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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 80
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P488/08
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OPINION OF LORD MENZIES
in the Petition of
F.O., (AP)
Petitioner;
for
Judicial Review of
a decision of the Secretary of State for the Home Department dated 5 February 2008
Respondent:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Forrest;
Drummond Miller, LLP
Respondent: Carmichael; Office of the Solicitor to the Advocate
General
30 May 2008
Introduction
[1] The petitioner is a
national of Nigeria. Her date of birth is 23 September 1974. She is the mother of J.O., who is under
5 years old. She lives with her son
at an address in Glasgow. The respondent is the Secretary of State for
the Home Department.
[2] The
petitioner arrived in the United Kingdom
in March 2006. On 16 November 2006 she made an
application for asylum. The respondent
refused this application on 20 December
2006. She appealed in terms
of Section 82(1) of the Nationality Immigration and Asylum Act 2002. Her appeal was heard by an Immigration Judge
on 9 February 2007. He held that the petitioner's fear of
persecution was well founded, but dismissed her appeal because he concluded
that the petitioner could relocate within Nigeria
without undue difficulty. The petitioner
applied for a reconsideration of this appeal.
Her application was rejected. She
submitted a petition for reconsideration to the Court of Session; on 5 June
2007, this was refused.
[3] On
16 July 2007, the
respondent caused the petitioner and her son to be detained and issued
directions for their removal from the United
Kingdom on 19 July 2007.
The petitioner raised proceedings for judicial review of this decision
on the grounds that the removal would be (a) premature, because neither
she nor her son had received the necessary medical treatment appropriate in the
circumstances; and (b) unreasonable
because she was, when detained, in the course of seeking further information
with a view to presenting fresh claims.
A first order was granted on 18 July
2007, and directions for the removal of the petitioner and her son
were cancelled.
[4] The
petitioner obtained further information.
This consisted principally of two letters from her boyfriend, K.O.,
dated 5 February and 21 October
2007; three letters from her
boyfriend's aunt, dated 28 June , 8 October and 14 November 2007; and a police report regarding an incident on 4 October 2007. None of this information was before the Immigration
Judge at the hearing on 9 February
2007.
[5] On
12 December 2007, the
petition for judicial review was dismissed on the unopposed motion of the
petitioner because she wished her solicitors to submit the further
information. On 13 December 2007, the petitioner's
solicitors wrote to the respondent with this information, submitting that it
amounted to a fresh claim for asylum and breach of the petitioner's human
rights. By letter dated 5 February 2008 the Immigration
and Nationality Directorate of the Home Office wrote to the petitioner's
solicitor, intimating that the decision had been reached that the submissions
for the petitioner did not amount to a fresh claim. In the present petition, the petitioner seeks
judicial review of that decision. In
particular, she seeks declarator that the decision of the respondent dated 5 February 2008 is unlawful and
irrational, and reduction of that decision.
Submissions for the Petitioner
[6] Counsel
for the petitioner drew my attention to paragraphs 40-42 of the decision
of the Immigration Judge following the hearing on 9 February 2007.
In this passage of the decision letter, the Immigration Judge considered
the question whether it was reasonable for the petitioner to relocate in Nigeria. At an earlier part of the decision letter,
the Immigration Judge narrated the background, which was to the effect that the
petitioner's father and Chief O. who was the Chief in the village in which
the petitioner formerly resided, wished the petitioner to enter into a forced
marriage with Chief O. The Immigration
Judge accepted that, at the date of the hearing, the petitioner's father and
Chief Oba remained steadfast that the petitioner should
marry Chief O. On that basis,
he accepted that the petitioner would not be safe in returning to her home area
in that she would be forced to become wife to Chief O and this would
amount to persecution. However, in the
passage referred to, the Immigration Judge pointed to the Home Office refusal
letter in which it was considered that the petitioner could return to Nigeria
and seek protection from Mr O, whom she considered to be her fianc้. The Home Office refusal letter stated that
there was no significant reason why they would be unable to locate to another
part of Nigeria
together, and this view was not contradicted by the expert, Dr Gill. The Immigration Judge observed that Nigeria
is a very large country, with a population estimated in 2005 to
be 137 million, and with a number of large cities. He expressed the view that it was very
difficult to see how the Chief and the petitioner's father would be able to
find her if she moved elsewhere in Nigeria.
Having earlier noted the petitioner's
evidence that Chief O had influence to find her wherever she went in
Nigeria and that he had spiritual powers, the Immigration Judge concluded that
no good reason had been put forward by the petitioner as to why her father and
Chief O might be able to find her.
[7] Counsel
submitted that the fresh information cast light on this aspect of the
case. The letter from the petitioner's
boyfriend dated 5 February 2007
made reference to the boyfriend having heard from a reliable source that the
Chief's personal assistant had destroyed computer hardware belonging to
customers of the boyfriend. The letter
dated 21 October 2007 from the petitioner's boyfriend narrated that the
boyfriend had learnt that Chief O had caused his thugs to go to his aunt's
shop and destroy all the goods there, and fear of the Chief's boys had caused
the boyfriend to stay in a remote village with a childhood friend. The boyfriend's aunt lived in the area where
the petitioner had previously lived. The
letter from the aunt dated 28 June
2007 narrated an incident in which Chief O in company of his
thugs destroyed goods in the aunt's shop.
The letter dated 8 October 2007 made reference to a gang of twelve thugs
going to the aunt's shop and destroying goods there, and that the Chief had
"become talk of the town with all his abortive efforts" to track the petitioner
down. The letter dated 14 November 2007 also related
to damage to the aunt's shop allegedly caused by or on behalf of
Chief O. Also produced was an
extract from a crime diary kept by the Nigeria
police station, Airport, A I which recorded a report by the boyfriend's aunt on
4 October 2007 that on
the previous day about twelve armed thugs came to her shop and destroyed her
goods there and later pulled down the structure.
[8] Counsel
for the petitioner submitted that these documents demonstrated the malign
influence of Chief O in three respects - (a) they showed his
ability to inflict harm not just on the petitioner or on her boyfriend but on
others such as the boyfriend's aunt;
(b) there were specific references to his being a well known
politician and a wealthy man; and
(c) there was a reference (in the letter dated 21 October 2007) to
the Chief having put down the petitioner's name "in their occultism as person
to sacrifice in appreciation of his new position in the ungodly society." Counsel submitted that in these important
respects there was fresh information which had not previously been before the Immigration
Judge.
[9] Counsel
referred me to Rule 353 of the Immigration Rules, while conceding that
these amounted to no more than guidance for those entrusted with the
administration of immigration control.
He referred me to the opinion of Lord Brodie in Anastasia Ndaya [2006]
CSOH 19. Counsel submitted that for
success in the present petition, the petitioner would need to satisfy the court
that in terms of Rule 353 the further submissions for the petitioner
submitted on 13 December 2007
did amount to a fresh claim and moreover, created a realistic prospect of
success. He referred me to the
observations of the Court of Appeal in WM
(DRC) v Secretary of State for the
Home Department [2007] Imm. A.R. 337, [2006] EWCA civ 1495,
and in particular to the passage at paragraphs 8-12 of the judgment in
which the task of the court was identified.
The effect of that decision is that the determination of the respondent
dated 5 February 2008
can only be impugned on Wednesbury
grounds. Buxton L.J. observed that:
"whilst the
decision remains that of the Secretary of State, and the test is one of
irrationality, a decision will be irrational if it is not taken on the basis of
anxious scrutiny. Accordingly, a court
when reviewing a decision of the Secretary of State as to whether a fresh claim
exists, must address the following matters.
First, 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."
[10] Counsel for the petitioner submitted that it was not clear from
the letter of 5 February 2008,
what test the decision maker had used;
he may have applied the correct test, but one could not tell. Even if he has applied the correct test, he
did not address the three factors identified by counsel for the
petitioner; if these factors had been
addressed, one would have expected a longer letter. (Counsel accepted that these factors were not
enunciated in the submissions on behalf of the petitioner of 13 December 2007). Counsel submitted that the respondent had
erred in law in the decision letter dated 5 February 2008 (1) because
he had failed to apply the correct test generally in deciding whether the
further information amounted to a fresh claim and (2) because he failed to
apply the correct test in the particular circumstances of this claim in
deciding whether the further information amounts to a fresh claim. Counsel intimated that he did not seek to
argue the third ground stated in the petition.
On the basis of the two grounds on which he relied, he moved me to
sustain the first and second pleas-in-law for the petitioner, to grant decree
of declarator that the decision of 5 February
2008 was unlawful and irrational and to reduce it.
Submissions for the Respondent
[11] Counsel for the respondent accepted that the approach adopted
by the Court of Appeal in WM (DRC)
quoted above was the correct test for the application of paragraph 353 of
the Immigration Rules. The question is
whether the evidence relied on by the petitioner, taken together with the
previously considered material, created a realistic prospect of success. The test is Wednesbury irrationality, considered with anxious scrutiny. She submitted that there was no force in the
submission for the petitioner that the author of the letter of 5 February 2008 had applied the
wrong test. This was clear from the
paragraph towards the bottom of page 3 of the letter, which stated as
follows:
"The remaining
points raised in your submissions, taken together with the material previously
considered in the determination, would not have created a realistic prospect of
success before another Immigration Judge."
This passage makes it clear that
the author of the letter was not deciding the matter for himself, but applying
the correct test by considering whether all the material, including the fresh
material created a realistic prospect of success before another Immigration
Judge.
[12] The submission dated 13 December
2007 by the solicitors acting for the petitioner, made no mention
of the three factors relied on by counsel at the Bar; the submission merely pointed out that the
petitioner was still wanted by Chief Oba, and there was nothing new in
this.
[13] Looking at the information contained in the five letters and
the police report in relation to the critical question of whether it was
reasonable for the petitioner to relocate in Nigeria,
all of the information related to matters in the petitioner's home village or
area. On no reasonable reading of this
material could it be suggested that Chief O's influence and power extended
to other areas. Whether Chief O was
a wealthy man and a political man or not, there was no material on which it
could be inferred that there was a risk of his being able to trace the
petitioner everywhere in Nigeria
or of his being able to harm her. The Immigration
Judge was aware that Chief O was a Chief;
the description of him as a well known politician adds nothing, and does
not give rise to the inference that he had any influence outwith the village or
area in which the petitioner had formerly resided. The fact that Chief O was the head of a
cult might be relevant to give rise to the inference that the petitioner would
be subject to persecution of a different nature - but the Immigration
Judge had already accepted that she was at risk of persecution, and this factor
adds nothing to the question of the reasonableness of internal location. Counsel submitted that the onus was on the
petitioner to produce fresh information relevant to the question of internal
location, and none of the three factors relied on by counsel for the petitioner
amounted to this. The letters and the
police report added nothing which might cause an Immigration Judge to look
differently at the question of internal relocation.
Discussion
[14] I preferred the submissions for the respondent to those for the
petitioner. The only issue on which this
fresh information might have been relevant was the issue of the reasonableness
of internal relocation within Nigeria
(the issue of risk of persecution having already been decided in the
petitioner's favour). None of the
material appended to the submission for the petitioner dated 13 December 2007 appears to me
to be relevant to this issue. It
suggests that Chief O is still interested in finding the petitioner, and
it suggests that he may be prepared to instruct others to use violence towards
people whom he perceives to be connected with the petitioner. However, there is nothing to suggest that his
influence extends outwith the village or area in which the petitioner formerly
resided, and where Chief O is the Chief.
There is nothing which would undermine the reasoning of the Immigration
Judge in his decision dated 9 February
2007. There is nothing in
the letter dated 5 February 2008
to suggest that the respondent has applied the wrong test. On the contrary, it appears that the author
of the letter has applied precisely the test suggested in Rule 353 of the
Immigration Rules, and there is nothing in principle nor in the observations of
Buxton L.J. in WM (DRC) v Secretary of State for the Home Department
which would justify my interfering with the decision contained in that
letter. I am satisfied that the correct
question has been asked, and that the requirement of anxious scrutiny has been
satisfied. It cannot be said that this
decision is irrational. For these
reasons, I shall sustain the pleas-in-law for the respondent and dismiss the
petition.
