QUEEN'S BENCH DIVISION
33 Bull Street
B e f o r e :
(The Recorder of Birmingham)
| THE QUEEN ON THE APPLICATION OF
|- and –
|SECRETARY OF STATE
FOR THE HOME DEPARTMENT
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Mr Sam Karim (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
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"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."
So-called fresh submissions were first made on 8 July 2009 by the complainant by those who were then acting for him. The letter is at page 52 of the bundle and the letter is terse to say the least of it. It submitted that the representations in the letter should be considered as a fresh claim on the basis that removal would be in breach of Article 15(c) of the Qualification Directive. The letter cited the case of GS (Existence of Internal Armed Conflict) Afghanistan CG  UKAIT 00010, and the European Court of Justice decision in Elgafaji v Staatssecretaris van Justitie (C-465/07) relating to the interpretation of Article 15. Save for the citation of these authorities, nothing was said about the substance of Mr Hassani's claim. It concluded with a request that the Secretary of State accept the representations as a fresh claim for subsidiary protection with further detailed representations to follow shortly.
"Your client submits that based on the report of Dr Birch, the material referred to in the letter dated 13 July, his representations would amount to a fresh asylum and human rights claim. Essentially, your submissions are a repetition of what has previously been submitted and although the report of Dr Birch disagrees with the age assessment of Leicester City Council, it is not evidence that your client left Afghanistan as a result of persecution or that he would be at risk on return there..."
In the concluding paragraph she said:
"The mere fact that your client may be a minor does not entitle him to the grant of discretionary leave and as such the report of Dr Birch does not alter the conclusion reached in the letter of 13 July that, regardless of your own client's age, there is no realistic prospect that his claim would succeed before an immigration judge."
"Even if it were accepted that your client is under the age of 18, it is still considered that he has no arguable claim or realistic prospect of success before an immigration judge pursuant to the above Immigration Rules [that is, paragraph 353]. Under paragraph 339C of the Immigration Rules, a person will be granted humanitarian protection if the Secretary of State is satisfied that substantial grounds have been shown for believing the person concerned if returned to the country of return would face a real risk of suffering serious harm or the person is unable or unwilling to avail him or herself of the protection of their country."
"Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm."
"Careful consideration has been given to your client's case. We find that no evidence has been provided to confirm that he would face persecution or degrading treatment on his return, therefore your client does not qualify for humanitarian protection."
"Your client has failed to demonstrate that his parents cannot be traced or that adequate representation arrangements cannot be made for him. According to his own evidence, his mother, father, siblings and maternal uncles all live in Afghanistan and by your client's own admission he was able to contact his family in Afghanistan to obtain the identity document which was produced in an attempt to establish his age."
The letter dealt with the issue of mental problems:
"You suggest in the grounds for judicial review that your client may have mental problems and may be suffering from post traumatic stress disorder, but the letter observed that there was no recent evidence of this; indeed such evidence as there was tended to suggest that such problems insofar as they had existed no longer did so. And in any event, there was no evidence that the very exceptional circumstances necessary to render an applicant's medical condition relevant would apply in this case."
It went on to say:
"There is no evidence that the applicant suffered from any medical condition that would render his removal a breach of Article 3."
The letter concluded that:
"Having considered the matter in the round and giving appropriate weight to all the issues, the Secretary of State considers that your further submissions create no realistic protect of success in any further appeal."
That was the final letter forming the chain of decision to which challenge is now made.
"What can be said is that the appellant looked young, immature and seemed to be of a very distressed nature. However, I am in no position to assess what the appellant's age is and in the absence of any alternative evidence I must assume that he is over the age of 18 as provided by a short and by no means thorough age assessment from Leicester City Council."
JUDGE DAVIS: Yes?
MR KARIM: My Lord, thank you. In those circumstances, in my respectful submission if the claim is dismissed the Secretary of State seeks the costs associated and obviously and presumably the claimant is subject to (inaudible) certificate. In those circumstances, those costs are not to be enforced without leave of the court.
There is an outstanding issue of Leicester City Council being an interested party still in the proceedings, so there ought to be an order that if they wanted to make representations on costs they are allowed to do so.
JUDGE DAVIS: Yes.
MR HARRIS: I accept what my friend says about the costs order. Always a difficult matter --
JUDGE DAVIS: Can I just make -- I know what you are going to move on to, but I shall dismiss the claim.
I shall order the claimant to pay the defendant's costs presumably to be assessed, but that order will not be enforced without leave of the court and there will be detailed assessment of claimant's costs for public funding purposes. And if the interested party wishes to make any representations about costs, then it must do so within 14 days. Those representations must be made in writing, they then obviously will be submitted to the claimant for his comments, if any, and the matter will be considered administratively. There will not be a further hearing.
Yes, Mr Harris?
MR HARRIS: I rise, always a very difficult situation, to ask for permission to appeal to the Court of Appeal. Clearly your Lordship has just considered the matter and given it your considered view. The thrust of my application for permission would be that the Secretary of State has proceeded in her letters from the basis that something new has to be produced going beyond what was found in the earlier appeal process. And my submission is that that is not so, that this is a case where the Secretary of State looking at that earlier judgment can see that it is a relatively short judgment -- three paragraphs on key points. As I said in my submissions, two of those matters are open to serious doubt. Very little attempt to assess the circumstances of the threat to the claimant, having taken a view that it was inconceivable that a Hazara could be in that position.
Issues such as internal relocation, family links and so on have to be considered in the context that this was a claim that the claimant's brother had been abducted and that therefore the claimant himself was in danger, so -- and abducted by a party forming part of the government of Afghanistan. So the issue has to be: are all these options like family help and internal relocation really relevant if that is true? And that goes back to credibility, and is there a prospect that the applicant would be believed in a new hearing?
So I say that that is the correct approach, that the Secretary of State's letter does not take that approach, that it simply looks at what new material, assuming that everything will stand that was before Immigration Judge Buchanan unless you give him the new material. But I say that is not right and the Secretary of State should look at the judgment and should see that there are aspects of this judgment that may well not stand even on the existing material plus Dr Birch plus the other case that was not cited, (inaudible), where a Hazara was working for the Taliban.
I say that setting that together with the relatively low threshold of a realistic prospect of success that it must be arguable that the correct principle is not simply to look at what additional material has been put in but to re-examine the judgment taking account of those relevant factual matters that I have just referred to. Therefore I say it is arguable, with the utmost deference, that the approach your Lordship has taken is not the right approach in this case. So on that basis I seek permission to appeal.
JUDGE DAVIS: Yes, I see.