Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 67
P1001/11	OPINION OF LORD DOHERTY in the Petition of R.R. Petitioner; for Judicial Review of decisions by the Secretary of State for the Home Department dated 2 and 6 September 2011 and 5 January 2012 ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest; Drummond Miller LLP.

Respondent: MacGregor; Office of the Advocate General.

20 April 2012

Introduction

[1] The Petitioner is a national of the Democratic Republic of Congo ("DRC"). He entered the United Kingdom illegally. He claims his date of arrival was 18 February 2009. He claimed asylum on 20 February 2009. His asylum claim was refused by the Respondent on 12 March 2010. He appealed to the First-tier Tribunal on the grounds that he had a genuine fear of persecution if returned to the DRC; that he was a refugee or alternatively claimed humanitarian protection; and that his removal would be contrary to Articles 2 and 3 of ECHR. In brief, he maintained he had been abducted and forced to join a rebel group, the CNDP (Congrès National pour la Défense du Peuple); that at the time of his capture he had $2,800 hidden on his person; that he was searched by his captors but that the money was not found; that he escaped and obtained a lift in a Red Cross vehicle to Kampala, Uganda; that from there he paid a man to arrange a flight for him to the United Kingdom. The Petitioner feared persecution by the CNDP. Before the Immigration Judge he also claimed (for the first time) to be at risk of persecution from other rebel groups. On 11 May 2010 the First-tier Tribunal refused his appeal. The Immigration Judge concluded that there was no evidence that the Petitioner would be at risk of persecution from other rebel groups, and that in introducing this matter he was belatedly attempting to increase the chances of his appeal being successful. The Immigration Judge did not believe the Petitioner's account. He found that there were many factors which greatly detracted from his credibility. He held that the Petitioner's account of how he came to escape the CNDP was highly unlikely. He found incredible his account of having $2,800 on his person when he was captured and of it not being discovered when he was searched. He did not accept his account of why he came to the United Kingdom from Uganda. He held that even if the Petitioner's account of persecution by the CNDP had been true he could safely relocate to Kinshasa where he would be protected by the authorities from the CNDP. On 2 June 2010 a Senior Immigration Judge referred the First-tier Tribunal's determination to the Upper Tribunal. On 24 January 2011 the Upper Tribunal held that the determination contained no material error of law and should stand. The Petitioner's appeal rights became exhausted on 24 February 2011.

[2] On 16 August 2011 the Petitioner submitted further representations to the Respondent. In these he maintained (for the first time) that he would be persecuted by the Congolese authorities were he to return because of his former membership of the CNDP. With the representations there was produced, inter alia, a copy of what the Petitioner claimed was a wanted notice for him which bore to be issued by the police on 3 December 2010 and stated that he was wanted for rebellion. The Petitioner claimed to have contacted a friend in the DRC in January 2011 who told him that police had come to the friend's house looking for the Petitioner and that "a warrant" had been issued for him. His friend had sent the wanted notice to him. The representations also contained material seeking to support a claim by the Petitioner that he had established a private life in the United Kingdom within the meaning of Article 8 of the ECHR.

[3] On 2 September 2011 the Respondent issued a decision letter dealing with the fresh representations. The Respondent did not consider that she ought to grant leave to remain as a result of them. Nor did she consider that, taken together with the previously considered material, they created a realistic prospect of success were the matter to be considered by an Immigration Judge. She referred to a number of Country of Origin Information sources for the DRC which confirmed that wanted notices are internal documents which are not designed to leave police hands. This was inconsistent with the Petitioner's account of how he came by it. Other concerning features were that the notice bore to be issued in a different district from the district where the Petitioner's home was. The address on the notice was not the Petitioner's address, and at no point prior to the fresh representations had he claimed to have ever lived at that address or indeed in that district. The notice did not use his full name. Only a copy, not an original document, had been provided. Even if an original document was produced an Immigration Judge would be likely to take into consideration objective evidence in relation to the ease with which false or fraudulent documents could be obtained in the DRC. She noted that another Immigration Judge would take account of the fact that the Immigration Judge who heard the Petitioner give evidence had found him to be incredible. In relation to the Article 8 claim she accepted that the Petitioner may have some form of private life in the UK and that removal would interfere with that, but she concluded that the interference would be very clearly lawful and proportionate.

[4] The Respondent issued Removal Directions to the Petitioner on 2 September 2011 for his removal from the United Kingdom on 7 September 2011.

[5] On 6 September 2011 the Petitioner's solicitors wrote to the Respondent indicating that they were seeking counsel's advice as to a possible judicial review of the Removal Directions. The letter contained further representations and enclosed an expert report from Professor Mario Aguilar, Director of the Centre for the Study of Religion and Politics at the University of St. Andrews. The letter directed the Respondent to passages in the report on which the Petitioner sought to rely. The passages set out Professor Aguilar's opinions that opponents of the government were at risk of persecution; that DRC was one of the most unsafe and volatile countries in Africa; that the DRC authorities and police did not provide proper protection of DRC citizens from abuse by government forces or other armed groups; that an asylum seeker who was wanted by the police would be likely to be arrested when returned to Kinshasa. Professor Aguilar's general conclusion was that the Petitioner would be "at risk if returned to the DRC because he is wanted by the police". He opined that where there was a wanted notice and the person was not found an arrest warrant was likely to be issued. He saw the wanted notice as supporting the Petitioner's account that he was wanted by the police. He observed that it was possible that the Petitioner's friend "by bribe or friendship" may have obtained a copy of the wanted notice at a police station or court. Such things were "easily done" in the DRC. He did not regard as significant the facts that the address on the wanted notice was not one with which the Petitioner had been connected for several years or that the Petitioner's full name had not been used.

[6] With an eye to the outstanding Removal Directions, the Respondent replied by letter of the same date. She pointed out that it had been no part of the Petitioner's asylum claim that he feared persecution by the Congolese authorities. She did not consider the new material to be significant. She decided that taken together with the previously considered material it did not amount to a fresh claim in terms of Rule 353.

[7] On the same date the Petitioner raised these judicial review proceedings. As a result the Respondent did not remove the Petitioner on 7 September 2011. When the proceedings were raised the only challenge was to the decision letter of 2 September 2011. Subsequently the Petitioner amended the Petition to introduce a further challenge to the decision letter of 6 September 2011.

[8] By letter dated 5 January 2012 the Respondent wrote to the Petitioner to explain why the further submissions made on 16 August 2011 and 6 September 2011 did not amount to a fresh claim:

"...In particular this letter is intended to provide more detail about why the expert Dr Aguilar would not create a realistic prospect of success when taken with the previously considered material."

The letter went on to identify the test which the Respondent had to apply. It continued:

"It is not accepted that there is a realistic prospect of an Immigration Judge accepting the conclusions of Dr Aguilar about whether there is a general risk to failed asylum seekers returning to the DRC. BK (DRC) CG [2007] UKAIT 0098 remains the relevant country guidance case on this issue. It is not considered that there would be a realistic prospect of an Immigration Judge departing from BK based on Dr Aguilar's assessment of the current objective evidence."

The Respondent made observations as to why several other aspects of the report were unpersuasive. She pointed out that it was for the Petitioner to establish that the wanted notice was a document on which reliance could be placed. Among other matters, it was an internal police document and the Petitioner had not explained how it had come into the possession of his friend. The Petitioner had previously been disbelieved when he gave evidence, there were difficulties on the face of the notice, and forged and false documents were commonly and easily obtained in the DRC.

[9] In these judicial review proceedings the Petitioner now seeks reduction of the decision letters of 2 and 6 September 2011 and 5 January 2012. The matter came before me for a First Hearing.

Submissions for the Petitioner

[10] Mr Forrest reminded me of the familiar terms of rule 353 of the Immigration Rules:

"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 previously been considered: and

(ii) taken together with the previously considered material, created a realistic

prospect of success, notwithstanding its rejection..."

[11] In the present case the issue turned on whether rule 353 (ii) was satisfied.

[12] Mr Forrest initially advanced separate criticisms of each of the decision letters. Ultimately, however, his position was that the three letters should be read together, and that for all practical purposes the important question was whether the decision letter of 5 January 2012 should be reduced. There were three main grounds of attack.

[13] First, it was apparent from language in the penultimate paragraph on page 4 of the letter that the Respondent had not applied the correct test:

"(I)t is not considered that there would be a realistic prospect of an Immigration Judge concluding on the basis of the wanted notice or the expert report of Dr Aguilar that your client faces a real risk of persecution or treatment contrary to Article 3 of ECHR."(emphasis added).

Mr Forrest suggested that in using the word "would" the Respondent had fallen into error and had applied the wrong test (MO v Secretary of State for the Home Department [2012] CSIH 20 at paragraph [34]). He maintained that the Respondent had fallen into similar error in the decision letter of 2 September 2011.

[14] Second, inappropriate weight had been given to the adverse credibility findings which had been made by the Immigration Judge. The wanted notice was not a document which had emanated from the Petitioner himself. Accordingly, when considering it the previous adverse credibility findings were of very little relevance (WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 per Buxton LJ at paragraph 6).

[15] Third, the Respondent's decision had not been informed by anxious scrutiny. The Respondent had not given appropriate weight to every factor which might tell in the Petitioner's favour. The expert report opined on conditions in the DRC; considered whether the wanted notice may be genuine; provided possible explanations for the apparent discrepancies in it; and explained how it might have been obtained from the police by the Petitioner's friend. These were matters which, had the Respondent's consideration of them been informed by anxious scrutiny, should have led her to treat the further submissions as a fresh claim.

Submissions for the Respondent

[16] In response Mr MacGregor reminded me of the terms of paragraph [6] and [7] of WM (DRC):

"[6] There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353 (i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the previously considered material, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind how the material relates to other material already found by an adjudicator to be reliable, and also to have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

[7] The rule only imposes a somewhat modest test that the applicant has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, ... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution ...."

[17] He then referred me to authorative guidance as to the proper judicial approach in cases such as this. In Kishor Dangol v Secretary of State for the Home Department 2011 S.C. 560 an Extra Division of the Inner House opined at paragraph [7]:

"... (T)he appropriate approach is that set out in the section of the FO, Petr [O v Secretary of State for the Home Department 2010 SLT 1087] opinion clearly headed "The Law" as follows:

"As far as the role of the court is concerned, guidance is to be found in the judgment of Buxton LJ in WM (DRC), who having discussed the judgment of the court in Onibiyo [v Secretary of State for the Home Department [1996] QB 768], continued:

"[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 chance 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 in 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,""

That is a clear and binding statement of the procedure that generally ought to be followed..."

[18] In the present case none of the grounds of challenge were well founded. The Respondent's decision not to treat the further submissions as a fresh claim was lawful.

[19] In reaching her decision the Respondent had applied the correct test. That was plain from a fair reading of the decision letter of 5 January 2012 as a whole. The same observations applied to the decision letter of 2 September 2011. It was accepted that the decision letter of 6 September 2011 had not provided an adequate explanation of the Respondent's response to the further representations of that date, but matters had moved on and full and proper reasons had been given in the letter of 5 January 2012. The relevant passage in MO v Secretary of State for the Home Department, and its context, were very different from the passages in (and their contexts in) the decision letters of 2 September 2011 and 5 January 2012.

[20] The Respondent had been entitled to have regard to the previous adverse credibility findings. They were not irrelevant to the issue of the provenance and authenticity of the wanted notice. The notice had been produced by the Petitioner and the credibility of his account of the circumstances in which he came to have it was a material issue.

[21] In the decision letters of 2 September 2011 and 5 January 2012 the Respondent had fully considered all the material, old and new. She had given anxious scrutiny to all the matters raised and all the matters which another Immigration Judge would be likely to have regard to. Her decision not to treat the further representations as a fresh claim was rational and lawful. It was a decision she was entitled to reach.

Discussion

[22] It was common ground that the decision letters should be read together. I also understood it to be accepted that the court ought not to interfere unless it was satisfied that the decision letter of 5 January 2012 ought to be reduced.

[23] The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223 per Lord Greene M.R. at pages 233-4). A decision by the Secretary of State will be irrational if it is not taken on the basis of anxious scrutiny (Kishor Dangol v Secretary of State for the Home Department at paragraph [7]; FO v Secretary of State for the Home Department at paragraphs [21]-[23]; MO v Secretary of State for the Home Department at paragraph [15]).

[24] I am not persuaded by any of the submissions for the Petitioner. In very large part I accept the submissions for the Respondent.

[25] First, on a fair reading of the decision letter of 5 January 2012 as a whole I am satisfied that the Respondent asked herself the correct question. (I am of the same view in respect of the letter of 2 September 2011). The present case is accordingly distinguishable from MO v Secretary of State for the Home Department.

[26] In MO the court observed (at paragraph [34]) that the language of part of paragraph 19 of the decision letter of 26 September 2009 disclosed that the Secretary of State had not asked the correct question. The relevant part was "It is not accepted that an Immigration Judge applying the rule of anxious scrutiny of the material, and of all the previously considered material, would reach a finding that there is a real risk of your client facing persecution or serious harm were he to be returned to Iran". (The punctuation of this sentence differs slightly from its quotation in MO - I have taken it directly from a copy of the decision letter of 26 September 2009). That formulation suggested a more demanding tests than the test identified in WM (DRC) v Secretary of State for the Home Department at paragraphs [7] and [11] (for which see paragraphs 16 and 17 above).

[27] In my respectful opinion the difficulty with the relevant passage in the decision letter in MO was that it contained no reference to the threshold of a realistic prospect of success. Had the passage read "It is not accepted that there is a realistic prospect that an Immigration Judge applying the rule of anxious scrutiny of the material and of all the previously considered material, would reach a finding that there is a real risk of your client facing persecution or serious harm were he to be returned to Iran" it would, in my view, have complied with WM (DRC) and have been unexceptionable.

[28] The passage on page 4 of the decision letter of 5 January 2012 (see paragraph 15 above) contains no such error of omission. The threshold was correctly identified. Use of the word "would" in that passage appears to me to have been entirely apposite: what was being postulated was the prospects of success before a putative decision maker. The Petitioner's only criticism of the passage concerned the use of the word "would". It was not suggested that the passage was defective in any other respect.

[29] Accordingly, even if the proper approach is to focus on the relevant passage in the decision letter of 5 January 2012 rather than on a fair reading of the letter as a whole, the passage is consistent with the Respondent having asked herself the correct question.

[30] I draw comfort from the fact that there are numerous authoritative decisions where like formulations have been used by the court, or by the Respondent without any exception to them having been taken by the court: (see e.g. FO v Secretary of State for the Home Department, paragraph [25],[26]; Kishor Dangol v Secretary of State for the Home Department, paragraph [16]; R (MN (Tanzania)) v Secretary of State for the Home Department [2011] 1 WLR 3200, paragraph 32); R (TM) v Secretary of State for the Home Department [2012] EWCA Civ 9, paragraph 21).

[31] Second, I am clear it was not irrational for the Respondent to have regard to the adverse credibility findings made by the Immigration Judge. The Petitioner spoke to how he became aware of the existence of the wanted notice and how it came to be in his hands. That evidence was particularly important because such notices are internal police documents. In the circumstances of this case another Immigration Judge would be entitled to treat the previous adverse credibility findings as being "relevantly probative" (WM (DRC) v Secretary of State for the Home Department at paragraph 6).

[32] Third, I am satisfied that the Respondent's consideration of the material placed before her was informed by anxious scrutiny. I have already summarised that material, and the terms of the decision letters. In my opinion on a fair reading of the decision letters as a whole it is clear that the Respondent considered all of the information before her and that she did so fully and carefully, both in her evaluation of the facts and in reaching her conclusions. She required to, and did, take proper account of every factor which might tell in the Petitioner's favour. However, she was not obliged to, and did not, show undue credulity towards the Petitioner's account (see R (YH) v Secretary of State for the Home Department [2010] 4 All ER 447 per Carnwath LJ at paragraph [24]).

Decision

[33] The Respondent was entitled to decide that the Petitioner's further submissions did not amount to a fresh claim. In deciding as she did she acted lawfully.

[34] I shall repel the pleas-in-law for the Petitioner, sustain the second plea-in-law for the Respondent, and refuse the Petition. I shall reserve all questions of expenses.