Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 174
P387/11	OPINION OF LORD BRODIE in the Petition of J C M (AP) Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department dated 20 January 2011 refusing to accept that further representations amounted to a fresh claim for asylum ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: John MacGregor; Office of the Solicitor to the Advocate General

19^th October 2011

Introduction

[1] The petitioner is a national of Zimbabwe. His date of birth is 1 April 1954. The respondent is the Secretary of State for the Home Department.

[2] The petitioner arrived in the United Kingdom on 24 August 2004 with the appropriate visa. The petitioner remained in the United Kingdom after the expiry of his visa and, having come to the attention of the authorities, claimed asylum on 17 January 2009. The application was refused and the petitioner was issued with a Reasons For Refusal Letter dated 2 April 2009. The petitioner appealed in terms of section 82(1) of the Nationality Immigration & Asylum Act 2002. The appeal was heard by an Immigration Judge and refused in terms of Determination dated 17 May 2009. The petitioner then applied for an order for reconsideration which was refused on 16 June 2009. His rights of appeal became exhausted as at 26 June 2009.

[3] A feature of the petitioner's application to this court and, as the respondent came to argue, before the Immigration Judge, is that having originally left Zimbabwe in 1993, the petitioner has spent most of the subsequent years outside that country. He was resident in Zimbabwe between 1996 and 1999 and visited there briefly in 2004 but otherwise he has worked and studied elsewhere. During this time, as the Immigration Judge accepted as a matter of fact, the appellant was involved as a contractor and driver for various companies who operated under the auspices of the United Nations.

[4] Following his appeal rights having become exhausted, the petitioner submitted fresh representations on 16 July 2009, on 24 July 2009, on 30 April 2010, on 10 June 2010 and on 4 August 2010. These were rejected by the respondent respectively on 21 July 2009, 30 July 2009, 25 May 2010, 25 June 2010 and 6 August 2010.

[5] The petitioner made a further representation by way of a letter from solicitors dated 17 December 2010. Having referred to previous correspondence with the respondent, the letter summarised the petitioner's movements since leaving Zimbabwe in 1993 and noted that his case had been considered and refused by an Immigration Judge. The letter continued as follows:

"However his situation now is materially different.

He has now been absent from Zimbabwe for a further two years. Indeed, apart from 1996 to 1999 he has been absent from Zimbabwe since 1993, seventeen years ago. Having regard to this and to his employments with the United Nations, and with particular reference to the antipathy with which the UN is regarded by Zanu PF, there is no doubt Mr M's case will be regarded critically on his return. There is little doubt he will be unable to demonstrate loyalty to Zanu PF because of his protracted absence and because of his links with the UN. It is additional factors such as these which were referred to in the case of R N (Returnees) Zimbabwe CG [2008] UKAIT 00083.

Mr. M also has a claim now under Article 8 ECHR. He has now been resident in the United Kingdom for more than six years and a further two years since his case was last considered by an immigration judge. He has a daughter and two grandchildren in London with whom he is in contact regularly. His wife resides in Glasgow and although they are living apart he sees her socially twice a week and he speaks with her daily. We further enclose the documents referred to on the Schedule annexed which confirm Mr.M has a private life in the United Kingdom.

We should be grateful if you would consider these particular aspects of our client's new claim for asylum".

The respondent responded to the representation on behalf of the petitioner by letter dated 20 January 2011 refusing to accept that the representation amounted to a fresh claim for asylum. By petition lodged on 31 March 2011 and amended in terms of Minute of Amendment lodged on 9 September 2011, the petitioner now seeks judicial review of that decision.

[6] The petition called before me for a first hearing on 30 September 2011. Mr Forrest appeared on behalf of the petitioner. Mr MacGregor appeared on behalf of the respondent. Mr Forrest's motion was for reduction of the respondent's decision of 20 January 2011. Mr MacGregor's motion was to dismiss the petition or, alternatively, on the basis that no useful purpose would be served thereby, to refuse to reduce the decision.

Applicable law

[7] There was no dispute as to what was the applicable law. The relevant Immigration Rule is 353 which is in the following terms:

"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 previously considered material created a realistic prospect of success, notwithstanding its rejection".

What the Rule requires has been explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2007] Imm. AR.337 at 340, as adopted by the Inner House in FO Petitioner 2010 SLT 1087 at paragraph 23. Buxton LJ said this:

"[6] There was broad agreement as to the Secretary of State's task under Rule 353. He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under Rule 353(i) according to whether the content and material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material".

Having thus identified the task of the Secretary of State, Buxton LJ then considered the task of the court in the event of an application for judicial review of the Secretary of State's decision. He said this (supra) at 341:

"[10] ...a court when reviewing the decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return....The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that inquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing the question both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both these questions is in the affirmative, it will have to grant the application for review of the Secretary of State's decision".

[8] As appears from the terms of Immigration Rule 353, for there to be a fresh claim in terms of the Rule the applicant must have made "further submissions" which are "significantly different from the material that has been previously considered". As Laws LJ explained in R (AK) (Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855 at 864 and 865, submissions in this context merely means representations - short or long, reasoned or unreasoned, advanced on asylum or human rights grounds. Further submissions will either have been already considered or not and whether they have been is purely a matter of fact.

Submissions of parties

Petitioner

[9] On behalf of the petitioner, Mr Forrest rather departed from what was foreshadowed in the petition. He expressly disclaimed reliance on the averments that had been introduced by amendment and, in support of his single plea-in-law that the respondent had erred in law, advanced three short submissions: first, that the respondent had failed to take account of relevant and material considerations; second, that the respondent had taken into account irrelevant considerations; and third, that the court could not be satisfied that the respondent had given the petitioner's further submissions the necessary anxious scrutiny.

Respondent

[10] Mr MacGregor began by stating the principle which applied to judicial review in cases such as this: that the decision of the respondent should be tested by the criterion Wednesbury reasonableness having regard to the requirement for anxious scrutiny. By way of support for that principle he referred to WM (DRC) v Secretary of State for the Home Department (supra); FO v Secretary of State for the Home Department (supra), KD v Secretary of State for the Home Department [2011] CSIH 20 and MM (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193. Having regard to that principle and the requirement that the respondent's decision be looked at in the round: Harbachou Petitioner [2007] CSOH 18, Mr MacGregor submitted that the petitioner's criticisms were unfounded. The petition should accordingly be dismissed. However even if the court were not persuaded to dismiss the petition, the respondent's decision should not be reduced because no useful purpose would be served thereby. As at the date of the respondent's decision the relevant country guidance for Zimbabwe was to be found in the case of RN (Returnees) Zimbabwe CG (supra).. That was acknowledged by the petitioner's averments. The petitioner's representations made by letter of 17 December 2010 had been considered by the respondent under reference to that country guidance. However, between the date of the respondent's decision letter of 28 January 2011 and the granting of first orders in this petition on 1 April 2011, new country guidance had been issued in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98. That country guidance included a reassessment of risk to returnees in certain rural areas of Zimbabwe. The respondent had accordingly invited the petitioner's representatives to make further representations on behalf of the petitioner with a view to these representations being considered in the light of the country guidance provided by EM. Those acting on behalf of the petitioner had declined to do so, albeit that EM and the new country guidance provided by that case are referred to in the Minute of Amendment for the petitioner, No.12 of process, in terms of which the petition had been amended. In that the respondent remains willing to consider any representations made to her by the petitioner under reference to the now current country guidance without requiring her decision of 20 January 2011 to be reduced, decree of reduction would have no purpose.

Discussion

[11] What Mr Forrest, on behalf of the petitioner, founded on as a further submission amounting to a fresh claim in terms of Immigration Rule 353, was what he summarised as "the UN connection". It is referred to in these terms in the letter from the petitioner's solicitors to the respondent dated 17 December 2010:

"Having regard to [his absence from Zimbabwe since 1993] and to his employment with the United Nations, and with particular reference to the antipathy with which the UN is regarded by Zanu PF, there is no doubt Mr M's case will be regarded critically on his return. There is little doubt he will be unable to demonstrate loyalty to Zanu PF because of his protracted absence and because of his links with the UN".

It was Mr Forrest's first submission that the respondent had omitted to notice this material or failed to take it into account. In the course of discussion I understood him to say that his complaint was that the respondent had not properly identified the nature and effect of the further representation that had been made to her.

[12] In my opinion this first submission is without foundation. No supporting material was included with the letter of 17 December 2010 which related to the UN connection. I accept, following R (AK) (Sri Lanka) v Secretary of State for the Home Department (supra) at paragraph 20 that for the purposes of Immigration Rule 353 "submissions" merely means representations on asylum or human rights grounds, whether they be short or long, reasoned or unreasoned. Accordingly, the two sentences which I have quoted from the letter of 17 December 2010 were submissions. However, as appears from the terms of the Rule, submissions will only amount to a fresh claim if they are significantly different from the material that has previously been considered by the respondent and they will only be "significantly different" if the content has not already been considered and, taken together with previously considered material, they create a reasonable prospect of success were they to be put before an Immigration Judge in support of a statutory appeal. As Laws LJ explains in paragraph 24 of R (AK) (Sri Lanka) v Secretary of State for the Home Department supra, the question of realistic prospect of success only arises in the event of the content of what is put forward as a further submission having not already been considered. Laws LJ describes this as a question of fact and that would seem to be the case. Thus, for the first submission to be put forward by Mr Forrest to have any substance the references to the UN connection in the letter of 17 December 2010 would have to be significantly different from material previously considered by the respondent. Mr Forrest accepted that information supporting a UN connection had been before the Immigration Judge who had dismissed the petitioner's appeal by the Determination dated 21 May 2009 and indeed Mr Forrest made reference to the Immigration Judge's finding that the petitioner had been involved as a contractor and driver for various companies which operated under the auspices of the United Nations between 1995 and early 2004. Mr Forrest accepted that no new facts about the UN connection had been put forward in the letter of 17 December 2010. That concession might have been thought to have been the end of the matter, but Mr Forrest asserted that there was no discussion in the Determination by the Immigration Judge about the effect of the petitioner's association with the United Nations on his asylum and human rights claims. What I took from that was that it was Mr Forrest's position that the significance of the petitioner's UN connection had not "previously been considered" by the Immigration Judge. Agreeing with Mr MacGregor's submission on behalf of the respondent, I do not consider that that is the case. At Statement 4.2 of the petition it is acknowledged that the Immigration Judge considered the petitioner's claimed involvement with the UN in paragraphs 23 to 25 of his Determination. That is indeed so. As the Immigration Judge recognised at paragraph 23, one aspect of the now petitioner's claim was that he had been involved with the United Nations between 1993 and 2003. He had lodged documentary productions in support of that connection. As Mr MacGregor submitted, it is apparent from a reading of the Determination by the Immigration Judge that he appreciated that in part, the petitioner's claim for asylum was based on his past connection with the UN and the adverse attention that this would bring on his return to Zimbabwe, as demonstrated by the Zimbabwe High Commission's failure to return his passport when it was sent for renewal. This appears particularly from paragraphs 9(iv), 13, 18, 23, 27, 28 and 29 of the Determination. Thus, looking to what has preceded it, the Immigration Judge's conclusion at paragraph 31 that the now petitioner had failed to discharge the onus of proving that he could not demonstrate loyalty to the regime in Zimbabwe was based on all the evidence that had been before him and that included evidence of the petitioner's connection with the UN, which the Immigration Judge had accepted had been established. Notwithstanding this connection, the Immigration Judge found that the petitioner would not be at risk on returning to Zimbabwe.

[13] The letter of 17 December 2010 putting forward further submissions on behalf of the petitioner did not suggest that the UN connection constituted material which was different from that which previously been considered. The UN connection was referred to but the respect in which it was said that the petitioner's situation was materially different from that previously relied on was that a further two years had passed since the refusal of the petitioner's appeal by the Immigration Judge. It was the petitioner's position that within that period he had established and strengthened connections with the United Kingdom as demonstrated by the seven documents contained in the schedule attached to the letter. It was the submission contained in that letter to which the respondent had to respond and she did so accordingly. Her acceptance that fresh representations had been submitted which had not been previously considered was a reference to the documents sent on behalf of the petitioner which had not previously been before the respondent. She then went on to consider whether these fresh representations, taken with the previously considered material, including the material which had been before the Immigration Judge, created a realistic prospect of success before another Immigration, applying anxious scrutiny. As appears from paragraph 36 et seq of her decision letter, she concluded that they did not.

[14] Put short, the respects in which the further submission made by letter of 17 December 2010 were significantly different from material that had previously been considered had nothing to do with the UN connection. The UN connection had been considered by the Immigration Judge and assessed as not giving rise to relevant risk. In what is a full decision letter, the respondent must be taken to have had regard to the UN connection as part of the "previously considered material". That is what she was required to do and that, on any fair reading of her letter, is what she did.

[15] As his second submission, Mr Forrest contended that the respondent had taken into account an irrelevant consideration when, as she did in paragraph 10 of the decision letter, she noted that the petitioner had been found to be incredible in relation to the assertions which underpinned the first aspect of his claim as presented to the Immigration Judge. This, said Mr Forrest, was of no relevance given the petitioner's departure from reliance on this part of the evidence. This submission again appeared to proceed on a misreading of the decision letter. While it might be said that an adverse finding of credibility on a different aspect of his claim was irrelevant to a determination of what weight should be given to an aspect of the petitioner's claim in respect of which he was found to be credible, that is not what was done by the respondent. Rather, having correctly identified what was new material and what had previously been considered, from paragraph 8 of the decision letter onwards she proceeds to evaluate the new material, in the light of the credibility finding, and applies her mind to the question as to whether the new material, taken together with the previously considered material, gives rise to a reasonable prospect of success. That is what she was required to do.

[16] Mr Forrest's third submission was that the Court should not be satisfied that the respondent had applied the requisite "anxious scrutiny". His submission did not include any development of what precisely "anxious scrutiny" meant or how a failure to exercise it was to be identified. I did not understand that the submission had any substantial content beyond what was comprehended within Mr Forrest's first and second submissions. I have rejected Mr Forrest's first and second submissions. It does not appear to me that I had any basis upon which I could uphold the third.

[17] I shall therefore dismiss the petition as irrelevant but Mr MacGregor submitted that even had I been inclined to uphold the petitioner's plea in law, I should nevertheless refuse the petition because granting the remedy sought, which was reduction of the decision letter, would serve no useful purpose. Even if I had not been with Mr McGregor on his other submissions, I would have upheld this submission. As the petitioner's advisers are well aware, because this was pointed out to them by those acting for the respondent, a new country guidance case has been decided subsequent to the date of the decision letter. Given that new country guidance is available, the respondent would have to regard any further submission by the petitioner as significantly different from the material that had previously been considered because current country guidance is part of the material that any decision-maker must consider on an asylum or human rights claim being made. Here, the petitioner has declined to make a further submission although invited to do so. The new country guidance case was introduced into the petition by way of amendment only to be expressly departed from by Mr Forrest in argument.

[18] In Conway v Secretary of State for Scotland 1996 SLT 689 at 690F Lord Johnson said this:

"I am firmly of the view that judicial review is not available to enable persons aggrieved by decisions of those in administrative authority simply to make the challenge if there are no practical consequences arising from...success...".

I would respectfully associate myself with that view. Here, the petitioner purports to be seeking reduction of the respondent's refusal to treat further submissions as a fresh claim for asylum. Reduction of that decision would not result in the submissions made by letter of 17 December 2010 being treated as a fresh claim. Rather, the decision letter having been reduced, it would be for the respondent to consider the matter again. Thus, the best outcome available to the petitioner in this petition for judicial review is the opportunity to have his further submissions reconsidered. However, the respondent has already invited him to make further submissions which she will consider in the light of the country guidance case, just as would be the position were the decision letter to be reduced. Reduction of the decision letter would afford the petitioner no discernible advantage. Another way of saying the same thing is that the petitioner already has available, at his own hand, the very remedy which he seeks to obtain from the court. It is trite that, in general, the supervisory jurisdiction can only be exercised where no alternative remedy is available to the party seeking to invoke it. Accordingly, even had I been persuaded that the petitioner had grounds for the reduction of the respondent's decision, which I am not; I would not have granted decree in his favour because to have done so would have been, as was submitted on behalf of the respondent, an entirely futile act.

[19] It follows from what I have said that all the resources which have been applied to proceeding with and hearing this petition subsequent to the date on which those acting for the respondent invited those acting for the petitioner to submit yet another further claim have been wasted, as those advising the petitioner should have been well aware.

[20] I shall reserve all questions of expenses.