England and Wales High Court (Administrative Court) Decisions

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

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		24th February 2014

1. HIS HONOUR JUDGE JEREMY RICHARDSON QC: This claim for judicial review is brought with the permission of the Court of Appeal (Moore-Bick LJ) following an oral renewal hearing; permission to apply for judicial review having previously been refused by Sir Stanley Burnton on the papers in the Court of Appeal; by Wilkie J, on the papers in the Administrative Court; and by His Honour Judge Langan QC at an oral hearing in the Administrative Court. Notwithstanding that history the claimant has permission to move for judicial review, and I can well see why my Lord granted permission.
2. It is unnecessary for present purposes for me to give an elaborate judgment. All parties are agreed that none is necessary in the circumstances I shall come to set out. I have had the very considerable advantage of reading not only the papers submitted by the parties in the trial bundle, but the helpful and, indeed, full skeletal arguments by counsel for the claimant and counsel for the Secretary of State. It really suffices for me to say that I prefer, by some margin, the arguments advanced by the claimant.
3. The claimant seeks to impugn a decision of the Secretary of State for the Home Department (the Secretary of State) of 15th June 2013, rejecting the claimant's fresh claim assertions and certifying the claim as "clearly unfounded" pursuant to section 94(2) of the Nationality, Immigration and Asylum Act 2002.
4. There is no doubt that the claimant is a man, no doubt assisted by his lawyers, of some tenacity. His case in respect of his claim for asylum and humanitarian protection has received the attention of officials of the Secretary of State and at least three immigration judges, including on appeal and even prior to the recent foray to the Court of Appeal as a paper application for permission to appeal and an oral hearing upon a renewal in November 2011 in the Court of Appeal.
5. Following the failure of those challenges the fresh claim with which I am concerned was commenced. That is the subject of these proceedings. Even then there was something of a false start because a fresh decision had to be made following the agreement of the Secretary of State to withdraw an earlier decision. This litigation has a prolonged and tortuous history. I trust it will be brought to an end as soon as may be.
6. SN (as I shall call him), the claimant, is aged 62. He is a citizen of Congo. That is a country which has a deeply troubled history. It seems to be having a deeply troubled present. He is a married man, with several children. He arrived in the United Kingdom on 15th August 2009. He claimed asylum on 15th September 2009. That claim was refused by the Secretary of State on 9th November 2009. There was an appeal to the Immigration Tribunal. It failed . There was an appeal to the Upper Tribunal. It failed. There was then a second appeal to the Court of Appeal. It failed. Indeed permission to make the second appeal was refused.
7. The claimant is an educated man, having been to university in Congo and France, receiving, as I understand it, a doctorate in Economics. In 1993 he was a consultant to the Ministry of Industries in Congo. He later became an adviser to the Ministry of Finance and Economy.
8. A matter of considerable importance was the fact that he became the editor of the economics section of a newspaper called Le Temps. It is the claimant's case that that journal was owned by President Pascal Lissouba. The journalist role was part-time whilst remaining an official within the government.
9. In due course President Lissouba was overthrown. He was replaced by President Cecil Sassou-Nguesso. The claimant asserts his fortune changed with the advent of the new government. He asserts he received death threats and became a university lecturer away from government work. He went to live away from Brazzaville and worked eventually in a private company. Eventually he left with his family for a refugee camp before returning to Brazzaville. He resumed government work but declined to become re-involved with Le Temps.
10. In December 1999 there was an incident, as alleged by the claimant, whereby having visited a government department he was handcuffed and blindfolded by three soldiers and taken to an unknown house where threats were made to him. He asserts that shortly thereafter he witnessed the rape of his wife and sister-in-law. There was a further incident a few days later where he was taken to the office of a military officer in a security department of the government and where he was given some money. Thereafter he travelled to Kinshasa and managed to get to France. He then went to Cameroon, where there was further trouble, and where he asserts associates who were also Le Temps journalists were killed.
11. Part of his statement about the events in Cameroon about the threats he received seem almost far-fetched. However, Africa is a continent where on occasion the far-fetched, as it seems to western eyes, is actually the norm. That, however, will be a matter for an Immigration Judge in the future to determine in all likelihood.
12. Before going further, it is necessary, very briefly, to refer to the relevant law. Paragraph 353 of the Immigration Rules deals with fresh claims. It is so familiar that it is unnecessary to set it out in this judgment. Section 94(2) is equally in very clear terms and is familiar to everyone that again that I need not set it out.
13. This judgment is not an appropriate vehicle for me to set out again the relevant law in relation to fresh claims or the concept of a claim being "clearly unfounded". Both provisions have received the authoritative attention of the Court of Appeal and Supreme Court. No useful purpose would be served in me adding to the jurisprudence relating to those provisions in the factual matrix of this case.
14. It is thought that the difference between the two is so narrow as to be irrelevant. I shall not engage upon a debate of my own in that regard. I simply note the observations of the Supreme Court Justices in the case of ZT and the views of various Court of Appeal judges thereafter.
15. Two critical components need, I feel, to be specifically highlighted. There needs to be genuinely new material which is significantly different to the material that has already been considered, when a fresh claim is under consideration. When taken as a whole, the Secretary of State needs to ask whether there is a realistic prospect of success if the matter should be re-judged by the Immigration Tribunal.
16. I derive the following propositions of law from the case of WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and other subsequent cases upon the second of the two matters that I have just highlighted. No one has sought to suggest in this case that there is no new material, so in relation to the second highlighted matter the following propositions are apposite to the question that the Secretary of State must ask. First: is there a realistic prospect of success that an Immigration Judge would think there is a real risk of the claimant being persecuted on his return? Second: in answering that question, the Secretary of State must view the old and the new material. Third, in viewing that material, anxious scrutiny must be afforded by the Secretary of State to it all. It hardly needs saying but a decision incorrectly made could so easily lead to calamitous consequences for an individual returned to a persecutory regime. If a decision is not made with anxious scrutiny, it will be adjudged to irrational in law. It must also be emphasised that it is not the Secretary of State's view of the material that really counts, it is whether there is a realistic prospect an Immigration Judge applying anxious scrutiny would think that there is a real risk of persecution. It is only if the Secretary of State can exclude that as a realistic possibility can the fresh claim fail. The concept of "clearly unfounded" in section 94 has received the attention of the courts. It is unnecessary I feel for present purposes for me to set out the full jurisprudence.
17. The new material that is asserted in this case that was not before the Tribunal on an earlier occasion is set out at page 282 of the decision of the Secretary of State. It is also contained within the trial bundle. It is unnecessary for present purposes for me to set it all out. It makes, if I may so, powerful reading. Its potency will however have to be judged at a later stage by an Immigration Tribunal. For that reason I will not set it out as I do not wish any views I express in this extempore judgment to be misinterpreted by anyone or raise false hopes of success.
18. I do not feel it necessary for present purposes to analyse the previous immigration litigation, in particular the various decisions of the Tribunal judges, both at first instance and upon appeal. Nor do I find it necessary for me to analyse in any great detail the decision of the Secretary of State, which, on any analysis, was a very full document, commencing on page 276 of the trial bundle. There was, within that document: (i) a very full recitation of the history as asserted by the claimant; (ii) a full list of the new material to which I have already referred; (iii) a summary of the various decisions of Immigration Judges and Upper Tier Judges; and, (iv) a summary of the new material which I forbear to set out or make any observation about given the decision I have reached about this claim and the high likelihood this material will have to be fairly weighed by an immigration judge in the future. There is now expert evidence. The real issue is whether that aspect of the matter has received anxious scrutiny and whether that new material, viewed in the way I have described, has the potential for an immigration judge to take a different course than that adopted heretofore.
19. At the outset of the hearing today counsel for the Secretary of State urged upon me the submissions that he very carefully made within the detailed grounds of defence, absent the first point therein, which is it accepted was erroneous. I have also, as I have indicated already, had the very considerable advantage of reading the skeletal argument of the claimant.
20. Early in his submissions, counsel for the Secretary of State, very clearly, and if I may say so, wisely, invited the court, given the law in respect of all of this, to take a view about the new material and whether the Secretary of State fell into any error. The law is established and is well known to all in this case. No really important principle of law is likely to emerge from this case. I can well understand why counsel took this wholly realistic approach and invited the court, if it felt proper, to take a view based upon the very full written submissions which were unlikely to be improved upon by extensive oral argument. In answer to that very clear invitation, I expressed a view, namely that, in my judgment, applying the law, which is effectively agreed between the two parties, that the Secretary of State, in this case, has erred. In my judgment there is sufficient here, applying the appropriate fresh grounds jurisprudence, to assert with validity the Secretary of State has erred. Furthermore, if that is the case, the claim cannot be "clearly unfounded" under section 94(2). Given that is my view, I am of the opinion it is undesirable, and this has been agreed by both counsel, for me to traverse the law in any detail at all; nor is it necessary, given there is likely to be a further hearing before an Immigration Judge for me to traverse the facts of this case at all, over and above the summary I set out at the outset of this case and certain matters to which I shall come in summary form.
21. My attention has however been called to the relatively recent country guidance in the case of LM (Risks on Return Republic of Congo-Brazzaville CG 2008 UKIAT 00064, a decision of the Asylum and Immigration Tribunal consisting of Senior Immigration Judge Warr, Senior Immigration Judge Spencer and Miss JA Endersby, where in summary the court said this:

i. "There have been improvements in the human rights position in the Republic of Congo since the determination of the Tribunal in BB (MCDDI – Known Political Opponent) Congo Brazzaville CG [2004] UKIAT 00223 was promulgated. The conclusion of the Tribunal in BB that past or present membership of an opposition party including the MCDDI would not lead without more to a real risk of persecution on return to Brazzaville remains valid. There continues to be a danger for some political opponents of the current regime. The test of whether there is a real risk continues to depend upon the individual's background and profile including in particular the extent of his political involvement and whether he has or is likely to come to the attention of the authorities."

22. My attention was very rightly called to paragraph 13 of that judgment. I have come to the conclusion here that the Secretary of State has not fully taken into account the role and the status of the claimant in the regime when assessing this matter. Having regard to the fresh material, which includes the commentary upon the facts of this case by an expert, there is, it seems to me, a realistic prospect of success that an immigration judge may take the view there is a real risk of persecution of SN if returned to Congo. I am un-persuaded the Secretary of State has given the anxious scrutiny demanded to an amalgam of the old and new material before reaching the conclusion she reached. There is a real prospect an immigration judge might take a different line in the light of all of this and, in particular, the extent of the political involvement of the claimant in the former regime.
23. In these circumstances, therefore, I have come to the conclusion that I much prefer, by some margin, the arguments advanced by the claimant, fully set out in the skeletal argument to those cogently argued and attractively argued in the written submissions of the Secretary of State. The expert commentary might have made the difference and it has not received the anxious scrutiny demanded in such a situation. The application was not bound to fail in these circumstances and, therefore, the section 94(2) test has not been met. The case should not have been certified by the Secretary of State under that section and she fell into legal error by so deciding.
24. For these reasons I take the view that this is a matter where the Secretary of State has erred and for these reasons I propose to quash the decision.
25. This is a case without doubt, in my judgment, which requires a fresh look at all material, old and new, and a decision made with all possible haste.
26. For those reasons the decision of the Secretary of State of 15^th June 2013 is quashed. This claim for judicial review succeeds.
27. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Gentlemen, is there any particular matter that you particularly want me to say? I have summarised matters but by no means analysed the law. Unless either of you are desirous of me going into all of that, that is all I intend to say. Is there anything either of you want me to add?
28. MR KARIM: Not at all. Thank you.
29. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Is there anything you would like me to say?
30. MR HUSAIN: It may be helpful if you highlight that having regard to the certification test, you are not satisfied that this application, based on that further information, was bound to fail.
31. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I take that view, and I will add exactly what you have said to the judgment, should a transcript be needed.
32. MR HUSAIN: My Lord.
33. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I cannot imagine one will be, but I certainly take that view.
34. This is a claim that was not bound to fail and I take that view without a shadow of doubt upon the information there is and was known to Secretary of State. It was a decision made in error, if I may say so. Does that cover it?
35. MR HUSAIN: It does. In that case, as I see it, it ought to be the decision of 15th June 2012 be quashed and the defendant to pay the claimant's costs subject to detailed assessment if not agreed.
36. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I am inclined to agree.
37. MR KARIM: I agree.
38. HIS HONOUR JUDGE JEREMY RICHARDSON QC: We are all agreed. Thank you, gentlemen.