Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 156
P261/11	OPINION OF TEMPORARY JUDGE J BECKETT QC in the Petition of DL (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Secretary of State dated 24 February 2011 to refuse to accept representations on behalf of the petitioner as a fresh claim for asylum. ­­­­­­­­­­­­­­­­­________________

Pursuer: Komorowski; Drummond Miller LLP

Respondent: K. Campbell; Office of the Solicitor to the Advocate General

21 September 2011

Introduction

[1] In this petition for judicial review, the petitioner (DL), a citizen of China, seeks reduction of a decision of the Secretary of State for the Home Department dated 24 February 2011 to refuse to accept representations on his behalf as a fresh claim for asylum. The first hearing proceeded on an amended petition, No. 12 of process, and amended answers, No. 14 of process. Mr Komorowski, Advocate appeared for the petitioner and Mr Campbell, Advocate for the respondent.

The facts of the case
[2] The decision letter, No. 6/4 of process, narrates the petitioner's immigration history which is brought up to date in the answers for the respondent. The petitioner arrived in the United Kingdom from Marseilles on 29 July 2006. In a screening interview on 31 July 2006 he gave his name as GW and said that he wished to claim political asylum. He was issued with IS75 One Stop Warning and IS76 Statement of Additional Grounds forms. On that date he was admitted with reporting requirements. He failed to report on 1 August 2006 and was deemed to have absconded. He was reported to have left YMCA accommodation on 4 August 2006. On 1 September 2006 his application for asylum was refused on grounds of non-compliance and he did not appeal.

[3] On 20 April 2010 the petitioner was arrested by the police in Edinburgh on suspicion of cultivating cannabis and, when interviewed by United Kingdom Borders Agency (UKBA) officials that day, he said that his real name is DL and not GW. On 23 April 2010 he was granted temporary release with a monthly reporting requirement. On 17 August 2010 he was arrested by the police on suspicion of cultivating cannabis and he was remanded in custody at Edinburgh Prison. He was interviewed by UKBA officials on 31 August. On 3 December 2010 the petitioner was acquitted of criminal charges but was held on immigration detention in various establishments.

[4] On 21 December 2010 the Secretary of State received a fax message from solicitors then acting for the petitioner indicating that he wished to claim asylum based on his religious beliefs and on 30 December 2010 the UKBA advised his solicitors that his application for asylum had been refused in 2006. On 13 January 2011 removal directions were set, but cancelled on receipt of further representations in a letter from the petitioner's solicitors dated 13 January 2011.

[5] In that letter, No. 6/3 of process, it was contended that there was new evidence significantly different from the material that had previously been considered which showed that the petitioner 'is being sought or being persecuted for a convention reason.' It was specified that before he had fled from China, he had been arrested for having a group gathering with other Catholics in a private house. At the police station he was tortured. He was made to kneel in a corner of a room for more than twelve hours and on several occasions when he tried to move or stretch he was punched by police officers and made to kneel down again. It was also contended that returning the petitioner to China would breach his Convention rights under article 9, as he would not be allowed to practise freely as a Catholic, and his right to family life under article 8.

[6] The Secretary of State replied in her letter of 24 February 2011, No. 6/4 of process. It was explained that discretionary leave was not being granted and the claim under article 8 was rejected. It was not accepted that the petitioner had established a well founded fear of persecution for reasons of religion and it was concluded that he would therefore not be at risk of persecution. The decision on the earlier claim was not reversed as the submissions were not deemed to amount to a fresh claim as it was not accepted that there was a realistic prospect of an immigration judge coming to a different conclusion. The answers for the Secretary of State narrate that directions for removal were intimated on 7 March 2011. The petition for judicial review was lodged on 4 March 2011. The petitioner remained in detention until 28 April 2011 when he was granted temporary release with a reporting requirement. He has failed to comply and has not been in contact with the Secretary of State's officials. These developments after 24 February 2011 were not of course known to the decision maker

[7] The petition seeks reduction of the decision letter and the focus is exclusively on the decision that the submissions made on behalf of the petitioner did not amount to a fresh claim for asylum in terms of Immigration Rule 353. Article 8 does not feature.

The decision letter of 24 February 2011
[8] The letter explains in paragraph 4 that it was accepted that the submissions now made had not previously been considered but, taken together with the material which was considered in the letter giving reasons for refusal on 1 September 2006, they would not have created a realistic prospect of success. The petitioner's immigration history is narrated at paragraph 5. In paragraph 6 the information in the solicitor's letter of 13 January 2011 is summarised and reference is made to the opinion of the Court of Appeal in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2007] Imm. AR 337 (WM (DRC)) paragraph 11 of which is reproduced. In paragraph 8, observations are made about the immigration history.

[9] The material parts of paragraph 9 are in the following terms:

'Consideration has been given to your client's claim to be at risk of persecution on account of his claimed Catholic faith. It is noted that your client has singularly failed to prosecute his asylum claim in any meaningful way for the last five and a half years. No explanation has been given for his failure to do this. His actions are therefore considered not to be consistent with those of a genuine asylum seeker.

Moreover, it is noted that your client initially told the Home Office that his name was GW. He now uses the name DL which is materially different from the one initially presented. No explanation has been given for your client's change in name. It is considered that the use of more than one identity demonstrates that your client is willing to deceive on details which are crucial to his claimed fear of persecution - namely his identity. His willingness to provide inconsistent details is, at the very least, potentially damaging to his credibility. As you will be aware an Immigration Judge would be bound to consider whether behaviour such as this was potentially damaging to his credibility in terms of Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004. Moreover, whilst your client in his screening interview indicated that he was a Christian he referred only to his reason for coming to the United Kingdom to be to claim 'political asylum.' No further detail or reason was provided about why there was a need to claim 'political asylum' by you[r] client. Importantly, despite the fact that your client has been in the United Kingdom for 4 and a half years he has produced no evidence, beyond what is asserted in your letter of 13 January 2011, to establish that he is of the Catholic faith or that he attends church of that denomination on a regular basis as claimed. No explanation for the failure to provide such information has been provided. Accordingly, in light of this failure and his propensity to deceive over something so fundamental as his identity, it is not accepted that your client is, or has been, a practising Roman Catholic. For similar reasons, it is not accepted that there is a realistic prospect of an Immigration Judge coming to a different conclusion.

In light of the above conclusion it is not accepted that your client was detained and ill treated by the police in China. No explanation has been given for his failure to provide this information earlier. For similar reasons it is not accepted that there is a realistic prospect of an Immigration Judge coming to a different conclusion.

However, notwithstanding the fact that this information has only come to our attention following your client's detention pending removal and is not accepted for the reasons stated above, consideration has been given to objective evidence within Country of Origin Report, specifically about Catholicism in China. Catholicism...'

The emphasis in the passage above is mine.

The agreed legal background
[10] Mr Komorowski drew my attention to the terms of Immigration Rule 353:

"When a human rights or asylum claim has been refused 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."

With reference to KD v Secretary of State for the Home Department 2011 SLT 645, Mr Komorowski acknowledged that the proper approach to Rule 353 was that set out in paragraphs 10 and 11 of WM (DRC). The decision was for the Secretary of State, and the test for the court was irrationality, and a decision will be irrational if it is not taken on the basis of anxious scrutiny. The court must consider if the Secretary of State has asked the correct question which is whether there is a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return. Whilst the Secretary of State can and logically should treat her own view of the merits as a starting-point for that enquiry, it is only a starting point. Both in evaluating the facts and in respect of the legal conclusions to be drawn from them, the Secretary of State must satisfy the requirement of anxious scrutiny. Realistic prospect of success meant only more than a fanciful prospect of success; R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 at paragraph 34.

[11] Mr Komorowski submitted that when it came to standard of proof, the appropriate test to apply both to past facts and to well founded fear of persecution was 'real possibility'. Whilst acknowledging that it proceeded on a joint concession which meant that the court did not have to decide the point, reference was made to the opinion of the Supreme Court given by Sir John Dyson at paragraphs 14-20 of MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65. I would observe that on the basis of the cases discussed, it might appear that if there were a test common to both stages, it would be 'serious possibility'. However, Mr Campbell did not take issue with 'real possibility' being the appropriate test. In any event, even if there is any difference between 'real degree of likelihood' or 'serious possibility' on the one hand and 'real possibility' on the other, it is of no importance in the present case.

[12] Mr Komorowski founded on what was said by Carnwath LJ about anxious scrutiny at paragraphs 22 to 24 in R (on the application of YH) v Secretary of State for the Home Department [2010] 4 All ER 448 and in particular on the first sentence of the following part of paragraph 24:

'...However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope, that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.'

It followed that it would equally be the case that if an improper consideration were brought into account there would be an absence of anxious scrutiny, and in any event, that was consistent with the orthodox canons of public law.

[13] In due course Mr Campbell indicated that he was in substantial agreement with Mr Komorowski's analysis of the cases to which he had referred. Mr Campbell went on to found on the last three sentences quoted above from YH and he submitted that anxious scrutiny was not only a tool in the hands of claimants and the court must have regard to it in the round. He also drew attention to paragraphs 8-10 of WM (DRC) and submitted that in a Rule 353 case, the determination of the Secretary of State was only capable of being impugned on Wednesbury grounds, albeit tempered by anxious scrutiny.

The petition for judicial review and the submissions for the petitioner
[14] Mr Komorowski made it clear that he made no complaint about the treatment of the article 8 claim. He pointed out that the claim as a whole had been refused and that it had been accepted that the material had not previously been considered. The issue related to the final part of rule 353, whether taken together with the previously considered material, the new information created a realistic prospect of success, notwithstanding its rejection. He accepted that the immigration history did not reflect well on the petitioner and that it was potentially damaging to his credibility. He acknowledged that his failure to prosecute an asylum claim may detract from the credibility of the basis of his claim for asylum. Mr Komorowski indicated that he did not seek to argue the point made in paragraph 14. His principal point related to paragraph 12 of the petition and he addressed that first.

[15] Paragraph 12 avers that the respondent was in error in finding that a lack of detail in the petitioner's answers at his screening interview on 31 July 2006 detracted from the petitioner's credibility. Mr Komorowski drew attention to two sentences in paragraph 9 of the decision letter. The first of the sentences underlined in paragraph [9] above demonstrated a complete misunderstanding of the nature and purpose of a screening interview. The following sentence set out a factor which should not have been taken into account as the explanation for no detail or reason being provided was that none was sought.

[16] It could be seen from No. 7/1 of process, a copy of the screening interview form, that the petitioner was not asked to describe his claim at all. The second question at page 1 of the pro forma included the explanation

'The questions I am about to ask you relate to your identity, background and travel route to the United Kingdom. At this stage you will NOT be asked to give any details of your asylum claim.'

At page 3, the petitioner in response to the question 'What is your religion?' had replied 'Christian'. At page 15, in response to question 9.5, 'What was your reason for coming to the UK?' the petitioner had replied, 'To claim political asylum.'

[17] The Secretary of State was treating the lack of further specification of the asylum claim at this point as an inconsistency. Given the limited scope of the interview and the communication of that limitation to the petitioner, she was taking into account a consideration which she should not have done. This was a material part of the reasoning and if it disclosed a lack of anxious scrutiny, the decision must be reduced.

[18] Mr Komorowski indicated that he would examine the subject matter of paragraphs 11, 13 and 15 together. Paragraph 11 of the petition avers that the respondent failed to follow the correct approach to Rule 353 by treating her own view as both the starting point and end point and she failed to demonstrate what separate consideration she gave to the question of whether there was a realistic prospect of an Immigration Judge coming to a different conclusion. Paragraph 13 avers that the respondent erred in describing the petitioner as having shown a propensity to deceive by virtue of his having used a false name in his screening interview. Paragraph 15 avers that esto the respondent applied the correct test, and did not otherwise err, the decision was one which no reasonable decision maker could have reached. It is suggested that there was nothing inherently implausible in the petitioner's account to render it not realistically capable of belief.

[19] It was an overstatement to treat the use of a false identity as a propensity to deceive. It did not on its own constitute such an error as to impugn the decision, but it should be viewed along with other errors. In narrating 'Accordingly, in light of this failure and his propensity to deceive over something so fundamental as his identity, it is not accepted that your client is, or has been, a practising Roman Catholic' the respondent had failed to ask the relevant question, namely whether there was a real possibility that the petitioner is a practising Catholic. Whilst this would not matter unduly had the decision maker given separate consideration to what an Immigration Judge might realistically find, it served to confirm that the Secretary of State had erred by reaching a view herself and treating that reasoning as sufficient without going on to consider what an Immigration Judge might realistically find. The Secretary of State had not demonstrated anxious scrutiny and her reasons did not disclose how she had come to a rational conclusion. None of the reasons put forward in the decision letter demonstrated that the petitioner had necessarily lied about his Catholic faith and so the decision was not rationally open to the Secretary of State. [20] Even if the decision was rationally open, the reasons did not demonstrate that the Secretary of State had considered the essential question which was whether there was more than a fanciful prospect of an Immigration Judge finding a real possibility that the petitioner's claims were true. She had erred by holding a lack of detail against the petitioner when none was required and she had treated her own view of his credibility as sufficient for determining the prospect of an Immigration Judge finding in favour of the petitioner. For all of these reasons the decision should be reduced.

Submissions for the respondent
[21] Mr Campbell submitted that it was important to bear in mind that the hypothetical Immigration Judge would have had before him the same information as the Secretary of State. He accepted, as had the Secretary of State, that the letter of 13 January 2011 contained information which had not been considered previously. That the petitioner had failed to prosecute his claim for asylum over a period of five years, and for which he had given no explanation, was a highly material consideration in relation to credibility which would be considered by an Immigration Judge. The letter went on to relate the potential undermining of credibility arising from the initial use of a false name. The observation about the absence of any detail in the first interview ought to be seen in the context of there not having been a second interview in 2006 because the petitioner absconded and that nothing further had come to light from him. In any event, this was not the reason why the application of 13 January 2011 failed, at most it was only one aspect of the reasoning and even if there was error, it was not sufficiently material in the circumstances to demonstrate an absence of anxious scrutiny or otherwise to impugn the decision.

[22] The passage in the decision letter from 'Importantly, despite..' down to the second occasion where it was narrated '...for similar reasons it is not accepted that there is a realistic prospect of an Immigration Judge coming to a different conclusion', showed the Secretary of State drawing together material considerations and reaching her own conclusion on the material and also considering the position of a hypothetical Immigration Judge and reaching conclusions about that.

[23] The material was in short compass and so there was not a large body of information for the Secretary of State to consider herself and to consider from the standpoint of an Immigration Judge. The Secretary of State was entitled to reach the conclusions which she did on the material before her. For these reasons the petition should be dismissed.

Discussion
Paragraph 12
[24] In considering the submissions about the two sentences complained of under paragraph 12 of the petition, it is necessary to see them in context. Paragraph 8 is a distillation of the detailed immigration history in paragraph 5. After noting that there was a screening interview on 31 July 2006 at which the petitioner gave the name GW it narrates:

'...Your client was issued with IS75 One Stop Warning to provide a formal statement of any reasons why he should be allowed to stay in the United Kingdom. Your client was granted temporary admission to report on 1 August 2006 but failed to provide any information or any reasonable explanation as to why he was unable to do so within the allotted time frame and his asylum claim was refused on non-compliance grounds on 1 September 2006...'

That the petitioner did not appeal and that he made no contact with the Home Office before he was arrested in April 2010 is then noted.

[25] Paragraph 9 is the part of the letter in which the reasons for the decision on the claim for asylum is found. First of all it is noted that the petitioner had failed to prosecute his asylum claim in any meaningful way over a period of years, and in the absence of an explanation his actions are said not to be consistent with those of a genuine asylum seeker. Then it is noted that the petitioner gave a different name on initial presentation for which there was no explanation and this use of changing identity is said to indicate a willingness to deceive on a detail crucial to his claim, with at least potentially damaging consequences for credibility. Then it is noted that an Immigration Judge would be bound by statute to consider whether such behaviour was damaging to the petitioner's credibility. The next two sentences, those complained of, make no mention of credibility. The letter then goes on 'Importantly...' and the point is made that in circumstances where it ought readily to be available, no information as to the petitioner's Church going or other faith based activities which might vouch his Catholicism is provided beyond the brief terms of his solicitors' letter of 13 January 2011. In the absence of an explanation for that, and having regard to the use of a different identity, it is said that the respondent does not accept that the petitioner is or has been a practising Roman Catholic and nor was there a realistic prospect of an Immigration Judge coming to a different conclusion. The next conclusion, rejection of the petitioner's account of ill treatment in China, follows on directly and whether there was a realistic prospect of an Immigration Judge coming to a different conclusion is considered and rejected.

[26] In the first sentence complained of, there is an acknowledgement of some measure of consistency in that the petitioner did indicate in his screening interview that he was a Christian whilst it is noted that he referred to an intention to claim political asylum. The next sentence narrates that no further detail was provided by him, but I am not convinced that that is referring to his screening interview. The terms of paragraph 8 suggest that the decision maker was perfectly well aware that the point at which the petitioner would provide details of his claim was not in his screening interview but in a statement form provided at that time, and by implication in a detailed interview thereafter. That appears to me to be what was being referred to in the second sentence complained of. I am not persuaded that the errors alleged by Mr Komorowski were in fact made.

[27] Even if Mr Komorowski's construction is correct, and if the decision maker misunderstood the purpose and limits of the screening interview, and therefore wrongly took into account that the petitioner did not specify religious persecution at his screening interview and gave no details of his Catholicism and the basis of his claim for political asylum, I am not persuaded, in the particular circumstances of this case, that this was of sufficient materiality to demonstrate an absence of anxious scrutiny or otherwise impugn the decision. Having regard to the information put forward on the petitioner's behalf and considering the history up to 24 February 2011, there were cogent reasons for concluding that an Immigration Judge would reject the petitioner's claim for reasons of credibility and that there was no realistic prospect that he would not do so. In the passage about anxious scrutiny in YH on which Mr Komorowski founded, in discussing the omission of material, Carnwath LJ refers to every factor which might tell in favour of the applicant. It is plain that he was not suggesting that the making of any error at all will demonstrate an absence of anxious scrutiny.

Paragraph 13
[28] Mr Komorowski conceded that the use of the word propensity, as opposed to willingness, could not vitiate the decision in itself. I note that the decision letter had referred to willingness earlier in the same paragraph. Even if the use of the word propensity is an overstatement, it does not demonstrate an absence of anxious scrutiny. The willingness of the petitioner to deceive on a fundamental matter was a cogent consideration in itself.

Paragraph 11
[29] The decision letter at paragraph 6 reproduces paragraph 11 of the opinion of

the court in WM (DRC). The Secretary of State accepted that to be the correct approach for her to take. In the operative paragraph, 9, she refers to the hypothetical Immigration Judge on three occasions, notably in reaching her conclusions. Mr Campbell's observation about the compact extent of the material is well made. I am not persuaded that the Secretary of State failed to apply the proper test, on the contrary, the decision letter makes it plain that she did apply it.

Paragraph 15
[30] The material put forward on the petitioner's behalf was sparse and the reasons why it was concluded that an Immigration Judge would reject the petitioner's claim are formidable and, even on the undemanding test which parties agreed fell to be applied, I am not persuaded that the decision reached by the Secretary of State was one which she could not reasonably have reached.

Decision
[31] For these reasons I am not persuaded that there is any basis for the court to intervene. Having considered the criticisms advanced both individually and cumulatively, I conclude that the Secretary of State's decision of 24 February 2011 satisfies the requirement of anxious scrutiny and that her decision not to treat the representations as a fresh claim did not contain any material errors of law and was not irrational. I shall therefore repel the plea in law for the petitioner and sustain the second and third pleas in law for the respondent and refuse the petition. I reserve in the meantime the question of expenses.