Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 128
P267/11	OPINION OF LADY CLARK OF CALTON in the Petition of B M A S (Assisted Person) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Byrne, Advocate; Drummond Miller

Respondent: Lindsay, Advocate; Paul Johnston

9 August 2011

Summary

[1] The petitioner's case has a long history. The petitioner's asylum claim was refused by the respondent by letter dated 22 November 2007. The petitioner's appeal rights became exhausted in February 2008. Further representations were made on behalf of the petitioner between 5 June 2008 and 29 October 2009 requesting the respondent to grant a fresh claim for asylum. These submissions were rejected by letter from the respondent dated 17 March 2010.

The decision which is the subject of judicial review
[2] The matters which came before me for judicial review focused on a decision of the respondent set out in a letter dated 25 June 2010 (6/2 of process). The decision letter explains that the application was not considered by the respondent personally but by an official acting on her behalf.

[3] The decision letter (6/2 of process) dealt with a letter dated 4 June 2010 (6/1 of process) from the petitioner's current legal representatives. They made written representations setting out facts and circumstances which they submitted gave rise to a "fresh claim" in relation to asylum in accordance with paragraph 353 of the Immigration Rules. The representations were accompanied by documentary evidence. That documentary evidence is set out in paragraph 5.3 of the petition.

Submissions by counsel for the petitioner
[4] Counsel for the petitioner submitted a detailed written note of argument (6/11 of process). His oral submissions, founded on said note of argument, were compelling and presented with commendable clarity.

[5] In summary, he submitted that this was a petitioner who claims to be from Somalia and from a minority clan and that proof of these factors alone entitled her to refuge status. He prayed in aid M N & Others (Lone Woman - Ashraf) Somalia CG [2005] UKIAT 00076 para 117. The submissions in the judicial review focussed on three parts of said documentary evidence namely:

(1) A letter dated 19 April 2010 from K M, Chairman, M K, Somali Community Council

(2) A letter (undated) from F H S and

(3) A letter dated 20 April 2010 from A A A.

[6] In developing his submissions, counsel set out the test to be applied in assessing what is a fresh claim under reference to well known dicta in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 para 7. He submitted that the petitioner requires only a colourable case, with more than a fanciful prospect of success before it is a fresh claim. He submitted that the test was a low test. "Realist prospect of success" means more than a fanciful prospect of success. A low or modest test was necessary when a determination dealt with the grave issues involved in ensuring that a petitioner's basic human rights are secured. Counsel made reference to AK (Sri Lanka) [2009] EWCA Civ 447 at para 34 and A.H. (AP) v The Secretary of State for the Home Department [2011] CSOH 7 par 32.

[7] Counsel further submitted that the role of the court is properly set out by Buxton, L J in WM (DRC) despite some recent authority which casts some doubt on this. He made reference to Kishor Dangol v SSHD (2011) CSIH 20 and F O, Petitioner [2010] CSIH 16 which he submitted represents the current law.

[8] Counsel considered the documentary evidence which the petitioner brought to the attention of the respondent in support of her claim. He submitted that the letter from A A A was particularly compelling. He made reference to the approach adopted in A A S and S A A S [2010] CSIH 90. In that case Lord Bonomy, at par 9 stated:

"The evidence of F A S in particular was of direct personal experience and contained details which were plainly material in relation to the credibility of core elements of the account of the first applicant and his wife about their origins, nationality and clan membership as well as their experience of mistreatment. It was thus corroborative evidence on material aspects of the evidence of the first applicant and his wife that ought to have been considered along with their evidence and any other relevant evidence in the round before final conclusions in relation to the credibility of the first applicant and his wife were reached. To leave such significant material out of account in assessing credibility in this case was an error of law of such significance as to vitiate the decision of the Tribunal."

[9] Counsel then examined the approach adopted in the decision letter (6/2 of process) under reference to T N (Uganda) v Secretary of State for the Home Department [2006] EWCA Civ 1807 paras 10-11 and Abdul Hassan v Secretary of State for the Home Department [2003] Scot C S 168 par 10. Counsel submitted that the respondent failed to address properly the issue whether the new material could reasonably be believed and if it could, when considered with the previously considered material, whether there was a reasonable prospect that a favourable view could be taken of the new claim. Counsel submitted that the respondent was not entitled to conclude that no person could reasonably accept the new evidence as believable. If the correct approach had been adopted by the respondent it would appear that the petitioner is supported in her long standing claim that she is a Somali from the Ashraf, a minority clan, and as such entitled to refugee status.

[10] Counsel then embarked on a detailed criticism of the approach adopted in the decision letter to the material presented in support of the petitioner's claim. This is dealt with in paragraphs 30-44 of the written submission (6/11 of process).

[11] Counsel made reference to A H, (AP) v Secretary of State for the Home Department, [2011] CSOH 7 paragraph 34, Ahmed [2002] UKIA 00439 (referred to in 6/2 of process as Tanver Ahmed), R v Lucas [1981] QB 720, as discussed in M A (Somalia) v Secretary of State [2010] UKSC 49 par.32and M A S v Secretary of State for the Home Department [2011] CSOH 95 par.12.

Submissions by counsel for the respondent
[12] Counsel for the respondent responded with generosity to the opposing arguments. He accepted at the outset that there was no dispute about the petitioner's primary contention. He accepted that if the petitioner can prove that she is from Somalia and from a minority clan as she states, she is entitled to refugee status. He did not dispute the general analysis of the law, including the approach to be adopted by the court, which had been set out by counsel for the petitioner.

[13] Counsel did dispute that the decision letter (6/2 of process) disclosed grounds for judicial review. Counsel continued to support the answers on behalf of the respondent to the effect that the petitioner's further representations and supporting documentary evidence did not constitute a fresh claim for the purposes of paragraph 353 of the Immigration Rules because it did not have a realistic prospect of success. Counsel submitted that the material accompanying the petitioner's further representations would not entitle an Immigration Judge to conclude that the petitioner's further representations had a realistic prospect of success.

[14] Counsel invited me to sustain the second plea in law for the respondent and dismiss the petition.

[15] Counsel invited me to look in detail at the documentary material provided. He commented unfavourably on the sparcity of the information in the documents relied on by the petitioner. In relation to the more detailed information provided in the letter from A A A, counsel submitted that there were many unanswered questions about this letter. He submitted that it was the kind of material to which the Immigration Judge would be entitled to attach little weight particularly in circumstances where the petitioner had been found to be incredible in relation to her claim to be a Somali from a minority clan and incredible in relation to other evidence which she had given.

[16] Counsel referred to YH (Iraq) v SSHD [2010] EWCA Civ 116 par.43. Counsel submitted that it was proper for a decision maker to start from a position of extreme scepticism in circumstances where there was a complete absence of plausible detail. In submitting further submissions and documentary evidence the solicitors for the petitioner should be well aware of the need for plausible detail. Counsel submitted that such detail was absent in this case.

[17] Counsel also referred to R (Thein) v SSHD [2011] EWHC 557 (Admin) para 14-19 and Asif Naseer v SSHD [2006] EWHC 1671. He submitted that these cases provided examples of the need to put forward plausible detail and the consequences of its absence.

Discussion
[18] The petitioner in this case is a young woman. She has always claimed to be an ethnic national of Somalia of the Ashraf clan. In the decision of the Immigration Judge dated 17 January 2008 (6/4 of process), reference is made in paragraph 7 to the refusal letter in which it was acknowledged on behalf of the respondent that the petitioner has demonstrated fluency in Somali and has a background knowledge of Somalia. It is not disputed by the respondent that the petitioner is from Somalia. It has also been accepted that the petitioner gave some correct information about the Ashraf clan. In paragraph 8, (6/4 of process) the Immigration Judge accepts that the petitioner's state of knowledge does not exclude the possibility that she is Ashraf, albeit in his opinion her state of knowledge does not prove that. The only criticism made of the evidence of the petitioner in relation to the fact that she is Ashraf is narrated in this way by the Immigration Judge:

"The appellant was asked in cross-examination of which group the Ashraf is a sub-clan, and replied "the Benadirl". She accepted that she had said Rer Hamar at interview, but claimed not to have understood the question and said she was now answering it correctly. While this might not be a critical matter, the appellant's approach suggests that she is trying to improve her case since she first stated it, and is not answering from knowledge which one would have expected her to have at the time of departure from Somalia and on arrival in the UK".

[19] As I interpret the decision of the Immigration Judge, that is the only criticism of the petitioner in relation to the basic and fundamental fact as to whether or not the petitioner is Ashraf. I note that even the Immigration Judge considered this point of detail not to be a critical matter. I accept that other criticisms were made of the petitioner's credibility in relation to her claims that she had been tortured and ill-treated while in Somalia because she was Ashraf. In my opinion these are separate and distinct matters from the fundamental question as to whether or not the petitioner is an ethnic national Somali who is a member of the Ashraf clan.

[20] It is not disputed in this case that membership of the Ashraf clan, which is a minority group in Somalia, is sufficient in the circumstances of this case to merit the protection of the petitioner by way of asylum. That appears to be recognised because of the potentially terrible consequences such as death, torture and rape to which such a young unprotected Ashraf woman might be exposed if compulsory returned at present from the UK to Somalia.

[21] When understood in that context, it is not surprising that the threshold test which has been developed in rule 353 cases is accepted to be a very low threshold.

[22] It has also been recognised, for example, in M A (Somalia) par.21 that:

"for appellants who appeal to the AIT in Refuge Convention or article 3 cases, the stakes are often extremely high. The consequences of failure for those whose cases are genuine are usually grave. It is not, therefore, surprising that appellants frequently give fabricated evidence in order to bolster their cases. The task of sorting out truth from lies is indeed a daunting one. It is all too common for the AIT to find that an appellant's account is incredible. And yet there may be objective general undisputed evidence about the conditions in the country to which the Secretary of State wishes to send the appellant which shows that most of the persons who have the characteristics of, or fall into the category claimed by the appellant would be at real risk of treatment contrary to article 3 of the ECHR or persecution for a refuge convention reason (as the case may be), but that a minority of these, because of special circumstances, are not subject to such risk...".

[23] I consider it very important in a case such as this to recognise that a conclusion should not be made that a person is incredible in everything said merely because there are doubts about credibility in relation to some matters. In this case it is important to recognise at the outset that there is a fundamental factual issue to determine which is narrow in scope. That is whether the petitioner is genuinely a member of the Ashraf clan or not. When everything else is stripped away from this case, that issue remains at the heart of the case as it always has been. This is not an issue which has been raised by a petitioner some months or years after the first application. In assessing the credibility of the petitioner in relation to this issue it should be borne in mind that there was very limited criticism which was made by the Immigration Judge in relation to this factual issue. One of the difficulties for the petitioner was that there was no other information, apart from her evidence, to support her claim to be Ashraf. Her credibility on other matters was not accepted.

[24] It is against that background, that the letter on behalf of the petitioner dated 4 June 2010 (6/1 of process) and the further documentary evidence referred to in paragraph [5] must be considered. The new information is in documentary (letter) form. It is plain from the documents that the documents bear to be from identifiable individuals with addresses in the UK. They are individuals who are available to give evidence. This is made very plain in the letter from A A A who makes a specific offer to give such evidence.

[25] As requested by counsel for the respondent, I have considered in detail the new documents. I have also considered the reasoning of the respondent in the decision letter (6/2 of process). The starting point for the respondent is that the evidence of the petitioner claiming that she is Ashraf is not persuasive. The respondent then considers the principles for assessing specific documentary evidence as set out in the case referred to in the decision letter as Tanver Ahmed. I consider that this case was concerned with documents of a very different type from the present case. The documents produced in that case included an arrest warrant, a letter from the applicant's party, the MQM, and newspaper cuttings (paragraph 5). There was a finding by the adjudicator that the documents were not likely to be genuine. The letter from the party, the MQM, was given no weight. There is some discussion in the case about documents in general. I do not consider that the case gives much practical illustration of the way to apply the principles to a case such as the present.

[26] In paragraph 15 of the decision letter 6/2 of process, the respondent summarises the Ahmed case in this way:

"In Asylum and Human Rights cases it is for an individual claimant to show that a document on which he/she seeks to rely can be relied upon. The decision maker should consider whether a document is one in which reliance should properly be placed after looking at all of the evidence in the round".

[27] Looking to paragraph 31 of the discussion in Ahmed, it seems plain that the main concern in that case relates to the authenticity or genuineness of documents. It is stated:

"Some (documents) are "genuine" to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Examples of birth, death and marriage certificates from certain countries, which can be obtained from the proper source for a "fee" but contain information which is wholly or partially untrue. The permutations of truth, untruth, validity and "genuineness" are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions..."

[28] The analysis in paragraphs 16 to 18 of 6/2 of process by the respondent purports to apply the principles which the respondent deduces from the Ahmed case as set out in paragraph 15. I have some difficulty in following the reasoning of the respondent which criticises the lack of detail. Nowhere in paragraphs 16 to 18, or elsewhere in the decision letter, does the respondent conclude anything about the truth, untruth, validity and genuiness of the documents produced for consideration. The respondent certainly does not reach any express conclusion that they were not drafted genuinely by the individuals or that the individuals were likely to be providing false information. I consider therefore that a fair inference might be that the respondent did not have difficulties with these aspects of the new evidence. Certainly no reasons which bear scrutiny are advanced for having such difficulties. The reasoning appears to be that another immigration judge, partly because of the absence of plausible detail, applying the rule of anxious scrutiny would attach little weight to the various documents. These words, like a mantra, are to be found at the end of paragraphs 16, 17 and 18.

[29] In the absence of any reason to reject the apparent credibility of the documents, I cannot accept the submissions on behalf of the respondent that the letter dated 20 April 2010 from A A A has little weight to the fundamental issue in the present case. On the face of it, the writer of said letter has been found by the respondent to have a genuine claim to be a member of a minority Ashraf group. The writer claims to have lived in the adjoining district to the petitioner and claims to know personally her father and her cousin. Said letter is plainly supportive of the petitioner's claim to be from the Ashraf clan. Despite the efforts of counsel for the respondent to persuade me that the details given were insufficient, I remain firmly unpersuaded. Prima facie this is powerful evidence in support of the petitioner's claim. Had that evidence been available a very different view might have been taken about the credibility of the petitioner's claim to be Ashraf. On the basis of that evidence alone, I consider that the respondent plainly erred in the context of this case. I consider that the conclusion narrated in paragraph 17 of the decision letter is irrational. The evidence considered in paragraphs16 and 18 of the decision letter cannot be said to be as persuasive as the evidence referred to in paragraph 17. Nevertheless it appear to be evidence from two other sources, which in my opinion requires to be considered in addition to the information from A A A. I consider that this evidence should be considered as cumulative and not separately. I consider that if the proper approach is adopted, it is not open to conclude on the basis of the information produced that the petitioner has failed to satisfy the low test which applies.

[30] In the course of submissions, counsel for the petitioner accepted that he did not seek declarator. In these circumstances I will sustain the first plea in law of the petitioner limited to reduction of the decision of the respondent dated 25 June 2010.