England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		23 October 2012

1. THE DEPUTY JUDGE: This is the case of Miss Sathasivam against the Secretary of State for the Home Department. It is a fresh claim case where the claimant says that because of events and evidence emerging from a successful asylum claim made by her son, after her own process of claim and appeal had failed, she has a fresh claim which she should be entitled to pursue.
2. The claimant challenges the defendant's decision, as set out in the letters of 16 May, 9 June and 9 August, to refuse to treat her further representations as a fresh claim. There are four limbs to the challenge. First, as I say, it is said that there is new material as to the credibility of the claimant's claim; secondly, it is said that there is new material as to the risk to the claimant upon her return; thirdly, there is said to be new material as to her mental health; and fourthly, as to her private and family life. When the application was brought and permission was refused by a Deputy Judge on the paper following renewal, permission was granted by Lang J.
3. The background facts are not in dispute. The claimant is a national of Sri Lanka. She says that she came to the UK in 2007 and 2008 and then again in January 2009 illegally. She claimed asylum on 27 January 2009 claiming to be at risk of persecution because she is a Tamil. She and her son had worked for the LTTE. She had been warned to be careful on returning to Sri Lanka in April 2008 after a visit to the UK. She said that she and her son had been arrested on 14 December 2008 and she bribed her way out of jail before fleeing the country. She was interviewed.
4. Her claim for asylum was refused and she brought an appeal. It came before Immigration Judge Oxlade on 27 October 2009. He rejected her claim. He found that her evidence contained material inconsistencies and was not credible. Her account of having worked for the LTTE until 2002 was vague, and her evidence as to her son's activities was inconsistent. Her evidence that she was stopped at the airport on return in April 2008 on being suspected of LTTE activities, and that she was accused of transporting things into Sri Lanka, was illogical and unlikely, because she did not suggest that she or her luggage were searched, nor explain why she had had no difficulty leaving twice for the UK and entering once in 2007 and 2008.
5. The judge found that her evidence was inconsistent about how her son reacted to the alleged warning at the airport, and the judge said it was not credible that she had allowed LTTE members to come to her house. The judge said that there were inconsistencies in her account of being arrested in December 2008, including that she said she knew that it was the CID because they had introduced themselves, but in interview it was only because she got taken to their camp. He found it was incredible that she did not know how her escape was organised and who aided her. He concluded it was surprising she did not seek medical aid when entering the UK some 18 days after allegedly escaping custody, giving her claim to have been assaulted and raped countless times and still suffering from pain. He concluded:

"Accordingly, the appellant has not satisfied me that she previously attracted the attention of the authorities, that she had been detained and escaped from custody, or that she would bear any risk of doing so on return."

6. The judge in disbelieving the claimant's evidence recorded that he did not believe what was said about her or her son. Clearly the judge was not purporting to make decisions that were binding upon the son, he was simply detailing the rejection of her account.
7. The claimant's appeal rights came to an end on 18 November 2009. What brings this case is that in September 2010, almost a year later, the claimant's son, who was born in February 1982, arrived in the UK. He claimed asylum on the basis that his father had gone missing in 1995, and he became friends with two men who belonged to the LTTE, though he himself did not join it. He agreed to help supply food to the LTTE between 2006 and 2008. He kept some parcels and letters for members. He said that his mother was stopped at the airport and questioned by the army on her return from London in 2008. They wanted to know why she was going to London so often and she was questioned about her son.
8. In April 2008 men came to the house asking questions about visitors and again they returned. He gave an account of keeping a parcel at his home. He says how the CID came and took him and his mother in a Jeep. He was taken to a camp. He didn't know where his mother was taken, nor had he heard from her since. That is at the time when he first came into the United Kingdom. He gave an account of being held and beaten at a camp, and how he was released in August 2010 after his uncle had tracked him down and paid a bribe for his release.
9. His claim was also refused and he took the matter to appeal where Immigration Judge Doran allowed it. The position of the Secretary of State on that appeal included a number of points, one of which was the contention that:

"the appellant's claim was not credible because:

(a) It was based significantly on the same factual basis of that of his mother which had not been found credible when her contention was dismissed on 9th November 2009."

The judge's findings of fact are substantial, but they include the following. He said that he had the benefit of a medical report prepared by two experts referring to the number of scars and heart conditions. This led him to conclude that the appellant had extensive scarring as a result of torture, and he referred to extensive scarring on his body. The judge noted that the appellant lived in a LTTE controlled area. The Sri Lankan authorities were arrested and detained on suspicion of LTTE involvement, particularly in the period leading up to the conclusion of the Civil War in May 2009. Based on those factors he said this:

"I am satisfied that, despite the findings of Immigration Judge Oxlade, that this appellant was detained by the Sri Lankan authorities in December 2008 on suspicion of being a supporter/member of the LTTE involved in its activities and that during his detention he was tortured as claimed as evidenced in the scars found on his body."

He also says:

"This was not a one-off detention which took place during a general round up but was specifically targeted at the appellant because of his suspected involvement with the LTTE."

He also concluded that it was plausible that his release could have been secured by a bribe, and his travel from Sri Lanka could have been arranged through an agent.

10. There is a suggestion from the Secretary of State that those conclusions may, in some way, have been based solely upon the circumstantial evidence of the country guidance and the findings of the medical experts. In support of that is a reference at the outset of the decision referring to the fact that sometimes claimants give truthful evidence about the heart of the point, but also lie or do not tell the truth about other points. That is of course a well-known and important factor that judges take into account, but it is expressed in general terms when the Immigration Judge is setting out the basis for his decision. There is no indication I find in his decision that he was rejecting the truth of what the son had to say.
11. This led to a series of letters which caused the challenge in this case. The claimant said that there were fresh circumstances, such as the granting of refugee status to her son, the updated country guidance, and the fact that she has now established a private and family life, and there was also medical evidence of poor mental health, albeit not from the psychiatrist. The defendant's position is set out in a careful 15-page letter, dated 16 May 2011. It is important to read this well drafted letter as a whole, but I am just going to mention one or two aspects of it. At paragraph 20 it reads:

"You submit that Mrs Sathasivam's claim should be reconsidered in light of her son's allowed appeal determination... This evidence was not previously considered as it was produced over a year after Mrs Sathasivam became ARE. However, it is considered that her son's contention determination does not advance Mrs Sathasivam's claim for asylum."

12. The Secretary of State points out that the medical report was in relation to the son, not the mother. He cites various passages from the judge's conclusion and says:

"Taking the above into consideration, it is not accepted that Mrs Sathasivam's son's contention determination creates a realistic prospect of success in a future asylum contention as it specifically states that it only makes findings in relation to her son."

The letter goes on to say that the credibility findings in the November determination are maintained, it being said that the claimant has failed to provide any new evidence in relation to her account. It is said that:

"In the absence of evidence to the contrary, it is not accepted that Mrs Sathasivam is at risk on return to Sri Lanka due to any imputed political opinion."

13. Before turning to the submissions of the parties it is important to be clear about the legal principles and they are not in dispute. Rule 353 of the Immigration Rules provides in relevant part:

"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."

It is common ground that the Court of Appeal in WM provided guidance as to what has been described as a "modest test".

14. I have been taken to passages from the well-known authorities where a realistic prospect of success for this purpose means a prospect of success that is more than fanciful. I have also been taken to interesting and quite complex issues about the relationship between current and previous determinations, such as AA (Somalia) v SSHD [2007] EWCA Civ 1040.
15. The submissions by counsel for the claimant can be summarised as follows. She says that the compelling new material submitted by the claimant is in effect that her son is now a recognised refugee in the UK after his asylum contention was allowed. That material includes evidence relating to the son in respect of his asylum claim, including medical evidence which was accepted by Immigration Judge Doran and which had not been available to Immigration Judge Oxlade. Therefore the findings of Judge Doran impinge upon the findings of Judge Oxlade and these amount to compelling new material and a new claim.
16. She says that the fact of her son's involvement in the LTTE, threats to the claimant in 2008 and the detention of both, are the facts that form part of the original asylum claim about which the Immigration Judge did not have the benefit of evidence from the son. This included his evidence about the threat to his mother on her return to Sri Lanka, the fact that at the time his mother's appeal was determined he was in detention and she did not know where he was, that he was tortured in detention, and there was medical evidence to corroborate this, and that he was released from detention in August 2010 in circumstances similar to those claimed by his mother following payment of a bribe.
17. Counsel for the Secretary of State submits that these arguments are superficially attractive or misconceived. First he says that the findings of HHJ Doran do not impinge upon those of HHJ Oxlade as to the claimant herself. He says that HHJ Doran did not make any explicit findings of fact as to the nature of the claimant's involvement with the LTTE and the claimant's position (?) after December 2008. He says that HHJ Doran was conscious that it was possible that the appellant may not tell the truth about some matters, but the centrepiece of the story may still stand.
18. He points to the emphasis by the judge on the word "this" for the appellant. He says that HHJ Oxlade's conclusions as to the claimant are based upon evidence in relation to the claimant's son, and that to the extent to which the first judge deals with the son she is simply rejecting altogether the credibility of the claimant's account. He submits that there is no tension between the lack of credibility of the claimant's account and the fact of her son's contention having succeeded, not least because in important respects some of her evidence flatly contradicted his. He calls attention to discrepancies between the claims of the claimant and that of her son. She initially said that he was an LTTE member and had been since 2002. She initially said that as of April 2008 he stopped helping the LTTE. Counsel sumits that their accounts differ even in relation to the arrest, because the claimant said in interview that another LTTE member was also arrested from the house at the same time. He points to the fact that the medical evidence only relates to the son and not to the mother. He says pertinently that the presence of the medical evidence of the son highlights the matter that the first judge noticed, that there was no medical evidence to support what the claimant said were very recently inflicted serious assaults, including rape. He makes other submissions based on the fact that the claimant's position has shifted somewhat as regards the evidential status of the second judge's decision, as opposed to the underlying evidence.
19. The position as I see it is this: first the fact that the son's claim succeeded does not, of itself, have any relevance. It is also true that the evidence that greatly swayed HHJ Doran was the medical evidence relating to the scarring, and that, of course, relates to the son, but not to the mother. But one has to stand back a bit and look at the substance of this. What happened was that the mother's evidence was disbelieved for reasons that included matters, which no light is cast upon by the son's potential evidence and the findings about the son. But there are other matters where the claims do overlap.
20. It is, it seems to me, difficult for the Secretary of State to dispute this when she has taken the view that the Tribunal in the son's case was considering the same factual basis as that arose in relation to the mother. It was a point she emphasised in the son's case. This is an unusual case in that there is no possibility here of the son having been kept out of the way for some tactical litigation reason. The mother would have been unable to obtain evidence or information from the son at the time of her claims because she did not know where he was as he was in detention and unavailable.
21. This is an asylum claim and the burden of proof is accordingly a heavier one than in other cases. The question is whether if this new material was before an Immigration Judge, taken together with the previously considered material, it would create a realistic prospect of success, notwithstanding its rejection.
22. The answer, it seems to me, is that it cannot be said that that is fanciful. I appreciate of course I am not concerned with my view of things, but with a review of the decision taken by the Secretary of State. Bearing in mind that this is an asylum claim, it seems to me that the claimant has satisfied the relevant legal requirements. Of course it may be that the claim is again unsuccessful. There are all sorts of reasons why that may well be the case, but it does seem to me that the Secretary of State should have reconsidered.
23. Because the claim succeeds on the first ground it is not appropriate for me to deal with the others. But I will say this, that so far as the second ground is concerned, the question of the material as to the risk to the claimant upon her return, I was unpersuaded by the submissions of the claimant. I have given no consideration to what is said to be the new material as to her private and family life. The material as to mental health seems to me a non-starter in this sort of case where there is no psychiatric evidence.
24. As I say, it is unnecessary for me to form a view on those issues so the claim succeeds.
25. MISS PHYSSAS: My Lord, we do ask for costs. Regrettably I do not have a detailed breakdown. I just mention that at this stage, but we will send a detailed breakdown to the Secretary of State. We did ask for costs in the --
26. THE DEPUTY JUDGE: In principle you are entitled to costs, subject to anything your opponent says, to be assessed if not agreed.
27. MISS PHYSSAS: My Lord, yes.
28. MR DONNALL: My Lord, in the circumstances I do not see how we can object to it.
29. THE DEPUTY JUDGE: Is there anything else?
30. MISS PHYSSAS: My Lord, no.
31. THE DEPUTY JUDGE: I will leave you two to worry about the order. If I can be of assistance. Thank you both very much.
(Adjourned)
32. THE DEPUTY JUDGE: I thought I had seen the last of you two.
33. MR DONNALL: My apologies. I hope it is brief. The moment you left I considered remedies and relief. The claimant obviously seeks, in addition to the quashing orders, a compelling order that the matter be considered as a fresh claim. You have obviously made your judgment and I can see implicit in its argument to say that you will make such an order, but the Secretary of State's position merely is to ask you to make that yourself rather than for us to agree it as it were. I think otherwise the parties have agreed.
34. THE DEPUTY JUDGE: I will direct that. Thank you very much.