Scottish Court of Session Decisions

Petitioner: Melvin-Farr; Allan McDougall

Respondent: A.F. Stewart; Office of the Solicitor to the Advocate General

12 June 2007

[1] This is a petition for judicial review of a decision by the Secretary of State for the Home Department to refuse to treat submissions made on the petitioner's behalf as a fresh claim for asylum. The petition, as amended without objection at the Bar at the first hearing, seeks reduction of the decision letter to that effect dated 28 December 2006 (no. 6/1 of process). The Secretary of State is the respondent. At the first hearing the respondent moved the Court to dismiss the petition.

[2] The history of the matter is as follows. The petitioner is a national of Sri Lanka. He entered the United Kingdom on 4 April 2002 using a valid Sri Lankan passport and was granted six months' leave to enter. He then claimed asylum on 22 February 2003, but his application was refused on 28 April 2003. He appealed against that decision, but his appeal was refused by an Adjudicator on 26 August 2003 (no. 6/5 of process). Shortly stated, the petitioner claimed that he had been persecuted in Sri Lanka for political reasons and that he had a well-founded fear of persecution if he were to return. The Adjudicator did not find him to be a credible witness and did not believe that the picture he had presented of his life in Sri Lanka was accurate. Leave to appeal was refused on 21 November 2003.

[3] By a letter dated 18 December 2006 (no. 6/2 of process) solicitors acting for the petitioner sent to the Home Office various documents, which they described as fresh evidence, which had come to light and showed that the petitioner was still in severe danger. They submitted that that information amounted to a fresh claim. On 28 December 2006 that submission was rejected in the letter written on behalf of the respondent which the petitioner now seeks to reduce.

[4] There was no dispute as to the law. The relevant rule is rule 353 of the Immigration Rules (HC 395, as amended). It provides in part:

[5] The petitioner's counsel cited a number of authorities, but it is sufficient to refer to WM (DRC )v Secretary of State for the Home Department [2006] EWCA Civ 1495, a recent decision of the Court of Appeal, where the earlier authorities are noticed and the law is authoritatively stated in the leading judgment by Buxton LJ at paragraphs 6 to 11. The court considers the proper role of the Secretary of State, and of the court in its supervisory capacity, in relation to failed asylum applicants who produce new material that is said to ground a "fresh claim". As to the task of the Secretary of State, first, "the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that." Second, "the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return." Third, 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 incorrectly made, may lead to the applicant's exposure to persecution." As to the task of the court when reviewing a decision of the Secretary of State as to whether a fresh claim exists, the court must address the following matters. First, has the Secretary of State asked himself the correct question: "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." Second, 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."

[6] The petitioner's counsel pointed out that it was also said in WM (DRC) that the test the application had to meet before it became a fresh claim was a modest one; and that the adjudicator's finding as to the applicant's credibility may be of little relevance where the new material does not emanate from the applicant himself. Here, said counsel, the writer of the decision letter had ignored the following matters. First, he had disregarded documents described as "two police reports and four letters". The decision-maker explains in the letter he has dismissed them because it is not clear whether they are translations or copies or both, and they have come from an unknown source. The petitioner's counsel did not refer me to these documents. The decision-maker's approach appears to me to be perfectly rational. While the onus of proof on the petitioner was not high, it was for him to establish the provenance of the documents submitted, and it was within the decision-maker's discretion to disregard them if he failed to do so.

[7] Secondly, the petitioner's counsel referred to two news items from the Internet which, he said, had not been sufficiently taken into account. After some prompting from the Bench, he identified them as pages 21 and 46 of no. 7/1 of process. They do not refer to the petitioner. The first reports a statement by a United Nations official on 13 November 2006 that Sri Lankan government security forces were recruiting as soldiers children of 13 and 14 years of age who were "kidnapped from villages in the East." The second is a press release from the British High Commission in Colombo dated 9 November 2006 which refers to an incident the previous day "in which Sri Lankan armed forces artillery fire killed and injured civilians in eastern Sri Lanka." The decision-maker points out that there is nothing to show that the persons the petitioner says he feared when he left Sri Lanka were behind any of the acts reported; and further, that the petitioner's last home address given to the Immigration Service was not in the east but on the west side of Sri Lanka which, according to the material submitted, had seen very little civil conflict. These observations appear to me to be comments which the decision-maker was entitled to make and to be entirely rational and comprehensible.

[8] No other specific criticisms of the contents of the decision letter were attempted. Counsel for the respondent nevertheless carefully took me through it and demonstrated that the decision-maker had correctly directed himself in law and had properly considered all the material submitted by the petitioner's solicitors. Counsel submitted that the decision letter satisfied the requirements relating to the giving of reasons in this field (Singh v Secretary of State for the Home Department 2000 SC 219 at 222H-223C). I accept that submission. Counsel also referred me to PS (Ltte - Internal Flight - Sufficiency of protection) Sri Lankan CG [2004] UKIAT 00297, a country guidance decision by the Immigration Appeal Tribunal. At paragraph 71 the Tribunal states that those whom the LTTE has on the objective evidence targeted in Colombo since the ceasefire "have all been high profile opposition activists, or those whom they would see are renegades or traitors to the LTTE." It adds, "[ . . . ] what seems to us quite clear on the background evidence is that there is no arguable basis for saying that the Sri Lankan state does not provide a sufficiency of protection to the generality of Tamils having a localised fear of the LTTE in their home area who do not reach a similar high profile." The Adjudicator in his determination of 26 August 2003 did not believe that the petitioner was a leading political figure (paragraph 15), and that finding was not challenged before me.

[9] In my opinion, accordingly, there is no substance in the criticisms of the respondent's decision. I am satisfied that the correct question was asked, and that the requirement of anxious scrutiny was satisfied. I shall therefore dismiss the petition and reserve all questions of expenses.