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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 181
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OPINION OF LORD CARLOWAY
in the petition of
TH
Petitioner;
against
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent;
for
Judicial Review of a
Decision by the Respondent to Certify a Claim for Asylum by the Petitioner
ญญญญญญญญญญญญญญญญญ________________
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Act: Winter, Solicitor Advocate; Wilson Terris SSC
Alt: Stewart; C Mullin, Solicitor
to the Advocate General
15 November 2007
1. Facts
[1] The
petitioner arrived in the United
Kingdom by lorry on 3 January 2000. He was arrested. He claimed asylum in the
name of TH, an Iranian national, born in 1967.
The basis for the claim was he had been spying in Iran for an
Iraqi Kurd called OA, who in turn worked for the CIA. He feared persecution by the Iranian
authorities, who had supposedly arrested OA. His claim was refused on 15 May 2000 and
directions were given on 5 July
2000 for his removal to Iran. An appeal against the refusal and the
directions was dismissed by an Adjudicator in a decision promulgated on 22 December 2000. The Adjudicator did not regard the claim as
credible. The petitioner sought leave to
appeal against that decision but this too was refused by the Immigration Appeal
Tribunal in a decision, promulgated on 2 March 2002.
[2] Meantime,
on 8 May 2001, the
petitioner had submitted another claim for asylum in a different name, TK, born
in 1975, on the basis that he was a national of Iraq. The respondent declined to treat this as a
fresh claim on the basis that it had been discovered that he was the same
person as had made the earlier application.
The claim was refused on 26 November
2002.
[3] On
29 October 2004, the
petitioner was convicted at Reading Crown Court of dangerous driving and sundry
other road traffic offences. In this
process the authorities seem to have noted his date of birth as being in 1979. At the time of the offence, the petitioner had
no driving licence, no insurance and no MoT certificate for the car which he
was driving. He collided with another
car, causing severe physical and psychological injuries to a young woman. He had initially denied involvement, claiming
to the police that he had only been a passenger in the car. On 10 December 2004, he was sentenced to twenty one
months imprisonment. On 15 May 2006 he was
served with a deportation notice in light of the conviction. An appeal against this notice was heard by
the Asylum and Immigration Tribunal on 13 June 2006 and refused in its decision
promulgated on 26 June
2006. Not surprisingly,
the Tribunal took the view that the petitioner's actings displayed "a pattern
of dishonesty and deceit" (para 6). It
was not prepared to place any weight on anything said by the petitioner (para
12). The Tribunal concluded that the
petitioner was Iranian.
[4] On
25 October 2006 the
petitioner intimated a third claim for asylum.
This time, it was based on his purported conversion to Christianity. He said that he had been baptised on 13 September 2006, having
spent some time studying the religion. He
said that the day of his baptism had been the day of his conversion, although
he had been on courses for three or four months. His wife had also converted on some
unspecified date in 2006. It was the
petitioner's contention that he feared returning to Iraq, where he
said he had been born, because he would be stoned to death because of his conversion. The respondent treated this claim as a fresh
one and determined its merits. The
respondent refused the claim in a letter to the petitioner dated 21 May 2007. In this letter it was said that:
"16...you have already had your fabricated asylum
claim considered and re-considered by Immigration Judges, and they have been
stated to be fabricated claims....[Y]our current asylum claim is a fabrication
intended to delay/prevent your deportation from the UK. It is not believed that you are either Iraqi,
[TK], or that your date of birth is 02/05/1975, as you now claim.
17...you are an Iranian national who has concocted an
asylum claim in a different identity to delay his removal from the United Kingdom. Since it has not been accepted that you are
Iraqi, we would seek to deport you to Iran. As such, your asylum claim on the basis of
your Iraqi nationality has not been given any merit...
18...You have not demonstrated enough evidence of your
practise of the Christian faith, or of knowledge of this religion, for it to be
believed that you are a convert to the Christian faith as you have claimed .
19 ...you have not provided any evidence that you
would be of adverse interest to the Iranian authorities...because the Iranian
authorities won't persecute you for having converted to Christianity, if they
don't know that you have currently converted to Christianity (as is currently
the case).
...
23 Even if it is accepted that you have converted to
Christianity, which we do not accept, it is considered that anyone that
genuinely considering converting to Christianity would have been preparing
himself to become a Christian prior to their conversion. Therefore at the time of your appeal you
would have been expected to have known about your alleged conversion to
Christianity, but you chose not to declare it. You only claimed to have converted to Christianity
after a signed Deportation Order was signed against you" (sic).
[5] The
respondent also certified the claim under section 96(1) of the Nationality
Immigration and Asylum Act 2002. This
section provides that an appeal against a decision is not competent, where
certification occurs, when the potential appellant has previously appealed
against an immigration decision and:
"(b) ...the claim or application to which the new decision
relates relies on a matter that could have been raised in an appeal against the
old decision, and
(c) ...there is no satisfactory reason for that matter
not having been raised in an appeal against the old decision".
2. Submissions
[6] The submissions for the petitioner were
in short compass. Notwithstanding the
terms of the petition, it was accepted that the respondent had treated the
claim as a fresh one and determined it on that basis. The issue was focused on whether the
respondent's decision to certify the claim was a reasonable one. The petitioner maintained that there had been
a satisfactory explanatory for the petitioner not raising his conversion during
the earlier appeal proceedings. This was
that he had not then been converted. He
had been converted only with his baptism in September 2006. Deliberate concealment of matter for the
purposes of misleading the immigration authorities would not normally amount to
a satisfactory reason for raising it as new matter in a fresh claim (JB petitioner, unreported, Lady Paton,
10 July 2007 [2007] CSOH 121 at paras 22 and 23). So far as the petitioner's conversion was
concerned, that was not the position here.
The Court ought to be reluctant to adopt a construction that prevented
the exercise of what would otherwise be a right of appeal, even if it
considered the prospects of success in that appeal to be poor (R (on the application of Borak) v Secretary of State for the Home Department
[2005] EWCA Civ 110, para 25; R v Secretary of State for the Home Department
ex parte Saleem [2000] Imm AR 529, Hale LJ para 55; Nasseri
v Secretary of State for the Home
Department [2007] EWHC 1548, McCombe J para 39). In the circumstances, the respondent's
decision to certify the claim had been unreasonable and ought to be
reduced.
[7] The respondent argued that the provision
in relation to certification attempted to balance the need for asylum seekers
to have a fair opportunity to state their claims, in light of the serious
consequences which might follow if they could not, and the requirement to have
finality in decision making and to avoid the spinning out of unsubstantiated
claims. In dealing with fresh claims,
there was first a sifting process whereby the respondent would decide whether a
claim was a fresh one or not. The
petitioner had passed that test and his fresh claim had been determined on its
merits. There was then a further sifting
process of certification, designed to promote finality where the same ground as
might have been dealt with in an earlier appeal was being raised in a further application. The respondent had determined that the issue
of conversion to Christianity could have been raised in the earlier appeal. In order to have that determination reduced,
the petitioner had to demonstrate that it was unreasonable so to do. The date of conversion, according to the
petitioner, was the same as that of his baptism. However, the point was whether his conversion,
whether actual or prospective, could have been raised at the earlier stage. The petitioner would have embarked on the
road to conversion well before his baptism. The petitioner had stated that he had been
progressing to conversion for three or four months before his baptism. The respondent had taken account of this and
decided that conversion could therefore have been raised at the appeal heard in
June 2006.
3. Decision
[8] The issue is whether the respondent's
decision to certify the case was unreasonable, in the sense of it being one
which no reasonable immigration authority, properly directing itself, could
have reached. The decision was that the
fresh claim, which the respondent had refused, relied on matters which could
have been raised in the earlier appeal.
That matter was the petitioner's purported conversion to
Christianity. Whether it could have been
raised in the earlier appeal was a matter of fact for the respondent to
determine in the first instance. The
particular determination in this case was based on the timings of the appeal
hearing (June) and the petitioner's eventual baptism (October). The respondent took into account the fact
that conversion of a Muslim to Christianity is not normally something which
occurs with immediacy. It normally takes
some time. Indeed the petitioner himself
had accepted that he had been undergoing courses for three or four months
and presumably had conversion in mind before that. In these circumstances, the respondent had
material before him which entitled him to draw an inference that, if the
petitioner's conversion were genuine (and this was not, of course accepted),
then he must have embarked on the route to conversion in advance of the hearing
of the appeal in June 2006. If that
is so, the respondent was entitled to certify the claim, holding that awaiting
the date of baptism did not amount to a satisfactory explanation for failing to
raise the point at the earlier stage. The petitioner seeks to have what is
essentially a decision of fact reviewed because of unreasonableness, but there
is simply no material to support such a contention. There was sufficient acceptable material upon
which the respondent was entitled to base that decision of fact.
[9] I will therefore sustain the first
plea-in-law for the respondent, repel the plea-in-law for the petitioner and
refuse the prayer of the petition set out in the fifth statement of fact.
