Scottish Court of Session Decisions

Petitioner: Forrest, Advocate; Drummond Miller LLP

Respondent: Lindsay, Advocate; Office of the Solicitor to the Advocate General for Scotland

2 June 2011

[1 ] The petitioner is a national of Somalia. He was born on 1 June 1991. On 2 April 2009 the Secretary of State for the Home Department (the respondent) refused his application for asylum and ordered his removal to Somalia as an illegal entrant. On 22 May 2009 an immigration judge refused an appeal against that decision. The petitioner had claimed to be a member of a Somalian minority clan, and, given the history of his father, uncle and sister's husband being shot by militia; his stepfather being abducted; and he being beaten and abducted and enslaved along with his brother, it was claimed that he was at risk of persecution or being killed if he returned to Somalia. For a variety of reasons the petitioner's claim to be from a minority clan was rejected. In that situation, the immigration judge's reading of the case law was that returning someone not from a minority clan to Somalia would not, of itself, lead to danger for that person "unless there is anything else in the special circumstances of the case to justify it". The immigration judge saw nothing else in the circumstances of the case to justify danger on return.

[2] On 10 August 2009 agents on behalf of the petitioner intimated a fresh human rights/asylum claim on behalf of the petitioner. Under reference to certain case law, including the decision in Elgafaji referred to below, it was submitted that, having regard to the internal armed conflict in Somalia, the demonstration of the existence of a serious and individual threat to the petitioner was no longer subject to the requirement that he would be specifically targeted by reason of factors peculiar to his personal circumstances. The respondent was asked to consider this as a fresh claim under reference to paragraph 353 of the Immigration Rules. The invitation was refused by decision of the respondent dated 4 September 2009. That decision was then successfully challenged by judicial review proceedings, with the respondent conceding that the decision should be reduced and reconsidered. The respondent issued a new decision dated 13 July 2010 to the effect that there would be no realistic prospect of an immigration judge finding that the petitioner would be exposed to a real risk of treatment contravening article 15(c) of the Qualification Directive. The submissions of 10 August 2009 were held not to amount to a fresh claim. The petitioner was then subject to removal from the UK. It is that decision which is challenged in the present proceedings.

[3] The reasoning in the respondent's decision of 13 July 2010 was as follows. Notwithstanding the decision of the Court of Justice of the European Union in Elgafaji v Staatssecretaris van Justitie (2009) 1 WLR 2100, in order to qualify for protection the level of violence in Somalia would require to demonstrate substantial grounds for believing that the petitioner would, solely on account of his presence in Somalia, face a real risk of being subject to a serious threat to his life or person by reason of indiscriminate violence. Reference was also made to the decision in QD (Iraq) & AH (Iraq) [2009] EWCA Civ 620. It was acknowledged that, as decided in recent decisions, there was no longer a requirement to show a risk based on the petitioner's personal circumstances. However "the more an individual can show they would be specifically affected by reasons pertaining to their own personal situation, the lower the level of indiscriminate violence required for eligibility under article 15(c)". Under reference to the immigration judge's finding in the initial appeal that the petitioner's claim to be from a minority clan was not credible, and to the rejection of the petitioner's account of events, the view was taken that there were no factors specific to the petitioner which would put him more at risk on return to Somalia than any resident affiliated to a majority clan. Therefore there had to exist an intensity of indiscriminate violence sufficient to meet the test in Elgafaji.

[4] As to the risk upon return it was noted that the petitioner claimed to come from Luq village in the Gedo region of southern Somalia near the border with Ethiopia. The decision continued: "Whilst the Immigration judge ... made no specific findings on this matter ... he wholly disbelieved your client's claims." No other details regarding the petitioner's home area had been submitted, thus no information had been presented which satisfied the test in Elgafaji. Reference was made to the Country of Origin report for Somalia. It indicated that Mogadishu airport was relatively safe. It is the closest airport to the petitioner's village. The USSD Human Rights 2009 Report on Somalia referred to a poor human rights situation in the Gedo region with low levels of generalised violence. A BBC news report of 29 October 2009 stated that there were no reports of armed clan factions operating checkpoints in 2009. The al-Shabab administration in Gedo had established checkpoints for security reasons, but no money was collected. The same report mentioned a ban on the use of Khat in areas under al-Shabab control, and that the group had eradicated the risk of extortion, robbery and murder from localised bandits. Correspondence from the Foreign & Commonwealth Office dated 5 May 2009 confirmed that clan protection was not required during overland trips unless there were ongoing rivalries between rival claims. The earlier decision being that the petitioner was affiliated to a majority clan, it was considered that, if required, the petitioner could procure an escort. An immigration judge would not consider that the petitioner would be at risk when travelling to his home village. The respondent concluded that, taking the available objective information into account, an immigration judge would consider that the test in Elgafaji was not met. "There would be no real prospect of an immigration judge applying the rule of anxious scrutiny finding that (the petitioner) would be exposed to a real risk of treatment contravening article 15c of the Qualification Directive".

The petitioner's submissions

[5] At a first hearing, on behalf of the petitioner Mr Forrest made reference to the Court of Appeal decision in HH (Somalia) and Others v Secretary of State for the Home Department [2010] EWCA Civ 426, which held that the earlier 2008 HH decision was obsolete because of the significant deterioration of conditions in Somalia. The test for a fresh claim is the modest one of more than a fanciful prospect of success. As to the decision letter, I understood Mr Forrest to submit that, in effect, there was no sufficient basis for the respondent's decision that an immigration judge would conclude that the Elgafaji test would not be met. Furthermore, the respondent (or rather than the official acting on the respondent's behalf) had not applied the correct test for a fresh claim, but had decided the case on its merits.

The submissions for the respondent

[6] Mr Lindsay for the respondent submitted that the petitioner's account of persecution was disbelieved by the immigration judge. At most the petitioner could rely on the fact that he came from southern Somalia. He would require to show a high level of indiscriminate violence in that region. That had not been demonstrated. Mr Lindsay agreed that the test for a fresh claim is the low and modest one referred to by Mr Forrest. The proper approach is to consider whether the respondent was entitled to reach the decision that this was not a fresh claim. Even after Elgafaji, it is still necessary to assess the level of risk to this specific individual with regard to the evidence relevant to that question. In that context the decision was a reasonable one, given that the petitioner is not from a minority clan; does not live in Mogadishu; and the first immigration judge disbelieved the petitioner's claim of persecution of him and his family. There were no prospects of success before a new immigration judge. It was observed that, should conditions in Somalia have deteriorated since the July 2010 decision, the petitioner could submit a further fresh claim, which would then be assessed on its merits. It was submitted that in any event there is no point in quashing the decision, since the outcome of any further reconsideration is bound to be the same. Thus the court was invited to exercise its discretion not to quash the decision, even if it is unlawful.

Discussion and decision

[7] The correct approach to issues of this nature is summarised in a recent decision of an Extra Division in Kishor Dangol [2010] CSIH 20. Reference was made to the judgement of Buxton LJ in W M (DRC) [2006] EWCA Civ 1495 in which his Lordship said: "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 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." Giving the opinion of the court, Lord Bonomy continued: "That is a clear and binding statement of the procedure that generally ought to be followed. There will no doubt be cases, as in other fields of judicial review, in which it is appropriate for the matter in issue to be determined by the reviewing judgement rather than remitted to the original decision-maker. However, for the moment they remain the exception rather than the rule". Reference was made to a passage in the judgement of Carnwath LJ in R (YH) [2010] EWCA Civ 116 concerning the phrase "anxious scrutiny". At paragraph 24 his Lordship said: "... the expression in itself is uninformative ... however it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and a 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." Lord Bonomy added: "Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence".

[8] Against that background, I make the following observations. At paragraph 5 of the decision letter, the respondent correctly states that the test for a fresh claim is whether the new submissions, when taken together with previously considered material, creates a realistic prospect of success before an immigration judge, notwithstanding the rejection of the earlier material, and when applying the rule of anxious scrutiny. The relevant case law has repeatedly emphasised that this is a low test, akin to assessing whether there is a more than fanciful prospect of success. While to an extent these are always a matter of impression, and recognising that it must be difficult for an official to separate his or her own view of the case from the task under paragraph 353, my view is that, if the decision letter is read as a whole, the respondent's official lost sight of that test, and, in the main, proceeded on the basis of her own opinion as to the merits of the case. The decision is predicated on the basis that the immigration judge will be referred to and will have regard only to the information mentioned by the respondent in the decision letter; and will necessarily draw the same conclusion from this material, namely, that the petitioner's claim is wholly without merit. However, at a new hearing the claimant would be entitled to put forward submissions which might lead to a different view of matters. There is nothing to suggest that the respondent's official has done other than draw inferences adverse to the claimant from material chosen by the same official. It is not said that that information is comprehensive, nor that there is no other material which might assist the petitioner. There is no mention of, nor even any recognition that other factors might be prayed in aid of the claim at a fresh hearing before a different immigration judge.

[9] The author of the decision letter places emphasis on the earlier decision of the immigration judge. However to my mind it is important to appreciate that, because of the then state of the law, the earlier hearing was not focussed on the current issue. Thus an adverse finding as to credibility in the first hearing is not as relevant as it might otherwise have been. The key issue now is whether there is a sufficient level of indiscriminate violence in Southern Somalia or on the route from Mogadishu airport as to satisfy the requirements of article 15(c); whereas, in the main, the previous hearing dealt with the petitioner's claim to be from a minority clan.

[10] The respondent's official appears to proceed on the basis that the immigration judge's adverse findings on the credibility of the petitioner's claim to be from a minority clan is of conclusive relevance to an assessment of the conditions and risk in his home area. The immigration judge made no findings on general conditions in the Gedo region, and, in my view, no irresistible conclusions on that matter can properly be drawn from his decision. The original claim and appeal was focussed on the issue of individual as opposed to more general threats. This was because of the then state of the law, which has now been altered by decisions such as Elgafaji. Furthermore it has been assumed that at a completely fresh hearing a new immigration judge would reject the whole history of the petitioner's account of persecution of him and his family. It is not clear to me that this assumption can safely be made.

[11] Returning to the two questions outlined in the judgement of Buxton LJ in WM (DRC), as recently approved by an Extra Division, I find that I am unable to answer both of them in the affirmative. In particular I am not satisfied that the respondent's official did more than ask himself whether the new claim is a good one, and I am not satisfied that the requirement of anxious scrutiny has been met. It follows that the decision did not meet the necessary standard.

[12] There is a considerable body of law to the effect that in judicial review proceedings of the present nature, the judge should form his own view on whether the new claim did or did not amount to a fresh claim within paragraph 353 of the Immigration Rules, as opposed to applying traditional judicial review principles.

In Kishor Dangol an Extra Division confirmed the latter view, namely that, in general, judges should not adjudicate on the issue before the respondent. This has recently been adopted as the correct approach south of the border by the Court of Appeal in MM (Tanzania)
[2011] EWCA Civ 193. The result is that I will simply quash the decision and remit the matter to the respondent for further consideration. It was in this context that counsel for the respondent invited the court to accept that such a procedure would be pointless since the ultimate decision was bound to be the same. I am not attracted to this submission. The court's discretion not to quash an unlawful decision is designed for clear cases where it is beyond doubt that the ultimate outcome must remain the same. I am not persuaded that this is such a case.

[13] In the whole circumstances I shall uphold the plea-in-law for the petitioner and grant decree of reduction of the decision of the respondent dated 13 July 2010. I shall reserve the question of expenses.