Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 210
P1138/11	OPINION OF JOHN BECKETT QC (Sitting as a Temporary Judge) in the Petition of AO Petitioner: against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of a decision of the Secretary of State dated 17 August 2011 ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie, Drummond Miller LLP

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

21 December 2011

Introduction

[1] The petitioner, born on 1 February 1983, is a 28 year old citizen of Iraq who seeks reduction of a decision of 17 August 2011 by the Secretary of State for the Home Department to refuse to treat representations on his behalf as a fresh claim to remain in the United Kingdom.

[2] The following history is derived from the decision letter, No 6/1 of process, augmented by the submissions of counsel. The petitioner arrived in this country on 23 November 2000 and claimed asylum on arrival and he was served with form IS151A notification to an illegal entrant that day. His asylum application was refused on 6 August 2001. He was issued with a supplementary refusal letter dated 17 December 2002 and his appeal was dismissed by an Independent Adjudicator on 14 October 2003. The Adjudicator had erred in law and following an application the case was examined again before an Immigration Judge who dismissed the appeal on 7 September 2006. An application for leave to appeal to the Inner House was raised on 16 November 2006 and served on the respondent on 20 December 2007. The application was 'sisted' pending a decision in the case of Bakhtear Rashid. On 17 January 2008 the petitioner was advised that he would not qualify for a grant of leave following certain decisions in other cases including Bakhtear Rashid. He became appeal rights exhausted on 22 May 2008. The decision of 17 January 2008 was challenged by judicial review which was dismissed on 13 February 2009 by Lady Clark of Calton. Further representations of 23 December 2008 were considered and refused on 25 February 2009 which decision was also challenged by judicial review which was dismissed on 11 December 2009 by Lord Menzies, [2009] CSOH 168. In that case the argument had related to whether in the light of admitted private life and alleged delay by the respondent the petitioner had a fresh claim, particularly in light of the decision of the House of Lords in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159. On 5 November 2009, further representations were submitted on the petitioner's behalf which were refused on 13 November 2009. The petitioner reclaimed the decision of 11 December 2009 and, without issuing an opinion, the Inner House dismissed the appeal on 1 July 2011.

[3] Further representations were submitted on behalf of the petitioner on 21 September 2010. The basis of that application was a claim that it would be in breach of the petitioner's right to respect for private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms for his application for leave to remain to be refused. He did not claim to have any family life in the United Kingdom. This application was refused by the Secretary of State, who also considered if this amounted to a fresh claim. It was accepted by the Secretary of State that the petitioner enjoyed a private life in the United Kingdom, but she concluded that it was not disproportionate that the petitioner should be removed, and that there was no realistic prospect that an Immigration Judge would conclude otherwise, as she explained in a decision letter of 17 August 2011 which is the subject of the present petition.

The applicable law

[4] I was referred to Immigration Rule 353 which is in the following terms:

"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."

[5] Counsel were in agreement that the law which fell to be applied in a judicial review where representations said to amount to a fresh claim had been refused was to be found in the cases of Dangol v Secretary of State for the Home Department 2011 SC 560 and O v Secretary of State for the Home Department 2010 SLT 1087 in which the respective divisions had adopted the following passage from the opinion of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495:

"[10] ... Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a 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 enquiry; 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 that question, both in respect of the evaluation of the facts and in respect of the legal conclusion 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 of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

The petition and the submissions for the petitioner

[6] Paragraph 2 of the petition narrates that the Secretary of Sate decided on 17 August 2011 to refuse to treat representations on behalf of the Petitioner as a fresh claim to remain in the United Kingdom. In paragraph 3(i) it is explained that the petitioner seeks 'the reduction of the decision of the Secretary of State to refuse to treat representations on behalf of the Petitioner as a fresh claim to remain in the United Kingdom as that decision is unreasonable et separatim irrational'. The plea-in-law confirms that reduction is being sought of the decision to refuse to treat the representations as a fresh claim.

[7] The principal ground of attack in the petition is found in paragraph 22 where it is averred:

"That a number of failed asylum seekers have been granted Indefinite Leave to Remain on the basis of a factual position alike that of the petitioner is a material matter that the Secretary of State requires to have regard to in determining the Petitioner's application to remain in the United Kingdom."

In that paragraph it is also said that any differences in the circumstances of the petitioner and the three 'comparators' referred to in paragraphs 17-19 of the petition are not material; that consistency was a requirement and distinctions should not be made on the basis of immaterial facts; there is a call for the Secretary of State to explain why any differences she identifies are material and significant; and to explain why there is not even a fanciful prospect of an Immigration Judge reaching a contrary conclusion.

[8] In paragraph 24 of the petition, it is averred that in considering the petitioner's case, the Secretary of State left out of account the decisions in the cases of the three comparators, which decisions, it is said, were within her knowledge, and that in failing to have regard to those matters the Secretary of State was irrational. In this paragraph, it is said that the Secretary of State erred both in her discretionary decision as to whether to grant the petitioner leave to remain, and in deciding whether there was a realistic prospect of an Immigration Judge finding it appropriate to allow the petitioner to stay when considering the evidence in this case and the need for consistency.

[9] In his submissions, Mr Caskie did not criticise the terms of the decision letter itself. His complaint was that, because certain other Iraqi men who had instructed the same firm of solicitors as the petitioner, and whose circumstances were said to be similar in some respects to those of the petitioner had been granted leave to remain, the decision not to treat the petitioner's case as a fresh claim must be unlawful. Certain facts were averred about those three men in paragraphs 17, 18 and 19 of the petition. Mr McIlvride for the respondent confirmed that he was not disputing the facts there averred, which he accepted were within the knowledge of the Secretary of State, but explained that the respondent had felt unable to make an admission in her answers for reasons of 'data protection'. Mr McIlvride was content that the court proceed on the basis of the facts averred in those paragraphs.

[10] Mr Caskie summarised the situation of the petitioner and the three comparators in this way: all are single men; all Iraqis; all come from the northern part of Iraq; one came from just south of the border with the Kurdish Autonomous Area, but all came from same vicinity and all arrived in the early part of this century; all claimed asylum; all were disbelieved in their asylum claim; they all remained in this country; they all made further submissions; they all had further submissions rejected as not making out a fresh claim for asylum; they all learned English to one degree or another; they all made efforts to integrate into the community. The petitioner had also spent a lot of time volunteering for the Citizens Advice Bureau. Whilst that summary was in some respects consistent with what was averred and not contested, the detail of what had happened in relation to the claims of the three comparators went beyond the undisputed averments.

[11] Mr Caskie founded on R (Iran) and Others v Secretary of State for the Home Department [ 2005] EWCA Civ 982, particularly at paragraphs 21 and 22 of the opinion of the Court of Appeal given by Brooke LJ; Arthur JS Hall and Co v Simmons [2002] 1 AC 615 at paragraph 9 of the speech of Lord Hoffman; and Shirazi v Secretary of State for the Home Department [2004] EWCA Civ 1562, particularly at paragraphs 29 and 31 of the opinion of the Court of Appeal given by Sedley LJ. Whilst Mr Caskie recognised that what those cases were essentially desiderating was equal treatment, in the present case a failure to treat the appellant and the three comparators equally could be inferred from the different outcome of their cases. Consistency would be achieved if the Secretary of State applied her department's guidance on dealing with fresh claims and guidance on the exceptional circumstances in which the consideration of claims under the Case Resolution Directorate would be expedited. Mr Caskie referred me to passages at pages 14, 16 and 17 of No. 6/5 of process (Further Submissions Policy) and to No. 6/3 of process (Case Resolution Directorate - Priorities and Exceptional Circumstances). At page 17 of No.6/5 of process, success for a fresh claim was explained in this way:

"Case owners should broadly interpret success to mean 'being allowed to stay.'"

Mr Caskie founded in particular on a passage in these terms in No. 6/5 of process:

"In all cases where further submissions are received, the first stage is to decide whether or not to grant leave to the applicant. The case owner must consider all available evidence when deciding whether the applicant qualifies for leave. This will include all information put forward by the applicant, but also information such as new country information or a new policy. Case owners must also act upon the findings in any final appeal determination which override conclusions expressed in the original reasons for refusal letter."

Mr Caskie submitted that the Secretary of State had erred in refusing the application on the discretionary basis described above, but he made no separate submissions about that and that argument also seemed to rely on the comparative principle which Mr Caskie contended for.

[12] Mr Caskie referred to the House of Lords case of R (O'Brien and Others) v Independent Assessor [2007] 2 AC 312 on which he anticipated the respondent would found. That was a case in which the issue was the proper approach to the quantification of damages to be awarded to prisoners who had spent time in prison before having their convictions quashed. Mr Caskie only referred me to the rubric of this case and went no further. He submitted that what should be taken from it was that justice required consistency of decision-making and that if a decision was to be made in a way which was out of line with the approach normally taken, detailed reasons for that had to be given for such a departure and none had been given in the petitioner's case. I did not find much support in the speeches for Mr Caskie's contentions about what was to be taken from O'Brien and how it might impact on the petitioner's case.

[13] Mr Caskie had to accept that the comparison which was now being presented had not formed any part of the representations made on the petitioner's behalf before his claim was refused on 17 August 2011. However, he maintained that the Secretary of State's department must have had knowledge of those cases. He also sought to found on the fact that only 36,000 of 197,000 cases had been refused by the Case Resolution Directorate dealing with a 'legacy' of asylum cases, as explained in No. 6/3 of process.

[14] Mr Caskie submitted that the decision not to treat the petitioner's case as a fresh claim must be seen as unlawful because of an inconsistency of treatment. He concluded by submitting that there was at least a realistic prospect of success, which meant no more than a fanciful prospect, of an Immigration Judge upholding the petitioner's application for leave to remain on the basis of inconsistency.

Submissions for the respondent

[15] Mr McIlvride submitted that the petition was only directed to reviewing the decision to refuse to treat the representations on behalf of the petitioner as a fresh claim. It did not attack the exercise of the Secretary of State's decision to refuse the application on a discretionary basis. He referred in particular to the terms of paragraph 3(i) of the petition (which I have quoted at paragraph [6] above), and to the petitioner's plea-in-law. However, he went on to submit that even if the discretionary decision was in issue, the Secretary of State had dealt appropriately with all aspects of the application as could be seen from the detailed evaluation found in the letter of 17 August 2011, with particular reference to paragraphs 14-17 of that letter. There is some force in Mr McIlvride's submission on this point. However, the discretionary decision is attacked in paragraph 24 of the petition and Mr McIlvride addressed the issue in his response and, in the particular circumstances of this case, I am prepared to consider the whole argument advanced by Mr Caskie.

[16] Mr McIlvride submitted that the fact that three other applicants, who share certain common characteristics with the petitioner, were granted leave to remain whereas the petitioner was not, did not in itself demonstrate that the decision being challenged was unreasonable. Rather, the Secretary of State's duty when considering further submissions was to consider each individual application on its own merits and there was no suggestion in the material before the court that she had failed to do so.

[17] In determining whether further submissions gave rise to a fresh claim for the purposes of Rule 353 the Secretary of State was obliged to decide whether if those submissions were before another Immigration Judge, the applicant would have a realistic prospect of success. She could only make that determination on the material put before her. It was important to keep in view that reliance on the three comparators referred to in the petition had formed no part of the petitioner's further submission which had been considered by the Secretary of State - there was no reference to them in the letter and enclosures from the petitioner's solicitors dated 21 September 2010, No. 7/1 of process. It could hardly be irrational if the Secretary of State did not consider the effect of three particular comparators on the hypothetical Immigration Judge when no information about them formed any part of the material which he was supposed to be considering. Regard should be had to the terms of Rule 353.

[18] Whilst not strictly relevant to his argument, Mr McIlvride asked me to note from the decision letter that the petitioner had been found to be credible only as to his age and the fact that he was an Iraqi Kurd.

[19] Turning to the cases on which Mr Caskie had founded, Mr McIlvride submitted that the ratio of the decision in Arthur JS Hall was that if a professional person offers to exercise his skill and expertise on behalf of another person, he assumes a duty of care towards that person and there should not be exceptions and it was wrong that those who engaged the skills of one class of professionals were being denied the remedy which is available in relation to members of other professions. Whether an individual had made out a claim would depend on the circumstances of his case. Mr McIlvride stressed that paragraph 9 of Lord Hoffman's speech put the emphasis on equal treatment. Equality of treatment did not dictate equality of outcome, it required that the same rules should be applied in each case. This may bring about quite different outcomes depending on the particular facts and circumstances of individual cases.

[20] All that was being said by the court in Shirazi was that findings as to the conditions in particular countries were to be treated as part of the objective criteria which were to be brought to bear in all cases, and it would be unfair if the objective criteria differed from case to case.

[21] Referring to O'Brien, and in particular paragraph 30 of the speech of Lord Bingham of Cornhill and paragraphs 87 and 88 of the speech of Lord Carswell, Mr McIlvride submitted that although it was generally desirable, consistency may have to yield to the facts of particular cases.

[22] Mr McIlvride submitted that what was required was that the Immigration Rules and relevant rules of law were applied in each case. The Secretary of State could not be expected to consider the circumstances of 36,000 unsuccessful and 161,000 successful applications when determining the petitioner's application. It was important to note however that those 'legacy cases' were all considered on their merits and in line with existing policy and law, as could be seen in No. 6/3 of process. The Secretary of State was not obliged to distinguish the circumstances of an unsuccessful applicant from those of successful applicants to demonstrate what characteristics they may or may not have in common.

[23] In article 8 cases, the Secretary of State required to take into account the whole circumstances of each applicant. It was a fact-sensitive exercise. The extent of a private life would inevitably vary from case to case and therefore the question of whether removal would be disproportionate would also vary in the light of the particular facts of each case. Accordingly, decisions may vary when an evaluation came to be made in relation to whether removal would be a disproportionate interference with the article 8 right to respect for private life. Just because there were some shared characteristics between certain cases, it did not necessarily mean that all cases sharing some characteristics would have the same outcome.

Discussion

[24] It is perfectly clear that in R (Iran) in paragraphs 21 and 22 of the opinion of Brooke LJ, the issue under consideration was the application of country guidance cases. This was the context in which he quoted Lord Hoffman from Arthur JS Hall as referring to 'the fundamental principle of justice which requires that people should be treated equally and like cases treated alike.' In paragraph 23, Brooke LJ went on to refer to observations of Lord Woolf MR in Manzeke [1997] Imm AR 524 which had prompted certain practice directions to be issued about country guidance cases. Lord Woolf had said:

"It will be beneficial to the general administration of asylum appeals for Special Adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as the situation has not changed in the meantime. Consistency in the treatment of asylum-seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum-seeker, are involved."

(The emphasis is mine).

In this passage, Lord Woolf, whilst confirming that equality of treatment demanded consistent application of objective considerations, distinguished that from the particular circumstances of the individual applicant.

[25] In the case of Shirazi, the issue was inconsistency in the application of in-country data. Whilst it is correct that in paragraph 31 Sedley LJ acknowledged that inconsistency of certain decisions was inimical to justice, it is also plain that the inconsistency he had in mind did not relate to the personal circumstances of claimants in individual cases, but to the way in which in-country data was applied. This is spelled out in the opening two sentences of his paragraph 29.

"29. I accept readily that it is not a ground of appeal that a different conclusion was open to the tribunal below on the same facts, nor therefore that another tribunal has reached a different conclusion on very similar facts. But it has to be a matter of concern that the same political and legal situation, attested by much the same in-country data from case to case, is being evaluated differently by different tribunals..."

(The emphasis is mine.)

[26] In O'Brien, whilst acknowledging the importance of consistency, Lord Carsewell went on to make further observations in paragraph 88 of the judgment:

"88 ... Consistency in the award of damages is a very desirable feature, just as it is in sentencing criminals-the recognition of which has produced such valuable works as Kemp & Kemp , The Quantum of Damages . That is because it is a facet of justice, to both payer and recipient, that like cases should attract like amounts. But it is only one facet, and the imperative of consistency may have to yield to the larger imperative of justice in the particular case, achieving a result which is proper and fair to the interests of both payer and recipient."

[27] Mr Caskie did not refer me to EB (Kosovo) but that decision has featured prominently in the history of applications by the petitioner. I note that the inconsistency which caused disquiet in that case bears little resemblance to what has been put before me by Mr Caskie. In EB (Kosovo), a claim for asylum made by a boy of 13 took almost five years to be determined, on account of a series of failures by the Secretary of State, by which time he had turned 18 and had lost the opportunity of being granted exceptional leave to remain on that basis. His cousin, who had arrived at about the same time as him in similar circumstances, was timeously granted exceptional leave to remain. The applicant's claim had been woefully mishandled and this could be shown to be the result of a dysfunctional system.

[28] On consideration of the authorities to which he referred me, I do not find support for Mr Caskie's contention that some inequality of treatment can be inferred from the different outcomes of four immigration cases, the petitioner's and his three comparators, or the success ratio for applicants to the Case Resolution Directorate. Nor am I persuaded that there is any basis for concluding that the Secretary of State was not entitled to reject the petitioner's claim for leave to remain on a discretionary basis, in relation to which no separate argument was advanced. I am not persuaded that she erred in concluding that there was no realistic prospect that an Immigration Judge would uphold the petitioner's claim on the basis of his further submissions. She asked herself the correct questions and there is nothing that demonstrates an absence of anxious scrutiny.

[29] There is considerable force in Mr McIlvride's submissions about the impracticality of consideration requiring to be given to decisions in other cases relating to applicants whose private life may have some greater or lesser similarity to that of an applicant such as the petitioner. More compelling still is his well-founded submission (see for example paragraphs 9 and 12 of the opinion of Lord Bingham in EB (Kosovo)) that article 8 claims require to be determined on a fact-sensitive basis. That being so, it is only to be expected that cases sharing some characteristics in common may produce different outcomes and this does not of itself demonstrate inequality of treatment as was recognised by Sedley LJ in the passage which I have quoted at paragraph [25] above.

[30] The view which I have reached in the preceding discussion is sufficient to cause me to refuse this petition. I would observe, however, that there was also force in Mr McIlvride's observations about the scope of review having regard to the fact that it is conceded that the comparative material now founded on was not put before the Secretary of State.

Decision

[31] For the reasons which I have given I am not persuaded that the Secretary of State was unreasonable or irrational in refusing the petitioner leave to remain and in concluding that this was not a fresh claim on the basis that there was no realistic prospect of an Immigration Judge determining the claim in the petitioner's favour. Accordingly I repel the petitioner's plea-in-law, sustain the plea-in-law for the respondent and refuse the petition. I shall reserve meantime all questions of expenses.