Case No: CO/9442/2010
Neutral Citation Number: [2011] EWHC 3967 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS

Date: Monday, 5 September 2011
Before:

HIS HONOUR JUDGE DAVIS QC
(The Recorder of Birmingham)
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Between:

	THE QUEEN ON THE APPLICATION OF 
ARIF HASSANI

Claimant	
	- and –
		
	SECRETARY OF STATE
FOR THE HOME DEPARTMENT	

Defendants	

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(DAR Transcript of 
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Mr Paul Harris (instructed by Messrs French & Co Solicitors) appeared on behalf of the Claimant.

Mr Sam Karim (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
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Judgment
JUDGE DAVIS:   

1.	This is an application by Arif Hussain Hassani for judicial review.  He is an Afghan national who arrived in this country on 19 November 2007.  He then was treated as an unaccompanied minor.  He claimed asylum on 22 January 2008.  On 12 December 2008 the defendant in this case, the Secretary of State for the Home Department, refused that application and refused any discretionary leave to remain.

2.	Within days the Secretary of State gave notice of intention to remove the claimant.  That led to an appeal which was heard by Immigration Judge Buchanan, his decision being promulgated on 28 January 2009.

3.	The grounds of the appeal were set out in the opening paragraphs of the judgment of Immigration Judge Buchanan.  The appeal was on the grounds that the applicant's removal would be contrary to the Refugee Convention, would be in contravention of humanitarian grounds – i.e. he was entitled to the grant of humanitarian protection ‑‑ and would breach this country's obligations under Article 3 of the European Convention.  Judge Buchanan dismissed the claimant’s appeal.  That decision was reconsidered by a senior immigration judge and refused.  By May of 2009 the claimant had made no further appeal and was not appeal rights exhausted.

4.	It follows that any further submission or application for asylum would have to be considered as a fresh claim under paragraph 353 of the Immigration Rules, the relevant parts being as follows:

“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 [2009] 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.

5.	There were further representations submitted on 15 September, but they in fact dealt with a different issue.  The representations made in the brief letter were considered by the Secretary of State on 5 February 2010 and were rejected.

6.	The representations made on 15 September 2009 concerned the age assessment of the applicant.  Such assessment had been a significant part of the case as considered by Judge Buchanan.  A very substantial document was submitted with supporting material relating to the actual age of the applicant.

7.	The response to that came on 13 July 2010.  The Secretary of State dealt with the matter in detail.  The essence of the response was that none of the matters relating to age amounted to a fresh claim.

8.	As a result, on 31 August 2010, the defendant set removal directions for 7 September.  That prompted the claimant to issue these proceedings and on 7 September a judge of this court made an order preventing the removal of the claimant, the judge's order being influenced significantly by the fact that he had been provided with a report dated 3 September from a Dr Birch dealing with the age assessment of the applicant.
 
9.	Following the issue of proceedings, a further decision letter was issued by the defendant dated 25 October 2010.  In paragraph 5 the Secretary of State said:

"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."

10.	On 25 February 2011 a judge of this court gave permission to apply for judicial review.  It now is 5 September 2011.  In between the permission hearing and today's date, the Secretary of State, through the UK Border Agency, has issued a further decision letter.  It is agreed on all sides that that forms part of the decision which I must consider today.  That letter dealt in greater detail with the issue of whether there was any fresh material significantly different from that which had been placed before either the Secretary of State or the tribunal before in relation to the asylum claim.  At page 3 of 6 the letter, the Secretary of State (repeating what had been said in October 2010) said:

"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."

11.	The letter went on to recite the relevant part of the Qualification Directive to this effect:

"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."

12.	Authority was cited for that proposition and its interpretation, and at paragraph 13 of the letter:

"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."

13.	The letter then considered the case of ZH (Afghanistan) [2009] EWCA Civ 470, where the Court of Appeal considered the criteria for considering asylum claims from unaccompanied minors.  The Secretary of State went on to say:

"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.

14.	The test that I must apply to the Secretary of State’s decision is the Wednesbury unreasonable test.  There has been significant debate in more than one decision within the same division of the Court of Appeal as to the proper test.  I find that the position currently is as set out in the case of MN (Tanzania) [2011] EWCA Civ 193.  Challenge to the Secretary of State's decision in cases such as these is limited to Wednesbury grounds, albeit on the basis of anxious scrutiny.  That is the test which I must apply and I do.

15.	The argument of the claimant has very much concentrated on the judgment of the Immigration Judge reached as long ago as January 2009.  I have been invited to consider the findings of the Immigration Judge and to find that the matters considered by the Immigration Judge are no longer sustainable.  I do not consider that that is the exercise on which I should be engaged.  The exercise upon which I am engaged is determining whether the decision of the Secretary of State to decline to find that there is a fresh claim, as defined by paragraph 353, is appropriate.  I am not here acting as some kind of appeal against the finding of Immigration Judge Buchanan.

16.	But the argument is put in this way.  The Immigration Judge reached a finding that the applicant was not the age that he asserted; rather he was older.  It is argued that this finding must have affected the Immigration Judge's view of the claimant's credibility.  It is said that there is material that is now available which certainly could support a finding that the claimant is the age he says rather than that which was asserted by others.  That means that the decision of an immigration judge or a First-tier Tribunal judge (as it now is) very possibly would be different.

17.	The respondent's answer to that is, first, if one is going to get into that argument, the relevant passage in the Immigration Judge's judgment is sufficiently equivocal to mean that his finding (so far as one can call it that) about age did not in any sense determine his view of the claimant in general as a witness.  At paragraph 23 of the Immigration Judge's judgment, he said in concluding his discussion of the age evidence:

"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."

18.	The respondent Secretary of State, insofar as she needs to, argues that this demonstrates that the Immigration Judge's view of the appellant's age played no significant part in his eventual finding in relation to the asylum claim.  The respondent's real case is that, in terms of assessing whether what has been put forward since that decision is a fresh claim, the relevance of the age assessment is vanishingly small and really does not make any difference.  That is apparent, says the respondent, from the very terms of the decision letters.

19.	Having recited the terms of the decision letters, I find that this argument is correct.  The claimant was anxious to establish what the Secretary of State's view was as to the evidence of age.  The Secretary of State was saying it does not matter.  It may well be that an immigration judge would find that the claimant was younger than was originally assessed.  The decision letters of the Secretary of State admit that as a possibility but, says the Secretary of State, that would not affect the asylum claim for the reasons she gives in her decision letters.  In my judgment, I have heard no cogent submission which would lead me to conclude that that approach was wrong.

20.	The second matter in the judgment of the Immigration Judge which is said to be relevant to the issue of whether there is a fresh claim is the fact that he concluded that the appellant (as he then was -- the claimant now) had provided no evidence to contradict the respondent's concern that it seemed inconceivable that a Hazara man would have supported the Taliban, since the Taliban had spent many years killing and massacring the Hazara people.  Reliance is placed on the finding of a completely different immigration judge in a completely different case that there were occasions when Hazara people did support the Taliban.  That was a factual finding by an immigration judge based on evidence in that case.  What the evidence was in that case I do not know because that was not the issue being considered by this court when considering that immigration judge's decision.  Even if it were the case that Hazara people could support the Taliban, it does not affect the issues in this case as set out so clearly in the further decision letter of 4 May 2011.

21.	What the claimant must at least begin to show is that he has grounds for claiming humanitarian protection.  What he must at least begin to show is that, were he to be returned, there would be no chance of tracing his parents or that there would be no adequate reception arrangements for him.  What he must at least begin to show is that there is some arguable case that his removal would breach Article 3 of the European Convention.  The Secretary of State concluded that on all the various material that had been presented to her over the months and years there was nothing which amounted to material that was significantly different from the material that had previously been considered such that, taken together with that previously considered material, it created a realistic prospect of success.

22.	Was that conclusion Wednesbury unreasonable based on the material she had?  For the reasons I have given I am satisfied that it was not.  For what it is worth, much the same as Owen J in the decision that was being appealed in MN, even if it were for me to consider on the material whether there was a fresh claim made out in the terms of paragraph 353, I would reach the same decision as the Secretary of State.

23.	But as I emphasise, that is not the exercise on which I am engaged.  The exercise on which I am engaged is an assessment of the reasonableness of her decision on the material she had and I am quite satisfied that it was reasonable in those terms and therefore this claim for judicial review is dismissed.

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.

JUDGE DAVIS:   
24.	The claimant whose claim I have just dismissed seeks permission to appeal.  I hope I encapsulate the argument properly in this way.  The claimant asserts that the Secretary of State's approach, namely to look for fresh or new material in order to overturn the decision previously made, was in part erroneous.  The Secretary of State would be entitled and should consider submissions to amount to a fresh claim, even if they really amounted to submissions on issues relating to material that had already been considered.  That is a matter which I am bound to say does not seem to me to sit at all comfortably with paragraph 353 and I am satisfied on the facts of this case that it is not the proper approach.

25.	Therefore I do not consider that there is any arguable ground of appeal and I shall refuse permission.

26.	That of course does not mean that the appellant cannot seek his remedy elsewhere, but I do not propose to give permission.  Thank you very much indeed.