Act: Lindsay QC et Winter; Drummond Miller LLP

Alt: Gill; Office of the Advocate General

31 October 2013

[1] The reclaimer is a citizen of India and comes from Kashmir. He was born on 20 February 1977 and has never held an Indian passport. He came to the United Kingdom on 27 November 2000 and claimed asylum on 4 December 2000, his application being refused on 4 April 2001.

[2] The history of the present proceedings is set out in full at paragraph 6 of the decision letter of 5 April 2012 at subparagraphs A to U. The reclaimer's appeal was heard on 29 July 2011 and dismissed in August 2011. He was detained on 13 March 2012 and on 3 April 2012 solicitors acting on his behalf submitted to the UK Border Agency an application seeking that the Secretary of State consider the appellant's fresh claim under paragraph 353 of the Immigration Rules and in light of the case of WM referred to earlier in that letter. In response to that application the UK Border Agency on behalf of the respondent wrote a letter dated 5 April 2012, the conclusion of which was not to reverse the decision to deport the reclaimer and determining that the submissions did not amount to a fresh claim and, removal directions having been set for him, he is to be moved from the United Kingdom on 11 April 2012. The reclaimer applied to this court for judicial review of that decision and, in particular, reduction of it and on 30 October 2012 the Lord Ordinary refused that petition. He concluded his opinion by stating that he held that the challenge failed, the petitioner had failed to identify any flaw in the decision making process adopted by the Secretary of State in arriving at her decision and he dismissed the petition.

[3] It is against the interlocutor of 30 October 2012 that this reclaiming motion has been brought. There are essentially two grounds of appeal advanced on behalf of the reclaimer. The first ground of appeal was described helpfully by Mr Lindsay QC on behalf of the reclaimer as "the airport questioning point" and the second was that the Secretary of State, or the author of the letter on her behalf, had, although identifying the correct test, applied it incorrectly and had come to her own conclusion. That was only the starting point in the necessary decision making function and she had failed to consider whether an immigration judge applying the test of anxious scrutiny might reach a different view.

[4] We record that both parties helpfully provided us with written notes of arguments and both Mr Lindsay and Mr Gill adopted those notes of argument. With regard to the first ground of appeal Mr Lindsay essentially reiterated the factors that are noted by the Lord Ordinary at paragraph 16 of his opinion, those being threefold. First, that it is reasonably likely that on his return the Indian authorities will question him. They will do so because he left the country without being in possession of an emergency travel document. Second they will discover that he is a failed asylum seeker and his claim was based upon his political beliefs, his membership of the Indian mujahedin, and third, internal relocation is no answer as it does not take account of the risk he faces at the airport.

[5] The Secretary of State in the decision letter referred to the updated country of origin information report dated 26 August 2011 from which we note that chapter 34 is relevant and, having narrated various sources of evidence, the report concludes at 3405 that COI service is not aware of any reports of Indian nationals facing adverse treatment for reason of having claimed asylum abroad following their return to India. The Secretary of State refers to that as does the Lord Ordinary in his opinion. In light of that information we are unable to agree with the submissions advanced by Mr Lindsay in support of his first ground of appeal. We do not consider that it can be said that the immigration authorities, at what was described as the "pinch point" of the airport, will or indeed may ask the reclaimer whether he is a member of the Indian mujahedin. We consider that the factors to which we have referred involve assumptions and speculation and that the hard information which was before the Secretary of State, justified her taking the view which she did with regard to the "airport questioning point". We observe that the circumstances of an individual such as the reclaimer having to remain quiet or even having to dissemble or lie at questioning at the airport are, in our opinion, very different from the underlying circumstances which were considered in some of the authorities to which we were referred. Those authorities were concerned with a situation in which a person would be required to live in a country whilst denying an important element of their personality such as their sexuality or their political affiliation. That is a very different circumstance from being questioned at an airport. However, we reiterate that the primary reason for our not being satisfied on the first ground of appeal is that we consider that the Secretary of State was justified in taking the view that the reclaimer having lived in India and having relocated in Punjab and not having come to the attention of the authorities, and it not being disputed that he is, at present, not of interest to the authorities in India, there is no reason to assume that his membership of the Indian mujahedin would arise at questioning at the airport.

[6] The second ground of appeal is to the effect that the Secretary of State reached her own conclusion about the prospects of success in an appeal, but did not apply that in the second part of the test, namely whether an independent immigration judge applying the test of anxious scrutiny might consider the outcome would be different. It is true that the Secretary of State in the letter of 5 April 2012 does not make specific reference to the attitude of an immigration judge, however it is important to have regard to the terms of the letter as a whole; we consider when looking to the terms of paragraph 5 together with the terms of paragraphs 11, 13, 15, 17 and 19 that it is reasonably clear that the Secretary of State, as well as having identifying the test correctly, did apply the test correctly.

[7] We accordingly share the views expressed by the Lord Ordinary at paragraphs 18 and 19 of his opinion. This reclaiming motion falls to be refused and we shall adhere to the interlocutor of the Lord Ordinary.