England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 April 2012

Mr Justice Eady :

1. The Claimant challenges two decisions of the Secretary of State for the Home Department, dated respectively 14 March 2011 and 8 March 2012, the effect of which was not to accept his representations as giving rise to a fresh claim for asylum in accordance with para 353 of the Immigration Rules. On 19 May 2011 Mitting J granted permission to apply for judicial review of the first decision. The second decision, responding to submissions made on 20 February 2012, has not been the subject of a formal application to amend the grounds of claim, but no objection is taken to both decisions being substantively addressed together.
2. Can the Claimant show that the Secretary of State's decision was irrational in either case? The factual background is as follows. The Claimant seems to have entered the United Kingdom on 2 August 2006, having fled from Mosul in northern Iraq, where he had worked in a family business selling electrical goods. His asylum and human rights claim was dated 4 August of that year. His allegation was that, if he were returned to Iraq, he would face mistreatment because of his Christian religion and his perceived sympathy with this country. He has a sister who lives here. Following his return to Iraq, after visiting her here, he received a threatening letter in July 2006 warning him to leave Muslim lands or be killed. He therefore travelled again to the United Kingdom and made his asylum claim.
3. The Secretary of State first refused the claim on 18 September 2006, taking the view that it would not be unduly harsh to expect him to relocate to another part of Iraq if it was indeed the case that he was experiencing difficulties in Mosul. On 30 November of that year, his appeal against the refusal was dismissed by the Asylum and Immigration Tribunal. Shortly afterwards, on 30 January 2007, a senior immigration judge ordered that the appeal be reconsidered in the light of a recent decision of the Tribunal which had come to the conclusion that conditions for Christians in Iraq were by that time such as to engage the Geneva Convention.
4. A hearing took place on 6 November 2007, following which it was held by a senior immigration judge that the original determination had been vitiated by an error of law. It was said that the first judge had asked himself the question only whether it would be "safe" for the Claimant to relocate within Iraq, rather than also determining whether it would be "reasonable" for him to do so. Accordingly, it was held that:

"A clear finding needs to be made at the 'second stage' of the reconsideration on whether the appellant has a well founded fear of persecution in Mosul and, if so, whether relocation to either the Kurdish Regional Government or central and southern Iraq is feasible, safe and reasonable for this appellant, who is a Christian."

5. After considerable delay a tribunal reconsidered the appeal in full, on 31 July 2009, but it was again dismissed. At this stage, it was accepted that the Claimant was at risk in his home area of Mosul and also that he could not reasonably be expected to relocate to the centre or south of Iraq. Consideration had focused primarily, therefore, on whether he could safely and reasonably go to the area governed by the Kurdish Regional Government ("the KRG").
6. It was accepted that the Claimant was a Christian and an ethnic Arab and also that he had received a letter at his shop in Mosul, on or about 27 July 2006, in which he received the warning to which I have already referred. His belief was that these threats had been made by reason of his earlier visit to his sister and being perceived as a collaborator with the British "occupying forces". There was also the factor of his religion.
7. It was held, on the basis of statistics which had been provided, that a significant number of Christians had been able to obtain access to the KRG, and in particular to Dohuk and Erbil. It was recognised that such a person would probably require a sponsor. Furthermore, in the light of evidence from two well known experts, Dr George and Dr Hunter, it was accepted that there would probably need also to be cultural and/or professional links. The experts had highlighted the fact the Claimant is an ethnic Arab and that he has no historic link with the KRG areas. Despite this, the Tribunal came to the negative conclusion that it had not been shown that he would not be able to access those Northern Governorates.
8. As to sponsorship, the Tribunal was of the view that there was no particular reason why he should be unable to find a sponsor in a local church, since sponsorship appeared to them to be a largely nominal matter. In view of the considerable numbers of Christians in the KRG, in general terms, the Tribunal was of the view that he should not experience any particular difficulty in obtaining sponsorship and that it would not be unduly harsh for him to be expected to do so. They had considered his position to be that of "any Christian Arab Iraqi who is at risk elsewhere in Iraq". The Tribunal also took into account evidence from the KRG Government itself, to the effect that it affords a general welcome to Christians, although it was recognised that "a pinch of salt" was necessary as to the general extent of that acceptance. Despite that, the conclusion was reached that, once a Christian has been admitted to the KRG, there would be no reason to suppose that he would be regarded adversely. He would thus be able to live there without this being regarded as unduly harsh.
9. Afterwards, the Claimant learned that his brother, Mazin, had made the attempt to relocate to the KRG. Not only had he been refused entry, but he had been questioned and subjected to beatings. The Claimant, therefore, prepared a witness statement, dated 8 February 2010, with a view to applying to appeal the Tribunal's findings.
10. Once his appeal rights were exhausted, the Claimant made further representations to the Secretary of State on 17 February 2011 concerning the experiences of his brother and asked that these be treated as a fresh claim for asylum in accordance with paragraph 353 of the Immigration Rules. Reference was made to the Tribunal's positive findings as to the Claimant's credibility and a further witness statement was submitted from him setting out what had happened to his brother and, in support, there was a medical report from a Dr Shaba dated 21 March 2009 identifying injuries he had noted on "Mazen Razouki". The nub of the case was that an Arab Christian, even with a Kurdish sponsor, could not count on being allowed to remain safely in the KRG and, in particular, that traders who had refused to supply Kurds in the days of Saddam Hussein could well be tortured for that reason.
11. As I have said, the Secretary of State on 14 March 2011 refused to accept the representations as a fresh claim. The new evidence was dismissed as bare assertion:

"Firstly, whilst it is acknowledged that you have been of interest to various Islamist groups in the Mosul area in the past, you have provided no corroborative evidence that you would be of interest to any militia or outside the area, specifically of the authorities of the KRG region. Moreover, you assert that the KRG authorities have a list of names that includes your family name of Razzoqi but you have not given a plausible explanation why they would have any interest in your family other than an assertion that it was because of your past actions as a shopkeeper."

This is a little obscure, in the sense that it is not clear whether it is being accepted (by the use of the phrase "other than") that this explanation was, so far as it went, plausible.

12. The reasoning continues:

"In addition, nothing is known about your brother Mazin's background other than he is a Christian and therefore it is only your bare assertion that he has been refused entry to the KRG region because of your family name. Indeed, the following report from the Foreign and Commonwealth Office (FCO) UK: Report of Information gathering visit to Kurdistan Region of Iraq, 27 March 2009 states 'Iraqi citizens from other parts of Iraq are free to reside in the KR under normal Iraqi law. One form of identification is required to confirm a person's identity. If police staffing checkpoints on the boundary of the KR are satisfied with a person's identity they are granted permission to enter the KR for ten days, after which they need to register at one of 18 centres across the KR, where they can apply to stay longer. At present there are over 13,000 families from outside the KR residing in Erbil. The aim of the checks is to keep terrorists out of the KR.' It is not clear from your submissions whether you [sic] brother actually gained entry into the KRG for an initial period or was refused entry at the border before being arrested and detained. Moreover, as stated above, there is no evidence that any militia outside the Mosul area would have any interest in you and the objective evidence states that there are many families of the Christian faith who have relocated to the KRG area. Indeed, your own submissions state that Rustem's friend could not provide any official confirmation of your family name being on the list despite them allegedly accusing your brother of being a spy. Moreover, your evidence in relation to your asylum claim states that you first experienced problems in Iraq after you had returned to the Mosul area on the 10 July 2006 following a trip to the United Kingdom where you had visited your sister. Therefore, it is questioned why the KRG authorities would suspect your brother (and hence your family) of affiliation with the Baath Party in 2009, a regime that was removed from controlling the country of Iraq in 2003. The only evidence that confirms that these events occurred in the circumstances you claim is your bare assertion. Hence, without any evidence to the contrary, the position of the UKBA remains as was found by the IJ at your reconsideration hearing that you could relocate to the KRG area."

Again the flow of reasoning is not entirely clear. It is not a question of affiliation with the Baath Party in 2009, but rather that there is resentment in the KRG about Iraqis refusing to serve Kurds at the time when Saddam was actually in power. That does not necessarily entail "affiliation" with the Baath Party, but is equally consistent with fear of Saddam's regime and a reluctance to incur its disapproval. There is nothing inherently surprising about the Claimant or his brother discovering Kurdish resentment on those grounds, for the first time, when an attempt was made to enter the KRG.

13. The letter continues:

"Secondly, you have provided a medical report on behalf of your brother Mazen dated 21^st March 2009 compiled by a Dr Shaba which relates to numerous injuries he suffered allegedly at the hands of the KRG authorities and also photographic evidence. However, while Mazen's injuries are noted, as stated there is no evidence that this was at the hands of the Kurdish authorities in the circumstances you claim."

At this point in the letter, it seems to be accepted that the injuries referred to are indeed those of the Claimant's brother. The only person who could confirm how the injuries were received, directly, is the Claimant's brother. No witness statement was produced from him, but there was evidence that a telephone conversation had taken place between him and the Claimant's solicitor.

14. The next point taken relates to the doctor himself:

"Indeed, no indication is given to demonstrate what Dr Shaba runs this surgery or why you have not provided evidence of any proof of postage or packaging to verify when this was actually sent from Iraq. Moreover, it is questioned why the KRG authorities would have any interest in your family at present as there is no evidence that any individual, group or organisation would have any interest in your family outside the Mosul area. Therefore, for these reasons, this medical report is given little weight in support of your claim for international protection in the UK."

Two concerns seem to be run together at this point. On the one hand there is the suspicion that neither the doctor nor his report is genuine. On the other hand, there is the doubt as to why the KRG authorities would "have any interest" in the Claimant's family. The first of these arguments appears to involve the suspicion that someone has put forward forged documents purporting to come from Dr Shaba. The second point, apart from the inherent problem of Arab Christians in the KRG, ignores the evidence of resentment against Iraqis who refused to trade with Kurds during the period of Saddam Hussein's government. That is a general point rather than one specifically directed towards "interest" in the Claimant's family.

15. The conclusion was reached:

"In sum, when taking your bare assertion that your brother Mazin has tried to relocate to the KRG area in March 2009 but was arrested, detained and refused entry by the KRG authorities and the evidence you have provided pertaining to your brother to support this in the round, it is not considered that this creates a realistic prospect of success if now before another IJ."

16. On 18 April 2011, a letter before action was submitted in accordance with the pre-action protocol. Three days later, there was a letter of response which took the stance that the Claimant was doing no more than disagreeing with the Tribunal's decision. The information that he had claimed to have discovered subsequently was not addressed.
17. These proceedings were issued on 19 April 2011, whereby the Claimant originally sought permission for judicial review of the first decision letter dated 14 March.
18. Mitting J granted permission on 19 May 2011 and, in doing so, made the following observations:

"It is at least arguable that the Defendant's refusal to treat the further representations as giving rise to a fresh claim under paragraph 353 of the Immigration Rules was irrational and wrong. If the allegations made by the Claimant in his witness statement of 20 January 2011 are true, there is clearly a realistic prospect that an immigration judge would uphold a fresh appeal. In his original appeal, the Claimant's credibility was not impugned. The allegations which he makes are based on single hearsay: what his brother Mazim told him, and are consistent with a contemporaneous medical report on his brother's condition (I have not found the photographs referred to). It is at least possible that, applying the lower standards of proof applicable to an asylum/Article 3 claim, an Immigration Judge will find that the Claimant has truthfully related what his brother has told him and that there is a real likelihood that it is true."

19. It would clearly be a misrepresentation of these remarks to suggest that the learned judge was either making an assumption that the Claimant's evidence of 20 January 2011 was true or that he was suggesting, because his credibility had not been impugned up to that point, that it was bound to be accepted for the future. Surely, all he was saying was that an immigration judge could find the evidence credible and that there was no obvious reason, at that stage, why he should not.
20. On 20 February of this year, further representations were submitted, accompanied by an updated medical report of 7 November 2011, expanding in the information supplied earlier. This was obviously in an attempt to take account of the Secretary of State's doubts about the genuineness and authenticity of the medical evidence. An original version in Arabic was provided together with a certified English translation. Further detail was supplied as to the injuries and this was said to be "as per the patient's request". Reference was made to bruising, swelling and "two non-incisive wounds". Obviously, the doctor could not himself give evidence as to how the wounds were inflicted, but he went on to say that they were "caused by external pressure which could be beating by hand or non-incisive tool".
21. The Arabic version of the report appears to be on a standard letter containing reference to the doctor's qualifications and address. Criticism is made as to the address which, when translated, is given as "Mosul, Algeria roundabout, near the traffic lights". This is said to be vague and suspicious, although no evidence has been produced to suggest that this is other than in accordance with address conventions in the city of Mosul. I have no evidence, for example, that there is a consistent and consecutive system of house numbering as in (say) Acacia Avenue. Why should it be assumed that an immigration judge would be unlikely to accept the doctor's printed writing paper as genuine rather than forged?
22. A good deal of further material was supplied on 20 February of this year, including:

i) a further witness statement from the Claimant dated 17 February 2010;

ii) the transcript of a telephone conversation between the Claimant's solicitor and his brother;

iii) a character reference from Dr Omar Alisha;

iv) a statement from Sabah Salih Ali;

v) a letter from the Northumbria University;

vi) a letter of support from the Claimant's tutor in English dating from May 2011;

vii) copies of certificates of achievement and attendance relating to that course;

viii) a photocopy of a photograph which could not clearly be made out.

23. One of the more significant aspects of the new evidence was that from the Claimant himself. Not only did he deal with the matter of relocation to the KRG, but he also raised a new issue. This is to the effect that he had concerns over his earlier involvement in the making of television programmes for Ashtar TV, which had connections with Saddam Hussein's government. It included the following allegations:

"3. … I did not mention before that I also carried out film work. I was threatened through the electric shop that was my main focus but I also have to tell you about my other work in Iraq. I was working for Ankido Studio, who were contracted by an Iraqi company, Ashtar TV. It did filming, editing and programming for TV. Under Saddam Hussein's regime Ashtar TV was doing work for the government and it represented the government. Ankido Studios also did other private work. I was afraid that the British government would treat me as a criminal if they discovered this relationship between Ankido Studio and Ashtar TV so I did not mention it before.

4. I have a DVD that I have given to my solicitor on 6 February 2012. I got this DVD in late 2011. A former client of my filming work gave this to me. I filmed his wedding. The DVD has my advertisement for our studio. My advertisement was an independent studio 'Ankido' working with multimedia: advertising, filming, photography etc. We did advertising for many organisations. The film features my photograph. This advertisement was widely broadcast on national Iraqi TV on 'Al Shabab'. This would have been regularly showed from 1991-1993. This channel no longer exists. It ended with the fall of Saddam Hussein's regime."

The suggestion is that people in the KRG could recognise the Claimant from having appeared on Iraqi television and that this might afford a further perceived link with the former regime. It would be another reason for him to be seen as "the enemy".

24. This new material was addressed somewhat dismissively by the Secretary of State in a letter of 8 March 2012. As to the doctor's evidence, it was accepted neither that the patient attended was the Claimant's brother, nor that the injuries were inflicted by the Kurdish authorities, nor even that the reports originated in Iraq. As to the new material concerning Ashtar TV, the following comments were made:

"The delay in raising this issue has been carefully considered. At all times, the onus has been on your client to co-operate with the asylum decision making process and raise any and all issues pertaining to his case as soon as possible. Your client has been under an ongoing obligation under section 75 [sic] of the 2002 Act (the 'O1 Stop Notice') to provide a complete picture and submitting new evidence as soon as it becomes available, and he has been warned of the consequences of failing to mention something that he would later come to rely on.

Your client claims to have a DVD which was given to his solicitor on 6 February 2012 which supports his claim he indirectly worked for the government.

Regard has been given to his claim that there is evidence contained within the DVD of an advertisement which was widely broadcast in 1991 and 1993. Your client alleges it means he will be recognised by Kurdish people as connected with the old regime, as he claims to have been a cameraman working with a Saddam operating agency in the media. To date the SSHD has not received a copy of this DVD and is unable to consider its contents as evidence.

Given that the issue of relocation was at the heart of his appeals process and the reconsideration by the Tribunal, it is considered reasonable to expect him to have raised this issue much sooner, given that he first made his claim in August 2006, nearly six years ago, and had the opportunity of two appeal hearings plus the reconsideration requests after they both failed. Raising this ground over five years later, after enforcement action has been initiated and less than one month before a substantive judicial review hearing, entitles the SSHD to treat these submissions with considerable circumspection. Although you submit that your client was previously found to be credible, with respect, it is not accepted that we are bound to accept at face value any last minute submissions.

Furthermore, given that this advert was supposedly aired some 20 years ago, you have not provided any persuasive evidence that your client would be easily remembered and recognised and so this submission is rejected."

25. It was shortly after this that the Claimant served, on 12 March of this year, an amended statement of facts and grounds so as to include a challenge to this second decision letter.
26. The preponderance of authority makes clear that the law at the moment is that the Secretary of State's conclusion as to whether or not further representations amount to a fresh claim can only be challenged on Wednesbury grounds: see e.g. R (WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495; R (TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550; MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193. The Secretary of State has to ask herself the question "whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered": see e.g. AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535, at [23] per Toulson LJ.
27. Permission was granted by Mitting J only in relation to the Claimant's first and fourth grounds of challenge, but others were also addressed in the course of submissions and I shall therefore list them all:

i) There was an irrational approach to the Claimant's evidence in the light of previous findings on credibility.

ii) There was an irrational approach to the evidence of the assaults on the Claimant's brother, in that a more stringent test was applied than that of merely a "realistic prospect of success".

iii) The approach to the evidence regarding the television work was irrational and/or the Secretary of State's reasoning was inadequate.

iv) The Secretary of State failed to consider the evidence from the perspective of an immigration judge.

28. I turn to the first of the grounds. In effect, the Secretary of State was required to decide whether there was a realistic prospect of an immigration judge finding the Claimant's evidence credible. As should already be clear, it is not the Claimant's case that, simply because he was found credible on an earlier occasion, therefore he should be found credible for the future. On the other hand, the earlier findings of credibility are plainly a relevant factor to be taken into account: see e.g. R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at [14]. There must be some rational and cogent ground available before the Secretary of State comes to the decision that the new evidence is so incredible that there is no realistic prospect of an immigration judge accepting it.
29. Obviously Mitting J was not suggesting that the Secretary of State's task has to be approached on the basis that the Claimant's evidence is assumed to be true. That would be absurd. If the Secretary of State comes to the conclusion that his evidence is not credible, she would be fully entitled to decide that there was no realistic prospect of success. There must, however, be some solid ground to support such a conclusion.
30. As Mitting J seemed to acknowledge, it would be quite possible for an immigration judge to come to the conclusion that he found the single hearsay evidence as to the brother's experiences credible. He would not, of course, be bound to do so.
31. The Secretary of State criticises the fact that hearsay evidence is relied upon (despite the fact that it has become very common in civil litigation to do so). She expresses surprise that there was no documentary evidence that the brother had been refused entry (as though expecting some sort of official document to that effect) and also the absence of any witness statement from the brother himself. It is true, as she points out, that no explanation has been given as to why the Claimant's brother was not in a position to provide a witness statement himself. On the other hand, there is evidence that telephone conversations have taken place between the Claimant's solicitor and his brother. It hardly seems reasonable to assume at this stage, without it being tested by an immigration judge, that the solicitor's relaying of the brother's evidence is itself to be regarded as unreliable or suspect. One does not ordinarily assume that a solicitor is trying to hoodwink the court. Having said that, I readily acknowledge that it is unfortunate that the solicitor herself did not put in a more informative witness statement. An immigration judge might, on closer scrutiny, find the evidence unsatisfactory, but I do not see how it can be said at this stage that there is no realistic prospect of its being accepted.
32. The point is taken that there is no evidence, whether specific or general, to the effect that the KRG authorities have maintained an official list of names of those who discriminated against Kurds under the regime of Saddam Hussein. The critical question, however, is surely not the existence of a list but whether or not the Claimant's brother did experience disapproval and physical abuse for that reason. That is not necessarily predicated upon the existence of an official "list".
33. I turn to the criticisms directed at what purports to be the medical evidence of Dr Shaba:

"The attempt to remedy the absence of any address for Dr Shaba in the second report allegedly provide by him dated 7 November 2011, and which was considered in [the second decision letter], served only to heighten suspicion as to the authenticity of this medical evidence."

I do not believe it is correct to equate "suspicion as to the authenticity" with a conclusion that there is "no realistic prospect" that it will be accepted. It may well be that at a hearing before an immigration judge the suspicions will be thoroughly investigated. In the light of such investigation, it is quite conceivable that the immigration judge would reject the medical evidence, but it is surely premature to conclude that it would be fanciful for him to do other than reject it as a forgery. It is to be noted that the doctor has given his official registration number, as well as his address, and there is no suggestion that this has been checked and found to be inauthentic.

34. Reference was made to the United Nations Istanbul Protocol, which is a set of international guidelines followed by medical practitioners when assessing witnesses who make allegations of torture. Practitioners are expected to make useful observations on the extent to which the injuries corroborate the witness's account of mistreatment. As I understand it, the Claimant's brother claims to have been beaten in the KRG and I do not see what more the doctor could have done than to express the opinion that the injuries were caused by external pressure "which could be beating by hand or non-incisive tool". He is saying that the wounds that he witnessed (two and a half years earlier) were indeed consistent with a "beating". I accept that it is not clear whether this is based on memory or contemporaneous notes.
35. Reference was made in the papers to photographic evidence, which was not apparently before Mitting J, but I was provided with rather poor photocopies of photographs at the hearing. They appeared to be rather blurred pictures of a man with signs of injury. Again, however, it is unfortunate that there is no evidence clearly identifying the man in the photograph as the Claimant's brother. This seems to be taken as read. It is conceivable that it would emerge at a fuller hearing that the photographs were dishonestly submitted by the Claimant for the purpose of misleading either the Secretary of State or the court, but I cannot see how such a conclusion could be reached at this stage. In fairness to the Claimant and his solicitor, it is right to say there is no reason whatever at the moment to suppose that this is true. In those circumstances, there must be a realistic prospect, at least, that an immigration judge could accept that the photographs are of the Claimant's brother and that they disclose injuries consistent with a beating. The following submission is made on behalf of the Secretary of State:

"The reality is that an immigration judge would be virtually certain to express the same substantial reservations about the Claimant's witness evidence as the Defendant has done, including that it falls substantially short of properly evidencing a risk of harm on return."

I disagree. Despite her reservations, I am not persuaded that it is possible, at this stage, to conclude that there is no realistic prospect of the evidence being accepted.

36. I would not, however, accept the proposition that the Secretary of State has asked herself the wrong question. I see no reason to believe that her officials applied a test other than that of whether there was a realistic prospect that an immigration judge could come to a certain conclusion. I would reject the fourth ground of challenge. Nonetheless, I happen to believe that they reached the wrong answer.
37. All that remains is for me to refer again briefly to the evidence on the subject of the Claimant's work for Ankido Studio. It may be that the Claimant's failure to mention the subject earlier is explicable for the reason he gave at paragraph 3 of his witness statement of 17 February (quoted above), but I cannot say that the Secretary of State was irrational in approaching this new issue, or that her reasoning was inadequate. She was entitled to reach the conclusion she did and I would have rejected the third ground.
38. In the result, I uphold only the first of the grounds for which Mitting J granted permission and I will quash the decision accordingly.