Scottish Court of Session Decisions

Petitioners: Doherty, QC; Forrest; Drummond Miller

Respondent: Miss Carmichael; Solicitor to the Advocate General:

13 February 2007

[1] The first petitioner is Fatima Kaniz. She is a national of Pakistan. She was born on 21 May 1961. The second, third, fourth, fifth and sixth petitioners are her children. Prior to 17 January 2007 the petitioners resided together at an address in Glasgow. On 17 January 2007, the petitioners were detained and thereafter held at Dungarvel Detention Centre. The respondent is the Secretary of State for the Home Department. He is responsible for the enforcement of the immigration and nationality legislation and related provisions throughout the United Kingdom.

[2] The petitioners formerly resided in Pakistan. On 15 June 2002 they entered the United Kingdom. On 18 June 2002 the first petitioner claimed asylum on the ground that she had a genuine fear of persecution if she returned to Pakistan and that for the United Kingdom authorities to remove her there would contravene her human rights. Put very shortly the first petitioner's claim was that she had been the subject of serious physical abuse by her husband against whom the authorities in Pakistan were unwilling to offer her protection. She founded on her status as a woman as giving rise to fear of relevant persecution.

[3] The first petitioner's claim for asylum was refused by the respondent on 18 June 2002. The first petitioner appealed. After a hearing on 22 April 2003 her appeal was refused by the adjudicator in terms of determination promulgated on 19 May 2003. The first petitioner appealed this determination. Permission to appeal was refused.

[4] The first petitioner submitted further claims for asylum on 22 December 2003 and on 23 February 2005 for consideration as fresh claims. The respondent rejected these submissions as not being fresh claims. The first petitioner did not challenge the rejection of these claims.

[5] On 6 December 2006 the first petitioner's solicitors submitted further representations on behalf of the first petitioner. These included evidence relating to an incident in August 2005 when it was alleged that the first petitioner's husband had shot and wounded a relative of the first petitioner. It was further alleged that this incident had occurred because the first petitioner's husband had been looking for the first petitioner and her children. The evidence consisted of a newspaper article, a translation of the newspaper article, a First Information Report of the incident to the police, and a discharge certificate from hospital relating to the injured relative. The submission on behalf of the first petitioner was presented as being a fresh claim under reference to Immigration Rule 353.

[6] By letter dated 8 January 2007 the respondent determined that the first petitioner's submissions did not amount to a fresh claim. It is this determination which the petitioners make subject to judicial review in this petition.

[7] The petition was presented to me for a first order on 19 January 2007. The petitioners were represented by junior counsel. Having regard to the terms of the petition, and the history of the first petitioner's claims for asylum, I ordered intimation and service on the respondent on a reduced notice period of five days and fixed 2 February 2007 as the date of the first hearing.

[8] I shall have occasion to return to what occurred between 19 January and 2 February 2007.

[9] Parties appeared before me on 2 February 2007. The petitioners were represented by Mr Doherty, QC and Mr Forrest, Advocate. The respondent was represented by Miss Carmichael, Advocate. Miss Carmichael tendered Answers. The Answers included a plea of no title or interest on the part of the second to sixth petitioners to seek judicial review and a general plea to the relevancy. Mr Doherty tendered a Minute of Amendment and moved that the petition be amended in terms of that Minute. Miss Carmichael offered no objection to the amendment, reserving her position in relation to expenses should the petitioners succeed on a point which was only introduced by way of amendment.

[10] The Minute of Amendment introduced the contention that the respondent had erred in law by not applying the correct test as to whether the submissions amounted to a fresh claim. It also introduced a reference to the decision of the Court Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA CIV 1495. Having conceded that the second to sixth petitioners did not have title or interest to present the petition because no application for asylum had been made on their behalf and the submission contained in letter of 6 December 2006 had been made exclusively on behalf of the first petitioner, Mr Doherty proceeded to develop an argument which was based solely on the contention introduced by way of amendment. The only decided case referred to was WM (DCR) v The Secretary of State for the Home Department supra. Having heard Mr Doherty, Miss Carmichael intervened formally to concede that the respondent in determining that the submission made by letter of 6 December 2006 was not a fresh claim, had applied the wrong test, the correct test being that that which was explained in the judgment of Buxton LJ in WM (DCR) v The Secretary of State for the Home Department. She did not, however, concede that it followed that the respondent's determination of 8 January 2007 fell to be reduced. The adjudicator had refused the first petitioner's appeal on 19 May 2003 because he did not find her evidence relating to her fear of persecution to be credible. It therefore was unnecessary for him to consider the question of internal flight. However, he stated that had it been necessary for him to do so he would have considered that internal flight would have been appropriate. He thought it unlikely that the first petitioner's husband would find her if she moved to another area of Pakistan, even if, as the first petitioner had alleged, she was charged with adultery. Albeit that she probably would not be able to stay with relatives, she did have relatives who could give her support. The adjudicator found that it would not be unduly harsh for her to move to another area of Pakistan. Miss Carmichael drew my attention to what the adjudicator had said in his determination. It was her submission that the new material included the letter of 6 December 2006 had nothing to do with whether the first petitioner could avoid what she claimed to be relevant persecution by means of removing herself to another part of Pakistan. Accordingly, whatever view might be taken as to the first petitioner's fear of relevant persecution, even with regard being had to the new material, it must be presumed that the same view would be taken on internal flight as had been taken by the adjudicator on 19 May 2003. Accordingly, if the determination of 8 January 2007 was reduced and the respondent required to reconsider the submission of 6 December 2006, the respondent would be bound to come to the same decision as had been come to by the determination of 8 January 2007. In these circumstances to reduce the determination of 8 January 2007 would have no purpose and accordingly decree of reduction should not be granted. In support of her submission, Miss Carmichael referred me to the following decisions: Mallock v Aberdeen Corporation 1971 SC (HL) 85 at 104; R v Secretary of State for the Home Department ex parte Mandinder Singh [1996] Imm AR 41 and Crown Office Digest 476; and R (on the application of Martin) v Parole Board [2003] EWHC 1512 Admin

[11] Miss Carmichael accepted that there was a difficulty for the respondent in that no mention of internal flight had been made in the determination of 8 January 2007. She accepted that for her argument to succeed the court had to be able to be satisfied that no reasonable Secretary of State could conclude that the new material taken together with the material previously considered, created a realistic prospect of success in any further asylum claim. In what he had had to say, anticipating Miss Carmichael's argument, Mr Doherty had made essentially the same points. He reminded me of what the new material might point to: a violent husband who had armed himself to go in search of the first petitioner and her children and who had been prepared to shoot a relative of the first petitioner. It could not be said that this new material might not make a difference to a reasonable decision maker considering the availability of internal flight as an option for the first petitioner and the further question as to whether it would be unduly harsh to require her to take that step.

[12] It is conceded on behalf of the respondent that he applied the wrong test in determining that the submission on behalf of the first petitioner did not constitute a fresh claim. It is accordingly appropriate that I grant declarator and decree of reduction as sought in this petition for judicial review unless, as Miss Carmichael submits that I should be, I can be satisfied that this error of law made no material difference because given the previous finding on internal flight, the respondent was bound to find that there was no realistic prospect of success of a further asylum claim, even supported by the new material. Miss Carmichael accepted that the test that she had identified was a high one.

[13] It is not for me to assess the evidential value of the new material. Rather I must consider simply how it might be assessed by a reasonable Secretary of State. Bearing that in mind, it appears to me that I cannot exclude the possibility that the Secretary of State might reasonably regard the new material as having a bearing upon the decision he has to make. I shall accordingly grant declarator that the determination by the respondent dated 8 January 2007 to refuse to accept the submissions on behalf of the first petitioner as a fresh claim for asylum, was made under error of law. I shall also grant decree of reduction of that determination. Mr Doherty did not insist in any other remedy. I shall however uphold the respondent's first plea in law and dismiss the petition insofar as being at the instance of the second to sixth petitioners.

[14] As I have indicated, the first hearing fixed on 19 January 2007 duly went ahead on 2 February 2007. However, notwithstanding the terms of the first order, it would appear that those acting for the petitioners thought it appropriate that the diet fixed for 2 February should be discharged in favour of a later date. Thought was given to doing this administratively and then a motion for discharge was enrolled but then dropped. A number of reasons were put forward to explain the approach of the petitioner's representatives. It not having been appreciated that I had shortened the notice of period to five days, it was first thought that it was impossible for or the first hearing to proceed on 2 February 2007, having regard to the requirement for Rule of Court 58.7(a)(iii) that the date for the first hearing should be a date not earlier than seven days after the expiry of the period specified for intimation of service. On 25 January 2007 the responsible partner of the petitioners' agents learned that the notice of period had been shortened (although this information appeared in the Minute of Proceedings it did not appear in the copy interlocutor issued to the petitioners' agents). Thereafter there was concern because the petitioners did not have the benefit of legal aid. Then there was concern as to whether the respondent would have time to prepare for the hearing, given that intimation in terms of the petition that it was only given on 26 January and that the petition was only formally served on 29 January. I was assured that it was not the intention of those acting for the petitioners to thwart what was accepted as having been my clearly articulated wish that the petition should come before the court for a first hearing on 2 February 2007. I accept that assurance but I remain somewhat surprised given what is accepted to have been a clear statement of the court's intention as to what should happen and given that no objection was made as to the terms in which I made the first order, that service of the petition was deferred, that an attempt was made to discharge the first hearing administratively and that the question as to whether or when legal aid would be forthcoming was considered relevant as to how the procedure which had been put in motion by the application for a first order should go forward.