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
		09 July 2014

Prof. Christopher Forsyth :

1. This is an application in which the Claimant, a failed asylum seeker, seeks judicial review of the Secretary of State's refusal of a "Fresh Claim" for asylum. Such claims are governed by para 353 of the Immigration Rules which is designed to ensure that failed applicants cannot apply for asylum over and over again without putting forward new material that is significantly different from that already considered. Para 353, the application of which will form the heart of this judgment, is in these terms (omitting currently irrelevant words):

"When a human rights or asylum claim has been refused or withdrawn… and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine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)   has not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection…."

Preliminary Procedural Issue

2. Before turning to the application of para 353 there is a preliminary procedural point to consider. Permission to apply for judicial review was granted on the 2^nd May 2013 by HHJ Thornton QC. Under CPR 54.14 the Defendant had thirty five days from the grant of permission (i.e. until the 7^th June 2013) to file her detailed grounds (and written evidence) for contesting the claim. And in granting permission HHJ Thornton QC had so ordered. None the less, the Secretary of State only filed her Detailed Grounds of Defence on the 29^th March 2014, about nine months late.
3. In these circumstances Mr Ball, for the Claimant, submitted that I should exercise my powers under CPR 3.4(2)(c) that arise on non-compliance with a court's order and strike out the Defendant's Detailed Grounds of Defence. Mr Ball submitted that this would be in accordance with the "new robust approach" of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 of not generally "granting relief to defaulting parties from the consequences of their defaults" (Lord Dyson MR, para 34). This "robust approach" was adopted in reaction to the fact that "courts at all levels have become too tolerant of delays and non-compliance with orders. In doing so, they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed." (ibid, but citing Sir Rupert Jackson's Final Report Ch 39, para 6.5).
4. But as Mr Hansen, for the Secretary of State, pointed out, the current matter is in the Administrative Court and this distinguishes it from Mitchell which was private law litigation (in fact concerned with costs budgets in litigation between individuals). Mr Hansen went on to argue that there was a public interest in judicial review litigation that was absent in private law litigation. Although Mitchell was not in terms restricted to private law I recognise that there is a public interest in securing the lawful exercise of public power that transcends the interests of the litigants immediately involved. This public interest is not consistent with striking out the Detailed Grounds and thus deciding this case on an artificial basis.
5. I note also that Mitchell was concerned not with the power to strike out a pleading but with CPR 3.9 which is concerned with granting relief from any sanctions imposed for a failure to comply with a rule, practice direction or court order. As Mr Hansen pointed out there was no sanction imposed in this case.
6. Moreover and significantly the courts under CPR 3.9 are particularly directed to consider "the need…for litigation to be conducted efficiently and at proportionate cost; and… to enforce compliance with rules, practice directions and orders". But there is no such particular direction in rule 3.4 – the power I am asked to exercise. Thus I decline to strike out the Defendant's Detailed Grounds of Defence. I note, however, the inordinate delay by the Defendant without any particular explanation advanced to the court.
7. The application of the new "robust approach" of Mitchell to public law litigation will doubtless be considered in other cases; but this is not the case in which to do so.

The facts

8. I turn now to consider the application of para 353 in the context of the facts of this case. The Claimant, an Iranian citizen, entered the UK clandestinely, and was discovered by immigration officers on the 10^th of September 2008. He claimed asylum the same day. His claim for asylum was refused on the 9^th October 2008 and his appeal to the Asylum and Immigration Tribunal was dismissed by Immigration Judge M Davies on the 11^th December 2008. The Claimant was not represented at the AIT hearing or at the earlier Case Management Hearing. The Claimant applied for reconsideration to the High Court; that application for reconsideration was dismissed on the 28^th May 2009.
9. But the High Court judge (Beatson J as he then was) ordered that the documents be placed before the president of the AIT to determine whether the Tribunal had told the Claimant (as the Claimant claimed) that the court interpreter at the hearing would translate the Claimant's documents. In the event the Deputy President of the AIT reported that there was "no reason" to conclude that the AIT had indicated that the court interpreter would provide this service to the Claimant. But while this is conclusive as far as the AIT is concerned it seems clear that the Claimant and the Home Office Presenting Officer at the CMH formed a different impression (see the Determination of the Immigration Judge at para 20). This is the "Translation" issue to which we shall return.
10. The asylum claim having failed the Claimant applied to return to Iran in April 2010 but in early 2011 he turned up in Ireland and claimed asylum there. However, on the 12 April 2011 he was returned to the UK under the Dublin Convention. He was detained and he made further submissions (which were refused on the 24^th April 2011), further submissions were made on the 19^th December 2011 and more on the 6^th January 2012. After consideration all these were refused by the Defendant on the 12 June 2012. It is this refusal that is the subject of this challenge.
11. A word should be added here about the nature of the fresh submissions. At the hearing before IJ Davies the Claimant wished to have considered a series of documents (called by the Claimant books) of some 180 pages in length (written in Kurdish and Farsi) which consisted (according to the Claimant) of criticisms of the Shia religion and the Iranian government. According to the Claimant these documents were written by him. These were the documents that were the subject of the "Translation" issue. The fresh submissions of the 21st November 2011 had as their central feature translations into English of these documents. In addition there were other documents such as the Claimant's birth certificate (with translation) and letters from the Komala Party of Iranians Abroad and the Iranian Kurdish writers Association.

The law

12. The law seems relatively straightforward but its application is less so.
13. First of all, the question whether further submissions constitute a "fresh claim" in terms of para 353 is a matter for the Secretary of State. There is no appeal from the Secretary of State's decision under para 353, only judicial review. Thus in the absence of any suggestion of improper motive or irrelevant consideration or procedural unfairness, the question resolves itself into whether the Secretary of State acted in a Wednesbury unreasonable way in deciding that the further submissions did not constitute a "fresh claim". This conclusion follows from WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, paras 8-10 per Buxton LJ relying on R v Home Secretary ex p Onibiyo [1996] QB 768 and Cakabay v SSHD [1999] Imm AR 176.
14. Satisfying the Wednesbury test is an onerous task. It requires in the classic formulation a decision "so absurd that no sensible person could ever dream that it lay within the powers of the authority" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229). On the other hand, given that asylum is in issue it is appropriate that, as Buxton LJ put it in WM(DRC), (para 7), "the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F."
15. But it may be noted that Lord Bridge (ibid) did not envisage any change in the law applicable in determining whether judicial review should be granted but rather that where an administrative decision may put the applicant's life at risk the courts are "entitled to subject [that] administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines".
16. Para 353 specifies what the Secretary of State is to do in deciding that the further submissions amount to a "fresh claim". They must be "significantly different" from the material previously considered. And they "will only be significantly different if the content: (i) has not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection….".
17. A gloss has been added to these words by Buxton LJ in WM (DRC) (at para 11). In describing the Secretary of State's task in a deciding a "fresh claim" application, he said:

"has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return…. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

18. "Anxious scrutiny", of course, suffuses the whole decision-making process but that aside there are, in fact, two questions in play here. First, has the Secretary of State asked herself the right question as required by para 353, which in most cases (and this one) amounts to "whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return". And, secondly, the right question having been asked, has the Secretary of State none the less made a decision – that there is no such "realistic prospect" – which in the circumstances is "so absurd that no sensible person could ever dream that it lay within the powers of the authority".
19. This approach is the one that will now be applied.

The Claimant's Grounds and Submissions

20. The Claimant's Amended Grounds of the 4^th February 2013, contained, after one ground had been withdrawn, only two grounds for judicial review. The first of these was that the Defendant's finding that there was "no realistic prospect" of success was flawed because the Defendant's reasoning in reaching that conclusion that there was no realistic prospect of success, was "circular". The second ground was that the Defendant's finding that there was "no realistic prospect" of success was vitiated by procedural impropriety.
21. The "circular" argument was as follows: IJ Davies had found in robust terms that the Claimant was not a credible witness and that no part of the claim was credible. This adverse finding on credibility by the immigration judge was thereupon relied on by the Secretary of State in rejecting the further submissions to conclude that "it follows that no weight is attached to these documents". But, says the Claimant, IJ Davies's starting point in finding that he was not credible was his failure to provide translations of these documents. Now that the translations have been provided they cannot be dismissed as incredible simply because they were not available before the immigration judge.
22. The Claimant's argument now broadens into a more general attack of the immigration judge's findings on the issue of the Claimant's credibility. Thus the fresh submissions reveals evidence tending to show that the Claimant was in fact the author of the books in question (even though one was not published under his usual name) contrary to the finding of the immigration judge. There is no doubt that that the Claimant makes some telling points undermining the findings of the immigration judge as to credibility.
23. The final ground on which judicial review is sought was that of procedural impropriety. Although this did not feature strongly in Mr Balls's oral submissions this ground is set out in his skeleton argument and the Amended Grounds. In essence this is the "Translation" issue averted to above. This irregularity meant, argues the Claimant, he should have been accorded the opportunity of an adjournment (which was refused by IJ Davies).

The Defendant's Response

24. The Defendant's response to these arguments and in particular the crucial circularity ground is twofold. First, it is argued that because there was new material in relation to one issue that impacted upon credibility that did not mean that the whole assessment of credibility had to be reconsidered. As the Defendant's skeleton argument states: "the short point is this: the absence of the translated documents was but one factor in a multi-factorial assessment by the IJ of the Claimant's case and his credibility".
25. In the second place, the Defendant argues that even if the new material was taken at its face value (and if it were to be accepted that the Claimant had written the material) fundamental and insuperable difficulties remain. The Defendant is able, for instance, to point to the finding of the immigration judge in regard to the evasiveness of the Claimant under cross examination, inconsistencies in the tale told and the implausibility in the account given of the alleged visit of Iranian security officials (the Etelaat) to his home. These are not undermined by the provision of the translated documents.

Discussion and conclusion

26. It seems to me clear from consideration of the decision letters of the 12th June 2012 and 28th March 2014 that the Defendant addressed her task in a manner consistent with the approach set out above. She asked herself "whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return". Moreover, the decision letters show the appropriate level of care and scrutiny.
27. Thus the issue of substance that remains is the assessment of the Secretary of State's decision-making process. Has she none the less made a decision – that there is no "realistic prospect" of the adjudicator reaching a different decision – which in the circumstances is "so absurd that no sensible person could ever dream that it lay within the powers of the authority".
28. The Claimant's final ground (procedural impropriety) may be swiftly disposed of. Although it is plain that something went awry (that is clear from the immigration judge's determination (para 20)), it is also plain that the immigration judge did not mislead the Claimant. All this is unfortunate but does not show that the Secretary of State made a Wednesbury unreasonable decision or that the proceedings before the IJ were unfair.
29. The "circular" argument has given me much more difficulty. The production of the translated documents and the associated letter connecting the Claimant to those documents must go some way towards mending the credibility of the Claimant so conclusively undermined by IJ Davies. I am impressed too by the supplementary arguments advanced by the Claimant set out above that go some way, it is said, to restore the Claimant's credibility. But the credibility of the Claimant cannot be considered to be fully restored.
30. But was this partially restored credibility sufficient to mean that the Secretary of State's decision was Wednesbury unreasonable? The Defendant drew my attention to Devaseelan v SSHD [2002] UKIAT 000702, para 40(4) dealing with the similar situation where a second adjudicator has to consider facts that were not brought to the attention of the first adjudicator. That paragraph stresses that the second adjudicator should treat such facts with the "greatest circumspection". That tips the balance against the Claimant in my judgment.
31. The Secretary of State in considering whether a hypothetical adjudicator might find there was a "realistic prospect" of success might reasonably anticipate that the adjudicator would view the new material with the "greatest circumspection" and thus find no "realistic prospect" of success in circumstances were the Claimant's credibility remained impaired. Such a conclusion by the Secretary of State is not "so absurd that no sensible person could ever dream that it lay within [her] powers…."
32. This application for judicial review is consequently dismissed.