Scottish Court of Session Decisions

Petitioner: Winter; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

18 July 2012

Summary

[1] The petitioner sought reduction of the respondent's decision dated 30 March 2012 (6/5 of process) in which the respondent refused to treat the petitioner's further submissions (6/1 of process) as a fresh claim. The issues covered in the amended petition (14 of process) were narrowed to a significant extent in the written submissions for the petitioner (12 of process). In particular it was not submitted that there were grounds for judicial review in relation to the decision of the respondent dated 20 March 2012 (6/4 of process). The written submissions were adhered to in the oral submissions made by counsel for the petitioner. Counsel for the respondent produced a written note of argument (13 of process) which he adopted in oral submissions. I am grateful to counsel for assisting me.

History

[2] The petitioner is a Nigerian. He arrived in the United Kingdom in 2001. He did not claim asylum until 14 March 2011. This was refused by the respondent on 13 April 2011. The further detailed history is set out in Article 4 and Answer 4 of the petition and answers. There was no significant dispute about the history.

Submissions on behalf of the petitioner

[3] In oral submission, counsel for the petitioner referred to the first refusal letter dated 20 March 2012 (6/4 of process). In said letter the respondent considered written submissions on behalf of the petitioner to the effect that the petitioner is a homosexual, that the criminal punishment in Nigeria for homosexual behaviour is severe with a maximum sentence of 14 years imprisonment and that the petitioner should not be returned to Nigeria. In support of the submissions, a supplementary witness statement (6/8 of process) and an affidavit (6/9 of process) were submitted.

[4] The information placed before the respondent was that the petitioner would be persecuted as a homosexual and as a result would require to act discretely if he was returned to Nigeria. The affidavit was from a friend (not a homosexual partner) who described his understanding of the petitioner's sexual orientation.

[5] Counsel referred to the cases of HJ (Iran) v Secretary of State for the Home Department and HG (Cameroon) v Secretary of State for the Home Department (2011) 1 AC 596, in particular the speeches of Lord Hope and Lord Rodger. Counsel submitted that the present case was an example of a mixed reason for the petitioner requiring to live discretely. This was partly because of the petitioner's concern about the reaction of his family to his homosexuality but also reflected the discriminatory and punitive regime which existed in Nigeria.

[6] Counsel submitted that the respondent in 6/4 of process, paragraph 19, accepted the petitioner's claim based on his homosexuality as a fresh claim but did not accept that the petitioner had established a well founded fear of persecution on return to Nigeria. The respondent was critical of the petitioner for not raising the issues earlier. The respondent did not accept the petitioner's claim about his sexuality as credible and pointed out that there was an absence of any evidence that he was in a relationship with a man called CL as he claimed.

[7] Following the decision letter 6/4 of process, the solicitors for the petitioner obtained further information. This took the form of an unsigned statement taken from CL in the form of a precognition dated 13 March 2012 (6/2 of process). In said statement, CL said that he first met the petitioner in Dunvagel Immigration Detention Centre during June/July 2011 and thereafter they formed a sexual relationship which continues. CL said that he would like to marry the petitioner. CL stated that he was born in the Democratic Republic of Congo and is openly homosexual. It is not clear from the precognition when it is alleged that the sexual relationship began. The additional information provided by the petitioner's solicitors is also vague about this.

[8] Counsel submitted that the further submissions tend to show that the petitioner is homosexual and he would be at real risk on return to Nigeria. He submitted that the respondent erred in the second refusal letter, 6/5 of process, by finding that the further submissions are merely a repetition of the previous submissions made which led to the decision letter, 6/4 of process. The respondent was not entitled merely to reject the further submissions and ought to have considered the submissions as apparently credible. If that approach had been adopted this would also bear upon the credibility of the petitioner. Reference was made to paragraphs 9, 10 and 11 of the petition.

Submissions on behalf of the respondent

[9] Counsel submitted that the background to this case is relevant. The petitioner arrived in the UK in 2001 but did not claim asylum until 2011. His applications for asylum were refused. On his third submission, the petitioner claimed for the first time that he was homosexual. The respondent was well entitled to note that the petitioner had failed to raise the issue in his earlier claims for asylum and had given no satisfactory reason for doing so. Counsel then referred to the more recent history of further representations and the lack of information in support of the submissions. He pointed out that during the period the petitioner's submission was under consideration from 26 July 2011 until February 2012 the petitioner made no reference to the relationship now relied upon.

[10] Counsel submitted that in considering the further representations made on behalf of the petitioner in the letter of 30 March 2012, the respondent was entitled to take into account all the evidence including the timing of the further representation and the earlier failure by the petitioner to raise the issue of homosexuality. Counsel submitted that the respondent was well entitled to approach the matter in the way which she did and to reach her decision taking into account the whole circumstances.

Discussion

[11] This case involves consideration of Rule 353 of the Immigration Rules. It was accepted that 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."

[12] I did not understand that there was any dispute about the applicable law in relation to the correct approach to be adopted by the respondent and by the court under reference to WM (DRC) v Secretary of State for the Home Department (2007) ImmAR 337. The standard to be met is a low one. Reference was made to AK (Sri Lanka) v Secretary of State for the Home Department (2010) 1 WLR 855. Anxious scrutiny is to be applied. Reference was made to Dangol v Secretary of State for the Home Department 2011 SC 560, paragraph 9.

[13] The principles of HS (Iran) were also not in dispute.

[14] As the case was presented to me, there was no challenge now to the reasonableness of the decision of the respondent of 20 March 2012 (6/4 of process).

[15] I consider that when stripped to the bones, the criticism of the respondent by counsel for the petitioner amounts to this: that the respondent was irrational when considering the further information submitted with 6/1 of process to conclude that for the reasons given at pages 4 to 5 of 6/5 of process that said information would not create a realistic prospect of success before an Immigration Judge. The issues involved were very narrow and relate to the assessment of credibility. On any view the petitioner failed to raise potentially relevant facts until a very late stage of his application. The respondent gave the matter full consideration in the decision of 20 March 2012. I consider she was entitled to take into account the history and assessment of credibility of the petitioner. In my opinion the respondent approached the issue, conscious of the correct legal test, and reached a conclusion for reasons which I do not consider to be irrational.

Conclusion

[14] In these circumstances I refuse the pleas-in-law of the petitioner, sustain the last plea-in-law of the respondent and refuse the petition.