England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		14 September 2010

HHJ KAYE QC:

Introduction

1. This is an application for judicial review of a decision made by the defendant, the Secretary of State for the Home Department, to refuse the claimant's further representations as a fresh claim for asylum under paragraph 353 of the Immigration Rules (as amended).
2. Permission was granted on paper on 11 June 2010 by His Honour Judge Behrens, sitting as a judge in the High Court in Leeds, when he made these observations:

"I think that it is arguable that an immigration judge, when considering the new documents, might realistically conclude that the claimant's asylum claim should succeed. In their circumstances I think it arguable the Secretary of State was wrong to reject this as a fresh claim."

Background

3. The background to the application is that the claimant is a 43-year-old national of Bangladesh. In May 2003, and certainly by 16 October 2003 (there is some dispute on the matter) he arrived in the United Kingdom together with his wife and eldest child, born on 30 November 1999, using forged passports. He was given a six-month visa. Notwithstanding the expiry of that visa, he continued to remain in the United Kingdom. On 13 June 2008 he, together with his wife and by then two children, the younger having been born in the United Kingdom on 8 September 2005, claimed asylum. That claim was refused by the Secretary of State in July 2008.
4. The claimant appealed against that refusal to the Asylum and Immigration Tribunal. His appeal was dismissed by Immigration Judge Zucker on 8 September 2008. In so doing, the judge expressly made reference to the claimant's lack of credibility. For example, in paragraph 40 he said: "I did not believe the appellant's account." (The appellant being a reference to the claimant in this case). In paragraph 41, he said:

"The Appellant's account that there was an attempt on his life when he was visiting the hospital is pure embellishment."

In paragraph 47, towards the end of his written judgment, the judge said this:

"I repeat that in my judgment neither the Appellant nor his wife were truthful witnesses. I accept that the incident which occurred effecting the appellant's wife whilst in the United Kingdom [this is a reference to an assault or attack on his wife whilst she was out shopping in the United Kingdom], but apart from that there is absolutely no merit whatsoever in any of this appeal."

5. The claimant then made an application for reconsideration. That too was refused on 22 September 2008 by Senior Immigration Judge Nichols. On 2^nd December 2008 an application for judicial review was refused, and the claimant's appeal rights thereby became exhausted.
6. On 7 December 2009, the claimant attended at the UK Border Agency, Liverpool, to deliver further representations and documents not previously considered by the Asylum and Immigration Tribunal. These documents consisted of a letter making fresh representations from the claimant's solicitors dated 25 November 2009; a statement from the claimant dated 3 July 2009; two court documents, together with translations, court documents emanating from Bangladesh; the court diary and a translation; and a report from a Mr Biswajit Chanda on the veracity of the court documents and making some comments on prison and trial positions in Bangladesh. Mr Chanda appears to be the Assistant Professor of Law in the Department of Law and Justice at the University of Rajshahi, Bangladesh, and he is at present a PhD candidate at the School of Oriental and African Studies at the University of London.
7. The basis on which the claimant's solicitors lodged the fresh documentation, as stated in their letter of 25 November 2009, was that Mr Chanda "is very concerned that Mr Ahmed will indeed be at grave risk of suffering serious human rights violations and inhumane treatment especially in police custody and in the prisons of Bangladesh during the long wait for completing the trial/appeal procedure if he were to be returned to Bangladesh, which would be contrary to the United Kingdom and EEA human rights laws and legislation". The basis of the claim was, accordingly, a fear of persecution and breach of his human rights if returned.
8. The claimant thereby sought to persuade the Secretary of State to consider this new evidence on the basis of his fresh claim for asylum. In a letter dated 22 December 2008, the Secretary of State in a lengthy letter in the usual form refused to admit the documents and representations as a fresh claim. It is this decision which is the subject of the present application.
9. Subsequent to this decision the claimant's solicitors submitted further representations in a letter dated 2 March 2010 and sent a pre-action letter on 10 March 2010. The Secretary of State maintained its stance in the reply dated 12 March 2010, leading to the presentation of the claim for judicial review on 23 March 2010. It was technically one day late (see CPR Part 54), but permission was granted, as I have said.

Fresh Evidence

10. The context in which the fresh evidence was submitted was this. The claimant had originally claimed asylum on the basis of fear from a local gang and its members as a result of him witnessing a murder committed by them. He claimed to be subjected to numerous attempts on his life. He therefore, he says, left Bangladesh in fear of the gang. He stated that he had reported this to the police, but to no avail. That is how he came to enter the United Kingdom with forged documentation in May 2003 and remained illegally, as I have previously said, until June 2008 when he claimed asylum.
11. The Immigration Judge, in his determination of 8 September 2008, as I have previously indicated, did not believe the claimant's account as to how he came to be in the United Kingdom and also took the view that the documentation may have been fabricated. Fundamentally the Immigration Judge found that there was no Convention reason for an asylum claim. This was confirmed by Senior Immigration Judge Nichols when he stated:

"Even if he had erred in his approach to the appellant's account as to the specific attacks upon him and the reason for those attacks, the judge was not in error in concluding that the appellant had no Convention reason for fearing ill-treatment and that in any event there is a sufficiency of protection available to him, which he clearly availed himself of when he was living in Bangladesh."

12. The effect of the fresh documentation is to lead to the suggestion by the claimant that he has been convicted for ten years for possession of firearms in a judgment dated 1 September 2008 and to seven years for extortion committed in or about November 2003. This is the substance of the fresh documentation submitted in December 2009. These documents were not before the Immigration Judge, but they were referred to, albeit obliquely, in part. At paragraph 38 of Immigration Judge Zucker's judgment he referred to the appellant having been now falsely implicated in a firearms offence. The document referred to is dated 7 August 2008. That, said the Immigration Judge, is the date of the document produced by the applicant.
13. In paragraph 44 the Immigration Judge commented that this documentary evidence:

"has been produced late in the context of the proceedings as a whole, given that the appellant arrived in the United Kingdom in 2003 and the documents are now produced in 2008. I have to look at those documents in the context of the claim as a whole."

14. At paragraph 46 in dealing with the Convention reasons, the Immigration Judge said:

"Further and in any event even if the claim were not a fabrication there is no Convention reason and insofar as the claim is advanced on humanitarian protection grounds or human rights grounds the Appellant on his own case advances a sufficiency of protection because the police in each case have acted upon his complaints. I recognise that the Appellant now suggests that false claims are being made against him but I note how recent these are when the Appellant left the country in 2003."

A Fresh Decision Letter

15. On 5th September 2010 the Secretary of State, of her own volition, reconsidered matters in light of the submissions made on the application for judicial review and issued a further decision letter, but in effect confirming the decision already made to reject the claim as a fresh claim.

The Legal Framework

16. The legal context of claims for this nature is now well understood and is not disputed in the present case. Paragraph 353 of the Immigration Rules HC/395 (as amended) provides as follows:

"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.

This paragraph does not apply to claims made overseas."

17. I have been helpfully referred by both sides to a number of authorities where the task of the Secretary of State and the court in such cases has been considered. A number of these cases have been set out with the appropriate quotations, particularly in the very helpful skeleton submitted by Miss Patel on behalf of the claimant. But since the principles are not disputed, I mean no disrespect to her in particular if I take the following summary from a skeleton argument put forward by Mr Karim on behalf of the Secretary of State. The principles applicable in such cases he has summarised as follows:

"6. Whether further submissions constitute a fresh claim on asylum on human rights grounds is a matter for the Secretary of State. A decision as to whether a fresh claim arises can only be challenged by way of judicial review. It can only be reviewed on Wednesbury unreasonableness grounds: R v SSHD, ex parte Onibiyo [1996] QB 768, 875D.

7. In WM (DRC) v Secretary of State for the Home Department and Secretary of State for Home Department v AR (Afghanistan) [2006] EWCA Civ 1495 the Court of Appeal considered the task of the Secretary of State when considering further submissions and the task of the court when reviewing a decision of the Secretary of State that further submissions do not amount to a fresh claim.

8. In relation to the task of the Secretary of State, and in particular the second limb of the paragraph 353 test (i.e. whether the content of the submissions, taken together with the previously considered material, creates a realistic prospect of success, notwithstanding its rejection) at paragraph 7 Buxton LJ found that the threshold was 'somewhat modest'.

The question for the Secretary of State is whether there is a realistic prospect for success in an application before an Immigration Judge, but not more than that. In answering that question, the Secretary of State must be informed by anxious scrutiny of the material. In other words he must give proper weight to the issues and consider the evidence in the round. [The evidence of course for these purposes has been the totality of the evidence, ie that previously submitted together with the new material.]

9. In relation to the task of the Court, Buxton LJ confirmed that the decision remains that of the Secretary of State and the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds (irrationality). Buxton LJ, at paragraph 11 said that, when reviewing a decision of the Secretary of State the Court will ask two questions. First, has the Secretary of State asked himself the correct question? As stated, the question is, in an asylum case, whether there is a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, thinking that the applicant will, [or perhaps the better word on the authorities is 'might'] be exposed to a real risk of persecution on return. Second, in addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? Buxton LJ concluded that if the court cannot be satisfied that the answer to both those questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision."

18. The claimant also puts his case on Article 8 of the European Convention of Human Rights and Fundamental Freedoms, but Miss Patel, in her submissions, helpfully accepts that that is not at the forefront of her case, particularly having regard to the fact that the human rights considerations were considered by Immigration Judge Zucker and that he recognised, in paragraph 48 of his judgment, that although the appellant and his wife together with their eldest child had been in the United Kingdom since 2003 and the youngest child was born in the United Kingdom, none of them had acquired any protected private life. The family life of this family was not interfered with because they would be returned as a group.
19. Here again the law is not in dispute. Article 8 is not an absolute right, and when considering the impact of removal the defendant must balance the claimant's rights to a private and family life in the United Kingdom against the maintenance of effective immigration control. Even when family life is accepted in the United Kingdom, any interference with that right is legitimate if it is a necessary and proportionate response and in accordance with the law pursuant to Article 8.2.
20. The operation of the Article in this case, the Secretary of State submits (and I did not understand Miss Patel to take any issue with this as a principle of law), must be viewed in the light of the UK's right to control the entry of foreign nationals into its territory and the necessity of fair and consistent and legitimate immigration control.
21. The issue in this case, therefore, is whether the defendant knew that the further submissions alleging that the return of the claimant and his wife and children to Bangladesh would breach his rights under Article 3 of the European Convention of Human Rights, taken together with the previously considered material, did not create a realistic prospect of the claimant succeeding before an Immigration Judge and was irrational or Wednesbury unreasonable bearing in mind the need for anxious scrutiny.

The Claimant's Submissions

22. The basis of the claimant's challenge in this case is, as I have said, that the defendant's refusal to acknowledge the claimant's further submissions on the fresh claim was unreasonable, irrational, unlawful and, to such extent as it may be deployed, a breach of his Article 8 rights. Miss Patel on behalf of the claimant further submits that it is apparent from the decision letter that the Secretary of State failed to apply the modest test of anxious scrutiny to that essential question: is there a realistic prospect that the adjudicator applying a rule of anxious scrutiny might think that the claimant might be exposed to a real risk of persecution on return to Bangladesh?
23. She further submits that it is true and accepts that anxious scrutiny must be applied in the context of considering the findings as to the claimant's credibility before the Asylum and Immigration Tribunal, but that, she submits, may be of little relevance where the fresh material, as here, does not emanate from the claimant. Again Mr Karim on behalf of the defendant, as I understood it, does not dispute the principle, only its application to the present case.
24. The claimant criticises the Secretary of State in the instant case for not conducting a proper balance of anxious scrutiny to all the material in the round. In particular, Miss Patel submits that the Secretary of State failed to give proper weight to the report of the expert, which in substance verified the court documents and showed that the claimant is at risk of persecution if returned to Bangladesh and at risk of not having a fair trial. Accordingly, in failing to give proper weight to that evidence, submits Miss Patel, the Secretary of State appears to have failed to consider the totality of the evidence placed before him in the context and including that previously produced and failed to give it the appropriate degree of anxious scrutiny.
25. Accordingly, she submits that fresh evidence is significantly different from the material previously considered and, looking at that evidence and the fresh evidence in the round, the court should conclude that, despite the tribunal's previous findings as to the claimant's credibility, or rather lack of it, the claimant has a realistic prospect that a fresh tribunal might reach a different conclusion. Accordingly, the Secretary of State's conclusion must therefore be viewed as unreasonable and irrational.
26. In relation to Article 8, the claimant submits that the defendant failed to consider that the claimant's children had been in the United Kingdom for some considerable time, seven years in the case of the elder and five years in the case of the younger, who was born in the United Kingdom.

The Defendant's Submissions

27. The defendant does not accept the fresh documents as produced. Mr Karim did at one time even use the word "forgery" in connection with the documents, but it is plain from the decision letter of the Secretary of State that the veracity of the documents is not accepted for a number of reasons. There are a number of internal inconsistencies in the dates. There are a number of inconsistencies between what the claimant has said and what is said in those documents and, broadly speaking, there is evidence to show that such documents might be obtained without too much difficulty in Bangladesh.
28. As for as his submissions, however, Mr Karim accepted the principle that it was for the appellant to satisfy the court as to the genuineness of the documents, but that on the face of it the documents appear to be genuine in the sense that they were stamped and supported by an expert report and that, whilst not accepting the genuineness of the documents, it would, as I have explained previously, be then up to the Secretary of State if she wished to go further and prove that they were distinct forgeries.
29. I can, however, dispose of this part of the case very quickly because the Secretary of State does not rest his decision or, in the later letter, her decision on the veracity or otherwise of these documents. At the heart of Mr Karim's submission is that the claimant's claim is essentially not a fear of persecution, but a fear of prosecution. The basis of the claimant's further submissions, as defined in the claimant's letter of 25 November 2009, provides that, as I have said earlier:

"…Mr Ahmed would be at grave risk of suffering serious human rights violations and inhuman treatment especially in police custody and in the prisons of Bangladesh during the long wait for completing the trial/appeal procedure if he were to be returned to Bangladesh…"

30. At paragraph 25 of his statement of 3 July 2009, submitted as part of the fresh documents, Mr Ahmed stated this:

"…I believe that if returned to Bangladesh that I will have difficulties because of my involvement in reporting the threats made against me to the police, my reporting of the killing of Kaiser and I will also be in severe difficulties because of the criminal charges which have been brought against me in the meantime."

31. On that basis Mr Karim submits there is no claim for a Convention reason or for breach of human rights. In SH (prison conditions) Bangladesh CG [2008] UKAIT 00076, it was held that prison conditions in Bangladesh do not violate Articles 2 and 3 of the European Convention on Human Rights. The second decision letter, that is the one of 6 September 2010, explains this further:

"Even if it was accepted that you had been found guilty of committing criminal offences in Bangladesh and sentenced to terms of imprisonment totalling seventeen years (which it is not), consideration has been given to the case law SH prison conditions Bangladesh CG [2008] UKAIT 00076. As detailed above, your claimed fear is prosecution by the Bangladeshi authorities on criminal charges; you do not hold a fear of persecution for a reason covered by the Refugee Convention. …in SH [the court held] that prison conditions in Bangladesh did not breach Articles 2 or 3 of the Human Rights Convention (Para 59 and 60), therefore you would not qualify for Humanitarian Protection solely on this basis."

32. Mr Karim also submits that objective country guidance confirms that Legal Aid is available to those who have been wrongfully convicted, but citizens might be eligible for bail pending resolution of the case. This was in response to Mr Chanda's report, which opined that corruption is the main problem in Bangladesh under the heading "Possibilities of a Fair Trial", a comment I did not understand the Secretary of State to be entirely disagreeing with. Mr Chanda went on, paragraph 38 of his report, to state:

"In such a climate, effective legal protection and fair trial can only be incidental and is not systematically guaranteed by the official law and its agents."

The Secretary of State, in the second decision letter, said this:

"Whilst it is not accepted that you are of interest to the Bangladeshi authorities for the reasons claimed, it is considered that if you were the subject of outstanding warrants for your arrest, given that you claim to have been tried in absentia, you would be able to appeal these convictions through the Bangladeshi courts on the grounds that these charges relate to offences allegedly committed at a time when you were not present in Bangladesh. Additionally, prison conditions in Bangladesh are not sufficiently bad to amount to a breach of your rights under Articles 2 or 3 of the European Convention of Human Rights if you were detained while your appeal was heard."

33. The correct question, Mr Karim submits, is to ask the question aptly stated by Keith J in R(Alam) v Secretary of State for the Home Department [2010] EWHC 1303, paragraph 12, namely as follows:

"I therefore approach the present case on the basis that the question for the court is whether it was reasonably open to the Secretary of State to conclude that an appeal against his decision to refuse Mr Alam's Article 8 claim to what would then have been the Asylum and Immigration Tribunal had no prospect of success."

34. Based on that Mr Karim, on behalf of the defendant, submits that even if the further submissions were accepted, which they were not, when considered with the previous information and evidence it does not establish any realistic prospect of success before an immigration judge. Any appeal, he submits, will be found to fail.
35. In any event, the defendant submits that the claimant's application does not raise any additional evidence substantially different from that contained in his application for asylum previously considered. This is not, he submits, a case where it can be said the defendant has failed to apply anxious scrutiny when considering the further submissions. Both decision letters illustrate the detailed approach adopted by the defendant. As to Article 8, the claimant's claim under Article 8 was entirely unparticularised. And in the same way it was submitted by or on behalf of the defendant that in any event both decision letters adequately considered the claimant's Article 8 rights.

Discussion

36. I should say at the outset that the claimant denies the offences of which he has apparently been found guilty in Bangladesh. His case is helpfully and succinctly put by Miss Patel. It is clear, he says, that the charges are fabricated. The documents have been verified, and the documents are on the face of it true, but the underlying substance of the allegations and the underlying substance of the charges is entirely false. This merely illustrates the weakness of the position of the claimant and the risk he runs and fear he runs of persecution when returned to Bangladesh.
37. I am, for my part, prepared to view the fresh material as significantly different, despite the oblique references to the substance of at least some of the material in the judgment of Immigration Judge Zucker, but I am by no means satisfied that the Secretary of State did not apply anxious scrutiny to that fresh evidence and anxious scrutiny to a consideration of that evidence and the previous evidence considered as a totality. I entirely accept that the issue of credibility of the claimant is relevant and that the fresh material must be considered having regard to the tribunal's findings of credibility. I entirely accept Miss Patel's point that the relevance of that credibility may fall away or carry less weight where the material does not emanate from the claimant. The trouble, however, with this argument, as I pointed out to Miss Patel at the opening of her submissions, is that, as with the lateness of production of documents produced before the appeal proceedings, there is no explanation as to how the documentation in this case came to be obtained. Mr Ahmed's statement of 3 July 2009 appears to precede the obtaining of this fresh documentation. It does not really refer to it at all, but simply seems to be a re-run of the rejected arguments and factual matters already placed before the Asylum and Immigration Tribunal.
38. The letter from the solicitors dated 25 November 2009, submitted as part of the fresh claim, simply says:

"We are instructed by Mr Ahmed that he was not able to get these documents until after the end of the asylum process last year. That although he did try to get them from Bangladesh that it was a long process for him to obtain them and in fact as you will see some of the documents including the court judgment is actually dated September 2008. The complaint is dated the 7^th August 2008."

It then goes on:

"So despite Mr Ahmed's best endeavours some of these original documents were not available until about the same time as his asylum process had come to an end."

39. It seems to me, if I may respectfully say so, a rather inadequate explanation where these documents came from. When putting fresh material before the Secretary of State, a failure to explain clearly and succinctly when the material was obtained, where it emanated from, how it came into the possession of the claimant and to give full details of all the surrounding circumstances is bound to lead to their being viewed with a considerable amount of scepticism.
40. Accordingly, it seems to me that even allowing for the important report of Mr Chanda, whilst as I previously said these documents do not emanate from Mr Ahmed in the sense that they were not his evidence on the face of it, they do emanate from him in the sense that they were produced by him. In this way it does seem to me that credibility is of some relevance and is a likely issue, particularly having regard also to the late production of documents at the earlier hearing. It does seem to me to be a matter which is to be weighed in the balance. No real explanation is offered by the claimant as to how this fresh material was obtained, where it came from, how it was produced, when it was obtained and from whom and via whom and what steps had to be taken in order to procure it. The report of Dr Chanda simply states:

"I received a letter of instructions of two pages, dated 6 May 2009. Further [he says] I was sent original certified true copies of [the court judgment and the other documents submitted]." (See paragraph 3 of his report.)

He too, apart from receiving a letter of instruction on 6 May 2009, does not cast any fresh light on matters.

41. So, as it seems to me, looking at the material before the Secretary of State and the Secretary of State's decision letter and allowing for the fact that Mr Chanda in his report was addressing not one but two issues, the first being the verification of the documents and the second being the possibilities of a fair trial and other similar issues in respect of Mr Ahmed's return to Bangladesh, it does seem to me that the Secretary of State's decision was not unreasonable. It was not irrational and I do not find it to contravene the Wednesbury grounds.
42. In any event, even if I were to ask myself, applying the appropriate test of anxious scrutiny, what would be the claimant's realistic prospects of success before an immigration judge on this material, I would, having had the benefit of argument from both sides and the helpful skeleton arguments on both sides, and despite the observations of His Honour Judge Behrens, to which I am always careful to pay full attention and respect, nonetheless reach a different conclusion. It seems to me that, in the context of these documents as a whole, the claimant has no reasonable prospect of success in persuading an immigration judge that the previous decision reached ought to be overturned or a different conclusion reached.
43. As to Article 8, in my judgment the defendant's approach was correct in the light of the stance taken and for the reason previously stated. It does seem to me that the immigration judge and therefore the Secretary of State fully considered the position of the claimant's right to family life, including the ages and length of time the children had been in the United Kingdom. In any event, as Mr Karim pointed out, that is not the end of the story. Those rights will be reconsidered before any question of actual deportation arises. Accordingly, I accept the submissions of the defendant and I reject the claimant's claim.
44. In conclusion, I consider that the claimant's submissions do not give rise to a realistic prospect of success before an immigration judge, and the decision of the defendant was neither Wednesbury unreasonable, nor irrational, nor unlawful, but one within the range of reasonable responses open to him, in respect of the first decision letter, and her, in respect of the second decision letter. I accordingly dismiss the application.