England and Wales High Court (Administrative Court) Decisions

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

		Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS
		7th February 2014

1. MR JUSTICE GREEN: The Claimant in this application is a Zimbabwean national. He claims that an application that he made to the Defendant amounts to a fresh claim within the meaning of the Immigration Rules ("IR") and the Defendant's rejection of that application as amounting to a fresh claim was unlawful. The case focuses upon the meaning of "fresh claim" within paragraph 353 of the IR and it raises the question whether deliberate conduct by an applicant for asylum, which is intended to raise the risk profile of that person in their home state and thereby improve their prospects of advancing a fresh claim, is to be accepted as relevant notwithstanding its strategic and tactical nature.

The Facts

2. I start by summarising the procedural history relating to this case. On 2nd December 2006 the Claimant entered the UK on a Zimbabwean passport. He entered as a student and had entry clearance valid until 31st December 2008. On 30th December 2008 the Claimant submitted an application for leave to remain as a student. This was refused with a right of appeal, on 22nd October 2009. An appeal lodged on 5th November 2009 was subsequently withdrawn. On 20th April 2010 the Claimant sought asylum. This application was refused on 2nd July 2010 and an appeal against that decision was rejected by the First-Tier Tribunal on 2nd July 2010. His application for permission to appeal to the Upper Tribunal was rejected on 24th August 2010. As of the 7th September 2010 it followed that the Claimant's appeal rights were exhausted.
3. On 10th December 2010 the Claimant made what he considered to be a fresh claim within the meaning of the rules. This was however rejected on 20th January 2011. On 6th April 2011 a pre-action protocol letter was submitted and on 21st April 2011 an application was lodged seeking permission to apply for judicial review. Permission was granted at a renewed oral hearing held on the 28th October 2011.
4. Following the grant of permission the Claimant's submissions, dated 10th December 2010, were reconsidered by the Secretary of State for the Home Department (hereafter "SSHD"). On this occasion the Defendant took account of new material advanced on the Claimant's behalf and assessed all of the evidence hitherto submitted in earlier applications. The Defendant concluded: (a) that on the basis of all the information before her and her evaluation of it there was no basis for reversing the decision already made to enforce the Claimant's removal; and (b) that the new submissions did not amount to a fresh claim. Accordingly no new decision would be taken and the Claimant had no further right of appeal. The date of this new decision was the 26th January 2012.
5. Paragraphs 40 to 42 of that decision under the heading "Conclusion" provide as follows:

"40. Full and careful consideration has been given to the submissions your client has made together with all the evidence put forward earlier and all relevant circumstances known but we are not prepared to reverse the decision to enforce your client's removal. It is considered your client's submissions do not give rise to circumstances justifying the grant of leave under the Immigration Rules. Careful consideration has been given as to whether your client may be eligible for a grant of limited leave to enter or remain in the United Kingdom, in accordance with the published Home Office asylum instruction on discretionary leave. But for the reasons given above it is concluded that your client does not qualify for leave to remain.

41. Having rejected your client's submissions it has further been concluded that there is no realistic prospect that his submissions will, when taken together with all the previously considered material, lead an Immigration Judge, applying the rule of anxious scrutiny, to decide that your client should be allowed to stay in the United Kingdom due to a real risk that your client's human rights would be breached on return to Zimbabwe and accordingly it does not amount to a fresh claim under paragraph 353.

42. An Immigration Judge would be guided by family case law in relation to rights of the individuals and proportionality and would conclude that, even if family life did exist, it would be proportionate to remove your client. An immigration judge would also have regard to the relevant Zimbabwean case Law/Country Guidance cases and would conclude he is not at risk of persecution of treatment contrary to Article 3 of the ECHR."

The Law

6. The two main issues of law arising are (i) as to the standard of review to be applied by the High Court in a case such as the present and (ii) as to the test that the Defendant was required to apply to the application in question.
7. In a case such as the present the task of the court is to decide upon the traditional Wednesbury basis whether the decision of the SSHD is a reasonable one. That test of course has many components to it. In the present case the Claimant puts the case quite simply. It is said that the decision is irrational and unreasonable in the sense that no SSHD properly directing herself as to the requisite test could have arrived at the conclusions of fact that she did arrive at in the decision - see in this regard MN (Tanzania) [2011] EWCA Civ 193, at paragraphs 14-16. It is also of course common ground that in applying the Wednesbury test in the present context the courts will apply a degree of anxious scrutiny to the test; in other words, will be more vigilant than might otherwise be the case given the extremely important ramifications of the decision for the individual. This is what Miss Candlin has described as "the Wednesbury max test".
8. As to the test the Defendant was required to apply, this is set out in paragraph 353 of the Immigration Rules. This states:

"353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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."

9. The paragraph was subjected to judicial scrutiny in MN (Tanzania (ibid). At paragraph 3 the Court of Appeal encapsulated the test in following way:

"To amount to a fresh claim, the submissions have to be 'significantly different from the material that has already been considered'. They must also be considered to have 'a realistic prospect of success' before a putative Immigration Judge. The consequences are important. If there is a fresh claim, the applicant has an in-country right of appeal to the Tribunal upon rejection of the claim by the Secretary of State. If the Secretary of State refuses to treat the further submissions as a fresh claim, the refusal can only be challenged by way of judicial review"

I should add there is no significant dispute between the parties as to the law to be applied by the SSHD or as to the relevant standard that the reviewing court applies to a decision on a purported fresh claim brought by an asylum seeker.

The Claimant's Case

10. The Claimant submits that the SSHD erred in failing to treat his change of circumstances as giving rise to a fresh claim. In his helpful skeleton argument Mr Pipe has identified a number of ways in which the point may be made. The specific criticisms are as follows. First, the Claimant refers to the belated acceptance by the Defendant that the Claimant became a member of the MDC Coventry branch in March 2010 and an Executive Member in August 2010. "MDC" stands for Movement for Democratic Change which is an opposition group in Zimbabwe.
11. In the original decision of 20th January 2011 the Defendant had incorrectly stated that the Claimant only became a member of the MDC Coventry branch in August 2010. The Claimant submits that having acknowledged the earlier error it is irrational to conclude in the 2012 decision that the Claimant does not have a realistic prospect of success before a Tribunal judge. It is also submitted that the Claimant was at the time of the fresh claim the Chair of the MDC Coventry branch Assembly for Youth and Chair of the Fundraising Committee. In his skeleton argument on behalf of the Claimant Mr Pipe succinctly says:

"The Claimant now has an increased profile in the MDC and has a national role."

12. In the course of submissions today Mr Pipe has clarified that the reference in paragraph 3 in the skeleton to "having a national role" in fact refers to facts postdating the decision and that the pivot of the Claimant's argument turns upon the Claimant's participation on the Executive Committee of the Coventry branch of the MDC.
13. The essence of the point focuses upon the incremental increase in profile which it is said the new activities and position amount to, and the concomitant increase in risk to the Claimant were he to be returned to Zimbabwe.
14. The second way in which the Claimant advances his case is as follows. He says that even if, which he denies, he did in fact deliberately "engineer" his increased profile, the Defendant must still properly consider whether the present situation would put him at a real risk of persecution. He cites in this regard the decision of the Court of Appeal in Thomas Danian v SSHD [1999] EWCA 3000 (28th October 1999). Thirdly, he submits that the Immigration Judge who rejected his asylum appeal in 2010 made no finding about the Claimant's activities in the United Kingdom or "sur place" as opposed to in Zimbabwe.
15. It is common ground that I must assess the position as represented and reflected in the decision. I have no evidence as to how matters have evolved thereafter and whether new facts might or might not involve yet further applications to the Secretary of State. In the light of the submissions made the Claimant essentially contends that as an executive member of the Coventry branch of the MDC the Claimant has a significant political profile and prime facie comes within the risk categories set out in the Zimbabwe country guidance. It is therefore unlawful to return him to Zimbabwe.

Analysis

16. The complaints made by the Claimant are in many respects interwoven. In order to assess these submissions it is necessary to trace the history of the MDC argument through course of the proceedings relating to the Claimant.
17. I start with the Defendant's Decision Letter of 12th May 2010. This addresses claims made at that time by the Claimant that he had substantial grounds for fearing serious harm if he were forced to return to Zimbabwe. That letter records a family involvement on the part of the Claimant's mother and father in government in Zimbabwe and with the MDC. It records that the Claimant was a member of the MDC UK Coventry branch, having joined in March 2010. In paragraph 9M the letter states:

"You claim that you have attended meetings and fundraising events and this may become known to the government in Zimbabwe."

This is said in the letter to be derived from the Claimant's witness statement at paragraphs 18 and 19.

18. In paragraph 9C of the same Decision Letter it is recorded that the Claimant feared persecution for his "political opinion as an MDC UK member and for his imputed political opinion for being related to MDC members." This is said to emanate from paragraphs 16 and 17 of his witness statement.
19. In the assessment part of that decision the Claimant's connection to the MDC in the United Kingdom and through association with his parents is considered in considerable detail. In particular the Defendant found that the assertions made about the risk he faced through association with his parents lacked credibility - see paragraphs 18-45. The Defendant considered the position of the Claimant in his own right, in the United Kingdom, in paragraphs 52-56. It is apparent from the logic, in particular at paragraph 53, that the Secretary of State considered the position of the Claimant notwithstanding her conclusion that the obtaining of MDC membership was a contrived act. It cannot therefore be said that the original decision rejected the MDC point simply upon the basis of the Defendant's conclusion that joining the MDC was an "... attempt to bolster a fabricated asylum claim".
20. The next stage in the analysis is the decision of the First-Tier Tribunal of 25th June 2010. The Immigration Judge rejected the Claimant's appeal, both in respect of his alleged risk through association with his parents by virtue of their alleged connection with the MDC - see judgment paragraphs 22-26, and in relation to the position of the Claimant himself.
21. In relation to the activities of the Claimant himself the judgment is admittedly sparse. The individual position of the Claimant, as opposed to his position relative to that of his parents is set out in the last two sentences of paragraph 27 and in paragraphs 28 and 29. The tone is dismissive . The Judge rejects on the evidence the Claimant's assertion that he was a teacher. The Judge stated broadly in paragraph 27:

"I do not find that he is at risk of persecution on account of any past events".

In paragraph 28 the Judge assessed the Claimant's case and refers briefly to the issue of political profile. The Judge stated:

"The question I next have to determine is whether the appellant is at risk of persecution in the future regardless of the veracity of his claims. His claim rests on the fact that he has been in the UK for 4 years and he has applied for asylum. Both parties rely on the country guidance case of RN. In that case the Tribunal stated that one did not need to have a particular political profile in order to be at risk and that the risk of Harare Airport was intelligence led, which means that if the appellant is known to the CIO and is of interests to them, then he could be at risk at the airport. The appellant is clearly not at risk on an intelligence basis. He was granted a passport in 2008 and had he genuinely had a fear he would not have made that application. Further the Tribunal went on to consider the risk to an individual in their home area or en route to their home area, and found that questions were likely to be asked if someone had been out of the country for a long time. The appellant has a good reason for being out of the country. Initially he was on a sponsored course, then he was supported by the authorities in coming to the UK to study for a course. He will be a failed asylum seeker but no more. The period of 4 years he has been out of the country since his last visit are easily accounted for in terms of his course. He may have to pay back some of the funds invested in him by the government if he chooses not to work for them but that is hardly the equivalent of persecution."

In paragraph 29 the Judge concluded as follows:

"The appellant has made an opportunistic application for asylum. The majority of his family are in the UK and this appears to be the only option for him to remain here."

22. I agree that there is no specific reference to the Claimant's MDC activities but these activities were swept up in the judge's general dismissal of any activity on the part of the Claimant as giving rise to a material risk of persecution if the Claimant were removed from the United Kingdom to Zimbabwe. It is quite clear that the Judge did not overlook the Claimant's submissions that his involvement with the MDC in Coventry were a real and live issue because the Judge recorded the fact that in paragraph 3 of the judgment that the Claimant's case was that he was a card holding member of the MDC and attended monthly meetings since March 2010. Furthermore, in paragraph 17K the Judge records the Defendant's submissions (on this occasion of course qua respondent) that the evidence of the Claimant's MDC involvement was not such as to create any evidence that he had come to the attention of the Zimbabwean authorities. In this connection the Defendant cited not only the fact of the MDC membership but also evidence that there were photographs of the Claimant with labour politicians waving a Zimbabwean flag which evidence had been submitted to the Defendant to support the Claimant's contention that his political activities were high profile.
23. In view of this judicial setback the Claimant submitted further information to the Defendant about his MDC connection on 10th December 2010. This was the fresh claim application. It involved submitting a variety of pieces of evidence about the Claimant's involvement with the MDC. The Defendant's Decision Letter of 20th January 2011 addresses each and every one of the items submitted with a view to deciding whether it amounted to a fresh claim. The Defendant's conclusion was that the evidence was self serving and indeed this was said to be the "overriding conclusion". However, the Defendant considered the evidence in addition on the merits. On page 5 of the Decision Letter the following is recorded:

"Notwithstanding this overriding conclusion the evidence you have submitted has been considered in the round with other evidence."

24. The Defendant then proceeded to evaluate each item of evidence and if with a view to deciding whether it was general in nature or specific to the Claimant and if it was specific, as to the Defendant's assessment of the impact, it would have in Zimbabwe and moreover whether this created a risk of persecution. The Defendant took into account evidence that the Claimant had no adverse political profile in Zimbabwe and, importantly, that he had not adduced evidence that there was any reason why the Zimbabwean authorities would direct their resources towards him as opposed to far more prominent activists and members of the MDC leadership. The Defendant also took account of the fact that there was no presumption in law that the system used to monitor foreign political activists in the United Kingdom was, as she put it, "fool proof". As to this see page 6 of the Decision Letter.
25. This brings me, finally, to the decision of 26th January 2012. This reviewed the case generally and took into account the correction to the date on which the Claimant became a member of the MDC and the new fact that he was Chair of two Committees and/or on the Executive.
26. As to these matters the Defendant concluded that they would make no material difference and did not satisfy the test of fresh evidence. Paragraph 19 to 23 provide as follows:

"19. Your client's imputed support for the MDC was considered at length in our previous letters of 11 May 2010, 20 January 2011 and in the Immigration Judge's determination of 28 June 2010.

20. In our previous decision of 20 January 2011 careful consideration was given to the documents your client submitted in support of his claim. The decision to refuse those submissions is maintained. However, one point which needs to be clarified is that we stated that your client only became a member of the MDC Coventry Branch Executive in August 2010. It is now accepted that your client became a member of the MDC in March 2010 and became an executive Member in August 2010.

21. In our decision of 11 May 2010 it was found that with the information your client had provided it was considered that your client had a very limited involvement with the MDC in the United Kingdom. It is clear after the Decision Letter was issued and after your client was found to not be a credible witness at his appeal in June 2010, your client then became an Executive Member of the MDC in August 2010. It is considered that he became an Executive Member deliberately in order to raise his profile and attempt to bolster his claim.

22. With regard to your client's claim that his profession as a teacher would put him at risk on return to Zimbabwe the Immigration Judge found that your client was not in fact a teacher but a graduate in physical education. Your client was found to not have any vocational training as a teacher, had provided no evidence of having worked as a teacher in Zimbabwe or anywhere else and it was therefore not accepted that he was at any risk of persecution and did not come with any of the risk categories identified by RN Returnees (Zimbabwe) CJ 2008. This position remains the same. Your client has provided no further evidence to support the claim that he is a teacher or that he intends to teach on his return to Zimbabwe.

23. With regard to the claim that there is a heightened risk in his situation in that he has lived outside Zimbabwe since 2006 and the long absence, and his involvement with the MDC party is a risk in itself, as he will not be able to positively prove his loyalty to the Mugabe regime this claim, was dealt with in our Decision Letters of 11 May 2010 and 20th January 2011. As you have failed to provide any further evidence to support this claim the decisions of 11 May 2010 and 20 January 2011 are maintained."

27. The Defendant then put these conclusions into the context of the United Kingdom Border Agency report of the fact- finding mission to Zimbabwe Harare 9th to 17th August 2010 reissued 27th October 2010 which was to the effect that there was no or at least no material evidence of returnees being mistreated.
28. I turn now to consider the Claimant's submissions in the light of this factual context.

Submission 1: the modification to the Claimant's position in the MDC.

The Defendant has concluded that the elevation of the Claimant in the hierarchy of the Coventry branch of the MDC from a mere member to someone actively involved in the executive is not material.

29. First, there can be no objection based upon the correction itself since the earlier error has now been acknowledged. Secondly, I can discern no Wednesbury type error in this analysis. The Defendant reiterates her concern in paragraph 21 that this is all smoke and mirrors and deliberate steps to promote the Claimant's image and profile thereby to heighten risk. However, in paragraphs 22 and 23 she goes beyond her deep scepticism and appraises the merits of the position. In paragraph 22 she dismisses his claim that as a teacher he would be at heightened risk in Zimbabwe. It needs here to be recalled that part of the argument about the risks of being a teacher were that they were suspected as a group of being MDC sympathisers. She refers to the fact that his claims in this regard were rejected as fabricated. There is no challenge to this conclusion in this case.
30. In paragraph 23 the Defendant specifically rejects the submissions that inter alia his involvement with the MDC is a risk in itself. She refers to her previous decision letters. It will be recalled that these were predicated upon the conclusion that the Claimant's activities were, in substance, too low level and too remote from the attentions of the Zimbabwean authorities to be of interest. She also refers to the 2010 report which is to the effect that on the ground in Zimbabwe there was no evidence of persecution of returnees. She identifies as supporting this conclusion the absence of any evidence proffered by the Claimant to support his conclusion that there is some real nexus between his increased or incremental profile and the risk in Zimbabwe.
31. Viewed from a rationality perspective, including with a Wednesbury max turbocharge, the Secretary of State addressed the correct issues and formed a view based upon the evidence she had collected as to risk. Further, she took account of the lack of credible evidence presented by the Claimant and the remoteness of the asserted link between his activities in Coventry and the real interest of the Zimbabwean authorities. The decision to reject the application for this to be treated as fresh evidence was perfectly rational and proper.

Submission 2: the deliberateness of the conduct

32. The Claimant in his skeleton argument has submitted that the Secretary of State has erred in rejecting the Claimant's case based upon her conclusion that it was an artificial contrivance. As to this there is no doubt that the Secretary of State adopted a robustly sceptical stance towards the Claimant's position. However, it is not correct to state that this led her to reject the application upon that basis. This is evident from inter alia the following. First, paragraphs 52 - 56 of the Decision Letter of 12th May 2010 and especially paragraph 53. Secondly, page 5 of the Decision Letter of 20th January 2011. Thirdly, paragraphs 22 - 24 of the letter to 26th January 2012. Fourthly, the fact that in her original Decision Letter of the 12th May 2010, at paragraphs 54 and 55, she cites Tribunal and Court of Appeal authority which confirms that even in relation to disingenuous claims for asylum a proper appraisal is required because it is acknowledged that what truly matters is the perception abroad and not the bogus reality at home - see in this regard EM (Zimbabwe) v SSHD [2009] EWCA Civ 1294, cited in paragraph 55 of the decision. Therefore I do not accept the submission that the Defendant decided the matter on a false legal basis.

Submission 3: failure of the Immigration Judge to make findings about the Claimant sur place activities as opposed to activities occurring in Zimbabwe.

33. I have addressed this in my recitation of the relevant parts of the judgment. I agree that the Judge dealt with the issue cursorily but it is nonetheless addressed. The Judge records both the appellant's and the respondent's submissions as to the MDC issue and she was quite plainly dismissive of the appellant's arguments since she lumped the MDC issue into her rejection of the notion that any of his past activities created a material risk profile.
34. In any event even if the Judge erred to succeed in this application the Claimant must show that the assessment, standing alone, is defective and for the reason that I have given I have concluded that it is not.
35. For these reasons I conclude that the Defendant did not err in deciding that the new material was not fresh in the legal sense and did not therefore justify any sort of decision in the Claimant's favour. The application for judicial review does not succeed.

Postscript

36. I would add this by way of postscript. In the course of argument today I have had shown to me the judgment of the Upper Tribunal in BC v SSHD Appeal No AA/0176/2011 (determination of the 10th January 2014). That case concerns an appeal by a person whom it is alleged is now the wife of the Claimant in the present case. It is right to record that in that case the Upper Tribunal found that by virtue of the activities of the particular appellant in the MDC, that a sufficiently high profile did exist such that there was a risk that she might be subject to persecution in Zimbabwe.
37. I note in addition that in paragraph 16(3) of the judgment there is a reference to the Judge below, whose decision was subject to appeal, having made a finding about the Claimant in the present case. Paragraph 16(3) states:

"CC had been the assembly for youth chair person and a particular internet printout had been provided updated on 10th January 2011. The printout updated 23rd February 2011 showed that he was no longer the Assembly for Youth chair person. The Judge was concerned that he had not occupied the role for a particularly lengthy time and this did nothing to inspire confidence that his involvement was genuine."

38. I should add that I make in relation to the appellant is the case I have just cited no findings about the position or the role of the Claimant in the present case. It is possible that yet further applications might be made by the Claimant, based upon a change of circumstances. For example, he may or may not have rights which arise out of his position as the partner or spouse of the appellant, who was successful in the appeal to which I have made reference. Accordingly, nothing that I have said in this judgment is designed to in any way affect the position postdating the decision that I have found to be lawful.
39. For these reasons the application for judicial review does not succeed.
40. MISS CANDLIN: My Lord, the Secretary of State does ask for costs of this matter. At the last hearing the costs were reserved. She would seek for the permission stage and of today.
41. MR JUSTICE GREEN: Yes.
42. MISS CANDLIN: I do not have a schedule but they would be subject to assessment.
43. MR PIPE: My Lord, there is little I can say. The Claimant is publicly funded so it would be subject to detailed public funding assessment. I do not think there is much more that I can say.
44. MR JUSTICE GREEN: Yes, you can have your costs.
45. I imagine as a matter of course a transcript will be prepared of this.
46. MR PIPE: I presume so, I know not. I look to your clerk.
47. MR JUSTICE GREEN: It would be in the RCJ (Pause). I will correct it in due course and then it will be sent to the parties.
48. MR PIPE: My Lord I am grateful.
49. MR JUSTICE GREEN: Is there anything else?
50. MR PIPE: No my Lord.
51. MR JUSTICE GREEN: Thank you both very much indeed.