Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 7
P231/11	OPINION OF LORD KINCLAVEN in the cause A I Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 16 February 2011 ­­­­­­­­­­­­­­­­­________________

Petitioner: Komorowski, Advocate; Drummond Miller LLP, Edinburgh

Respondent: Webster, Advocate; Office of the Solicitor to the Advocate General

20 January 2012

Introduction
[1] This is a first hearing in a petition seeking judicial review of a decision of the Secretary of State for the Home Department dated 16 February 2011 (No 6/1 of Process) refusing to treat certain submissions from the petitioner as amounting to a fresh application for asylum ("the decision letter").

[2] The respondent is the Secretary of State for the Home Department ("SSHD") who has responsibility for the enforcement of immigration control throughout the United Kingdom. It is admitted that this court has jurisdiction.

[3] Mr Komorowski appeared for the petitioner. He sought a reduction of the refusal letter on the grounds set out in the petition (as amended) outlined below.

[4] Mr Webster appeared for the respondent. He invited me to refuse the orders sought by the petitioner and to refuse the petition for the reasons set out in the Answers.

[5] In my opinion, the respondent's submissions are well-founded.

[6] In the whole circumstances, having heard parties, I shall sustain the respondent's third pleas-in-law, repel the pleas-in-law for the petitioner and refuse the petition.

[7] I would outline my reasons as follows.

The Background

[8] The petitioner is A I. He currently resides at Dungavel.

[9] By the decision letter dated 16 February 2011 the Secretary of State decided that submissions made on behalf of the petitioner did not amount to a fresh human rights claim in terms of Immigration Rule 353.

[10] The petitioner seeks:
(i) reduction of the decision letter;
(ii) the expenses of the petition;
(iii) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case.

Productions
[11] I was referred to the following Productions:

6/1 The decision letter of 16 February 2011;

6/2 Removal Directions;

6/3 Immigration factual summary;

6/4 Former agents' representations;

6/5 Decision letter dated 25 January together with fax cover sheet dated 28 January both 2011;

6/6 New letter of representations of 9 February 2011;

6/7 Statement by petitioner (The petitioner referred to virtually the whole statement. The respondent referred in particular to paragraphs 17, 21 and 23 thereof);

6/8 Statement by petitioner's brother;

6/9 Copies from the passports of petitioner's brother and uncle; and

6/10 Copy P45 of the petitioner.

Authorities
[12] I was also referred to the following authorities:

1. KD v SSHD [2011] CSIH 20, particularly at paragraphs [1] to [7];

2. RA v SSHD [2011] CSOH 68, at paragraphs [17] to [21] and [23];

3. R (Razgar) v Home Secretary [2004] 2 AC 368, at paragraphs 11, 16 to 20, 37, 59, 60, 62, 63 and 65;

4. Huang v SSHD [2007] 2 WLR 581, at paragraph 20;

5. Grant v UK (Application No 10606/07), Strasbourg, 8 January 2009, at paragraphs 4 to 15, 20, 21, 29, 35 to 37, 39, 40B and 41;

6. Kugathas v SSHD [2003] EWCA Civ 31 170, at paragraphs [13], [14], [16] to [21], [25], [26] and [32];

7. The Queen on the application of Mifail Rudi v SSHD [2007] EWCA Civ 1326, at paragraphs 28 to 32;

8. ZH (Bangladesh) v SSHD [2009] EWCA Civ 8 at paragraphs 2, 3, 12, and 13 to 18;

9. R (Iran) v SSHD [2005] EWCA Civ 982, at paragraphs 11 to 16;

10. Pawandeep Singh v Entry Clearance Officer [2005] 2 WLR 325, at paragraphs 19 to 21; and

11. R (on the application of YH) v SSHD [2010] EWCA Civ 116 at paragraphs [22] to [24].

The Petitioner's Position
[13] The petitioner's immigration history is described in the Immigration Factual Summary prepared by the Secretary of State [No 6/3 of Process] and in the petitioner's statement at paragraphs 5-14 [No 6/7].

[14] The essential facts are as follows. On 2 November 1995 the petitioner entered the United Kingdom. He has resided here for many years. He claimed asylum on arrival. On 28 March 1996 his claim was refused. On 16 January 1997 an appeal against that decision was dismissed. On 4 November 1997 a further application for leave to remain was made. On 19 August 2003 that application was refused. On 13 April 2006 an appeal against that decision was dismissed.

[15] On 20 January 2011 the petitioner was detained. On 21 January 2011 representations were made by agents (not now acting for the petitioner) on the petitioner's behalf: [No 6/4]. On 25 January 2011 those representations were rejected and were found not to amount to a fresh claim in terms of the Immigration Rules, Rule 353: [No 6/5].

[16] On 9 February 2011, agents now acting for the petitioner made further representations consisting of a covering letter [No 6/6], statement by the petitioner [No 6/7], statement by the petitioner's brother [No 6/8], copies from the passports of the petitioner's brother and uncle [No 6/9] and copy P45s for the petitioner's employment [No 6/10]. The essential points made in the representations relied upon the petitioner's length of residence in the United Kingdom, his periods of employment here, his family ties and more generally the private life he had established here. It was claimed the petitioner's removal would involve a violation of his rights in terms of the European Convention on Human Rights, Article 8.

[17] On 16 February 2011 the representations were rejected and were found not to amount to a fresh claim in terms of the Immigration Rules, Rule 353: [No 6/1]. On 19 February 2011 directions for removal of the petitioner from the United Kingdom on 8am, Monday 28 February 2011 were intimated: [No 6/2].

[18] The decision letter is challenged on four separate grounds.

[19] The first ground of review is that the Secretary of State erred in her treatment of the petitioner's depression. She considered it in the context of the ECHR, Article 3, expressing her conclusion on this issue at paragraph 11. It was accepted that the petitioner's health is not such as to potentially engage ECHR, Article 3. The Secretary of State omitted to consider the petitioner's depression insofar as it was a relevant feature of his private life, or increased the sense of his dependency upon his family members contributing to his family life, for the purposes of ECHR, Article 8.

[20] The second ground of review is that the Secretary of State's conclusion regarding family life in terms of ECHR, Article 8, was unreasonable. The Secretary of State's statement at paragraph 14 of her letter that there was 'no evidence of any special features' to the relationships between the petitioner and his brother and uncle was not rationally open to her. That statement was inconsistent with the petitioner's claim to have been significantly emotionally dependent upon his brother and uncle, to have been financially dependent upon them and to have spent spells living with both of these family members. No reason was advanced as to why these features did not amount to "special features".

[21] The third ground of review is that the Secretary of State has not applied the correct test in terms of the Immigration Rules 353, viz whether an appeal to an Immigration Judge would have a realistic prospect of success. The language of the letter is replete with references to the Secretary of State's own views on the claim but there is an absence of discussion as to how, realistically, an Immigration Judge might consider the matter. See for instance paragraphs 14 ('We reject', 'we find', 'We are also not satisfied', 'we do not accept'), 16 ('we are of the opinion'), 24 ('it is our view'), and 25 ('we do not accept'). The conclusion at paragraph 26 that there would not be a realistic prospect of success with a further appeal does not necessarily follow from the preceding discussion. No reasons were given as to why an Immigration Judge might not take a different view from the Secretary of State.

[22] The fourth ground of review is that no reasonable Secretary of State could find that the petitioner had no realistic prospect of succeeding in a further appeal given particularly the length of the petitioner's residence (since 1995) and the petitioner's family ties in the United Kingdom. The Secretary of State's own practice in related fields could shed light as a guideline to draw the line as to when removal of a long-term resident would violate ECHR, Article 8. The related practice can inform the court of the significance of a particular point, such as length of residence. See Rudi [2007] EWCA Civ 1326 at [28]-[30]. The Immigration Rules, Rule 276B(b), provide that the Secretary of State should consider applications by persons who have been resident for more than 14 years (whether or not lawful) for leave to remain in the United Kingdom. It has been described as 'in effect an amnesty clause': ZH (Bangladesh) [2009] EWCA Civ 8, at [8]. Its purpose is to benefit those who have evaded immigration control: 'To use the evasion itself as a reason is to defeat the purpose of the rule': ibid at [18]. In the petitioner's case, he cannot apply under Rule 276B(b). That rule provides that 14 years residence must be accumulated before certain types of notice are issued, which would have occurred as part of the process of handling the petitioner's original claim for asylum. The fact that the petitioner presented himself to the Home Office on arrival (rather than go underground) resulted in his disqualification from consideration under s. 276B(b). Nonetheless it is of some assistance in indicating where the Article 8 line should be drawn - so submitted the petitioner.

The Petitioner's Pleas-in-law
[23] The petitioner's four pleas-in-law mirrored the four grounds of review (outlined above) and were to the following effect:

1. The Secretary of State having failed to consider a relevant factor in the context of ECHR, Article. 8, viz. the petitioner's depression, the decision letter ought to be reduced.

2. Separatim, the Secretary of State's conclusion that there was no evidence of special features indicating family life in terms of ECHR, Article 8, being unreasonable the decision letter ought to be reduced.

3. Separatim, the Secretary of State having failed to apply the correct test in the Immigration Rules, Rule 353, the decision letter ought to be reduced.

4. Separatim, the Secretary of State's decision that a further appeal would not have realistic prospects of success being one of no reasonable Secretary of State could arrive at, the decision letter ought to be reduced.

The Respondent's Position
[24] The respondent's position was essentially as follows:

[25] It was admitted that on 9 February 2011 agents for the petitioner made further representations consisting of a covering letter, statement by the petitioner, statement by the petitioner's brother, copies of the passports on the petitioner's brother and uncle, and copy P45s from the petitioner's employment. All of those documents were referred to for their terms.

[26] The decision letter of 16 February 2011 (No 6/1 of Process) was also referred to for its whole terms.

[27] It was averred that the respondent had regard to all material considerations. She reached a decision she was entitled to reach. Reference was made to, inter alia, Singh v SSHD [2004] EWCA Civ 1075 and Kugathas v SSHD [2203] EWCA Civ. 31. The respondent noted in paragraph 9 of the decision letter, as was the case, that the petitioner had produced no detailed medical evidence of his alleged poor health. As regards family life and dependency the respondent noted in paragraph 14 that there was no evidence of any special features in the petitioner's relationship with his brother or uncle. That was a view the respondent was entitled to reach and to have regard to in the assessment of realistic prospects of success before an immigration judge. As regards his private life the respondent accepted, in paragraph 19, that the petitioner had established a private life in the United Kingdom, but adhered to the position that the petitioner had not demonstrated anything more than casual ties with any other adults in the United Kingdom (paragraph 20). Again, that was a decision the respondent was entitled to reach and to have regard to in the assessment of realistic prospects of success before an immigration judge. In any event, the respondent concluded, at paragraphs 24 to 26, that an interference with private or family life was necessary and proportionate. Again, that was a decision the respondent was entitled to reach and to have regard to in the assessment of realistic prospects of success before an immigration judge.

[28] In context, the reference to 'no evidence of any special features' in paragraph 14 is a reference to insufficient evidence of requisite dependency. That was a decision the respondent was entitled to reach and to have regard to in the assessment of realistic prospects of success before an immigration judge.

[29] The respondent identified the correct test at paragraph 5. She returned to the correct test at paragraph 26.

[30] The respondent had regard to the petitioner's length of residence in the United Kingdom (paragraphs 15 and 16). An immigration judge would have regard to the age of the petitioner upon his arrival in the United Kingdom in assessing the weight to be attached to the length of any private or family life in the United Kingdom in the assessment of proportionality. The respondent reached a view she was entitled to reach - so submitted Mr Webster. c.f. Grant v UK (Application No 10606/07), Strasbourg, 8 January 2009.

The Respondent's Pleas-in-law
[31] The respondent's pleas-in-law were:

1. The petitioner's averments being irrelevant et separatim lacking in specification, the petitioner should be dismissed.

2. The petitioner's averments, so far as material, being unfounded in fact, the orders sought should be refused.

3. The respondent not having erred in law, failed to have regard to a material consideration, had regard to an irrelevant consideration, nor acted unreasonably, the orders sought should be refused.

[32] Mr Webster invited me to sustain the third plea in law for the Respondent.

Rule 353

[33] Paragraph 353 of the Immigration Rules is in the following terms:

"353. 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, it 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;

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

The Decision Letter

[34] The terms of the decision letter (No 6/1 of Process) are central to this case. It can be referred to for its whole terms.

[35] However, it might be helpful to highlight the following extracts from that letter, where the Secretary of State said inter alia:

"...8. Your client claims that he suffers from depression and he claims that he has taken medication for this in the past. He claims that he is not currently taking any medication for this at present. Your client claims that if he is returned to Pakistan, he thinks that his health would deteriorate as he claims that he would be unable to cope with the transition from living in the United Kingdom to living in Pakistan and claims that he would be very upset to leave his family and life in the United Kingdom.

9. We note that you have provided no detailed medical evidence of your client's alleged poor health, the treatment required and the prognosis for health. Should it be found that your client is suffering from depression and should treatment be needed, we are aware that in Pakistan, The World Health Organisation Mental Health Atlas 2005 for Pakistan stated that: 'Mental Health is part of the primary health care system. Actual treatment of severe mental disorders is available at primary level .... Regular training of primary care professionals is carried out in the field of mental health .... Mental Health training has been included in the programme of the District Development Centre'.

10. It also stated that 'The Institute of Psychiatry Rawalpindi Medical College was the first WHO collaborating Centre-EMR and is acting as a resource centre at national and regional level for training, services information system and research. .... "

11. Therefore, taking paragraphs 8 to 10 above into consideration we are of the opinion that you have provided no credible evidence, that return, due to a complete absence of medical treatment in Pakistan, would significantly reduce the life expectancy of your client and subject him to acute physical and mental suffering. Should your client's condition continue and/or deteriorate on his return to Pakistan, we are of the opinion that your client will be able to access adequate medical facilities there. Therefore we do not accept that the decision to proceed with your client's removal from the United Kingdom would be in breach of Article 3 of the ECHR.

12. You claim that your client has established a private and family life in the United Kingdom since his arrival in the United Kingdom. Your client claims that he feels that the United Kingdom is his home now, as he claims to have lived in the United Kingdom for 15 years. You enclose, a statement signed, dated by your client, which you claim confirms his private life established in the United Kingdom over the past 15 years and his private life which he enjoys in the United Kingdom. You submit that private life is established by an applicant's family life, friendships, relations with the community at large, work, and physical and mental integrity. You claim that the evidence enclosed shows that the applicant does enjoy family life with his brother, as you claim more than emotional ties exist between your client and his brother. You claim that removal would not only breach the Article 8 rights of your client, but also that of his brother. Your client also claims that his brother, uncle and aunt live in the United Kingdom and he claims that all his friends are here in the United Kingdom.

13. You claim that your client's removal from the United Kingdom in the present circumstances of his case would represent a disproportionate interference in his private and family life and you claim as such it engages his Article 8 (ECHR) rights. You claim that your client depends socially and emotionally most heavily upon his brother and uncle who you claim both reside in the United Kingdom and you claim that separation from them both would seriously inhibit your client's ability to live a full and fulfilling life. Your client claims that his brother and uncle have both supported him financially when required. Your client claims that he would look to his brother for emotional support as well as financial when he needed it. Your client claims that he is very close to his brother and uncle and that he cannot imagine not living near them or having them nearby when he needs them. He claims that the longest he has lived with his brother is three months. Your client claims that he is very close to his brother and uncle and he claims to keep in contact with them via e-mail or telephone would not be good for him as he is used to seeing his brother and his uncle almost every day. Your client claims that he believes that his relationships with both of them would deteriorate significantly.

14. With regard to Article 8 of the ECHR, we reject any claim that removing your client to Pakistan will amount to a breach of this article. In considering whether family life exists, we are aware that family life will usually exist between a husband and wife and between a parent and child. With regard to your client, as your client's brother and uncle are of independent age, there is not a protected family life unless there is a special dependency. However, we find that there is no evidence of any special features in your client's relationship with his brother or his uncle. We are also not satisfied that your client's relationship with his sister-in-law, nephew, aunt, friends and relations with 'the community at large' are of sufficient proximity to give rise to family life for the purposes of Article 8 of the ECHR. Therefore we do not accept that your client's removal from the United Kingdom would breach Article 8 (family life) of the ECHR. ....

19. In considering whether private life exists, whilst we accept that your client has established a private life in the United Kingdom, we are of the view that any interference can be justified in the circumstances of your client's case. As stated in our letter dated 25 January 2011, 'it is noted that a private life to a low standard of proof has been established through your client's 15 years of residency, however, it is not accepted that a private life has been established which is significant enough to prohibit your client's removal' (See Page 6).

20. We note that in your submissions, no independent, objective, documentary evidence has been provided to corroborate your client's claim that he has been in the United Kingdom for fifteen years. Furthermore, as stated in our letter of 25 January 2011, 'It is not accepted that a private life has been established to a significant degree due to the complete lack of independent documentary evidence which has been noted. The private life that exists could be continued by modern forms of communication such as the internet or postal service while the possibility of your client's return to the United Kingdom by legal means is assessed .... No independent corroborative evidence has been adduced to show that there is anything more than casual ties between your client and any other adults in the United Kingdom' (Page 7).

21. Whilst it has been accepted from the information held by the United Kingdom Border Agency that your client has conducted himself in a manner that has not brought him to the attention of the authorities leading to a criminal conviction, this alone is no reason for a grant of leave to remain in the United Kingdom.

22. You enclose copies of P45's which claim shows that your client has worked and paid tax in the United Kingdom. ....

23. Your client claims to have studied ESOL English classes in [a named College]. He claims that he is fluent in English which he claims to have learned since he arrived in the United Kingdom. Your client claims that he goes to mosques in [a named town] and that he also used to help to teach English to Pakistani nationals in the mosque or at community centres. Your client also claims that he used to coach cricket in [that town] and that he used to be a member of [a named] Cricket Club. Your client claims that if he is permitted to remain in the United Kingdom he would like to work and pay tax and contribute to society.

24. However, the State has the right to control the entry of non-nationals into its territory, and Article 8 does not mean that an individual can chose where he/she wishes to enjoy his/her private life. Moreover, your client's private life has been established, in part, whilst he has been in this country unlawfully, in the knowledge that he has no right to be here and may be removed at any time. For all these reasons, it is our view that any interference with your client's family and/or private life, is necessary and proportionate to the wider interest of the maintenance of an effective immigration policy.

25. In reaching this decision your client's rights have been balanced against the wider rights and freedom of others and the general public interest. Specifically, we have weighed up the extent of the possible interference with your client's private/family life, against the legitimate need to maintain an effective national immigration policy. With respect to the latter consideration we have taken into account your client's failure to observe the immigration regulations. In light of the circumstances of your client's particular case, it is considered that our actions are proportionate to the social need being fulfilled. Therefore, we do not accept that the decision to proceed with your client's removal from the United Kingdom would breach Article 8 of the ECHR.

26. After giving anxious scrutiny to your submissions it is considered that your client's claim under Articles 3 and 8 of the ECHR would not create a realistic prospect of success in front of an Immigration Judge.

27. We note that your client was issued with an IS91R on 20 January 2011, stating why he has been detained. ....

28. Your client's application has also been considered under Paragraph 395C of the Immigration Rules. However, we do not accept that your client qualifies for any leave to remain under this category. We consider that he is of a reasonable age to return to Pakistan. Your client's length of residence, his strength of connections in the United Kingdom, domestic circumstances and his personal and medical history, character and conduct all have been taken into consideration at paragraphs 7 to 27 above and paragraph i) to viii) (pages 11 to 13 of our letter, dated 25 January 2011) combined and we do not accept that your client qualifies for any leave to remain under the above mentioned category. ....

30. The human rights claim has been reconsidered on all the evidence available, including the further representations, but it has been decided that the decisions of 28 March 1996 and 25 January 2011 upheld by the Immigration Judge on 13 April 2006 should not be reversed. Accordingly it is not appropriate to grant your client leave to remain in the United Kingdom for the reasons above.

31. As we have decided not to reverse the decision on the earlier claim and have determined that your client's submissions do not amount to a fresh claim, your client has no further right of appeal. The new submissions taken together with the previous considered material do not create a realistic prospect of success, namely that an immigration judge applying anxious scrutiny would decide that the claimant ought to be granted asylum, humanitarian protection or discretionary leave for the reasons above and in light of WM (DRC) v SSHD and SSHD v AR (Afghanistan) [2006] EWCA Civ 1495. .... "

Discussion
[36] I have given anxious scrutiny to the submissions of counsel and to the documents and authorities mentioned above.

[37] It is perhaps worth setting out the guidance provided by the Inner House in the case of KD v SSHD [2011] CSIH 20.

[38] In particular, at paragraphs 6 and 7 of KD, Lord Bonomy said inter alia:

"[6] Before turning to the submissions for the parties on that question, it is appropriate to say something about the proper approach by the court to challenges based on failure to comply with Rule 353. Counsel for both parties were particularly anxious that we should address what they saw as a conflict between an evolving approach to such challenges in the courts of England and Wales, which had been echoed in certain decisions in the Outer House, on the one hand, and the approach approved by the Inner House and thus binding on judges of the Outer House, on the other. The point is most clearly highlighted in the opinion of Lord Tyre in IM (AP) v Secretary of State for the Home Department [2010] CSOH 103. Having recorded parties' agreement that the case should be dealt with along traditional judicial review lines whereby, should an error be identified, the case would generally be remitted for reconsideration by the original decision maker, as explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, [2007] Imm AR 337 at paragraphs 8 to 11 and adopted in the decision of the Second Division in FO, Petitioner [2010] CSIH 16, [2010] SLT 1087 at paragraph 23, Lord Tyre decided that that approach required to be modified to reflect the opinions expressed in recent decisions of the House of Lords, Supreme Court and the Court of Appeal, in particular ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348 and R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448 at paragraph 10. He took the view that, in light of these opinions, the appropriate course would generally be for the reviewing judge to address and decide the substantive question whether there was a realistic prospect of an immigration judge finding in favour of the applicant. The analysis proceeds on the basis that that question may be seen to be susceptible of only an affirmative answer unless the application can be said to be "bound to fail" or to be "clearly unfounded". To remit the matter for further consideration would thus be pointless. Lord Tyre relied particularly on the analysis of Carnwath LJ in R (YH), founding on the opinion expressed by Longmore LJ (with the agreement of his colleagues) in KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354, when he said:

"It is now clear from ZT (Kosovo) v SSHD...that the court must make up its own mind on the question whether there is a realistic prospect that an immigration judge, applying the rule of anxious scrutiny, might think that the applicant will be exposed to a breach of Article 3 or 8 if he is returned to Afghanistan. So the question is not whether the Secretary of State was entitled to conclude that an appeal would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an adjudicator."

Lord Tyre chose to adopt that approach, which he said appeared "to be consistent with the approach taken recently by Lady Dorrian in LA, Petitioner [2010] CSOH 83 at paragraph 14 and by Lord Doherty in SY, Petitioner [2010] CSOH 89 at paragraphs 14 to 15 (both Rule 353 cases) and by Lord Malcolm in JS, Petitioner [2010] CSOH 75 at paragraph 30 (a certification case)." Since then a similar approach has been taken by Lord Hodge in TN, Petitioner [2011] CSOH 35. While counsel before us came fully prepared to debate this issue, it was not even hinted at in the grounds of appeal or notes of argument submitted in advance of the hearing. Even if we were to find the submissions in favour of the Carnwath LJ approach persuasive, we would have to consider the competency and propriety of departing from the clear statement of the proper approach as a matter of law set out in FO (AP), Petitioner [2010] CSIH 16, always bearing in mind that the court had on that occasion not been addressed on the authorities relied upon in Lord Tyre's opinion.

[7] We considered that these were issues which ought to be addressed only if it emerged that that was necessary for the proper determination of this case. We resolved that, in that event, the parties should have further time to present written submissions supplemented by further oral argument. For the reasons we set out later, that has not proved to be necessary. Should a party in any future case wish to submit, in reliance upon R (YH) and other cases, that the judicial approach to determination of petitions for judicial review similar to the present should not be as set out in FO (AP), then that question will require to be addressed in the Inner House, possibly by a full bench. Unless and until that happens we take this opportunity to remind judges sitting at first instance that the appropriate approach is that set out in the section of the FO (AP) 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, 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 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 enquiry; 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.' "

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 judge rather than remitted to the original decision maker. However, for the moment they remain the exception rather than the rule."

[39] In the whole circumstances of the present case, and having regard to the terms of the decision letter (No 6/1 of Process), I have reached the following conclusions in relation to the petitioner's four grounds of review, namely:

(1) The petitioner argues that The Secretary of State failed to consider a relevant factor in the context of ECHR, Article. 8, viz. the petitioner's depression. I do not accept that conclusion. In my view, it is not supported by a proper construction of the decision letter (set out above).

(2) The petitioner contends that the Secretary of State's conclusion that there was no evidence of special features indicating family life in terms of ECHR, Article 8, was unreasonable. I do not agree. In my view the Secretary of Sate was entitled to reach the decision which she did. The decision letter provided adequate reasons.

(3) The petitioner also argues that the Secretary of State failed to apply the correct test in the Immigration Rules, Rule 353. I do not agree. In paragraph 26 of the decision letter the Secretary of State said "After giving anxious scrutiny to your submissions it is considered that your client's claim under Articles 3 and 8 of the ECHR would not create a realistic prospect of success in front of an Immigration Judge." In my view, having regard to the whole terms of the letter, Secretary of State applied the correct test. In my opinion, adequate reasons have been given.

(4) I do not accept that the Secretary of State's decision (that a further appeal would not have realistic prospects of success) was one which no reasonable Secretary of State could arrive at. In my view the Secretary of State was entitled to reach the view which she did. In my opinion, the rationale for the policy relating to Rule 276B(B) is of no material assistance to the petitioner in this particular case. The Queen on the application of Mifail Rudi v SSHD [2007] EWCA Civ 1326, at paragraphs 28 and 32. In Grant v UK, Application no 10606/07, Strasbourg 8 January 2009, 34 years had passed since the applicant last lived in Jamaica (paragraph 41).

[40] In essence, in my opinion, the respondent's submissions are well-founded.

[41] Despite Mr Komorowski's carefully presented submissions, the petition falls to be refused.

Decision
[42] In the whole circumstances, and for the reasons outlined above, I shall sustain the respondent's third plea-in-law, repel the pleas-in-law for the petitioner and refuse the petition.

[43] As requested, I shall reserve the question of expenses.