England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		6th October 2009

Mr Justice Langstaff:

`

1. This is an application for judicial review of the refusal by the Secretary of State for the Home Department on 12 May 2008 to treat representations made by the claimant to her as being a fresh claim.
2. Permission, though initially refused by HHJ Stewart, sitting as a deputy High Court judge, on the papers, was granted for a full hearing after an oral application to renew the permission was made and granted by HHJ Penny QC, sitting as a deputy High Court judge, on 3 August.

The factual background

3. The claimant is now 35 years old. She is a university-educated Pakistani woman. On 30 April 2008 she entered the United Kingdom as a visitor. Eight days later, on 7 May 2008 it emerged that the real reason for her entry was to seek asylum. She claimed asylum on the basis that she was an adherent to the Ahmadi faith who had been subject to domestic violence directed at her from her father in respect of whose assaults upon her the state afforded no sufficient protection. She understood that there was an outstanding warrant for her arrest in Pakistan on a charge of blasphemy.
4. On 24 September 2008 those claims came before an Immigration Judge. The Home Office had disputed that she was Ahmadi. The Immigration Judge, however, accepted her case. The Secretary of State for the Home Department denied that she had suffered domestic violence. The Immigration Judge accepted her case that she had. As to her case, however, that it was her father who had inflicted that violence the Immigration Judge rejected her claim. He also rejected her allegation that her father had exercised the degree of control over her which she claimed.
5. He spent a considerable passage of his decision in considering the issue of who it was that had inflicted domestic violence which he accepted had been caused to the claimant upon her. It would follow that the answer to this question in part determines when that domestic violence was suffered. He rejected the account that it was her father who had done this upon some five separate factual bases. First, he had regard at paragraph 35 to the fact that the claimant is a woman in middle age, 34 at that time, who had been married and divorced and rejected the suggestion put to him that the claimant's father could have asserted any legal right effectively to control her. Secondly, at paragraph 36 he had regard to her education to degree level and concluded that the opportunity to study to that level would not have been afforded by an abusive father of the controlling nature she claimed. Allied to that in that paragraph (and perhaps an additional reason), the father whom she describes would not in his view have travelled away from home on business leaving her there to her own independent devices.
6. A fourth reason was that the father had on her account arranged for her to come to the United Kingdom in order to recuperate from a beating. He commented that there had been a significant period of time prior to that in which the claimant had been objecting to a forced marriage which she said her father wished her to enter. It was said to be an argument in respect of that that led to one of the beatings that she suffered. He did not consider that it was credible that, against that background, her father would have been willing to allow the claimant to be outside his immediate control from day to day and indeed to send her away from it.
7. Fifthly, he turned to a number of documents which were put before him. These documents have figured centrally in this application for judicial review but, as I have indicated, they formed only part, and a relatively small part, of the reasoning by which the Immigration Judge concluded that he could not and should not accept the claimant's account of her father's abuse and control over her.
8. The conclusion to which he came was that the documents did not constitute reliable evidence of their contents and indeed he thought that they were not genuine documents. That reflected upon the credibility of the claimant. It is obvious that if a claimant puts forward documents as genuine which are not in support of a claim it may be because, and is likely to be because, she sees that without such support that the claim may fail. Therefore the significance of the quality of the documents was as to the general acceptability of the evidence from the claimant that her father was abusive and controlling toward her.
9. In the course of his coming to that conclusion, the Immigration Judge from paragraphs 38 until paragraph 51 looked at particular features of the documents in detail. There were three documents. The first was an FIR. That purported to record a complaint by the father that his daughter, together with a man, Bilal Khan, who was an Ahmadi, had stolen gold ornaments and a considerable quantity of money from the family, and that she had enjoyed what are described as "unfair relations" with that man. The Immigration Judge plainly took that as a reference to an adulterous liaison between those two and that on that basis it was said the father sought the arrest and charge of both his daughter and Bilal Khan. The second document produced was an arrest warrant. The third was a summons addressed to the claimant requiring her to attend court to answer the accusations.
10. It is unnecessary for present purposes to set out each and every one of the details of the criticisms which the Immigration Judge made. They were largely criticisms of the acceptability of that which the documents appeared to convey, making, as it seems to me, assumptions about the context in which they were produced, as to which there was no direct evidence put before him. For instance he took the point that the statement in the FIR:

"Time and date of departure from PS seven and a half pm 5/5/08",

related to someone leaving a police station at that time and date and thought it credible neither that the complainant left the police station at that time and date or that an investigation begun on the 4^th should not have been conducted immediately by a police officer without waiting until later in the evening of the next day, the 5^th. Both those conclusions might have benefited from evidence exploring the local context. That was not put before the Immigration Judge.

11. Similarly it was agreed that there was an ambiguous reference in part: see paragraphs 47 to 50. It was obvious both that the arrest warrant required the claimant to be produced on 10 June 2008, which the Immigration Judge thought was an incredibly long time away from the inception of the inquiry on 4 May, and that the summons required her attendance on 4 May, which was an unbelievably short time. These merely give the flavour of the detailed criticisms which impressed the Immigration Judge to the extent that he felt he could place no reliance upon those documents as providing him genuine material and, further, that they were such as to further call the credibility of the claimant into question when considering her central claim that her father was abusive and controlling toward her in a way from which the state could offer her no sufficiency of protection.
12. Accordingly he concluded that, since the marriage had ended by divorce in 2003 and since he rejected the suggestion that her father had been guilty of abuse of her and control of her since, she was at no risk of persecution so as to qualify for a claim under the Refugee Convention, at no risk of inhuman or degrading treatment upon return so as to qualify for asylum; and did not qualify for humanitarian protection. He rejected her claims accordingly. He did so by a decision made 25 September 2008.
13. On 25 November 2008 reconsideration of that decision was refused by a Senior Immigration Judge in a carefully reasoned, though short decision. As it happens on the same day the claimant says that she married Hamud Ahmed in this country. He too had had a chequered immigration history. He had made a claim to remain in this country, an asylum claim which has been rejected, about which I will say more later. It followed, there being no further application in respect of the Immigration Judge's decision, that the claimant's appeal rights were exhausted in January 2009.
14. On 11 May 2009 she was detained with a view to her removal. The next day solicitors on her behalf submitted a fresh claim in the light of which her removal was stayed.
15. The fresh claim was in a letter which raised a number of arguments. In short it addressed, first, whether there was further material not considered by the Immigration Judge which supported the credibility of the FIR, the witness summons and the arrest warrant. Secondly, it told the Secretary of State for the first time that the claimant had married Hamud Ahmed. Thirdly, it raised an issue of the medical effects on the appellant of return to Pakistan and enclosed material from her general practitioner confirming her depressed emotional state, for which she required treatment.
16. It will immediately be obvious that that part of the letter of 12 May 2009 which told the Secretary of State about the marriage and that part of the letter which dealt with the continuing medical problems of the claimant was material which had not been previously considered as a ground for permitting the claimant to remain in the United Kingdom. It is equally plain that the third point – the credibility, in general terms, of the documents to which I have referred - had been centrally in issue as one of the pieces of material going to the credibility before the Immigration Judge in September 2008. I interpose merely to note, for instance, that in paragraph 44 of his determination the Immigration Judge referred to submissions made to him on behalf of the claimant addressing problems with that documentation. It is undisputed that the burden of proof in satisfying the Immigration Judge that documents contained relevant evidence rested upon the claimant, as is the usual case.
17. The view of those documents which the Immigration Judge reached was thus formed after considerable discussion before him. There is no sign that at that stage Mr Meer for the claimant sought an adjournment to put further evidence before the Immigration Judge of the context in which those documents came to be written, or as to what their proper interpretation was. It should be said that the English translation of the document was uncertificated, which may explain perhaps some of the infelicities of language to which the Immigration Judge had regard. But it is of course a matter for the claimant herself to place evidence concerning the subject matter of those documents before a tribunal.
18. Thus the documentation, and what it conveyed, had been considered in detail by the Immigration Judge.
19. In response to the appellant's solicitor's letter of 12 May there was an immediate and lengthy letter written on behalf of the Secretary of State, which is the letter containing the decision the claimant seeks to quash in this action. In summary, this letter addresses two questions: first, it reconsiders the claimant's claims to remain in the United Kingdom; second, it looks to see whether if the Secretary of State maintained her position, as she did, to refuse leave to remain, an Immigration Judge might reasonably come to an opposite conclusion. That is a short and, I am conscious, perhaps inadequate summary of the law as to fresh claims which derives from familiar case law. Thus Rule 353 of the Immigration Rules applies:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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."

20. The Secretary of State in her letter of 12 May 2009, having spent some three pages reviewing her own decision, turned to paragraph 353 and set out a summary of it. She then said, on page 35:

"Some points in your submissions were considered determined. They were carefully considered and responded to in the letter, in the Reasons for Refusal and the appealed determination. The remaining points in your submissions, taken together with the material previously considered in the refusal decision, would not have created a realistic prospect of success before an immigration judge."

The letter, unhelpfully, does not indicate what, in the view of the author, were points that had been considered when the earlier claim was determined.

21. Before me Mr Karim, for the Secretary of State, claims that the material sought to be put before the court, to which I will return in a moment, is not material which is significantly different from that the content of which had already been considered. Mr Rashid Ahmed for the claimant maintains that it is.
22. I turn therefore to look in a little more detail at what is said to be significantly different material. This, enclosed with the letter to which I have already referred of 12 May, is a letter dated 12 February from Multan Law Associates in Pakistan. That letter makes a detailed refutation of points which the Immigration Judge had made in the course of deciding that the documents before him gave no reliable evidence of content and were, as it turned out, not genuine. It has not been suggested that the author, Imtaz Ahmed, is not the advocate of the High Court in Multan, which the letter suggests he is.
23. The letter, for instance, gives an explanation of the differences in the time which had so impressed the Immigration Judge. It describes the warrant and the summons as not being inconsistent documents, as the Immigration Judge thought, and the author concluded that the part of the letter which the Immigration Judge relied upon to doubt it was a typographical error. Indeed, I should add, it does not seem to me necessarily unreasonable that he should come to the view that this was a typographical error. He therefore provided material which helped to contextualise and, as Rashid Ahmed puts it, to clarify parts of the wording of those documents, which goes some way, though perhaps not entirely the full distance, to nullifying the sting which those documents were taken to have against the claimant.
24. As to that, the Secretary of State in the letter of 12 May suggested that this was an attempt to re-argue or clarify the points relating to findings and criticised the claimant for not producing expert evidence, if that had been necessary, or witnesses at the hearing to explain the documents, if that was needed, particularly since she was an educated lady, and then said this:

"We note that no response has been given to the fundamental point that your client claimed that she had been accused of blasphemy whereas the FIR refers to adultery and theft."

25. It went on to deal with various other doubts which might have been left outstanding by the explanations, amongst them the question whether a typographical error was a sufficient explanation for some of the problems.
26. The Secretary of State rejected, therefore, that material as affecting her own decision. The issue before me, however, centres upon the approach to the requirements of Rule 353 which was then taken by her in her letter. Those requirements are now familiar territory to the courts. If a useful summary is needed, it is provided by paragraph 5 of R(RS) v SSHD [2009] EWCA Civ 688.
27. The approach which the Secretary of State must take to any suggested fresh claim is to look at the material put before her with anxious scrutiny to address whether there is a realistic prospect of an Immigration Judge, himself applying the rule of anxious scrutiny, thinking that the applicant will or might be exposed to a real risk of persecution on return. Here, again, the battle lines before me are drawn, with the claimant asserting that there was no anxious scrutiny, that the Secretary of State had simply come to a firm decision of her own, from which it was not evident that she had sought to see whether an Immigration Judge as an independent decision-maker might, though not necessarily would, have come to a different conclusion on the same material. Mr Karim maintains that it is plain, taking the letter as a whole, that very careful consideration was given to the details of the material put before her and that it is unnecessary in the light of that to set exactly the same material out again when turning, in the letter, to deal with the question of anxious scrutiny and whether an Immigration Judge might come to a different conclusion. It is plain to see from the letter, taken as a whole, that that was what the Secretary of State was actually saying and that was what she thought, and he cannot accept, given the detail and care apparently in that letter to address to each of the points made by the Secretary of State, that she did not do so.
28. The matter does not entirely end there. Although this application in form relates to the decision letter of 12 May, there has been further correspondence between the parties. Thus on 3 June the Secretary of State considered further material and answered it again in a manner unhelpful to the claimant. That answer is relied upon by the defendant as supporting the view and the entitlement of the Secretary of State to hold the view expressed in the letter of 12 May. That letter relates principally to claims made under Article 8. That claim was made in the letter of 12 May on the basis of a) marriage and b) medical state. It is right to record that it has been an almost silent partner in this application which has focussed upon the Article 3 points and the question of the application of Rule 353.
29. Further submissions were made on 30 July by the claimant which were answered in a letter of 21 September 2009. Parts of this letter do give me some concern. It is said by the author on behalf of the Secretary of State in paragraphs beginning with the heading "Decision" that the Secretary of State herself concluded that the claimant's submission did not have a realistic prospect of success before an Immigration Judge primarily because she had failed to discharge the burden placed on her in proving that her documents were genuine and adding that there had been no adequate explanation of the Immigration Judge's observation that the FIR submitted in evidence related to adultery and theft and not blasphemy as had previously, says the author, been alleged.
30. This gives me considerable concern because the whole point of the further submissions was to provide material which would be capable of contextualising, clarifying and explaining the documents in a way which showed that they did not carry the burden which the Immigration Judge placed on them as being at all adverse to the claimant's credibility. In short, in this letter the Secretary of State appear to have missed the point, which seems to me to have been plain on the papers, that it was accepted before the Immigration Judge that the FIR did not contain any allegation that the claimant was to be charged with blasphemy.
31. However, Mr Karim has taken a stand upon the letter of 12 May although alerting me to the document of 21 September, and it is in respect of the 12 May that the claim is brought. And the different author of that letter does not seem to have taken the same approach which, as I say, I have had some concerns about in looking at the letter of September.

The claimant

32. Against this background the claimant asserts that the Secretary of State was wrong to conclude that an Immigration Judge might not come to a decision favourable to the claimant on the basis of the material, which, on the claimant's case, was significantly different from that previously considered, both in respect of the risk to which the claimant might suffer upon return of persecution because of her father's abuse and control of her. Once, says Mr Rashid Ahmed, in essence, it is accepted that the documents do not cast a shadow on a claimant's credibility, then her credibility must fall to be re-assessed. It was but a part of the assessment of credibility which the judge saw in the round and it cannot be said that a different Judge might not take a different view if one of the planks supporting the adverse assessment of credibility was removed. If so, then there might be a case, contrary to the Immigration Judge's findings, that the claimant had indeed been controlled and abused by her own father.
33. Secondly, if the documents are genuine, then they show that the claimant is to face a charge of adultery. Here Mr Rashid Ahmed for the first time today in the course of his submissions asserted that there was a real risk to the claimant of inhuman or degrading treatment which would arise because, if returned forcibly, she would be interviewed upon arrival. A woman charged with adultery returned to Pakistan must run a risk of seriously aggressive questioning, and detention in a female prison, which, once it is accepted that she is Ahmadi which it is, would be a prison containing women whose faith was Sunni Muslim. That would expose her to further difficulty. His submissions emphasise other unpalatable consequences that might befall a single woman on return to Pakistan in those circumstances.
34. He takes the point that Article 8 may apply. This was, as I indicated very much a secondary argument on his part and he acknowledges the force of recent events which I shall now describe in order to deal with and remove from further consideration the Article 8 issues which arise.
35. The Article 8 claim rests upon, first, marriage, secondly mental state. As to marriage, Hamud Ahmed is someone who had made submissions seeking leave to remain. Those have been rejected. I am told that the current position is that, although he may yet be able to challenge the rejection, it is unlikely that he will receive a grant of leave to remain in this country. His immigration status has always been tenuous. She married him at the stage when her own application for asylum had been rejected. The marriage was a marriage made in Pakistan, nominally, though in effect in this country. It is a marriage with curious aspects in that the claimant and her husband appear to have maintained separate addresses for the purpose of correspondence with the Secretary of State, though they say they lived together as husband and wife. The marriage was of short duration. There is no child within this jurisdiction. There is therefore little that amounts to a private life, although the Secretary of State appeared to treat it as such. If there are two people living together, both of whom are Pakistani, both of whom have no right to remain and both of who may be returned to Pakistan without any unreasonable risk of inhuman or degrading treatment or persecution upon return, then the balance to be struck between the interference with any private life under Article 8 on the one hand and the importance of maintaining a consistent and coherent policy of immigration control on the other is an easy one to strike. The Secretary of State could not see any Immigration Judge coming to a conclusion favourable to the claimant on those facts. I agree, although it is not for me to agree. It is simply for me to say that the Secretary of State was entitled to reach that view and I so conclude.
36. As to the medical aspect, that relies upon the effects of depression. Here, although Mr Rashid Ahmed did not put it in this way, I have noted the psychiatric report of Dr Jennifer Gibson who, on 29 August of last year, opined there was a high suicide risk if the claimant were to be returned to Pakistan. But the essence of the claim has never been advanced by her solicitors on that basis. It had been put, rather, that she suffers from a depression which requires medical chemical treatment. The Secretary of State asserts, in material which has not been challenged, that chemical treatment of depression consistent with treatment that she has been afforded in this jurisdiction is available to her in Pakistan although it may not be so readily available and, accordingly, it seems to me that the Secretary of State was entitled to conclude; that there is no arguable basis there for an Article 8 claim.
37. To the extent that a claim under Article 8, further, might rely on material about which I have already spoken at length in this judgment in relation to her domestic life in Pakistan it is entirely coincident with the Article 3 submissions to which I now turn.

Discussion

38. The first issue I have to consider is whether or not the material which comes from Multan Law Associates was significantly different within the terms of Rule 353. The content of that material in one sense had not previously been considered because what was new was the input of a lawyer from Multan in order to explain the contents of the document, the detail of which letter had been considered. In another sense, the material had been considered because what is referred to in Rule 353 has to be understood as being the substance of what is put before the Immigration Judge.
39. I would have very great hesitation in this case in accepting that the material put from Multan Law Associates here was truly significantly different from material that had previously been considered, for these reasons. First, the general rule is that a claimant has the burden of proof on factual matters in a claim such as this. If it were the case that an expert report, for instance expert evidence such as handwriting evidence, were to be significantly different from material previously considered, then it is not difficult to see that in a case where authorship was disputed a claimant would effectively be entitled to put a document before an Immigration Judge and then, once and if it was rejected as genuine, to put before the Secretary of State an expert report upholding the document, (and it may be a yet further report in due course answering certain aspects which had appealed to the decision-maker in finding the original document to be a sham), and to insist that the case be heard again. The unreality of that procedure suggests to me that "significant difference" in content has to be understood broadly.
40. Secondly, this material is not material which goes centrally to the claim. It is not, for instance, material which relies upon a genuine newspaper article describing the way in which the activities of a claimant had come to the attention of the authorities in a state in a way adverse to that particular claimant, and shown to be fresh material by the date of the newspaper. That would be material which would directly indicate a risk to the claimant. This material is adjectival in the sense that it does not add anything. It explains a document which has already been very much in issue.
41. Thirdly, regard must, in my view, be had to what was in issue and what might be in issue before the Immigration Judge, in order to set context, because significant difference has to be understood in the context of a case. Here the context was credibility. There were a number of reasons, identified earlier in this judgment, upon which the Immigration Judge relied for his assessment of credibility. He relied only partly upon the documents. The issue between the parties was essentially whether or not the father had abused and controlled the daughter claimant. Thus contextualised, the material here could not in my view be said to be significantly different within as the rule contemplates it.
42. However, it is unnecessary for me to reach a final determination upon this aspect of the claim; I do not do so because the second aspect of Rule 353 is whether the Secretary of State was entitled to consider whether those documents, taken together with previously considered material, created a realistic prospect of success. Here the Secretary of State's decision (see page 33 in the letter of 12 May  2009) regarded as fundamental the fact that the claimant had not been accused of blasphemy. The FIR referred in the view of the Immigration Judge to adultery and to theft. Adultery and theft are, arguably, breaches of the criminal code of Pakistan. If it were theft, taking that as the easier of the two, the fact that a woman might be accused of theft and therefore exposed to the risk of imprisonment, arrest and questioning upon return is no reason to think on its own that she would qualify for the grant of asylum or humanitarian protection or come within the Refugee Convention. As for adultery, Mr Karim objects that there was no material put before the Secretary of State in any of the submissions which objectively would or could suggest to an Immigration Judge that a person faced with a charge of adultery would be at the risks upon return to which Mr Rashid Ahmed has for the first time today attached his claim.
43. In my view Mr Karim is right to say that the Secretary of State could not be expected to decide that an Immigration Judge would or could, within the approach indicated in RS, WM, TR and various other authorities come to a conclusion favourable to the claimant without having material put before her that could be put before the tribunal. In short there is simply no objective evidence that that would happen.
44. I confess to have had some concern about the question of adultery. Technically, as it seems to me, it forms no part of the decision making process of 12 May which falls in issue and therefore it might be objected that the court here was considering a matter which had not been argued, although it may be part of the court's duty under the Human Rights Act to take into account what might be breaches of the Convention. Mr Rashid Ahmed referred to the operational guidance note which had been issued which, as best he could recall it, had something to say about adultery. I invited the parties, therefore, whilst this judgment was, in the course of its brief preparation over a short adjournment, to consider any further material that they wished to put before me. Mr Karim has done, as one would expect for somebody representing the Secretary of State, and has provided me with the operational guidance note for Pakistan issued on 4 February 2009. At paragraph 3.11 it deals with the case of women accused of committing adultery or having an illegitimate child. It concludes that:

"…asylum claims from Pakistani women who demonstrate that they face a serious risk of facing inhuman or degrading treatment due to a spurious accusation of adultery which will amount to persecution must still be considered in the context of individual circumstances of each claim and may qualify for asylum. In the majority of cases, however, a grant of asylum or Humanitarian Protection will not be appropriate.

45. Mr Karim has pointed out that there is no material here which suggests that the claimant was not in the majority position. There is no material put before me which suggests that she, in particular, faces any risk of inhuman or degrading treatment due to a spurious accusation of adultery, if that is indeed what the FIR amounts to. I do note that some of the wording in respect of paragraph 3.11 deals with women who may be single whereas the Secretary of State in one of her letters refers to the fact that on return, if the marriage is subsisting as the claimant says it, she will be in the company and therefore to some extent the protection of Hamud Ahmed should he return at the same time as is currently apparently likely.
46. Although therefore it cannot form part of the process of reasoning of the Secretary of State of 12 May to which my attention is directed, for the sake of completeness I have mentioned those aspects which in the end have not caused me to differ from my view, for the reasons I have given in this judgment, that the Secretary of State was entitled to come to the conclusion which she did. She applied the right test not only in form but also in substance in that letter of 12 May and it follows I have to dismiss this claim for judicial review.

MR KARIM: My Lord, thank you. We would seek an order that claim obviously be dismissed and an order for costs as well for the (inaudible) proceedings. I am not entirely sure the matter is publicly funded.

MR AHMED: It's not publicly funded. The only issue with regards to costs, my Lord, is the Ahmadi community have been generating money for my client to run this case. She has been struggling. That is all I can say. In addition, just bear in mind my Lord, permission was granted provisionally. We have tried to agree a consent order with the Secretary of State to consider the new evidence which we received. Unfortunately my solicitors were unable to agree anything with the Treasury Solicitors. That's all the matters I can raise at this point, my Lord.

MR JUSTICE LANGSTAFF : Has there been…do you ask for a summary assessment or not?

MR KARIM : My Lord, no we don't have a summary assessment form for the court to consider now. I wasn't aware that the claimant wasn't in receipt of…

MR AHMED: No, she's not in receipt of it.

MR KARIM: …community legal funding.

MR JUSTICE LANGSTAFF : Very well. Well it seems to me that you can't really resist, can you, the claim for costs which has been made? It would have to be subject to detailed assessment if not otherwise agreed.

MR KARIM : I am grateful.

MR JUSTICE LANGSTAFF : Thank you both for your help and the quality of your submissions.