of the expert's experience of forged arrest warrants this statement could not be accepted as authoritative;
(viii) The expert himself had said that the result of his tests "cannot strongly justify that [the arrest warrant] is reliable", albeit he added that it "should be taken seriously." The Secretary of State considered these observations to be, at best, equivocal.
Paragraphs 26-27 of the letter concluded:
26. Applying the law to the facts, at appeal the new material would not conceivably undermine the adjudicator's rejection of your client's account as incredible and the rejection of his claimed fear of persecution or ill-treatment. As a result nothing in the new material would otherwise lead to a more favourable view being taken by a later immigration judge or raise the prospect of a different outcome.
27. Consequently, the hypothetical judge, applying the same legal test to the same facts, would in substance arrive at the same result as the Secretary of State. Put another way, taking the material, old and new, as a whole, any appeal based upon it would on any legitimate view be bound to fail.
In reply the claimant's solicitors wrote setting out in particular how the arrest warrant had come into the claimant's possession, the account already referred to.
(i) The claimant's solicitors had asked whether sight of the original warrant would assist. In response the expert had asked for a colour scan of the warrant, and this was provided. It followed that the expert had not ever examined the original warrant;
(ii) It followed that the expert had not applied one of his principal tests namely an analysis of the quality of the paper;
(iii) The witness statement and documents that had been provided did not attest to the authenticity of the arrest warrant;
(iv) It was highly unlikely that the security forces in Iraq would release the claimant and then issue a warrant for his arrest;
(v) There was no explanation as to how the claimant's parents had obtained the arrest warrant;
(vi) The suggestion that the claimant's parents had received the warrant with instructions to forward it to the claimant was highly implausible;
(vii) The claimant had failed to mention the alleged events of October 2007 when he made his second asylum claim in January 2008.
" I can think of no reason why the words of rule 353 should not be given their ordinary meaning. On that basis I cannot see how the claims made by the Claimant on 22 January 2008 are not within the rule. Further, and additionally I can think of no good reason why the words of rule 353 should be interpreted differently from their ordinary meaning. The plain fact is that if a person makes a second or subsequent claim which is properly to be regarded as a fresh claim within the meaning of rule 353 he or she will have a right of appeal."
In respect of the contention that the Secretary of State's decision was irrational on the facts, his Lordship said:
" In my judgment the letters of 17 April 2008 and 1 May 2008 show that the defendant considered the correct legal test when deciding whether or not the claimant's further representations should be treated as a fresh claim and, in my judgment, her conclusion that they should not be so treated is not arguably irrational. The letters contain cogent reasons why that is so.
 During the course of her submissions Miss Ward was good enough to recognise that the many points which the Defendant had raised about the authenticity and/or reliability of the arrest warrant would provide powerful ammunition with which to confront the claimant in any appeal before an Immigration Judge either by way of cross-examination or submission. In my judgment the points raised by the defendant in the letters to which I have referred go further than that. They demonstrate that an Immigration Judge, properly directing himself/herself, would be almost bound to reach the same conclusions about the warrant as the conclusions reached by the defendant.
 The other issue of some importance, of course, is the allegation of torture. In reality the claimant produced no evidence, independent of his own assertion, to support the allegation. The defendant gave her view about this allegation in the letter of 23 February 2008 and she dealt with it again in her letter of 27 March 2008. Nothing about her consideration of this issue was arguably irrational."
" The allegation of torture was a fresh allegation not made in the asylum claim of 2000 (sic), it was new. In my judgment, it is highly arguable it amounted to a completely fresh asylum claim which had to be judged on its merits by the Secretary of State and if refused attracted an automatic right of appeal.
The defendant's letter of 24 January 2008 states that " by your own admission, your representations are based on the same reasons as those given in your previous asylum claim, which was refused on 29 January 2003. No evidence has been produced in support of your claim to have been arrested and tortured on your return to Iraq Taking all of the above into consideration your representations are rejected and the decision to refuse your earlier claim is maintained." Arguably the Secretary of State failed to recognise that this was a fresh claim, and there was evidence in the form of the appellant's assertion. She seems to have treated it as an application under paragraph 353, i.e. as a "fresh claim" on significantly different material. It is arguable that paragraph 353 does not arise here at least until the fresh asylum claim has been properly considered. It is therefore arguable that judicial review should be allowed."
The Legal Framework
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means
(a) refusal of leave to enter the United Kingdom,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain".
"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim" (at 783G-784A).
That was a case where the applicant had made a claim for asylum, based on the political activities of his father, but conceded that he himself could not show a well-founded fear of persecution so that his appeal on the claim was dismissed. Subsequently, he made what he indicated was a fresh claim for asylum on the basis of his own association with an opposition political group in his country and supported by material on the human rights situation there. The Secretary of State concluded that this was not a fresh claim so there was no avenue of appeal under the existing statutory provisions. The Court of Appeal held that a person could not be deprived of a right to make a fresh asylum claim, whether or not he had left the United Kingdom, but that in this instance the decision of the Secretary of State that he had not made a fresh claim, and thus had no further right of appeal, was unassailable. Subsequently, the Court of Appeal authoritatively decided that the question of whether further submissions purporting to be a new claim for asylum amounted to a "fresh claim" was a matter to be decided by the Secretary of State with no right of appeal, although the decision was susceptible to judicial review: see R v Secretary of State for the Home Department ex parte Cakabay  EWCA Civ 1116;  Imm AR 177.
"346. Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
(i) is not significant; or
(ii) is not credible; or
(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
353. 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 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.
This paragraph does not apply to claims made overseas."
"The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator [allowing the appeal]. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind." (para 11)
Applicability of rule 353
(a) Claimant's submissions
(b) The meaning of rule 353
Whether application of rule 353 was flawed
(a) Arrest warrant
"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." (para 37).
A key factor in the decision was that it was not known how the FIR and arrest warrant came into existence and how the claimant's brother obtained them. The Secretary of State was fully entitled to reject their genuineness.
"During the course of her submissions Miss Ward was good enough to recognise that the many points which the Defendant had raised about the authenticity and/or reliability of the arrest warrant would provide powerful ammunition with which to confront the Claimant in any appeal before an Immigration Judge either by way of cross-examination or submission. In my judgment the points raised by the Defendant in the letters to which I have referred go further than that. They demonstrate that an Immigration Judge, properly directing himself/herself, would be almost bound to reach the same conclusions about the warrant as the conclusions reached by the Defendant." 
I can see no reason for reaching a different conclusion. In my judgment the Secretary of State was entitled not to accept the genuineness of the arrest warrant either on its own terms or the account of how it came into existence. As she was entitled to she considered it against the background of the claimant having previously provided an untrue account in support of an asylum claim, and the Adjudicator having concluded that no weight could be attached to the warrant he produced that time as well. Quite apart from this the Secretary of State was entitled to take the view that the claimant did not have a realistic prospect of establishing, to the requisite standard, that the warrant was genuine. The reasons she gave in the decision letters made clear why she took that view, albeit that some were more fully developed once the claimant had left the United Kingdom. The claimant's own expert was equivocal. Insofar as he provided support for the genuineness of the document, his report was unsatisfactory because it was not at all clear that he was qualified to give an opinion on this issue. There was also the striking feature that he had not examined the original document, even when it became available. Moreover, the Secretary of State was entitled to bring into the equation that the arrest warrant was inconsistent with the account that the claimant had initially given. He had said that he was wanted in connection with the illegal trading in antiques and it was only later that he said it was because of a problem over his identity document. It was also not irrational of her to take the view that there was no adequate evidence indicating how the warrant came into existence. It was highly unlikely that the security forces in Iraq would release him and then issue a warrant for his arrest. He had failed to mention the warrant when he was interviewed in January 2008. And there was the inconsistency between the interview, when his trouble was attributed to the mummy, and the reason advanced later by his lawyers, that he had been stopped with a false ID and this was the basis of the warrant. In summary the Secretary of State took the decision that the arrest warrant was not evidence which could be accepted and I cannot see that her reasons are flawed.