Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 113
P1055/11	OPINION OF LORD DRUMMOND YOUNG in the cause T.S. Pursuer; for Judicial Review of a decision of the Secretary of State for the Home Department to refuse to accept further submissions as a fresh claim for asylum ­­­­­­­­­­­­­­­­­________________

Pursuer: Caskie; Allan McDougall

Defender: Webster; P Johnston, Office of the Solicitor to the Advocate General

6 July 2012

The petitioner's application for judicial review
[1] The petitioner arrived in the United Kingdom on 10 November 2006 and claimed asylum on 20 November 2006. She claims to be a citizen of Somalia. Her application was refused and the refusal was upheld on appeal. Her right of appeal ended on 15 April 2007. On 4 July 2011 she made further representations in relation to the situation in Somalia and the risks that she faced if she returned there. On 19 July 2011 the Secretary of State refused to accept those submissions as a fresh claim for asylum. The petitioner then raised proceedings for judicial review; in doing so she founded on the decision of the European Court of Human Rights in Sufi and Elmi v United Kingdom (applications nos 8319/07 and 11449/07), which was issued on 28 June 2011. No reference to that case had been made in either the petitioner's representations or the Secretary of State's decision, and the Secretary of State had issued a guidance note based on the views of the European Court of Human Rights. Consequently the decision letter of 19 July was withdrawn. The petitioner's application was then reconsidered, and on 23 December 2011 a further decision letter was issued. Once again the Secretary of State refused to accept the petitioner's submissions as a fresh claim for asylum. In the present petition for judicial review the petitioner seeks reduction of that decision on the ground that it is unreasonable or irrational.

[2] In considering the submissions made the petitioner in July 2011, the Secretary of State is obliged to follow rule 353 of the Immigration Rules, made under the Immigration Act 1971, sections 1(4) and 3(2). This provides as follows:

"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".

In considering an application under rule 353, the Secretary of State requires to consider three matters sequentially. First, she must consider whether in her view the representations in that the petitioner should now be granted leave to remain on refugee or human rights grounds are an exercise of the discretion that the Secretary of State has to grant leave to remain to any person that she chooses. If that question is answered in the negative the Secretary of State must consider a second question: whether the submissions have been considered previously. In this connection it is irrelevant whether the new evidence or submissions were available previously, although that might affect their reliability. Thirdly, the Secretary of State must consider whether there is a "realistic prospect of success" in an appeal to the First-tier Tribunal (Immigration and Asylum Chamber). That is a low test: WM (DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495; AK (Sri Lanka) v Secretary of State for the Home Department, [2009] EWCA Civ 447.

[3] When the court considers a challenge to a decision by the Secretary of State in this area, it is now clear, at least in Scotland, that any challenge to the decision proceeds on standard grounds for judicial review, including irrationality and unreasonableness in the sense that no reasonable person in the Secretary of State's position could have reached the decision that she did (Wednesbury unreasonableness): FO v Secretary of State for the Home Department, 2010 SLT 1087, at paragraph [23]; Dangol v Secretary of State for the Home Department, 2011 SC 560, at paragraphs [6]-[7]; WM (DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495. On this approach, if the decision of the Secretary of State is not taken on the basis of anxious scrutiny, it will be held irrational. This has two consequences: first, the court must consider whether the Secretary of State has asked the correct question, which is not whether the new claim should succeed but whether there is a realistic prospect that the First-tier Tribunal, applying the rule of anxious scrutiny, might think that the applicant had a good case; and secondly, the court must consider whether the Secretary of State has in answering that question satisfied the requirements of rationality and Wednesbury unreasonableness, and has in particular satisfied the requirement of anxious scrutiny. If these questions cannot both be answered in the affirmative, an application for judicial review must be granted. In certain English cases it has been held that the court should itself decide whether there is a realistic prospect of success before the First-tier Tribunal instead of proceeding on standard judicial review lines, but that is clearly not the law in Scotland.

The decision of the Immigration Judge
[4] The petitioner's initial claim for asylum was considered by an Immigration Judge, who issued a decision on 7 March 2007. The petitioner's claim was that she was a Bajuni from Somalia. The Bajuni are an ethnic group found in coastal regions of both Somalia and Kenya. The petitioner alleged that in 1992 she had fled violence in Somalia with her parents, had moved to Kenya, and in 1994 had converted from Islam and been baptized with new Christian names. In 1998 the family returned to Kismayo in Somalia, and had lived there until 2006. The petitioner claimed that in June 2006 a militia attack had occurred, and she and her mother had been raped and her father severely injured. In July they travelled with other Bajuni to the Yemen, where they were cared for in a mosque for two months. At that point it was decided that the petitioner should be sent to Europe through an agent, and she had arrived in the United Kingdom. The petitioner's claim to be Bajuni was tested before the Immigration Judge. She demonstrated some lack of knowledge about conditions in the Kismayo region of Somalia. Despite that, the Immigration Judge concluded (at paragraph 22) that, while such knowledge might have been expected, it was impossible to draw definite conclusions from the petitioner's lack of knowledge. The Immigration Judge went on (at paragraph 23) to consider a criticism that it was not credible that the petitioner would not be aware of discussions about whether to leave Kismayo following serious attacks. He concluded that, even bearing in mind that deference to parents might be usual, it was nevertheless incredible that she would not be aware of such discussions, especially as the move was said to involve the separation of her parents even though her father was recovering from his injuries. The Immigration Judge commented that the response of not being party to discussions was "an all too convenient blanket answer to avoid awkward points". The Immigration Judge then considered the petitioner's account of her conversion to Christianity (at paragraphs 24-28). He referred to a number of surprising features, bearing in mind that Somalia has a bad record for the persecution of Christians and that in the Yemen the petitioner's family were said to have pretended to be Muslim. He concluded that the casualness with which Christian conversion was treated undermined credibility. On that basis, he concluded (at paragraph 28) that "These surprising features indicate intention to dress up an account and to conceal actual Kenyan and Christian origins rather than description of an event which would have been of cataclysmic family significance".

[5] The Immigration Judge then considered the petitioner's account of her travel arrangements and finances, and found her evidence on that matter to be unreliable (at paragraph 29). During the hearing before the Immigration Judge the petitioner said at the beginning that she did not understand English, but was able to answer questions with scarcely a pause for the interpreter. On one occasion she answered without waiting to hear the interpreter. Command of English was consistent with an upbringing in Kenya, and would explain why the petitioner had no difficulty with questions heard in English before translation into Kibajuni. The Immigration Judge hesitated in giving this factor decisive significance, but regarded it as a factor against the credibility of the petitioner (at paragraph 31). The Immigration Judge also recorded (at paragraph 32) that he had discounted certain points made against the petitioner, and referred to the fact that she had given certain answers at interview which showed some knowledge of the Bajuni and Kismayo. Nevertheless, such information was well known and easily found out in Kenya. The Immigration Judge's conclusion was expressed as follows (at paragraphs 33 and 34):

"Looked at in the round, there are matters seriously adverse to the Appellant's credibility such that I cannot find her essential account proved even to the lower standard. I find that she is a native speaker of Kiswahili. It is possible, but no more than that, that she is Bajuni. The Bajuni are not a tiny minority unique to Somalia. They are much more numerous in Kenya. If the Appellant has some Bajuni aspect of her identity, it is not in Somalia. Crucially, I find that aspect of her account to be invented.

... Further, having rejected the Appellant's credibility I do not accept that she would be returning to a situation where she has no family support. I am satisfied she has not told the truth about her background or how her trip was arranged and financed or about lack of contact. I infer that she has an available network of support on return to her place of origin".

The conclusion was accordingly that the petitioner might or might not be Bajuni, but even if she were she did not come from Somalia. That finding is plainly important, because if the petitioner was not from Somalia her claim to asylum on the basis of persecution in Somalia could not have any foundation. On that basis her application as presently framed must inevitably fail.

The petitioner's further claims to asylum
[6] Solicitors acting for the petitioner sent further letters to the UK Border Agency dated 17 October 2008 and 30 November 2010, in which they made certain further representations on her behalf and asked that these be considered as a fresh claim for asylum. Those claims were rejected by a letter from the UK Border Agency, acting on behalf of the Secretary of State, dated 17 December 2010. The heading of the letter was "Miss T.S. Somalia 26 November 1980". For the petitioner it was suggested that the unqualified reference to "Somalia" in this heading, without the addition of the formula "(claims to be)" as found in a later letter, indicated that the Secretary of State accepted that the petitioner was in fact Somali. The substance of the letter, however makes it quite clear that the Secretary of State did not depart in any way from the Immigration Judge's decision that the petitioner was not Somali. It is clearly the substance of the letter that matters, and on that basis I reject the suggestion that the heading involves any acceptance that the petitioner was Somali. It was rather an indication of the petitioner's name and date of birth and the country from which she claimed to have come; if a country was to be stated there was no alternative to Somalia because the Immigration Judge did not find that she came from any particular country.

[7] The letter of 17 December 2010 sets out the petitioner's immigration history, beginning with the words "Your client claims to have left Somalia on 15/07/06 and travelled to Yemen". That expression makes clear that the Secretary of State has not accepted that the petitioner left Somalia. The letter continues by quoting at some length from the Immigration Judge's opinion, including adverse findings as to the petitioner's credibility. Specific reference is made to the finding of the Immigration Judge that, if the petitioner "has some Bajuni aspect to her identity, it is not in Somalia. Crucially, I find that aspect of her account to be invented" (paragraph 8 of the letter). The same passage was quoted once again at paragraph 26 of the same letter. Thus it is quite clear from the terms of the letter that the Secretary of State did not accept that the petitioner was Somali. The letter went on to consider a contention that the petitioner suffered from post-traumatic stress disorder. This was rejected, and it was held that there was no realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, might find that the petitioner was reasonably likely to be at real risk on return to her country of origin. Consideration was also given to a claim under article 8 of the European Convention on Human Rights based on the fact that the petitioner and her child had integrated and settled in the United Kingdom, and the petitioner had attended college and achieved qualifications. That claim was also rejected, and the final conclusion was that it was appropriate that the petitioner be removed from the United Kingdom.

[8] The decision intimated in the letter of 17 December 2010 was not challenged by the petitioner. On 4 July 2011 a further asylum claim was submitted on her behalf. The Immigration Judge's conclusions, as expressed in paragraph 33 of his decision, were challenged in the latter claim. In particular, it was submitted that the Immigration Judge had come close to holding that the petitioner was from Kenya, and if that was his position he should have given her an opportunity to respond to that opinion. The Secretary of State responded to this claim on 19 July 2011, holding (at paragraph 13) that there would not be a realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, might find that the petitioner would be exposed to a real risk of persecution or of treatment contravening articles 2 and 3 of the European Convention on Human Rights. Reliance was based on the findings of the Immigration Judge in his decision of March 2007, in particular in relation to the appellant's credibility. Specific reference was made to the findings in paragraph 33 of the Immigration Judge's decision, quoted at paragraphs [5] and [7] of this opinion. It was suggested on behalf of the petitioner that this letter, which had the same heading as the letter of 17 December 2010, involved an acceptance by the Secretary of State that the petitioner did in fact come from Somalia. The letter itself, however, makes it clear that the Secretary of State continued to maintain the Immigration Judge's finding that the petitioner was not from Somalia.

[9] Following the decision of the European Court of Human Rights in Sufi and Elmi v United Kingdom, supra, the decision of 19 July 2011 was withdrawn, and a fresh decision letter was issued on 23 December 2011. In that letter, it was accepted (at paragraph 15) that certain documents submitted with the petitioner's application of 4 July 2011 had not previously been considered; the question was accordingly whether, when these were taken together with previously considered material, they created a realistic prospect of success. Consideration was given to the petitioner's origins. The letter stated:

"27. It is therefore considered evident that the Immigration Judge had available to him a range of objective evidence in order to make his determination that 'The Bajuni are not a tiny minority unique to Somalia'. You have provided no evidence to demonstrate that the Bajuni people are a tiny minority of people unique to Somalia. It is considered that there is ample evidence that there are various Bajuni communities indigenous to countries other than Somalia, most notably Kenya. Therefore your statement that the Immigration Judge made a factual error is considered to be wholly without foundation.

28. It is considered that another Immigration Judge, when applying the rule of anxious scrutiny, would be duty bound to give weight to these issues when assessing the merits of this aspect of your representations on behalf of your client. It is considered that there is no realistic prospect of another Immigration Judge, when applying the rule of anxious scrutiny, finding that your client is a Bajuni from Somalia on the basis of the submissions you have made".

In my opinion those conclusions are plainly justified. The petitioner had not produced any further evidence to suggest a Somali origin, which is precisely the point on which the Immigration Judge had found against her.

[10] The decision letter of 23 December 2011 deals further with the petitioner's origins at paragraph 32. It is there pointed out that, in the Home Office Operational Guidance Note relied on by the petitioner in her application of 4 July 2011, it is noted that the Bajuni do not only originate from Somalia but also from other countries along the Indian Ocean coast. The Immigration Judge therefore could not be certain which country the petitioner originated from, and was unable to make any finding that she was from a specific country. The letter then states:

"There was no obligation on the Immigration Judge to make a finding on your client's nationality. It is evident that the Immigration Judge made a clear finding that your client is not from Somalia".

On that basis it is stated (at paragraph 33) that another Immigration Judge, applying the rule of anxious scrutiny, would be duty bound to give weight to these issues when assessing the merits of the petitioner's representations. Further reference to the Immigration Judge's decision is made at paragraph 43 of the letter, where it is stated that the judge "made a clear finding regarding your client's nationality", and part of the passage from paragraph 33 of the decision, quoted above at paragraph [5], was then cited.

[11] In Sufi and Elmi v United Kingdom, supra, it was indicated (at paragraph 248) that there was an overwhelming indication that the level of violence in Mogadishu was of sufficient intensity to pose a real risk of treatment contravening article 3 of the European Convention on Human Rights to anyone in the city. In so holding the Court had regard to "the indiscriminate bombardments and military offensives carried out by all parties to the conflict [in Somalia], the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict". The decision was referred to by the Secretary of State in her letter of 23 December 2011 (paragraphs 42 et seq). The letter went on to refer to the decision of the Immigration Appeal Tribunal in MY (Disputed Somali nationality) Somalia, [2004] UKIAT 00174; in that case it had been held that the appellant was not a Somali but removal directions to Somalia had been issued with the intention that the appellant should appeal against those and thereby establish his true nationality. The Tribunal's opinion stated (at paragraph 36, quoted in the Secretary of State's letter of 23 December 2011 at paragraph 44):

"[Counsel] suggested that the Tribunal should consider whether as a non-Somali, the Appellant would be persecuted in Somalia. We decline to consider that: the Appellant does not come within the definition of a refugee. Also, it would be impossible for the basis of a fear of persecution to be established credibly. And it would be an abuse of process for him to say that his claim should be dealt with on any basis other than that which he put forward. He cannot have it every which way. After all, he denies that he is a non-Somali. Finally, as we have said, if the Appellant is not a Somali, and he has been found not to be, the Secretary of State has said that he does not propose to remove him there but instead intends to investigate his true nationality".

On the basis of that decision, the Secretary of State's letter of 23 December 2011 stated (at paragraph 46):

"The starred determination of MY is considered to be a mirror image of that of your client. Her nationality has been rejected by the Secretary of State and the Tribunal and investigations are ongoing to ascertain her true nationality and in the meantime no removal directions have been set. Your client will not be removed to Somalia as it is not accepted that she is a Somali national. Similarly though, in line with the case of MY, your client cannot benefit from any caselaw [sic] or policy that is beneficial to nationals of Somalia. Therefore it is considered that the caselaw of Sufi and Elmi has no relevance to the consideration of your client's representations".

[12] The appellant's further asylum claim submitted on 4 July 2011 also made reference to article 8 of the European Convention on Human Rights. This claim was in essence that the appellant had achieved a level of integration in the United Kingdom and had established a settled private and family life with her son in the community. This aspect of the claim was rejected in the decision letter of 23 December 2011. It was pointed out (at paragraph 49) that the appellant's appeal rights had been exhausted since 15 April 2007, but she had continued to remain in the United Kingdom. Her removal from the United Kingdom had been obstructed by her refusal to provide an accepted account of her nationality. Consequently any private or family life established by the appellant in the United Kingdom had been done in the knowledge that immigration status was "of the most precarious nature".

[13] Before I consider the grounds on which judicial review is now sought, I should mention a further decision by the Upper Tribunal (Immigration and Asylum Chamber) to which I was referred in the course of submissions. This is AMM v Home Secretary, 28 November 2011, which deals with the then current situation in Somalia. The decision is lengthy, and it is sufficient for present purposes to record that the Upper Tribunal found that, despite the withdrawal in early August 2011 of Al-Shabab conventional forces from most of Mogadishu, there remained in general a real risk of harm for the majority of those returning to the city after a significant period of time abroad. The risk does not arise in the case of a person connected with powerful actors or belonging to the middle class or professions. Nevertheless, while the existence of such a risk has been judicially acknowledged, it clearly only applies in the case of a person of Somali origin who is returned to Mogadishu. In the case of an applicant for asylum who is found not to be Somali the risk does not appear to arise, and that is especially so if, because the person originates from another country, they are liable to be returned there rather than to Somalia.

Grounds of challenge to the Secretary of State's decision of 23 December 2011
[14] The petition narrates that in her letter dated 23 December 2011 the Secretary of State altered her position in respect of the petitioner. Despite having issued two previous decision letters in which she did not dispute that the petitioner was Somali and said that her proposal was to return the petitioner and her child to Somalia, the letter of 23 December 2011 proceeded on the basis that the petitioner was not from Somalia. The petition then challenges the statement in that letter that "it is evident that the Immigration Judge made a clear finding that your client is not from Somalia" (quoted at paragraph [8] above), and continues:

"No such thing is evident. What is evident is that the Immigration Judge was not able to conclude what nationality the Petitioner was. Subsequently when considering the Petitioner's case the Secretary of State proceeded upon the basis the Petitioner is Somali".

The petitioner then avers that it is unfair and unreasonable of the Secretary of State to proceed on the basis that she accepts that the petitioner is Somali for a period of three years but then to resile from that position as a means of denying the petitioner leave to remain in the United Kingdom (paragraph 29). It is then averred:

"No reasonable Secretary of State properly considering applications for asylum would twist and turn in their decision-making as the Secretary of State has to deny asylum to the petitioner".

At this point I should observe that the last averment is, for reasons discussed subsequently, plainly wrong.

[15] It is further averred that in letters dated 17 December 2010 and 19 July 2011 (see paragraph [6] above) the issue to be determined was said to be the lawfulness of return to Somalia. The Secretary of State is accused of attempting to treat the petitioner as if she were from Somalia but at the same time to deny that she is Somali. In some letters, at least, when the applicant's origins are uncertain, the heading to the letter states the claimed nationality followed by the expression "(claims to be)". That practice had been followed in some of the letters sent to the present petitioner but not in others. Finally, the petitioner avers that the Secretary of State "disingenuously suggests at paragraph 46 [of the decision letter of 23 December 2011] that 'investigations are ongoing to ascertain her true nationality'" (paragraph 33). Further to that averment, it is said that until the letter of 23 December 2011 it was clear that the Secretary of State was proceeding upon the basis that the petitioner was Somali but not Bajuni; and the approach taken was said to be inconsistent and therefore irrational.

[16] In his submissions, counsel for the petitioner contended that the decision letters of 17 December 2010 and 19 July 2011 both proceeded upon the basis that the petitioner was Somali. In the most recent decision letter, however, the Secretary of State had reversed her position, and asserted that she did not accept that the petitioner was from Somalia. On that basis, it is contended that the Secretary of State has proceeded in an unreasonable and inconsistent manner, and is accordingly personally barred from now asserting that the petitioner is not from Somalia. If the Secretary of State had consistently said that she did not regard the petitioner as Somali, the petitioner would have produced evidence in that regard at a much earlier stage. In any event, the Immigration Judge had not made a clear finding as to the petitioner's nationality. The ultimate decision letter of 23 December 2011 proceeded upon the basis that the Immigration Judge had held that the petitioner was not Somali, but in fact he had held no such thing. Furthermore, it was submitted that, in concluding that in an appeal to a First-tier Immigration Judge the petitioner would not have a realistic prospect of success, the Secretary of State had failed to have regard to have regard to the inconsistency in her own conduct. It was, moreover, realistically possible that an Immigration Judge might reach a different conclusion from the original Immigration Judge on the question of the petitioner's nationality.

Discussion
[17] In my opinion the contentions made on behalf of the petitioner are clearly unfounded. The starting point must be the Immigration Judge's decision of 7 March 2007. The Immigration Judge's opinion makes it clear beyond doubt that he did not accept that the petitioner was Somali, although she might be Bajuni. That appears from paragraphs 32 and 33 of his opinion, in passages quoted at paragraph [5] above. He states "If the Appellant has some Bajuni aspects to her identity, it is not in Somalia. Crucially, I find that aspect of her account to be invented". That is a plain finding that the petitioner's evidence to the effect that she was from Somalia was not credible. The reference to possible Bajuni identity does not detract in any way from the finding that she was not from Somalia, because it was accepted by the Immigration Judge, and this aspect on his decision is not challenged, that the Bajuni are found in Kenya as well as Somalia. Moreover, extensive reasons are given to support the conclusion that the petitioner's evidence as to her origins was not credible. In these circumstances I cannot accept the argument that there was any doubt about the Immigration Judge's decision about the petitioner's origins: she might or might not be Bajuni, but she was certainly not Somali.

[18] Moreover, in the series of letters issued by the Secretary of State, the Immigration Judge's crucial finding that the petitioner was not Somali is consistently repeated at length: see paragraphs [7], [8] and [10] above. I cannot accept the argument for the petitioner to the effect that there was any significant ambiguity about these letters; the heading used in the earlier letters does not appear to be significant for the reasons stated at paragraph [6] above. It was also argued that the letters contained discussion of a number of issues that would only be relevant in the event of the petitioner's return to Somalia. That is true, but the letters make it clear that the Secretary of State's basic position is that the petitioner is not Somali, as the Immigration Judge held.

[19] In her letters of 17 October 2008 and 30 November 2010 arguments were advanced on behalf of the petitioner based on article 8 of the European Convention on Human Rights. It was said that the petitioner and her child had integrated and settled in the United Kingdom, had retained no ties to Somalia, and that it would be disproportionate to remove the petitioner and her son from United Kingdom, as that would in breach of their rights under article 8. This claim is discussed in some detail in the Secretary of State's decision letter of 17 December 2010, which was a response to the two foregoing letters. The discussion proceeds on the hypothesis that any return will be to Somalia. The contention that is now made on behalf of the petitioner is that this indicates that the Secretary of State had taken an inconsistent attitude towards the petitioner's nationality, and that she should no longer be permitted to treat the petitioner as a non-Somali. Counsel for the Secretary of State conceded that possibly the decision letter should not have discussed possible return to Somalia, if the petitioner was not Somali. Nevertheless, he said, any error was resolved in the last decision letter, that of 23 December 2011.

[20] In my opinion the discussion of article 8 rights with reference to Somalia is not relevant for present purposes. The Secretary of State's letter of 17 December 2010 made it clear, in an earlier passage, that the letter was proceeding on the basis of the Immigration Judge's finding that the petitioner was not Somali. The question of article 8 rights was raised by the petitioner's solicitors. Any discussion of such rights requires a comparator, to determine the prejudice that might be suffered by the petitioner and her son as a result of removal from the United Kingdom. Somalia was the only country that had been mentioned in the petitioner's claim, and consequently it was the only available comparator. I would emphasise that the question of article 8 rights had been specifically raised by the petitioner's advisers, and no doubt the official acting on behalf of the Secretary of State felt that it was necessary to deal with every aspect of the claim that had been made. That effectively compelled a consideration of the consequences of return to Somalia. On that basis, it cannot be said that the discussion of article 8 rights qualified in any way the earlier clear finding that the petitioner was not from Somalia. Finally, on this aspect of the case, I should observe that the Secretary of State is entitled to change her mind on issues of fact; indeed, if the evidence changes, she ought to do so. Consequently a change of mind cannot be fatal to her position.

[21] In considering the history of the claims made by the petitioner, it is also pertinent to bear in mind that the approach to asylum claims involving Somalia has changed significantly as a result of the decision of the European Court of Human Rights in Sufi and Elmi v United Kingdom, supra. That decision led to a focus on conditions in Somalia, rather than other factors such as Bajuni ethnic identity. In these circumstances it is hardly surprising that in her final decision letter, that of 23 December 2011, there is a more obvious focus on whether or not the petitioner is Somali than in earlier discussion letters. In the last letter, it is stated (at paragraph 28) that

"It is considered that there is no realistic prospect of another Immigration Judge, when applying the rule of anxious scrutiny, finding that your client is a Bajuni from Somalia on the basis of the submissions you have made".

That sentence, and in particular the reference to "a Bajuni from Somalia" (the underlining is in the original) makes it clear that the focus in this letter was on the country from which the petitioner came. Even if that involves a significant modification from the Secretary of State's previous position (which I do not accept), the change in position was clearly brought about by the decision of the Strasbourg court, and the Secretary of State was entitled to alter her approach in the light of that decision. That appears to me to be quite obvious.

[22] Inconsistencies in the possible primary facts of an asylum claim were considered by the Immigration Appeal Tribunal in MY (Disputed Somali nationality) Somalia, supra, where it was held that the appellant was not Somali but it was argued that the Tribunal should consider whether he would be persecuted in Somalia. The Tribunal refused to consider that question; the claim could only be considered on the basis put forward by the appellant, and it would be an abuse of process for him to say that it should be dealt with on any other basis. In that case the Secretary of State accepted that he could not remove the appellant to Somalia, but would require to take steps to discover where the appellant was from and remove him there. The present case is similar to MY. In the last decision letter, that of 23 December 2011, after a reference to MY, paragraph 46 provides as follows:

"[The petitioner's] nationality has been rejected by the Secretary of State and the Tribunal and investigations are ongoing to ascertain her true nationality and in the meantime no removal directions have been set. Your client will not be removed to Somalia as it is not accepted that she is a Somalia (sic) national. Similarly though, in line with the case of MY, your client cannot benefit from any caselaw or policy that is beneficial to nationals of Somalia. Therefore it is considered that the caselaw of Sufi and Elmi has no relevance to the consideration of [her] representations".

That statement makes it clear, first, that the petitioner will not be removed to Somalia because it is not accepted that she is a Somali national and secondly, that as a result the possible treatment of persons returned to Somalia is irrelevant. That conclusion is in my opinion manifestly correct.

[23] The petitioner claims that the Secretary of State is personally barred at this stage from asserting that the petitioner is not of Somali nationality. In my opinion this claim has no merit. The petitioner's argument is based on acquiescence in her claim that she was a Somali. The classic modern statement of the law on acquiescence is that of Lord Nimmo Smith in William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd, 2001 SC 901, at 938F:

"[I]n order for a defender to succeed in a plea of acquiescence he must be able to establish a causal relationship between the pursuer's failure to act and his own actings; that he would not have acted as he did if the pursuer had not induced a reasonable belief that he consented to his doing so".

Thus it is critical that the person relying on a plea of acquiescence should act on a reasonable belief induced by the other party. That will almost invariably involve a change of position by the person relying on the plea. In the present case there are no averments as to how the petitioner's position changed as a result of any belief induced by the Secretary of State's letters. In submissions, her counsel suggested that the petitioner had been prevented from taking steps to prove her nationality. In my view that statement is plainly unfounded. The petitioner had been put on notice by the Immigration Judge's decision that her claim to Somali nationality was not accepted. The critical passage from the Immigration Judge's decision (at paragraphs 32 and 33) was repeated in subsequent decision letters. In these circumstances it cannot possibly be said that the petitioner was not put on notice that, if she wished her claim to refugee status to be accepted, she must provide more evidence of Somali nationality. Moreover, in Lord Nimmo Smith's formulation of the principle of acquiescence, the person who relies on the plea must act on a reasonable belief that the other party consents to his doing so. In the present case, given the terms of the Immigration Judge's decision, I do not think that any belief that the Secretary of State accepted Somali nationality can be described as "reasonable". The simple fact is that the petitioner was put on notice as long ago as 2007 that her claim to Somali nationality was not accepted, and she has done nothing since then to provide further evidence in support of that claim.

[24] For the foregoing reasons I am of opinion that the Secretary of State was entitled to reach the view taken by her in her decision letter of 23 December 2011. The Immigration Judge found that the petitioner was not a Somali, and the Secretary of State accepts that she cannot therefore be returned to Somalia. In these circumstances the Secretary of State was fully entitled to hold that there was no realistic prospect that another Immigration Judge, applying the rule of anxious scrutiny, might find that the petitioner faced a risk of persecution on removal from the United Kingdom to Somalia; that simply will not happen. I will accordingly dismiss the petition.