Scottish Court of Session Decisions

Petitioner: Caskie; McGill & Co

Respondent: McIlvride; Office of the Solicitor to the Advocate General

8 July 2010

[1] In this petition for judicial review, the petitioner seeks review of a decision by the Secretary of State for the Home Department (the respondent) that representations made on behalf of the petitioner do not amount to a fresh claim for asylum or subsidiary protection. I allowed a minute of amendment and answers at the outset of the discussion before me. I was told that the respondent had, after service of the petition, issued a fresh letter of refusal date 20 February 2011. A minute of amendment had been drawn up and intimated and answers had been lodged. By allowing amendment in terms of the minute and answers, I was able to hear the arguments for petitioner and respondent on the up to date position, that being set out in the letter of 20 February 2011. By the end of his address, counsel for the petitioner had noted that a further consequential amendment was needed, being substitution of "20 February 2011" for "22 October 2010" in paragraph 3 of the petition. There was no objection and I also allowed that amendment.

[2] The petitioner is a citizen of Iraq. He is a medical doctor. He arrived in the United Kingdom on 14 March 2010 and claimed asylum on 29 March 2010. His application was refused by the respondent on 5 May 2010. He appealed and his appeal was rejected by an immigration judge on 24 June 2010. The petitioner applied to the First Tier Tribunal for permission to appeal which was refused on 21 July 2010. He then made an application to the Upper Tribunal for permission to appeal, which was refused on 13 August 2010. His appeal rights were exhausted on 18 August 2010. The petitioner made further representations to the respondent on 8 October 2010. These were rejected by the respondent by letter dated 22 October 2010. Following service of the petition, as explained above, the respondent served a further letter, dated 20 February 2011. The two letters of refusal require to be read together.

[3] Counsel for the petitioner explained that a country guidance case, HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) (hereinafter HM) was argued and decided in June 2010 but not reported until 22 September 2010. It was therefore not before the immigration judge when he made his decision in June 2010. The first letter from the respondent rejecting the fresh application was dated 22 October 2010 and did not refer to HM. The second decision letter, dated 20 February 2011, did refer to it.

[4] In that letter the respondent began by quoting the terms of paragraph 353 of the Immigration Rules (HC) 395, as amended by HC 1112 (as follows):

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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.

This paragraph does not apply to claims made overseas."

[5] The respondent noted that in the fresh application, the agents then acting for the petitioner did not refer to the country guidance case of HM. The application for judicial review served by the petitioner on 17 December 2010 was on the grounds that the case law of HM had not been considered. The respondent stated at paragraph 8 of the letter of 20 February 2011 the following:

"A new immigration judge considering your client's circumstances in the round, would be obliged to look at your client's own circumstances, what has already been determined and the up to date case law. As such, this letter is intended to address the case law of HM, which in respect of you client's case has not been previously considered."

The respondent then noted in her letter that the submission on behalf of the petitioner was that the findings in HM at paragraph 278, to the effect that persons such as medical doctors are at greater risk of violence than other civilians and are very likely to be eligible for either refugee protection or subsidiary (humanitarian) protection under Article 15(b) as well as under Article 15(c) of the Qualification Directive under the sliding scale set out in Elgataji at paragraph 39, is in accordance with the respondent's own country of origin information report. It is argued in the petition that the respondent failed to have regard to HM and failed to have regard to that case when considering what an immigration judge would do in respect of a new application brought by the petitioner.

[6] By paragraph 11 of the letter the respondent stated that a new immigration judge in considering the case law and in taking into account the material which had previously been considered and applying the rule of anxious scrutiny would conclude for that there was not a realistic prospect of success. The respondent then set out in paragraphs 12-19 of her letter the reasons for her coming to that decision. Paragraph 12 and 13 are concerned with the original immigration judge's assessment of the credibility of the petitioner. The immigration judge did not find the petitioner to be credible. In paragraph 14 the respondent notes that a new immigration judge would note that the petitioner sought leave to appeal from the original immigration judge's decision twice and was refused twice. At paragraph 15 the respondent states that a new immigration judge would not dispute that the petitioner is a doctor and she notes that the original immigration judge stated as follows:

"With regards specifically to humanitarian protection, I accept that there is evidence in the background information of attacks on doctors. However paragraph 339C of HC 395 requires me to look at the individual circumstances of the appellant. Given his absence from the country for a lengthy period of time (apart from two short trips) and bearing in mind my rejection of his account, I did not consider that the risk to the appellant on return would fall within any of the categories contained in paragraph 339C."

In paragraph 16, the respondent states that a new immigration judge, when applying the case law of HM, would note that the petitioner's claim for asylum was rejected "on all of its material facts." In paragraph 17 the respondent states:

"A new immigration judge in applying the facts of HM to your own client and having regard to paragraph 278(iv) of the Judgement would note that it is those persons 'identified' as having characteristics over and above that of being a mere civilian who are likely to be at risk, with medical doctors - along with a list of others - as being one of the categories of person identified as being at risk. However a new immigration judge would note that this is the only reference made to the risk of being a medical doctors. There is no in depth discussion on the matter and as per paragraph 38 of HM the following is noted:

'This country guidance case in particular was not founded on any individual characteristic of any of the appellants other than their place of normal residence, nationality, age, and gender.'"

By paragraph 18 the respondent states that a new immigration judge would note that the petitioner has not provided any explanation as to how the case law would apply to his circumstances in light of the fact that his whole claim for asylum and humanitarian protection had been rejected, other than being a doctor, a fact which is already acknowledged. The respondent gives her conclusion in paragraph 19 to the effect that a new immigration judge in considering the petitioner's claim in the round and taking into account the case of HM would find that the petitioner had not demonstrated that he would be at risk of indiscriminate violence on account of being a doctor. The respondent therefore concludes that the claim does not amount to a fresh claim, the consequence of that being that there is no further right of appeal.

[7] It was argued on behalf of the petitioner that the respondent had failed in her refusal letters to show that she had given proper consideration to HM, to her country of origin information report and to the proper question which she should have asked herself, being whether there was a realistic chance that a new immigration judge might, on the new information available, make a decision favourable to the petitioner. Counsel argued that the respondent had failed to consider what a new immigration judge would have made of the separate consideration that should be given to Article 15(c) of the Qualification Directive. While the respondent had noted in the letter of 20 February 2011 that the original immigration judge had considered humanitarian protection, the case of HM was not available to that judge. The respondent failed to give any explanation of what she considered a new immigration judge might make of that new information. Further, it was argued that the respondent had made an error in paragraph 17 of her letter in stating that a new immigration judge would note that the only reference made to the risk of being a medical doctor was contained in paragraph 278(iv). There was also a reference to the risks of being a medical doctor at paragraph 99 of HM.

[8] Counsel for the petitioner argued that the question in the case was simple and could be stated as follows:

"Dr A is an Iraqi doctor. Is that enough, of itself, to give rise, in light of the background information available about Iraqi doctors, to a more than fanciful prospect of an immigration judge concluding that Dr Ali should be allowed to stay in this country? If the answer to that question is yes, then the petitioner's plea-in-law should be granted and if not, the petition should be dismissed."

Counsel argued that the test was whether an immigration judge who could not be described as perverse might find in favour of the petitioner.

[9] Counsel based his argument on the need for humanitarian protection, which is provided for by the Qualification Directive. (Counsel directive 2004/83/EC). Article 2(e) is in the following terms:

" 'Person eligible for subsidiary protection' means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or country of form of habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country."

Article 15 is in the following terms:

"Serious harm consists of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment or an applicant in the country of origin; or

(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

The meaning of the directive was discussed in the European Court of Justice case of Elgafaji C-465/07, decided on 17 February 2009. In that case a court in the Netherlands referred the case for a preliminary ruling as set out in paragraph 26 of the report of the case, being two questions as follows:

1. Is Article 15(c) of the Directive to be interpreted as offering protection only in a situation in which Article 3 of the ECHR, as interpreted in the case law of the European Court of Human Rights, also has a bearing, or does Article 16(c) in comparison with Article 3 of the ECHR offer supplementary or other protection?

2. If Article 15(c) of the Directive in comparison with Article 3 of the ECHR, offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?"

Those questions were answered by the grand chamber as follows:

"Article 15(c) of counsel directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, in conjunction with Article 2(e) thereof must be interpreted as meaning that:

the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that the applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place - assessed by the competent national authorities before which an application for subsidiary protection is made or by the courts of a Member State to which a decision refusing such an application is referred - reaches such a high level that the substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."

In paragraph 39 of the judgment, the court found that the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.

[10] Counsel argued that in the present case, consideration of HM at paragraphs 99 and 278 showed that medical doctors were particularly vulnerable in the context of the indiscriminate violence which exists in Iraq. In the respondent's own country of origin information, at paragraphs 2.06, 7.04, 8.101, 12.03 and 28.11 to 28.16, various reports were quoted which showed that doctors were considered to be at risk of personal violence. Counsel argued that the respondent had failed to give any reason for ignoring the information in her own country of origin information report when considering what a new immigration judge would make of the fresh application.

[11] Counsel anticipated that counsel for the respondent would argue that the appropriate approach of the court was that of judicial review on traditional lines, that is that the court was not asked to consider an appeal from the decision of the respondent but rather was asked to consider whether the decision could be attacked on grounds of irrationality. He noted that certain recent cases indicated that there may be differing views on the proper approach but submitted that on this case on any approach including the traditional approach, the respondent had failed to give reasons showing that she had acted rationally and had taken into account all that she should take into account. He therefore invited me to uphold the petitioner's plea-in-law.

[12] Counsel for the respondent submitted that there was no irrationality in the respondent's decision making. He argued that the case of HM was to the effect that some doctors might be at risk and might be entitled to humanitarian protection. The difficulty was that the petitioner said nothing other than he was a doctor. Counsel argued that that was not enough. He made reference to the case of GM (Eritrea), YT (Eritrea), MY (Eritrea) v The Secretary of State for the Home Department [2008] EWCA Civ 833. That case concerned young people from Eritrea who argued that they were at risk on return to Eritrea on the basis that people of their age were not likely to have been allowed to leave the country legally and that their being in the category of young people was sufficient to entitle them to protection. Lord Justice Dyson (as he then was) put it this way at paragraph 61:

"In substance, the issue for the judge was whether MY had established that there was a reasonable likelihood that she had left Eritrea illegally. I agree with Buxton LJ that the fact that MY herself had given no credible evidence as to how she left Eritrea was not conclusive of that issue which had to be determined on the basis of all the material that was before the judge. But I agree with Laws LJ that the fact that there is a reasonable likelihood of illegal exit by members of a particular category, say 17 year old girls, does not necessarily entail the proposition that there is a reasonable likelihood that the exit by a particular member of that category was illegal. Unless it can safely be said that exit by any 17 year old girl is illegal, whether it was reasonably likely that the exit by a particular 17 year old girl was illegal will depend on the facts of her particular case. Her failure to give a credible account of those facts may lead to the conclusion that she has not shown that there is a reasonable likelihood that her exit was illegal."

[13] Counsel sought to argue that the petitioner was in a similar position to MY in the Eritrea case. It was not in dispute that he was a doctor nor was it in dispute that the country guidance case and the country of origin information report showed that doctors might be at increased risk. There was however nothing to show that this particular doctor was at increased risk.

[14] Counsel for the respondent argued, as anticipated, that the task of the court was that of judicial review in which the court should apply Wednesbury principles. He referred to the case of FO Petitioner 2011 CSIH 16. He was aware that certain cases in the Outer House had raised questions about this but argued that the matter was settled by the Inner House in the case referred to.

[15] He argued that the decision was rational and that all relevant matters had been taken into account. He moved me to uphold his second plea-in-law.

[16] Counsel for the petitioner did refer me to a case from the Court of Appeal in Finland, cited as KHO:2010:84 in which he submitted that the Finnish court had found that Iraqi civilians were entitled to humanitarian protection under the Directive. Counsel for the respondent submitted that if that were so then the Finnish court must have had evidence not available to this court as the country guidance case of HM did not find that all civilians were entitled to humanitarian protection. I did not find the Finnish case helpful to me for the reasons submitted by counsel for the respondent.

[17] I came to the conclusion that the respondent had failed to explain in her letters why she was of the view that a new immigration judge would come to the view that the country guidance case and the country of origin information report were not matters which might lead to a decision favourable to the petitioner. I did not find the reference to the Eritrean case particularly helpful. The question before the respondent was not what any ultimate decision would be but rather whether there was any possibility, other than a fanciful possibility, that a new immigration judge might take a different view given the material. I found that the respondent did not explain fully why she came to the view to that there was no such possibility. The respondent had placed weight on the first immigration judge's finding on credibility. While she was correct to state that the first immigration judge had found the petitioner's claim lacked credibility, she did not explain why that was relevant in considering the view which could be taken by a new immigration judge of the claim for humanitarian protection in light of the case of HM.

[18] In those circumstances, it was not necessary for me to determine the question of the proper scope of judicial review in the case. The case of Kishor Dangol Petitioner v The Secretary of State for the Home Department Respondent (2010) CSIH 20 was advised a few days after I took this case to avizandum. That case confirms that the approach at first instance is as set out in the case of FO. I did not consider it necessary to hear counsel again on the question. I had determined that the respondent's decision should be reduced on the traditional view of judicial review.

[19] I will quash the decision and remit the matter to the respondent for further consideration.