OUTER
HOUSE, COURT OF SESSION [2007] CSOH 18 |
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OPINION OF J GORDON (Sitting as a Temporary Judge) in the Petition ANDREI HARBACHOU Petitioner; for Judicial Review of a Decision of the
Secretary of State for the Home Department Respondent; ________________ |
Petitioner: Devlin;
Drummond Miller, W.S.
Respondent: Stewart;
H. Macdiarmid
Introduction
Factual Background
[2] The
Petitioner is a national of
[3] By
letter (with accompanying documents) dated
Issues
[4] The Petitioner challenges the Decision on a variety of grounds. Essentially, the Petitioner contends that the Respondent was not entitled to conclude that the Further submissions did not amount to a fresh application within the meaning of Rule 353, and that he failed to give adequate and comprehensible reasons.
Legal Framework
[5] Rule 353 of the Immigration Rules (HC 395)(as amended) provides as follows:
"When a human rights claim
or asylum claim has been refused 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."
[6] There was much discussion about the approach which Respondent and the Court had to adopt. In summary, in my opinion, the Respondent must consider (i) whether the new material is significantly different from the material previously considered, and (ii) if it is significantly different, whether it, taken together with the previously considered material, creates a realistic prospect of success in a further asylum claim before an adjudicator. This is a relatively modest test for an applicant to pass. It amounts to little more than there being a reasonable chance that the claim might succeed (R ex parte Rahimi v SSHD [2005] EWHC 2838 (Admin) 21 November 2005 Collins J at paragraph 12; Collins J subsequently modified his approach to other aspects of the legal framework in Naseer v SSHD [2006] EWHC 1671 (Admin) 21 June 2006, at paragraphs 32 and 37; R ex parte Palash v SSHD [2006] EWHC 2702 (Admin) at paragraph 9).
[7] The
Respondent must consider whether there is a realistic prospect of an
adjudicator (giving the proceedings anxious scrutiny) concluding that the
Petitioner will be exposed to a real risk of persecution on return to
[8] If
the new material is significant, apparently credible, and where appropriate was
not previously available, and, when taken together with the previously
considered material, is reasonably capable of producing a different outcome
(i.e. a favourable view could be taken of the new claim by an adjudicator
despite the unfavourable conclusion reached on the earlier claim), the
relatively modest test will, it seems to me, have been passed (see for example Rahimi ibid at paragraphs 13-15,
and 18-20, as subsequently
explained in Naseer at paragraphs 32-36).
[9] The Court is not concerned with the merits of the Respondent's decision but whether as a matter of reasonableness or rationality in all the circumstances, or as a matter of law, and the two may overlap, he was entitled to reach the decision made. It is thus not for the Court to form its own view on whether there is a realistic prospect of success, or on whether an adjudicator properly directing herself on the law would conclude on the basis of all the material that there was a real risk of the Petitioner being persecuted on being returned to Belarus. However, the Court must decide whether the Respondent acted within the foregoing legal framework and whether the decision was rational or irrational.
[10] In short, the test the Court must apply is essentially Wednesbury reasonableness, in its
current state of development. However,
as asylum is in issue, all decision-makers, including the Respondent and the
Court, must give anxious scrutiny to
the material placed before them (see generally R v SSHD ex p Onibiyo 1996
QB 768, Cakabay v SSHD 1999 Imm AR 176 at 189, 194-195
and Bugdaycay v SSHD 1987 AC 514 at 531F-G). In particular, the Court must be satisfied
that the Respondent has addressed the correct questions or issues and given
anxious scrutiny to them. Dicta in these authorities are
indicative of the proper approach to
these issues. The dicta should not, in my opinion, be over-analysed as if they were
the text of statutory provisions (see Nassir
v SSHD 1999
Respondent's Decision on Original Application for Asylum
[11] The Petitioner's claim that he had a well-founded fear of persecution in Belarus was based upon (i) his membership of the Belarus Popular Front, and his political opinions; (ii) arrests on three occasions, detention and beatings by the police, (iii) the assertion that, as a Catholic, he was not allowed to practise his religion, and (iv) his fear of ill-health from radioactivity in Belarus.
[12] The claim was rejected by letter dated 28 February 2003 [7/1] on the grounds that (i) while the security forces in Belarus continued to arrest and detain arbitrarily, these were most often in connection with unauthorised demonstrations, (ii) the petitioner's arrests appeared to be lawful; (iii) the claim amounted to the police abusing their position rather than persecution, (iv) the Respondent did not consider that the Petitioner would be of continuing interest to the Belarus authorities, (v) the constitutions of Belarus allow freedom of religion, and (vi) there are areas within Belarus which contain a large Catholic population and which are free from radioactivity.
The Adjudicator's Determination
[13] The Adjudicator found that the policies of the
[14] The Adjudicator concluded inter alia that (i) the court summons produced did not relate to criminal charges, and that it could not be accepted that the Petitioner would be subjected to criminal charges, unfair trial imprisonment or ill-treatment if returned to Belarus [paragraph 2], (ii) the Petitioner's fear of arbitrary arrest, if returned to Belarus, was not well-founded because, following his last arrest in 2001, he remained in Belarus for seven months without further arrest, without any charges being brought and without any threats from criminal elements [paragraphs 25 and 26], (iii) the Petitioner could avoid such threats by relocating elsewhere in Belarus [paragraph 27], and (iv) there was no evidence to show that failed asylum-seekers face persecution or human rights abuses on return to Belarus or that former political activists would be persecuted on the basis of their past activities [paragraph 29].
The Immigration Appeal Tribunal's Decision
[15] The grounds of appeal were, in summary, that (i) the Adjudicator had ignored the terms of the summons produced which referred to criminal sanctions for non-compliance, (ii) the Petitioner was of enduring interest to the Belarus authorities, (iii) official permission was required to relocate within Belarus and this was impossible to obtain, and (iv) the adjudicator's conclusion regarding the risk to failed asylum-seekers and political activists was irrational.
[16] The appeal tribunal concluded that (a) the Adjudicator was not necessarily wrong to take the view that the summons related to civil proceedings, (b) the consequences of failure to comply with it were not such as to conclude that the Petitioner would be unlikely to receive a fair trial, or face persecution if convicted and sent to prison, (c) while internal relocation would be difficult, the evidence did not justify the conclusion that it would be impossible, and (d) the Adjudicator was entitled to come to the conclusions she reached for the reasons given.
The Decision Under Challenge by Judicial Review
[17] The Further Submissions to the Home Office referred to and
relied heavily upon correspondence and a summons directed at the Petitioner's
mother requiring her to attend with the police authorities in July 2005
and provide them with details of his whereabouts. What, if anything, happened in July 2005,
is not disclosed. Reference is also made
to correspondence from a friend who was involved in political activities and
who has been arrested. One of the
letters (from "Olga" and undated), states that the District Department of
Internal Affairs threatened to make "big trouble for her" (the Petitioner's
mother) if she did not reveal the Petitioner's whereabouts. Another letter (dated
[18] The
[19] In the Decision Letter [6/2], the Respondent, or more correctly the official acting on his behalf, states inter alia:
"Your client has provided
various letters and translations of Court Summons allegedly addressed to his
mother. We are not persuaded that their
production adds any weight to your clients (sic) case. It would appear unlikely, given your
clients(sic) alleged level of involvement, that after some years the
authorities would still be pursuing him.
The Immigration Tribunal in their determination of
[20] It can thus be seen from this first passage that (i) the Respondent was not persuaded that the summons and correspondence added any "weight" to the Petitioner's case, and (ii) it appeared to him "unlikely" that the Belarus authorities would be pursuing the Petitioner after the passage of some years given his alleged level of "involvement" (presumably in political activities). The Respondent also noted the Immigration Appeal Tribunal's finding that internal flight, while difficult, would not be impossible. The Decision Letter then proceeds to sum up what has already been stated and concludes this part of the decision as follows:
"We are not persuaded that
these documents substantiate your clients (sic) claim that he would be subject
to treatment that would engage Articles 2, 3, and 8 of the ECHR
on his return to Belarus." (the "second passage").
[21] After considering and rejecting the Petitioner's eligibility for a grant of Discretionary Leave, the Decision Letter continues:
"Some points raised in your
submissions were considered when the earlier claim was determined. They were dealt with in the letter giving
reasons for refusal dated
The remaining points raised in your submissions, taken
together with the material previously considered in the letter/determination,
would not have created a realistic prospect of success.
The asylum claim has been reconsidered on all the
evidence available, including the further representations, but we are not
prepared to reverse our decision of
The remaining part of the Decision Letter is formal.
Submissions
[22] The petitioner's submissions are set forth at great length in the amended petition, which Mr Devlin prepared, at the request of another judge before whom the proceedings called at an earlier stage. He developed those submissions in the course of the Hearing. In summary, the petitioner's arguments are:
i. The requirement that the
Further Submissions be "significantly different" from the material previously
considered, does not imply that there must have been a change in the factual
basis of the application. Convincing fresh
evidence of the same persecution previously alleged is capable of giving rise
to a fresh claim (R v SSHD ex p Ravichandran (No 2) [1996 Imm
AR 418 at 431).
ii. The new material must be such as might reasonably lead another Immigration Judge to reach a different result e.g. if it goes to overcome the doubts about an applicant's credibility which led to the dismissal of his original claim (Onibiyo at 381).
iii. The Respondent did not keep clearly in his mind that he was deciding whether a fresh claim had been made, but asked himself whether the Further Submissions were well-founded.
iv. The content of the Further Submissions taken together with previously considered material create a realistic prospect of success where (a) the content of the Further Submission is apparently credible, there being nothing on its face to show that the content is incredible; if investigation is required to determine credibility then the material is apparently credible (SSHD ex p Boybeyi [1997] Imm AR 491 at 494-7; Hassan v SSHD 2004 SLT 34 at 40F paras. 36-37), and (b) the content of the Further Submission is capable of having an important influence on the result of the case, although it need not be decisive. Here, no reasonable Secretary of State properly directing himself in the relevant law could have found that the content of the Further Submissions was not apparently credible (Onibayo at 381-383). The Adjudicator had found the Petitioner to be a "witness of truth". Moreover, no such Secretary of State so directing himself would have found that the content of the further submissions could not reasonably go to overcome doubts which led to the dismissal of the original claim. The doubts which led to the dismissal of the original claim related to (a) whether the Petitioner faced unfair trial, imprisonment or ill-treatment in detention, (b) whether the Belarusian authorities had any enduring interest in the Petitioner, and (c) whether the Petitioner would face a threat from criminal elements in Belarus. The new material could reasonably allow an Immigration Judge to overcome the doubts expressed by the Adjudicator as to whether the Petitioner faced unfair trial, imprisonment or ill-treatment in detention. The new material suggested that the Belarusian authorities did have an enduring interest in the Petitioner. This could reasonably allow an Immigration Judge to over come doubt (b) above. Doubt (c) becomes irrelevant once it is accepted that the Petitioner has a well-founded fear of persecution at the hands of the State, apparently in pursuit of an official policy; thus there is nowhere in the State where the Petitioner could safely relocate; there is therefore no internal flight alternative. Nothing in the documents indicated there was any lack of credibility.
v. The Respondent failed to
give adequate and comprehensible reasons for his decision (Wordie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345 at 348). The Decision Letter left real and substantial
doubt as to why the Respondent (a) was not persuaded that the content of
the Further Submissions added any weight to the Petitioner's case, (b) rejected
the evidence that the
[23] In the course of his submissions, counsel for the Petitioner
also advanced the following two propositions.
First, he submitted that the Respondent erred in law in that he
dismissed the new material that accompanied the Further Submissions on the
grounds of weight. Weight, at best was
peripheral to the question whether a fresh claim was being made. This indicated that the Respondent was not
considering whether the claim was a fresh application. Second, he submitted that the Respondent
erred in that he found that the content of these Further Submissions (a) had
already been considered and (b) taken together with the previously
considered material, did not create a realistic prospect of success. The new material was evidence of the
intensification on the part of the
[24] The main difference between Rule 353 and 354 was that the order of the decision making process was reversed. Now, the Respondent asks himself whether the further submissions are well founded and, if they are not, he considers whether they amount to a fresh claim. Questions of significance, credibility and availability still arise by implication. Rule 353 was not wider in scope than Rule 346, and the authorities under the latter rule were relevant to the proper approach to the new Rule.
[25] In the course of his submissions counsel for the Petitioner
also referred to Bugdaycay v SSHD 1987 1 AC 516 at 531E-G, Smith 1996 QB 517, Nazir v SSHD 2002 SC 145se 15 at 34G; the Respondent's analysis of this case was
strained; the distinction drawn between
a change of circumstances and new evidence was temporal; to
Januzi v SSHD 2006 2 WLR 397
at 412E-413B, which reviewed the
law relating to internal relocation and Linn
v SSHD 2005 SLT 301 at 304E-F, paragraph 12, which also considered that
topic. Reasonableness is the test to be
applied when deciding whether a relocation alternative is open to an applicant
for asylum (Naseer v SSHD [2006] EWHC 1671 (Admin)
[26] Mr Stewart, for the Respondent, submitted that under Rule 353,
there was a three stage test, the first being whether to reject the
application. If the application is
rejected, the second and third stages are considered. Rule 353 amended the previous test, as
set forth in paragraph 12 of Nazir. The second stage or test was the Acid Test in Onibiyo
which was still applicable. The
third test was the familiar Wednesbury test
as set forth in Ndaya v SSHD [2006] CSOH 19
[27] Mr Stewart highlighted various elements of the
Adjudicator's Determination, namely (i) visits from the police,
attributable to registration of the Petitioner's business (paragraph 5 of
the Determination), (ii) threats by criminal elements (paragraphs 12
& 27), (iii) acceptance that Belarus has an oppressive regime
(paragraphs 22 and 23), (iv) a court summons in relation to a
civil matter, and (v) internal relocation.
The appeal before the IAT concentrated on the court summons, the alleged
enduring interest in the Petitioner by the Belarus authorities, and internal
relocation as did the further appeal documents [7/6 and 7/8]. The theme of the Further Submissions was (i) the
pursuit of the Petitioner by the authorities, (ii) the summons issued to
the Petitioner's mother, and (iii) general conditions in
[28] With reference to the Decision Letter, Mr Stewart submitted
that (i) the Respondent was entitled to assess the material and thus the
weight to be attached to it, (Nkereuwen
v SSHD 1999 Imm AR 267 at 270, Naseer v SSHD [2006] EWHC 1671(Admin) 21 June 2006 Collins J paragraph 22
and 37), (ii) while not the clearest or most elegant, the Decision Letter
nevertheless satisfied the test in Wordie
Property Company Ltd v Secretary of
State for Scotland 1984 SLT 345. Reference was also made to Singh v SSHD 2000 SC 219 at 222H-223C,
and (iii) the material considered by the Respondent fell into the
second category (new evidence bearing on matters or factual assertions
considered in the original application) identified by Lord Macfadyen in Nazir (at paragraph 25). These matters were the police interest in the
Petitioner, and the repressive nature of the
[29] Mr Stewart also pointed out that Hassan had been successfully reclaimed. He produced a copy of the Inner House Interlocutor dated 23 March 2006 dismissing the petition "in respect that the Lord Ordinary failed to recognise that, in terms of Rule 346 of the Immigration Rules, a further representation will be treated as a fresh application for asylum only if there is a realistic prospect of success and that, in a case of non-state persecution, there could be no such prospect unless there was an offer to prove failure by the home state to afford protection against that ill-treatment, as required by the decision in Horrvath v Secretary of State for the Home Department [2001] 1 AC 489, which, in this case, there was not."
Discussion
[31] In the first and second passages and indeed, in all the text which precedes them, it seems to me that the Respondent is addressing the initial question to be considered under Rule 353, namely whether the Further Submissions fall to be rejected. His answer to this question is not the subject of attack. It is, in my opinion, the third passage which considers the other question (which falls into two parts) under Rule 353, namely whether the Further Submissions amount to a fresh claim and, in particular, whether they are significantly different from the material previously considered, and when taken together with the earlier material, created a realistic prospect of success, notwithstanding their rejection.
[32] The Respondent, in the first and second passages, is expressing his own view of and deciding the merits of the Further Submissions. He considers and rejects them. Thus, he states that he is not persuaded that their (sic) productions add any weight to your clients (sic) case. The Decision letter proceeds It would appear unlikely ..... that.... the authorities would still be pursuing him. The passage concludes by stating that We are not persuaded that these documents substantiate your clients (sic) claim.....
[33] In the first part of the third passage, the reference to Some points raised in the Further
Submissions having been previously considered when the earlier claim was
determined, is vague. However, it is
reasonably clear from the material before the Respondent that this must relate
to (i) the nature of the regime in
[34] The new material relates to the summons sent to the Petitioner's mother and the correspondence to show that there is (contrary to the Adjudicator's finding on the original material [7/3 at paragraph 26] an enduring interest in the Petitioner. This material thus seems to constitute new evidence about a matter previously considered, although the summons might also be classified as a new event and therefore a change of circumstances.
[35] The final part of the third passage of the Decision letter seems to me to be bare assertion. Again, the (remaining) points are not identified, but as the Respondent is here referring to realistic prospect of success, he must be directing himself to the material not previously produced. This material as set forth above, relates to the summons directed at the Petitioner's mother, apparently with a view to her disclosing the Petitioner's whereabouts to the Belarus authorities, the assertion that the Belarus authorities had an enduring interest in the Petitioner and that he would be at risk (to put it broadly) if he were to return.
[36] The Respondent does not give any reason in the third passage
for stating that these points taken together with the material previously
considered do not create a realistic prospect of success. It can be inferred from the first passage
that the Respondent has rejected the
content of the new material, found that it is not credible and found as a fact
that the
[38] What I do decide is that, in the foregoing circumstances, the Respondent has fallen into error. It seems to me that the absence of reasons indicates that the Respondent has not correctly addressed himself to the correct question. This is an error of law fundamental to the issues before him. The absence of reasons also tends to show that the Respondent has not given the claim the anxious scrutiny required. He has thus misdirected himself in law. He has failed to give or to give adequate reasons for his decision and has not, so far as appears from the terms of the Decision Letter, given anxious scrutiny to the Petitioner's claim. Whether the Respondent can properly arrive at the same decision by giving proper and adequate reasons remains to be seen.
Result
[39] I shall therefore sustain the Petitioner's plea-in-law, repel the Respondent's pleas-in-law and reduce the Decision Letter. All questions of expenses are, meantime, reserved.