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
		18/05/2012

Philip Mott Q.C. :

Introduction

1. This is an application for permission to challenge the Defendant's decision of 19^th May 2011 rejecting representations made on behalf of the Claimant on 17^th and 23^rd March 2011 as a fresh claim for asylum pursuant to paragraph 353 of the Immigration Rules. The Claim Form was issued on 31^st May 2011.
2. Supplementary Grounds were filed, they are undated in the Hearing Bundle. They are somewhat discursive, but raise further issues flowing from the alleged disclosure of personal information about the Claimant to the Sri Lankan High Commission, contrary to section 13 of the Immigration and Asylum Act 1999.
3. The case came before Nicol J on 16^th June 2011 as an application for a stay on removal of the Claimant from the UK, which he dealt with on the papers. He granted a stay until determination of the application for permission to apply for judicial review. He noted that the papers were not in a satisfactory state, but considered that the allegations about unlawful disclosure should be considered further before the Claimant was returned to Sri Lanka.
4. The Defendant's Acknowledgement of Service was filed on 4^th August 2011, following which the papers were considered by Wyn Williams J on 2^nd September 2011. He refused permission, but extended the order of Nicol J until the hearing of any renewed application.
5. The application was renewed, and on 30^th November 2011 Holman J adjourned the application for a rolled-up hearing. That hearing was listed before me on 15^th May 2012.
6. The Claimant's solicitors produced a composite bundle, somewhat late and in no very logical order. There was no bundle of authorities. No separate skeleton argument was served on behalf of the Claimant, with the result that the Defendant's skeleton argument was not received until the morning of the hearing. The result of this was that some time was needed to identify the live issues, and the arguments were substantially developed and modified during the hearing.
7. In the end, the Claimant raises two broad points. The first is that, regardless of the factual background, the breach of section 13 of the 1999 Act is a bar to removal of the Claimant to Sri Lanka. The second is that the Defendant's decision of 19^th May 2011 cannot be upheld in the light of the new evidence produced both prior to that decision and between that date and the date of the hearing.
8. I was told that permission had been granted in another case to argue the first point (CO/9058/2011), and was invited to grant permission and order that the two cases be heard together. I declined to do this, as the present case involves fact-specific decisions in relation to the second argument, and had in fact been listed first. This judgment should be made available to the judge deciding that other case.
9. The arguments put forward by the Claimant at this hearing strictly require permission to amend. The Defendant took no technical point on this, and it is clearly sensible to deal with all matters at once. I therefore grant permission to amend to raise these additional points.
10. As to the overall application, there seem to me to be arguable issues, so I grant permission to apply for judicial review. This judgment is therefore one on the merits after full argument of the case.

Immigration History

11. The Claimant was born in Sri Lanka on 3^rd September 1979, and is now aged 32. On 30^th November 2006 he arrived in the UK and claimed asylum. He was arrested for failing to produce documents and on 18^th January 2007 convicted after a trial of immigration offences, being given a suspended sentence of 3 months imprisonment. On 11^th April 2007 his asylum application was refused. He appealed, but his appeal was dismissed by Immigration Judge Rabin on 23^rd May 2007. An application for reconsideration was rejected by Senior Immigration Judge Goldstein on 3^rd July 2007, and his appeal rights became exhausted on 21^st August 2007.
12. Just prior to this, on 18^th August 2007, the Claimant failed to comply with his reporting restrictions and absconded. It was not until 11^th February 2010 that he was encountered and arrested by immigration officials. On 1^st April 2010 he submitted further representations to the Defendant. These were rejected on 17^th September 2010, but with an in-country right of appeal because of changes in the law since the last appeal. On 19^th November 2010 the Claimant's appeal was dismissed by Immigration Judge Ievins, and on 1^st December 2010 his appeal rights were again exhausted.
13. On 15^th March 2011 the Claimant was detained for removal. He submitted further representations on 17^th and 23^rd March 2011. These were rejected by the Defendant on 19^th May 2011, certifying that they did not amount to a fresh claim and therefore carried no in-country right of appeal. The judicial review claim followed on 31^st May 2011.

Breach of section 13 of the 1999 Act

14. I turn first to the freestanding argument in relation to the unlawful disclosure. Section 13 of the Immigration and Asylum Act 1999 provides as follows:

(1) This section applies if a person –

(a) is to be removed from the United Kingdom to a country of which he is a national or citizen; but

(b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel.

(2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data.

(3) In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.

15. The material disclosed, purportedly under section 13(2), was provided to the Claimant's solicitors on 1^st May 2012. It consists of an application for a Sri Lankan travel document on Form K, particulars to be furnished by an applicant who has lost/damaged his/her passport on Form D, a birth certificate, and particulars to be furnished by persons on temporary admission to the United Kingdom, all of which are properly disclosable. In addition, however, there was included a document headed "Operation Tetyra Pro-Forma" which was intended as an internal checklist of data relating to the Claimant. This should not have been disclosed. It includes the following information, in breach of section 13(3):

Type of case: FAS [failed asylum seeker]

All appeal rights exhausted: Y

Date final appeal dismissed: 01/11/2010

Date of asylum claim: 30-11-2006

16. The Defendant accepts that this disclosure was unlawful. There is a strict policy prohibiting the submission of any documentation that could potentially pose a risk to an individual upon returning them to their country of origin, and this includes any reference to the fact that they may have previously claimed asylum. The disclosure in this case was inadvertent.
17. The Claimant challenges this, citing seven other cases where disclosure of prohibited material has been made to the Sri Lankan authorities. He relies on a statement from Karim Assaad, an immigration solicitor, who has collated cases on breach of confidentiality in respect of failed asylum seekers from Sri Lanka. In four of these cases the Sri Lankan officials had, or appeared to have, documents leading to direct questions about membership of the LTTE by a family member. In two cases the subject saw that the officials had a copy of his asylum interview. In the last case the subject was asked for intricate details of his asylum claim. From this it is submitted that there is a deliberate and consistent policy of disclosure to the Sri Lankan authorities in breach of section 13.
18. This summary of other cases does not support such a submission. There is no consistency about the documentation disclosed. Whatever may be the proper inferences to be drawn in those cases, which I do not have to determine, there is no suggestion in the present case that details of the Claimant's asylum interview were disclosed, or any documents linking him or his family members to the LTTE. The present disclosure is of a document which is clearly intended only for internal purposes, and which tells the Sri Lankan authorities very little. It is in a wholly different category from the other cases cited.
19. Ms Jegarajah drew my attention to paragraph 8 of the Defendant's Acknowledgement of Service which states that a standard application pack is provided which includes a "UKBA issued covering letter". She submits that the Operation Tetyra Pro-Forma is this document, and therefore it is admitted that the pro-forma is part of the standard disclosure, in breach of section 13. This interpretation is disputed by Mr Edwards, and I reject it. The pro-forma cannot in any normal use of the words be described as a covering letter.
20. The Claimant's argument on the effect of section 13 of the 1999 Act is put in three different ways:

i) The Claimant's primary submission is that disclosure in breach of section 13 automatically gives rise to a bar to the removal of the Claimant using documents obtained as a result of that unlawful disclosure. Such a bar would operate whether the disclosure was inadvertent or deliberate, and arises as a matter of statutory interpretation, not under the discretionary supervisory powers of this court.

ii) The alternative submission is that such unlawful disclosure gives rise to a discretionary power to bar removal using documents obtained as a result of that disclosure, not because of the risk to the Claimant but as part of this court's powers to control misuse of executive powers. Like any discretion, its exercise would be case-specific, but any deliberate disclosure would be likely to be treated seriously and severely. The Claimant submits that this was a deliberate disclosure of prohibited material.

iii) Finally, unlawful disclosure carries an inevitable risk of prejudice to the Claimant, as the purpose of the prohibition in section 13 is to protect a failed asylum seeker from the risk of retribution in his or her home state. Where there has been such disclosure, this must be considered in deciding whether there is further information amounting to a fresh claim. I shall deal with this limb of the submissions in the context of the fresh claim arguments.

21. As to the first submission, Ms Jegarajah was unable to refer me to any authority or analogous situation where breach of a statutory prohibition, albeit inadvertent, was held to render subsequent acts automatically void. Mr Edwards submitted that the general rule was otherwise. He prayed in aid the treatment of unlawfully obtained confessions in criminal cases, where exclusion is discretionary under section 78 of the Police and Criminal Evidence Act 1984, and of evidence obtained as a result of unfair practices, see R v Sang [1980] AC 402.
22. There is nothing in the 1999 Act to say what should happen in the event of disclosure in breach of section 13(3). It is difficult to see the process by which a later issue of removal directions, to be effected by using an emergency travel document issued as a result of unlawful disclosure, could be automatically invalidated. It is also counter-intuitive to suggest that such a result should occur even when there has been inadvertent disclosure which poses no additional risk to an illegal immigrant with no valid asylum claim, with the result that he would obtain a fortuitous benefit from the inability of the Secretary of State to remove him from the UK. Presumably in such a case, whilst he would not acquire a right to remain, he would have to be released from detention under the principles in R v Governor of Durham Prison, ex p. Singh [1984] 1 WLR 704. I therefore reject the Claimant's first and principal submission.
23. The existence of a discretionary power to strike down any Removal Directions issued in reliance on an emergency travel document obtained by deliberate and cynical disclosure in breach of section 13 is not disputed by the Defendant. I agree. I have no doubt that any deliberate flouting of the express statutory prohibition would be treated very seriously by this court.
24. In this case I can see no evidential basis for concluding that this was a deliberate disclosure, let alone that there is a consistent pattern of disclosure as submitted. If it were deliberate, it is odd that so little was disclosed, and that it consisted only of a clearly internal checklist. An inadvertent disclosure is unfortunate, and raises concerns which led to the interim order of Nicol J in this case, but it does not call for protective measures regardless of risk to the Claimant.
25. As to whether this disclosure, taken together with all the other matters, changes the risk profile of the Claimant so as to amount to a fresh claim, I shall now turn to deal with this.

Fresh Claim

26. Paragraph 353 of the Immigration Rules is well known. It provides that where further submissions are made:

"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"

27. The new material must be given "anxious scrutiny" and, in considering whether there is a realistic prospect of success in a notional further appeal to the Tribunal, the test is "somewhat modest" (see WM (DRC) v SSHD [2006] EWCA Civ 1495). I was also referred to the discussion of what amounts to a "realistic prospect of success" in R (TK) v SSHD [2009] EWCA Civ 1550.
28. In a challenge by way of judicial review to the Defendant's assessment of whether further submissions amount to a fresh claim, the test is whether the decision is Wednesbury unreasonable, as informed by anxious scrutiny (see MN (Tanzania) v SSHD [2011] EWCA Civ 193).
29. When considering fresh submissions, the logical and appropriate starting point is the previous Tribunal determination (see R (Sivanesan) v SSHD [2008] EWHC 1146 (Admin), at paragraph [42]).
30. The decision of IJ Ievins of 19^th November 2010 contains a number of relevant findings:

i) In the previous appeal before IJ Rabin the Claimant gave evidence, but his account was rejected as not credible.

ii) In the instant appeal the Claimant was present but did not give evidence. Instead he relied on a medical report from Dr Willcox prepared after the previous appeal was dismissed.

iii) IJ Ievins took as his starting point the findings of IJ Rabin, but modified them as a result of accepting the findings of Dr Willcox. As a result he concluded that the Claimant was ill-treated in the course of detention by the Sri Lankan army in 2006, and that this was quite possibly because he was detained after a bomb blast near his shop (he was a mechanic who repaired TVs and radios, the bomb was detonated by a remote control device, and he had remote control devices in his shop). The ill-treatment was serious, leaving various scars, including lesions to the anus consistent with it being penetrated by a rubber pipe.

iv) The Claimant was released without charge. There was no further adverse interest shown in him. He was allowed to leave Sri Lanka through Colombo airport on his own passport without difficulty.

v) The Claimant's account of his fear of the Karuna group after his release had been rejected by IJ Rabin, and there was nothing to upset that finding. To that extent, therefore, the finding that the Claimant's account was not credible remained valid.

vi) There was no outstanding arrest warrant.

vii) Considering all the relevant factors identified in the cases of LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049, the Claimant would not be at risk of persecution, torture or inhuman or degrading treatment or punishment if returned to Sri Lanka.

31. The effect of LP and TK is well summarised in the recent appeal of SS (Sri Lanka) v SSHD [2011] EWCA Civ 76. The situation in Sri Lanka has been fluid. Returning Tamils are not automatically at risk. There is a list of twelve risk factors to be considered. This is not a checklist, nor intended to be exhaustive. The assessment of risk can only be done on an individual basis. Notwithstanding the military defeat of the LTTE in May 2009, risks remain, not least because the authorities are concerned about the possibility that returning LTTE sympathisers may assist in the reconstruction of the defeated group. The principal focus will be on persons considered to be LTTE members, fighters or operatives, or those who have played an active part in the international financing and arming network.
32. The further material relied upon before me consists of the following matters, which I shall consider in turn:

i) The existence of an arrest warrant for the Claimant issued in Sri Lanka. This was provided to the Defendant with the letter of 17^th March 2011. In addition there is a letter from a Sri Lankan lawyer validating the arrest warrant and giving further information relevant to it. This was provided to the Defendant with the letter of 23^rd March 2011.

ii) The disclosure of information to the Sri Lankan High Commission in connection with the application for an emergency travel document. This is not considered in the decision of 19^th May 2011 but the Defendant does not propose to make a supplemental decision, preferring to defend the decision already made even taking this into account.

iii) The interview of the Claimant by staff from the Sri Lankan High Commission in April 2011 following the unlawful disclosure. This also is not considered in the decision of 19^th May 2011, but the Defendant takes the same stance in regard to it.

33. Although each element deserves separate examination, the final decision as to whether this amounts to a fresh claim, so that the Defendant's decision to the contrary is irrational, must be made by looking at all the material together.
34. The existence of an arrest warrant is potentially very significant. It might show that the Sri Lankan authorities do have a continuing adverse interest in the Claimant, contrary to the findings of IJ Ievins. If so, that would undoubtedly give rise to a realistic prospect of success in any further appeal.
35. The decision letter of 19^th May 2011 rejects this warrant, asserting that it "has been presented solely in response to the findings of the Immigration Judge on 19 November 2010 in an attempt to frustrate removal". The lawyer's letter is not mentioned in this decision letter, although it had been provided by then. The Defendant now accepts that the warrant is a genuine document, having been validated by the lawyer, preferring to submit that it cannot be accepted as a genuine indication of adverse interest in the Claimant in the light of the circumstances.
36. The warrant is a very strange document. It carries the case number EPHC (for Eastern Province High Court) 241236/06. It is reasonable to infer that it relates to some proceedings started in 2006, when the Claimant was detained and then released. The section relating to "Particulars of the alleged offence or reasons for issue of warrant" has the entry "RE LTTE ACTIVITIES Fail to appear Before H/C". The lawyer's letter says it is "in respect of his absconding from detention". Yet nobody has ever suggested that the Claimant absconded from detention or failed to appear before the High Court of Eastern Province. There is absolutely no evidence of any attempt to execute this or any previous warrant, of any questioning or harassment of the Claimant's family in Sri Lanka, or anything else to suggest that this really is a live document which provides valuable evidence about the likely treatment of the Claimant if he is returned to Sri Lanka.
37. It is in this context that the dating appears fortuitous. The Claimant's appeal rights became exhausted on 1^st December 2010. In the reasons for IJ Ievins decision the absence of any warrant is noted as a significant feature. The warrant is dated 12^th January 2011. Nothing seems to have happened between 2006 and 2011 to suggest any interest by the Sri Lankan authorities in the Claimant, yet by chance a warrant is issued only weeks after the rejection of the Claimant's second appeal.
38. It is admitted that there was disclosure of information contrary to section 13 of the 1999 Act, as already noted. Whether the disclosure was deliberate or inadvertent is not relevant to the assessment of risk, with which I am concerned at this point in my judgment.
39. There is no dispute about what was disclosed, which has all been copied in the bundle for this hearing. The only document which should not have been disclosed is the pro-forma for Operation Tetyra. This gives the information that the Claimant is a FAS (failed asylum seeker) who made an asylum claim on 30^th November 2006, but that his final appeal was dismissed on 1^st November 2010 and all his appeal rights are exhausted. It also gives his last known address in Sri Lanka.
40. I have been referred to the latest UK Border Agency Operational Guidance Note for Sri Lanka, dated April 2012. It would not be right for me to engage in a minute investigation of the current situation in that country, but it is sufficient to note that there is a section on the treatment of failed asylum seekers which, at least in one part, suggests that the situation seems more relaxed now. In addition I note from paragraph [14] of SS (Sri Lanka) that even in 2007 the majority of returned failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.
41. The Claimant made an application to the European Court of Human Rights under Rule 39, and on 16^th June 2011 was granted an order that he should not be removed to Sri Lanka until further notice. The Foreign & Commonwealth Office responded to the European Court Registrar on 1^st July 2011 setting out why the UK Government did not accept that the disclosure placed the Claimant at risk on return to Sri Lanka, in effect relying of the matters set out in the previous paragraph of this judgment.
42. The interview with the Claimant in April 2011 is described only in a statement from the Claimant himself. He says that he saw two officers from the Sri Lankan High Commission on 10^th April 2011, a Sunday. He was given correct dates about his asylum application, but no other details. He was asked whether he had taken arms training in Sri Lanka and said he had not. He was asked whether he was involved in the bomb blast near his shop. At the end of the interview he was told that they had rehabilitated all the LTTE members and "all the problems are solved in the country".
43. There is no mention of the bomb blast in the material unlawfully disclosed. That question must have come from other inquiries made prior to the interview. Those inquiries should have disclosed the existence of a warrant of arrest, if there is any weight to be attached to it. They should also have disclosed details of any alleged absconding from detention or failure to appear before the High Court of Eastern Province. Yet nothing is said about these matters in the interview. Its conclusion appears to reassure the Claimant, and in effect to welcome his return to Sri Lanka. It was followed by the issue of an emergency travel document to enable that return to take place.
44. What is to be made of this further material, taken cumulatively? In my judgment it all points to there being no change to the risk if the Claimant is returned to Sri Lanka. There is no more than a fanciful prospect of a third Immigration Judge coming to a different decision from the first two, and therefore the admittedly low threshold for this amounting to a fresh claim is not passed.
45. In coming to this conclusion I bear very much in mind the potential significance of an arrest warrant, and the presumption which lies behind the prohibition in section 13 of the 1999 Act that mere disclosure of the fact that a person is a failed asylum seeker may expose him to an increased risk. However I am satisfied that the facts of this case do not in fact lead to such a conclusion.

Conclusion

46. Accordingly this application fails on both grounds.