Scottish Court of Session Decisions

Petitioner: Forrest; Drummond Miller LLP

Respondent: Haldane Q.C.; Office of the Solicitor to the Advocate General

6 October 2011

[1] The petitioner is a national of Iran. In this petition he seeks reduction of a decision by the Secretary of State dated 21 July 2010 under paragraph 353 of the Immigration Rules that the further submissions made by him did not amount to a "fresh claim". That decision, if it stands, is not subject to appeal, and does not amount to a further decision to reject a claim capable of being appealed as an "immigration decision" under s.82 of the Nationality, Immigration and Asylum Act 2002: see R (ZA (Nigeria)) v Secretary of State for the Home Department [2011] QB 722, in particular at paras.15, 21-22 and 30.

[2] The underlying facts are not in dispute. The petitioner is 40 years old. He arrived in the UK on 1 February 2005 and, on the following day, evoking his rights under Articles 2 and 3 of the European Convention on Human Rights ("ECHR"), claimed asylum on the grounds that his political opinions put him in danger if returned to Iran. The Secretary of State rejected his claim for asylum. He appealed unsuccessfully to an Immigration Judge and, from his refusal, to a Senior Immigration Judge. His subsequent application for permission to appeal to the Court of Session was refused both by the Asylum and Immigration Tribunal ("AIT") and the Court of Session itself. The final refusal of permission to appeal was on 17 June 2009. At that point all his appeal rights had been exhausted.

[3] By letter of 2 February 2010, addressed to the UK Border Agency, Case Resolution Directorate, in Manchester, the petitioner made further submissions in support of his application. There was some argument about precisely what that letter was, whether it amounted to further submissions or to some wholly new application, but, for present purposes, I leave that aside; I shall return to it later. In the first paragraph, that letter made an application for "Leave to Remain". It put forward a claim based on Article 8 ECHR and, in particular, on the fact that he had, so he claimed, established a private life within the UK since his arrival here in 2005. It is to be noted that he asserted his right to respect for his private life only, and did not invoke any right to respect for his family life, with which Article 8 is also concerned. The letter gave details of that private life. He explained that between 2006 and 2008 he was in a relationship in the UK with a Polish national, and although that relationship had broken down, he remained in touch with her family living in Glasgow. He had integrated well within the Glasgow community, had a large network of friends, most of whom were Scottish, and socialised with those friends at the gymnasium, at five-a-side football, in coffee shops, at college, in the library and at their homes. So strong were some of those friendships that he would often be provided with the funds to participate in joint activities with them. He also made the point, though this was hardly at the forefront of his submissions, that he benefited from social contact with his sister who lived in London. He went on to say that he made use of local facilities such as the library and Glasgow leisure centres, and attended college for between two and four hours every week in order to improve his English.

[4] That letter, as I have said, was dated 2 February 2010. It was apparently sent recorded delivery. However, I was told that the UK Border Agency, Case Resolution Directorate, in Manchester dealt only with "legacy cases", cases which were already live or which had been concluded before a particular cut-off date. In such cases, of which the petitioner's failed application was one, further submissions are not accepted in writing. The applicant requires to attend at the Agency. This he did on 12 March 2010. He was interviewed and completed a form setting out further submissions based on new material which he wished to make in support of his application. On that same day, 12 March 2010, the UK Border Agency wrote to him confirming the fact of his attendance on that day. It is not clear whether they sent him with that letter a copy of the form which he had filled in, but nothing turns on that. A copy of their letter of 12 March 2010, together with the form completed by the petitioner, was lodged in process during the course of the hearing before me.

[5] The decision of the Secretary of State which is the subject of this petition for judicial review is contained in a letter dated 21 July 2010 ("the decision letter"). Somewhat mysteriously, that letter thanks the petitioner's agents for their letter "of 12 March 2010" in which, so it said, they had asked for their representations to be considered "as a fresh application for asylum and/or human rights". There is no reference in that opening paragraph of the decision letter, or indeed anywhere in the decision letter, to the applicant's letter of 2 February 2010, though it is true to say that that letter of 2 February must have been received, since the decision letter lists the attachments to it as being evidence submitted by the applicant in support of the application. Equally mysterious is the fact that although the letter of 2 February 2010 stated that it was an application "for Leave to Remain", the decision letter refers to the petitioner's representations as a "fresh application for asylum and/or human rights". On the second page of the decision letter it is stated that the further submissions have been considered but that "it is considered that they do not qualify for asylum or Humanitarian Protection" or for limited leave to enter or remain in the United Kingdom.

[6] The decision letter went on to say that since those submissions had not resulted in a grant of leave, they had also been considered under paragraph 353 of the Immigration Rules. Paragraph 353 is familiar to all practitioners in this field. It provides that when a human rights or asylum claim has been refused, etc., 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."

Paragraph 353 goes on to say that the submissions will amount to a fresh claim if they are "significantly different" from the material which has previously been considered; and they will be regarded as significantly different if (i) they have not already been considered and (ii) taken together with previously considered material, the content creates a realistic prospect of success notwithstanding the fact of its rejection by the Secretary of State.

[7] The decision letter said that the petitioner's asylum and/or human rights claims had been considered on all the evidence available, including that previously considered and the further submissions dated 12 March 2010 (again no reference to the letter of   2 February 2010), but it had been decided that the further submissions (again, of 12 March 2010) were not significantly different from the material which had previously been considered; and, therefore, that they did not amount to a fresh claim for asylum and/or human rights. Reference was made to a document entitled "Consideration of Submissions" in which a more detailed response was given. So far as is relevant here, that dealt with the Article 8 claim by stating that although the points made by the petitioner (as summarised in the document) had not previously been considered, they did not, when taken together with the previously considered material, create a realistic prospect of success. In other words, it was determined that the submissions did not amount to a fresh claim, not because they had already been considered, but because of the absence of a realistic prospect of success. In coming to the conclusion that the further submissions, taken together with the material previously considered, did not create a realistic prospect of success, the Secretary of State approached the matter using the five stage test outlined in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. I shall come back to consider the terms of this part of the decision letter in due course.

[8] The petition for judicial review criticised the decision letter of 21 July 2010 on the basis that, in applying paragraph 353 of the Immigration Rules, the Secretary of State had failed or erred in law in various respects. However, at the beginning of the hearing of the petition, Mr Forrest, who appeared for the petitioner, sought to amend the petition to introduce a case that paragraph 353 of the Immigration Rules did not apply in the present circumstances, because the submissions advanced by the petitioner, being advanced in support of a claim under Article 8 ECHR, which had not previously been invoked, amounted to an entirely new claim. Accordingly, so it was contended, these were not further submissions in support of the previous application and the Secretary of State should not have approached the application by letter of 2 February 2010 on the basis that it contained "further submissions" to be considered in terms of that paragraph. In short, he contended, this was not paragraph 353 territory at all.

[9] The application to amend was opposed on the ground that it was misconceived. I formed the view that the better course in these circumstances was to hear argument both on the petition as it stood in its unamended form and on the proposed amendment, with a view to giving my decision on the amendment and on the petition itself at the end of the hearing.

[10] Having heard full argument from counsel, I have come to the view that the amendment should be refused. I have already said that the letter of 2 February 2010 was addressed to the UK Border Agency, Case Resolution Directorate, in Manchester. That was an office handling only "legacy cases". Addressing further submissions to the Manchester office made no sense unless the further submissions were linked to the claim for asylum which had already been rejected. Mr Forrest did not challenge this. Indeed, in the course of the hearing he tendered a further (short) letter of 2 February 2010 from the petitioner's agents to the UK Border Agency at Liverpool. That attached a copy of the (longer) letter of 2 February 2010 to the Case Resolution Team at Manchester. It was explained that the longer letter had been sent to Manchester "as we understand that they hold [the petitioner's] papers". The letter to the UK Border Agency at Liverpool ended by emphasising that "this is not a Fresh Claim for Asylum and it may therefore be that paperwork can be processed through Manchester but your clarification would be of assistance". That makes it perfectly clear, in my view, that the application letter of 2 February 2010 was presented as containing further submissions in support of the previously rejected application.

[11] However, the proposed new way of putting the case runs into more fundamental problems. The purpose of arguing that this was a wholly new application was to avoid the application of paragraph 353, in terms of which the Secretary of State had the opportunity to make an unappealable decision, which she did make, that the submissions did not amount to a fresh claim. If it did amount to a fresh claim, of course, a rejection of that fresh claim would be an "immigration decision" within the meaning of s.82(2) of the Nationality, Immigration and Asylum Act 2002, triggering a right of appeal under s.82(1) of that Act, but it was the consequence of it being held not to be a fresh claim that the petitioner was anxious to avoid. However, in order to draw a clear distinction between this application and the previous failed application for asylum, Mr Forrest was at pains to emphasise that the submissions contained in the letter of 2 February 2010 were not submissions in support of an application for asylum. In response to the question, "what is it if it is not an application for asylum?", Mr Forrest said that it was an application for Leave to Remain in the United Kingdom. Indeed, as I have noted, the first paragraph of the letter of 2 February 2010 ends with the words "we wish to make application for Leave to Remain." The problem to which this gives rise is that a refusal of an application for "Leave to Remain" is not an "immigration decision" within the meaning of s.82(2) of the Nationality, Immigration and Asylum Act 2002; and is therefore not appealable in terms of s.82(1). Mr Forrest sought to rely on the terms of s.82(2)(d) and (e). But those paragraphs relate respectively to (d) a "refusal to vary a person's leave to enter or remain in the United Kingdom" and (e) "variation of a person's leave to enter or remain in the United Kingdom". Each of those paragraphs presupposes that the person concerned already has leave to enter or remain in the United Kingdom, the "immigration decision" being related to the variation of such leave or the refusal to vary it. Those paragraphs have no application where the person concerned does not have leave to enter or remain. In such a case, there is nothing to vary or to refuse to vary. This case, therefore, does not fall within those paragraphs. In this respect I was referred to the decision of Lord Bannatyne in AA v Secretary of State for the Home Department (unreported, 16 July 2010, [2010] CSOH 98). He analysed the same provisions at paras.[43]-[48] in a way which is consistent with the approach that I have taken. I agree entirely with his analysis.

[12] For the avoidance of doubt, Mr Forrest made it clear that he did not argue that the case fell within any of the other paragraphs under S.82(2) of the Act. However, in order to get round this difficulty, Mr Forrest sought to argue that the grant of temporary admission at the time of entering the United Kingdom and seeking asylum was, or was equivalent to, leave to enter and remain, so that the refusal of the present application could be regarded as an application for variation of that leave. I cannot accept this argument. The distinction between Leave to Remain and temporary admission is made clear in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41 at paras.9 and 29 and in Szoma v Secretary of State for Work and Pensions [2006] 1 AC 564.

[13] For these reasons I consider that the proposed amendment is misconceived and I refuse leave to amend.

[14] I turn therefore to consider the petition in its original form. There was no real dispute between the petitioner and the Secretary of State as to the relevant principles. Two are of particular importance. The first is that any application for asylum, and any further submissions in support of that application, must be afforded "anxious scrutiny": see WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] All ER (D) 109 (Nov) at para.7, R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 at paras.[22]-[24] and R (AS (Sri Lanka)) v Secretary of State for the Home Department [2009] EWHC 1763 at para.[39]. The expression "anxious scrutiny"

"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."

See per Carnwath LJ in R (YH) v Secretary of State for the Home Department at para.[24].

[15] The second relevant principle is, as Mr Forrest described it, "proportionality of removal". This arises in this way. The right to respect for private and family life under Article 8 ECHR is not absolute. Article 8 (2) provides that there shall be no interference by a public authority with the exercise of that right

"except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder and crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

As was made clear in Huang v Secretary of State for the Home Department [2007]   

2 AC 167, decisions under Article 8 may involve the weighing of multifarious considerations. Where the right to respect for private and family life runs up against the immigration policy determined upon by the duly elected government and by Parliament, the "crucial question" will usually be whether the interference with that right is proportionate to the legitimate end sought to be obtained; and the "ultimate question" for the immigration authority

"is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8."

See Huang at paras 18 and 20. That was a case of family life, but the same question applies mutatis mutandis to a consideration of private life. As is made clear in UB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159 at para 12, there is generally, in such cases, "no alternative to making a careful and informed evaluation of the facts of the particular case."

[16] Putting these two principles together, the requirement of anxious scrutiny in a case such as this requires the decision to show by its reasoning that the decision maker has properly taken into account, in weighing the immigration policy approved by Parliament against the respect for private life enshrined in Article 8 ECHR, all the factors put forward by the applicant in support of his application.

[17] I am satisfied that, in the present case, no such anxious scrutiny has been demonstrated. Put another way, the decision letter is so inadequate as an assessment of the matters set out in the petitioner's application and the weight to be afforded to them, that the only conclusion which can be drawn is that no proper consideration or anxious scrutiny was given to that application before it was rejected.

[18] I have already identified the matters set out in the application letter of             

2 February 2010. Two points in particular bear repetition. First, the application is based upon respect for the petitioner's private life. He does not invoke the protection of his family life. Second, in the application letter the petitioner sets out many aspects of the private life which he claims to have established, listing activities in which he says he takes part and, in general terms, friendships which he says he has made. Only one small part of the letter, a single sentence at the end of a paragraph in the middle of the letter, refers to his contact with his sister.

[19] However, when one looks to see the terms in which the application is dealt with in the decision letter, almost all of the content of the letter is ignored. The detailed consideration of the application is set out in the two page document headed "Consideration of Submissions". The relevant part begins at the bottom of the first page and is introduced by the words: "Below is a consideration of your Article 8 claim." It goes on to say that the points referred to below

"have not previously been considered, but taken together with the previously considered material, do not create a realistic prospect of success."

This clearly addresses the relevant test in paragraph 353 of the Immigration Rules. It goes on to consider the claim using the five stage test in Razgar. The first part of that test reports to be

"a consideration of whether your client has established family and/or private life in the United Kingdom."

Under this sub-heading, the decision letter says this:

"Your client has told us that he has a sister in the United Kingdom and his parents now live in Canada. However, the refusal letter dated 4 April 2005 [i.e. the original refusal letter] states in paragraph 23: 'with regard to your relationship with your sister it is considered that a family life will not usually be established between adult siblings unless there is something exceptional such as dependency going beyond normal emotional ties and amounting to real, committed and effective support. It is not considered that you have demonstrated that the nature of your relationship is such as to amount to established family life in the United Kingdom.' In any case, any private life your client has established here has been while he was aware that he was here illegally and could be removed at any time."

It is striking that in this passage, which bears to be a consideration of whether the applicant had established family and/or private life in the United Kingdom, the only specific reference to any of the factors relied upon is to his relationship with his sister. Even that is dealt with in terms not of a right to private life but of a right to family life, and the only way it is addressed is by reference back to the decision of April 2005. The sentence at the end of that passage and its reference to "any private life your client has established here" gives no indication that the decision maker has even considered any of the factors put forward by the applicant as evidencing the establishment of a private life in the United Kingdom.

[20] I was not addressed on the question of whether it was relevant that such private life, if any, had been established while the applicant was here illegally and subject to removal. No doubt this is a point which can be raised again, if it is to be relied upon, when the application is reconsidered. But I should say that it can never be an absolute bar to reliance upon the right to respect for a private life, since, like all other factors, it will have to be weighed in the balance with all the other multifarious factors, including the particular aspects of private life found to be established and the immigration policy approved by Parliament.

[21] Mr Forrest did not criticise points (2), (3) and (4) of the five stage test, subject, of course, to the point that the strength and validity of the points made will in each case depend upon an assessment of the facts relating to the private life sought to be protected. Since that there has been no adequate assessment in this case, the judgements indicated under those points amount to no more than abstract statements of principle unrelated to the content of the application. The fifth point, which was a "consideration of why any interference is proportionate to the permissible aim", was set out in the following terms:

"It is considered that our aims are a proportionate response, having regard to the need to maintain an effective immigration control, a factor which contributes to the economic well-being of the country. It is not accepted that the decision to proceed with your client's removal from the United Kingdom would breach Article 8 of the ECHR".

There is nothing wrong in principle with that approach, provided that the question of proportionality is assessed having regard to the factors relied upon by the applicant and assessed by the decision maker. But where none of those factors are mentioned, apart from a reference to the friendship with the sister and the most sweeping reference to "any private life" which the petitioner might have established in the United Kingdom, it does not appear to me that an assertion that the response is proportionate can carry any weight.

[22] For the Secretary of State, Ms Haldane Q.C. drew my attention to a further paragraph set out after consideration of the five point test. This reads as follows:

"Your client's asylum and/or human rights claim has been reconsidered on all the evidence available, including the further submissions, but it has been decided ...".

Ms Haldane submitted that this showed that the decision maker had in fact considered all of the evidence. To my mind it shows nothing of the sort. Had all the evidence been considered it should, in accordance with the requirement for anxious scrutiny, have been addressed in terms which showed the consideration given to it. The paragraph relied upon by Miss Haldane appears to be one that one would expect to find in every such letter, a cover-all in case some point had not been mentioned. That may well be appropriate where the decision letter shows that careful consideration has been given to the main points, and when such wording is used to stress that the fact that the main points have been dealt with does not mean that some other subsidiary details have been overlooked. But it does not assist the Secretary of State in the present case where the main part of the reasoning completely ignores all but one of the points made in the application letter.

[23] In support of his argument that anxious scrutiny had not been given to the application, Mr Forrest placed some reliance on the fact that the opening sentence of the decision letter referred to the applicant's letter of 12 March 2010, whereas in fact the detailed application was in a letter of 2 February 2010. That, in itself, does not seem to me to show that anxious scrutiny had not been applied. Clearly there was an interview on 12 March 2010, and it might an excusable error to refer to that date rather than the correct date of the application letter. It did, however, occur to me that another explanation for the decision letter not referring to the letter of 2 February 2010 might be that, for one reason or another, the application letter of 2 February itself had become separated from the rest of the papers at the time that the application was considered. That might explain why none of the points in that letter were addressed by the decision maker. Ms Haldane suggested that this was impermissible speculation. She is, of course, right in this. That charitable explanation for the clear failings in the decision letter is therefore not open to me. Ultimately the explanation for the inadequacies does not matter; it is the inadequacies themselves which are central to the complaint in the petition. Ms Haldane also suggested that the decision letter was a "model" by comparison with many other such decision letters that come before the courts. If true, that is a depressing thought. But ultimately that too is irrelevant. Whatever the general standard of scrutiny afforded to applications for asylum, this applicant was entitled to have his application and submissions in support afforded anxious scrutiny, and I am satisfied that the consideration given to his application was deficient.

[24] In these circumstances I propose to grant decree of reduction to allow the petitioner's application by letter of 2 February 2010, as supplemented by the material presented on 12 March 2010, to be reconsidered by the Secretary of State.