Scottish Court of Session Decisions

Pursuer: Devlin; Drummond Miller LLP

Defender: Webster; Office of the Advocate General

6 July 2012

Introduction

[1] This petition for judicial review came before me for a First Hearing, at which the petitioner sought reduction of a decision made by the United Kingdom Border Agency on 7 March 2012 to refuse his fresh claim for asylum. He is an Iranian citizen, who first arrived in the United Kingdom on 27 May 2008. He claimed asylum the next day. This claim was refused on 21 August 2008. His appeal was dismissed by Immigration Judge Handley in the Asylum and Immigration Tribunal on 8 October 2008. Senior Immigration Judge Waumsley refused to order reconsideration of the refusal on 30 October 2008. That decision was upheld by Lord Bannatyne by interlocutor of 18 January 2009, on which date the petitioner's appeal rights were exhausted. Thereafter, the petitioner submitted further representations on 2 October 2009, 25 March 2010, 30 September 2010 and 1 December 2010. All were rejected. He unsuccessfully applied for judicial review of the decision to reject his first set of further representations.

[2] By letter dated 20 February 2012 the petitioner's agents again submitted further material said to support his claim that he is a homosexual and because of this cannot safely return to Iran. It was argued that the new information created a realistic chance that another Immigration Judge would uphold the petitioner's asylum claim.

[3] The new information comprised statements from four of the petitioner's friends: YB, CM, DT and MM. There were also a number of photographs from Facebook pages showing the petitioner and others at a gay nightclub in Glasgow, the Polo Lounge.

[4] In the decision letter dated 7 March 2012 ("the decision letter") the Border Agency concluded that the further information was not significantly different from the material previously considered and that there was no realistic prospect of a new Immigration Judge coming to a conclusion different from those already reached.

The petitioner's grounds for judicial review

[5] At the First Hearing counsel ultimately advanced three grounds of challenge to the decision (certain other arguments were departed from in the course of the hearing). The points were accepted to be in short compass. Firstly, it was submitted that in the decision the Secretary of State failed to take account of the fact that Immigration Judge Handley had not made any finding that the petitioner's claim to be a homosexual was incredible. Secondly, it was said that the Secretary of State had erred in law in paragraph 45 of the decision in holding that there was no reasonable prospect of another Immigration Judge placing any real weight on Miss M's statement. Thirdly, the petitioner contended that the Secretary of State had erred in law in paragraph 47 of the decision in holding that there was no realistic prospect of another Immigration Judge placing any real weight on the statements from Mr T and Mr M.

The applicable law

[6] There was no dispute that the law which I must apply to the present case was to be found in the decisions of the Inner House in FO, Petr 2010 SLT 1087 and in Dangol v Secretary of State for the Home Department 2011 SC 560. These authorities state that I must first address whether the Secretary of State asked herself the correct question: that question is not whether she thought that the fresh claim was a good one or should succeed, but whether there is a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, thinking that the petitioner will be exposed to a real risk of persecution on return. The Secretary of State's own view of the merits of the fresh claim can be a legitimate starting point for her, but it must be no more than that. The right question for her to consider is distinctly different from one which involves her making up her own mind on the merits of the fresh claim. Secondly, I must consider whether the Secretary of State in approaching the question, both in respect of her evaluation of the facts and in reaching a legal conclusion based on the facts, has satisfied the requirement of anxious scrutiny. The requirement of anxious scrutiny means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner should have been left out of account in the review of the evidence. As it has sometimes been put, the petitioner only has to show that he would have more than a fanciful chance of success before another Immigration Judge. The test which the petitioner has to meet is accordingly a modest one.

The present case

[7] I turn then to apply the law to the grounds of challenge advanced by the petitioner in the present case.

[8] In developing his first submission, counsel acknowledged that Immigration Judge Handley had made what counsel described as "seriously adverse" credibility findings against the petitioner. He accepted too that the decision letter of 7 March 2012 was comprehensive and that much of it was beyond challenge. But he said that the Immigration Judge had not made a factual finding that the petitioner was not a homosexual. He had stopped short of making any such finding and had merely said that he had "significant doubts" that the petitioner was homosexual. All that the petitioner was now seeking was an opportunity to have the claim that he is homosexual finally adjudicated on by another Immigration Judge. It would be unjust to deny such an opportunity to the petitioner, particularly in view of the fresh evidence he had now obtained. Where the decision letter went wrong was that it treated Immigration Judge Handley's observation about the petitioner's claimed homosexuality as if it were a concrete finding against that contention, whereas it did not truly amount to that.

[9] In my opinion, this line of argument is unsound and must be rejected. The key point is that the petitioner's whole case, including his claim to be homosexual, turns on his credibility. The Secretary of State recognised this in the decision letter (paragraph 26). The petitioner's credibility has already been found to be very seriously undermined. Immigration Judge Handley gave numerous reasons for his decision not to believe the petitioner. For example, he found that the petitioner had changed his story as to whether he had encountered any particular problems in Iran on account of his alleged conversion to Christianity. There was a discrepancy in his explanations of when he had allegedly converted to Christianity. It was implausible that the petitioner's father, who had also converted to Christianity according to the petitioner, would report his son to the Iranian authorities. Then the Immigration Judge drew attention to the petitioner's inability to answer even simple questions about the Christian faith; for example, he was not able to say who Jesus' mother was, who had betrayed Jesus or to name the Ten Commandments. The Immigration Judge also found it to be unconvincing that the petitioner had made little effort to make contact with Christians since coming to the United Kingdom. As well as all of these problems with the credibility of the petitioner's story, there was also the fact that he had produced a number of fraudulent documents. He could not explain why he had not claimed asylum in Turkey or Kenya or the Netherlands before arriving in the United Kingdom. The Immigration Judge also found the petitioner's account of having sex with his male partner in a public park in Iran to be implausible. The details given by the petitioner about this alleged incident were contradictory and inconsistent. Finally, the petitioner had failed to produce the warrant allegedly issued by the Iranian authorities for his arrest.

[10] In view of the very damaging findings made against the petitioner's credibility, another Immigration Judge would obviously be most unlikely to believe anything he said to support or advance his asylum claim. It is clear from the decision letter that the Secretary of State has concluded that this would be the very likely outcome of a fresh hearing. The Secretary of State plainly took into account the view expressed by Immigration Judge Handley on the plausibility of the petitioner's claim to be homosexual. As to the truth of that claim he said that he had significant doubts. It is clear that the Secretary of State understood that this was the Immigration Judge's view. The relevant passage from Immigration Judge Handley's decision is quoted in full in paragraph 17 of the decision letter and it is accurately referred to elsewhere in the decision (for example in paragraph 26). In these circumstances, I can see no merit in the argument that the Secretary of State has failed to take account of the fact that the Immigration Judge does not make a formal finding that the petitioner is not homosexual. It is clear that the Secretary of State has correctly understood the import of what the Immigration Judge had to say on that issue. She has not misdirected herself in any way on this point. What she has done is to look at the totality of the evidence in the round and, having done that, she has reached the entirely unsurprising conclusion that there would be no realistic prospect of success before another Immigration Judge. This is particularly so in view of the significant doubts expressed by Immigration Judge Handley about the petitioner's claim to be a homosexual.

[11] The petitioner's second line of argument related to the treatment of the statement from Miss M. This is covered between paragraphs 42 and 45 in the decision letter. Several observations are made about her statement. Firstly, the Secretary of State points out that it is surprising that the petitioner has not mentioned Miss M at any previous stage in the long history of his asylum claim; yet he has mentioned a different female friend. Next the Secretary of State observes that although Miss M claims to have attended several functions with the petitioner, including two weddings, no other evidence has been produced to support this. Then the decision letter draws attention to a further inconsistency in the petitioner's position which emerges from Miss M's evidence. She says that he is homosexual or bisexual. But from the outset the petitioner's claim has been that he is homosexual. In the whole circumstances, the Secretary of State concludes that there is no realistic prospect of another Immigration Judge placing any real weight on Miss M's evidence. In my opinion, that was a view that the Secretary of State was well-entitled to arrive at on the basis of her consideration of Miss M's statement in the light of all the other evidence in the case.

[12] Finally, the petitioner contended that the Secretary of State erred in law in the approach she took towards the evidence now produced from Mr T and Mr M. Their statements are considered in paragraphs 46 and 47 of the decision letter. Again, a number of points are made about their evidence. Firstly, the Secretary of State observes that it has not been possible for the Border Agency to check the identities of these individuals because no supporting evidence has been provided about their dates of birth, nationalities or immigration status in the United Kingdom. What is, however, clear from the statements is that both witnesses claim to be friends of the petitioner and to spend time with him socially. Of course, this does not in itself disqualify them from giving evidence or necessarily devalue it (see R (Sri Lanka) [2004] UKIAT 0005 paragraph 12). But the Secretary of State was, in my opinion, justified in describing the evidence of these witnesses as lacking in objectivity when taken in the round and against the background of the adverse credibility findings previously made about the petitioner. She pointed out also that no explanation was given as to why these persons had only come forward to support the petitioner at a late stage of the case (see paragraph 33). In the circumstances, I can detect no error of law in the Secretary of State's approach to the evidence now obtained from Mr T and Mr M. It seems to me that the Secretary of State was quite entitled to hold that another Immigration Judge would not be likely to place any real weight on their evidence in the whole circumstances of the case.

[13] Reading the decision letter fairly and as a whole, it seems to me to be beyond doubt that the Secretary of State has correctly understood and applied the relevant law and that she has considered the fresh evidence with anxious scrutiny, in the sense that any factor that could conceivably assist the petitioner has been properly taken into account. The reality of the case is that the petitioner has been shown by overwhelming evidence to be a dishonest and unreliable witness when it comes to pursuit of his asylum claim. The slender additional material now produced is not capable, on any reasonable view, of overcoming that fundamental difficulty. For the reasons amply explained in the decision letter, the new material is unconvincing and adds nothing of substance to the petitioner's already discredited claim for asylum. In my opinion, not only was the Secretary of State entitled to come to the conclusion she did, it was the only reasonable conclusion open to her in the circumstances of the present case. Her decision was a rational one and there is no basis for judicial review of it.

[14] I should perhaps record that I understood counsel for the petitioner, in his final submissions, to depart from an argument he had previously advanced based on the reference to a lack of corroboration in paragraph 41 of the decision letter. The concession was, in my view, rightly made. It is clear that the Secretary of State was not postulating a requirement for corroboration in that passage. She was merely observing that there was no other evidence to support Mr B's claim that he was a longstanding acquaintance of the petitioner.

[15] In the result I have come (ultimately without difficulty) to the conclusion that all the petitioner's arguments are unsound. I have accordingly sustained the respondent's third plea-in-law, repelled the petitioner's plea-in-law and refused the petition. I have reserved all questions of expenses.