Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 20
P564/12	OPINION OF LORD STEWART in the Petition of A B Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 3 May 2012 refusing to treat the petitioner's further submissions as a fresh claim, etcetera and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: McKendrick; Office of the Solicitor for the Advocate General

5 February 2013

[1] The petitioner is an adult Iranian male. He has been in the United Kingdom since he entered illegally in 2008. The underlying question is whether he practises homosexuality. If he is a practising homosexual, he is probably entitled - following the ruling of the Supreme Court in HJ (Iran) - to refugee status in the United Kingdom; indeed he is probably entitled to sexual asylum if he is suspected by potential persecutors of being homosexual [HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596]. The United Kingdom Border Agency [UKBA] acting on behalf of the Secretary of State for the Home Department disbelieves the petitioner's asserted sexual orientation. His most recent claim for asylum/ humanitarian protection has been refused by UKBA; and he has been told, for the fourth time, to remove himself.

[2] On 21 May 2012 the petitioner presented this application to challenge the latest UKBA decision. The court fixed a first hearing for 3 October 2012. Having heard submissions by counsel on that day I made avizandum. I have now decided that the petition should be granted. I have arrived at this decision contrary to the impression that I formed about the case at the hearing and with some reluctance. If our border control system is dysfunctional, it is not the job of the courts to make it more dysfunctional. The petitioner should have left the United Kingdom four years ago when he became rights-of-appeal-exhausted: but we are where we are and the decision whether this petitioner is now to be removed or is now to stay should be properly made.

[3] The issue for my determination is whether there is an error in the UKBA decision-making process and, if so, whether the error is of such materiality that the decision has to be re-made. I emphasise that I have not been called on to make, and I have not made, a decision about the petitioner's sexuality or perceived sexuality. Still, I cannot help thinking about the challenges involved in deciding the merits of the claim. In HJ (Iran) Lord Rodger said [at § 82]:

"When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality."

UKBA has the task of sorting genuine from bogus homosexual asylum claims: but is it acceptable for the state and its agencies to carry out an inquisition into people's sexuality; and, anyway, how are decision-makers supposed to satisfy themselves that claimants really are gay? The Supreme Court has given no practical guidance.

Petitioner's immigration history

[4] The petitioner's date of birth is 24 December 1983. He states that he travelled by lorry to the United Kingdom arriving on 15 October 2008. He claimed asylum at UKBA's offices in Liverpool. He told UKBA that although he did not consider himself to be gay he was perceived by family and acquaintances to be gay. He is apparently a skilled boxer. Other members of his boxing clubs would not spar with him. Two important persons in his life, one being his brother, an influential cleric, and the other being a senior official of the Iranian Boxing Federation are said to be homophobic and reportedly think that the petitioner is gay. The petitioner claimed that in his more feminine phases he had an interest in men. The petitioner's asylum claim was refused by UKBA on 11 November 2008 primarily on the basis that even if he were gay the treatment that he had received from others in Iran amounted at its highest to societal discrimination but not to persecution in terms of the Refugee Convention 1951. He was told that he had to remove himself from the United Kingdom.

[5] The petitioner appealed to an immigration judge on asylum grounds, humanitarian protection grounds and European Convention on Human Rights [ECHR] article 3 (inhuman and degrading treatment) grounds. The immigration judge found that the petitioner had psychological problems and that on the petitioner's own evidence he was not homosexual: the petitioner simply perceived others as perceiving him to be homosexual. The immigration judge also found that the petitioner "is someone who would act in a discreet manner with regard to his sexuality (whatever it happens to be) on return to Iran". On 13 February 2009, applying the ratio of HJ (Iran) as then decided in the Asylum and Immigration Tribunal on 10 May 2008, the immigration judge dismissed the appeal [HJ (Homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044]. The law at that stage was that sexual asylum would not be granted to individuals who could reasonably be expected to cooperate in their own protection by living discreetly. This was the so-called "discretion-based reasoning".

[6] The petitioner became rights-of-appeal-exhausted on 19 February 2009. On 7 July 2009 the petitioner's new solicitors made further submissions to UKBA. These further submissions were rejected in terms of the Immigration Rules, rule 353, on 18 July 2009 on the basis that the submissions were "not significantly different" from those previously considered by the immigration judge. By letter dated 18 August 2010 the petitioner's solicitors made second further submissions to UKBA which were accompanied by (1) copy judgment of the United Kingdom Supreme Court in HJ (Iran) and HT (Cameroon) dated 7 July 2010, (2) statement of the petitioner dated 16 August 2010, (3) letter dated 17 June 2010 from Dr Dorothy Moodie, consultant psychiatrist, Homeless Mental Health Services, who apparently has clinical oversight of the petitioner in the community and reviewed him after his stay in the intensive psychiatric care unit, Stobhill Hospital, where he was admitted from the end of December 2009 to the middle of March 2010, (4) letter dated 12 August 2010 from Vicky Reed, programme co-ordinator, Venture Scotland. In HJ (Iran) the Supreme Court decided that living discreetly in order to avoid persecution on grounds of sexual orientation was tantamount to persecution; and that sexual asylum claimants should not be expected to live discreetly from motives of self-protection. The second further submissions were rejected on 27 August 2010 in terms of rule 353. The main reason for rejecting the second further submissions was that "another immigration judge would find that [the petitioner] has not established that he is, or ever has been, a homosexual".

[7] By letter dated 17 April 2012 the petitioner's solicitors made third further submissions to UKBA. The submissions were supported by (1) report dated 26 July 2011 by Dr A Sam, MB, ChB, psychiatrist, (2) letter dated 14 December 2011 from Catriona Eaglesham, Glasgow Council social care worker, (3) letter dated 24 February 2012 by Greg Higgins, NHS community psychiatric nurse, (4) handwritten letter, undated, from JT, a male with whom the petitioner claimed to have been in a same sex relationship for eight months together with photocopy of the bio-data page from an expired United Kingdom passport bearing to have been issued to JT on 10 June 2000, (5) copy documents previously submitted to the immigration judge including psychiatric report dated 29 January 2009, by Dr David Gerber, MB, ChB, MRCPsych, MBA, consultant psychiatrist. These third further submissions were rejected by UKBA on 3 May 2012 in terms of rule 353. The reason for rejecting the claim in relation to sexual orientation was that "there is no realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, finding that your client has established that he is gay or would be treated as gay by potential persecutors in his home country". This is the decision the petitioner seeks to bring under review.

Rule 353 and principles of judicial review

[8] Rule 353 governs the situation where an asylum claimant who is rights-of-appeal-exhausted makes further submissions to UKBA. The UKBA decision-maker has to decide whether or not to allow the claim on the basis of the further submissions and, if the claim is rejected, whether the further submissions nonetheless amount to a fresh claim in respect of which, in effect, leave to appeal to an immigration judge should be granted. The rule provides:

"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 already been considered; and

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

A "realistic prospect of success" means a realistic prospect of success on appeal to another immigration judge. The threshold is a low one. In an extreme risk case, such as the present one, decision-makers are supposed to apply "anxious scrutiny".

[9] Counsel are agreed that the proper approach for this Court in reviewing the UKBA rule 353 decision of 3 May 2012 is the standard, "Wednesbury" approach. This was made clear by the Inner House in FO v Secretary of State for the Home Department 2010 SLT 1087 under reference to WM (Democratic Republic of Congo) v Secretary of State for the Home Department
[2006] EWCA Civ 1495 (9 November 2006); and it was confirmed by the Inner House in Dangol v Secretary of State for the Home Department 2011 SC 560. The passage in WM (Democratic Republic of Congo) that endorses the Wednesbury approach is at paragraph 9 where, under reference to a previous decision of the Court of Appeal, Lord Justice Buxton stated: "There is no escaping from the ratio of [Cakabay v Secretary of State for the Home Department
[1999] Imm AR 176] that... the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds." Shortly put it is not for this Court to make or to substitute its own decision: the task for this Court is to determine whether the UKBA decision was properly made and, if not, whether it should be set aside so that it can be re-made properly [Associated Provincial Picture Houses Ltd v Wednesbury Corp
[1948] 1 KB 223; cf. R (on the application of YH (Iraq)) v Secretary of State for the Home Department
[2010] 4 All ER 448].

UKBA rule 353 decision dated 3 May 2012

[10] Counsel for the petitioner submitted that the relevant part of the UKBA decision letter in this case, dated 3 May 2012, is to be found at paragraphs 1 to 35 inclusive, which counsel read. The rest of the letter, counsel told me, is not relevant to the present application. The UKBA decision-maker's consideration of the rule 353 issue starts by setting out, correctly, the fresh claim test [decision letter, §§ 6-7] and progresses to quoting the applicable principles as established by the Court of Appeal in WM (Democratic Republic of Congo) [decision letter, § 8]. The letter then identifies, accurately, the material that had not previously been considered and states [decision letter, §§ 9-10]:

"In consideration of whether this new evidence would create a realistic prospect of success, the Secretary of State has taken into account the findings below, which she considers that an Immigration Judge, when applying the rule of anxious scrutiny, would take into account."

The decision-maker next quotes the main conclusions reached by the first immigration judge in her determination of 13 February 2009 [decision letter, §§ 11-12]. The decision-maker moves on to summarise the fact situation as established at the first appeal [decision letter, § 13]:

"... The Immigration Judge determined, with the full facts of the case before her, that your client is not homosexual and has never been perceived as homosexual by people in Iran. A report your client produced at his appeal hearing by Dr David Gerber, MB, ChB, MRCPsych, MBA, Consultant Psychiatrist also concluded that your client is not homosexual".

The decision-maker turns to consider the law as applied in the determination of 13 February 2009, namely HJ (Homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044, noting that the decision had been superseded (by the subsequent decision of the Supreme Court). She also states that the immigration judge found, in any event, that the petitioner had not been perceived as homosexual in Iran: rather it was the case that he had perceived others as perceiving him to be homosexual [decision letter, § 14].

[11] At paragraphs 15 to 16 of her decision letter, the UKBA decision-maker records that, according to the petitioner's statement of 16 August 2010, the petitioner had at that point "come to the conclusion he could not resist or suppress his feelings any longer" and that this had happened approximately one month after the Supreme Court's judgment in HJ (Iran). The decision letter also notes that in his statement the petitioner claimed to have had four "one night stands", with different men, in the period from March to August 2010. The decision-maker questions why the petitioner had waited until approximately one month after the decision in HJ (Iran) before disclosing that he had become "a practising homosexual". The decision-maker states that these matters of timing are significant matters "that another Immigration Judge, applying the rule of anxious scrutiny, would take into consideration".

[12] The decision-maker also raises the question of timing in relation to the disclosure of the petitioner's claimed relationship with JT. She states that another immigration judge "would also consider this alleged relationship was initiated after it was highlighted in the [UKBA] refusal letter dated 27/08/10 that your client had provided no evidence of him being a practising homosexual". Other points noted are that JT's letter was undated but bore a date stamp of 26 April 2011 and was submitted 12 months after the date of the date stamp, that the letter was lacking in detail, that the letter did not state that the petitioner and JT were living together. These matters are said to be relevant "when considering the reliance to be placed on this document". It is also noted that, although the third further submissions letter referred to "letters from his family" provided by JT, no letters had been submitted [decision letter, §§ 17-20].

[13] The decision letter then quotes Lord Rodger at paragraph 82 in HJ (Iran) to the effect that the tribunal must first ask itself whether the applicant is gay or would be treated by potential persecutors as gay [decision letter, § 21]. The decision-maker reminds herself that the first immigration judge determined that the petitioner "is not homosexual and had never been perceived as homosexual by people in Iran" [decision letter, §§ 22-23]. She then states [decision letter, § 24]:

"For the reasons given above and when considering the [third further submissions] letter in the round with the previous findings of the Immigration Judge, there is no realistic prospect of Immigration Judge [sic], applying the rule of anxious scrutiny, finding that your client has established that he is gay or would be treated as gay by potential persecutors in his home country... "

Paragraph 25 of the decision letter notes "furthermore" that the petitioner applied on two separate occasions, first on 8 December 2009 and again on 1 March 2010, for assisted voluntary return [AVR] to Iran. The decision-maker states: "Therefore it appears your client did not fear persecution on return to his home country during this period, despite claiming that in March 2010 he accepted that he was homosexual and began to engage in homosexual relationships."

[14] From paragraph 26 to paragraph 35 the decision letter reviews the information contained in the letter dated 14 December 2011 from Catriona Eaglesham, Glasgow Council social care worker [§§ decision letter, 26-27], the letter dated 24 February 2012 by Greg Higgins, NHS community psychiatric nurse [decision letter, § 28] and the report dated 26 July 2011 by Dr A Sam, MB, ChB, psychiatrist [decision letter, §§ 30-34]. There are a number of references to the petitioner's sexuality. It is noted that the petitioner has disclosed to Social Care Services that he is homosexual and that he struggles with the emotional and religious issues relating to his sexuality [decision letter, § 26]. The decision-maker notes the contents of Ms Eaglesham's letter and comments that Ms Eaglesham does not state when the disclosure about homosexuality was made [decision letter, § 27]. (The decision letter does not refer specifically to Ms Eaglesham's statement that the petitioner feels able to discuss his concerns with his community psychiatric nurse, something the petitioner values as a mental health support.)

[15] Referring to the letter from Mr Higgins, the community psychiatric nurse in question, the decision-maker notes that the petitioner has "consistently stated that he is homosexual and has engaged in several relationships with men". She again makes the comment that it is not stated when the disclosure about homosexuality was made, when the petitioner began his "alleged relationships with men, or any details of the men". The decision-maker adds that Dr Dorothy Moodie, consultant psychiatrist, "makes no mention of your client's alleged homosexuality". (The decision-maker does not refer to the concerns expressed by Mr Higgins about the petitioner's sexuality, namely a concern as to whether the petitioner was using protection against sexually transmitted diseases and a concern, given the petitioner's description of certain relationships, that the petitioner was being sexually exploited because of his dire circumstances) [decision letter, § 28].

[16] The decision letter addresses the claim made in the third further submissions letter that the petitioner's major psychotic incident "was, in some part, brought on by his struggling with his sexuality". The decision-maker notes that Dr Sam's report was submitted nine months after it had been compiled; that Dr Sam did not have access to the petitioner's previous psychiatric or medical case notes; and that Dr Sam was "unable to obtain a collaborative history from [the petitioner's] partner or any member of his family or from any individual who knows [the petitioner] apart from speaking to his solicitor". It is noted that Dr Sam, like Dr Gerber before him, compiled his report based on information provided by the petitioner; and that the information given by the petitioner about his sexuality to Dr Sam was inconsistent with the information given to Dr Gerber [decision letter, §§ 30-31]. The decision-maker comments that although the petitioner informed Dr Sam that he was in a long term, same sex relationship with an individual who supported him, the petitioner did not name his boyfriend and, again, that Dr Sam was unable to obtain a collaborative history from the individual [decision letter, § 32].

Submissions for the parties

[17] The argument for the petitioner identifies three principle problems with the UKBA decision-making. First, the UKBA decision-maker has not given consideration to the merits of the further submissions in accordance with the first stage of rule 353: instead she has "telescoped" the procedure and moved straight to the second stage which involves deciding whether the further submissions amount to a fresh claim. Secondly, the conclusion on the second stage, "fresh claim" question is apparently stated at paragraph 24 of the decision and precedes the analysis, in paragraphs 26 to 35, of a substantial amount of admittedly new content, namely the information contained in the letter dated 14 December 2011 from Catriona Eaglesham, Glasgow Council social care worker [§§ 26-27], the letter dated 24 February 2012 by Greg Higgins, NHS community psychiatric nurse [§ 28] and the report dated 26 July 2011 by Dr A Sam, MB, ChB, psychiatrist [§§ 30-35]. Thirdly, the UKBA decision-maker addresses the question of the prospects of success on appeal to some extent: but she completely fails to do so in relation to the admittedly new content discussed in paragraphs 26 to 35 either by itself or in conjunction with other new content and the previously considered material.

[18] These three points are interlinked. Going back to the first point, the risk involved in running together the two stages of the rule 353 process is that the different tests for the first and second stages of the decision may be confused with the result that the decision-maker resolves, for himself or herself and for the purpose of both stages, issues of credibility, reliability and fact which ought in the second stage to be recognised as arguable and therefore properly open for determination by an immigration judge on appeal [RQK (Iraq) v Secretary of State for the Home Department [2011] CSOH 199 §§ 10-12].

[19] The narrative advanced on behalf of the petitioner is that he has suffered a breakdown struggling to reject his true sexual orientation; and that he has gradually come to terms with his sexuality. This is key, it is said, to understanding his previous denials, which were the basis of the immigration judge's determination in 2009. The petitioner suffered a major psychotic episode between December 2009 and March 2010 which resolved as he came to accept his sexual identity. (Counsel told me that there is an entry in the solicitors' fee account dated 6 May 2010: "Discussing his homosexuality on release from sectioning.") Issues of credibility and reliability cannot be addressed without taking account of the petitioner's mental state; and the decision-maker should have treated the new material in relation to the petitioner's mental state as at least arguably supportive of his credibility and reliability. Counsel for the petitioner submits that in reaching her view on the prospects of success before another immigration judge the UKBA decision-maker made one or more of a number of errors: she left out of account the material relating to the petitioner's mental health canvassed at paragraphs 26 to 35 of her decision letter or treated it as "an add-on"; and, or alternatively, she artificially compartmentalised the evidence which she was bound to consider as a whole and in the round when assessing credibility and reliability; and, or alternatively, she failed to apply the correct test to the material at paragraphs 26 to 35 and omitted to apply anxious scrutiny or to evaluate how that material might impact on the determination of another immigration judge. Counsel describes the decision letter as structurally flawed [Hassan v Secretary of State for the Home Department 2004 SLT 140; Mibanga v Secretary of State for the Home Department [2005] INLR 377; MO (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 1276 at §§ 15-16 per Moses LJ with whom the other members of the Court of Appeal agreed].

[20] On a point of detail, counsel for the petitioner submits that the UKBA decision-maker was not entitled to attach weight to the petitioner's applications for AVR: having been refused leave and being rights-of-appeal exhausted the petitioner was destitute; and the only way he could re-qualify for asylum-seeker support was to apply for assistance to make a voluntary return to Iran. (The implication of this submission is that the petitioner, whatever he pretended, had no intention of returning voluntarily.)

Submissions for the Respondent

[21] Counsel for the respondent reminds me that a reviewing court has to read decision letters as a whole, fairly, reasonably and in a common sense way, albeit with anxious scrutiny in this sort of case [Harbachou v Secretary of State for the Home Department [2007] CSOH 18, § 10]. He submits that the UKBA decision-maker has given full consideration to all the material presented in the third further submissions together with the material previously considered, that she has applied the correct test and that she has followed the approach laid down by the Court of Appeal. In order to benefit from the rule in HJ (Iran) a claimant has to demonstrate to the satisfaction of the relevant fact-finder that he is gay, or that he would be treated as gay by potential persecutors; and that this petitioner faces significant challenges to his credibility and reliability. Yes, the "rule of anxious scrutiny" applies: but "anxious scrutiny works both ways". The task of the UKBA decision-maker in terms of rule 353 involves making judgments about the likely credibility and reliability of the new material in the light of findings of credibility and reliability already made [HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 at § 82 per Lord Rodger; R (on the application of YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116 at § 24 per Carnwath LJ; WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1780 at § 6 per Buxton LJ].

[22] Counsel submits that it is incorrect to attribute "apparent" credibility and reliability to new material for the purpose of applying the rule 353 test: the correct approach is to assess credibility in accordance with WM (Democratic Republic of Congo) principles. The correct approach has recently been exemplified in SG (Iran), another sexual asylum case. Referring to the supporting letters from the community psychiatric nurse and the social care worker and to Dr Sam's psychiatric report, counsel for the respondent submits that self-reported symptoms would rarely be treated as carrying significant corroborative weight. The UKBA decision-maker was entitled to approach the supporting letters and report with caution in the light of the previously considered material. The UKBA decision-maker did not fall into the error of artificially compartmentalising the evidence but arrived at a judgment on the whole evidence before her "in the round". The issue raised by the petitioner is one of form rather than substance: as a rule it is unimportant where the consideration of further submissions starts provided nothing is left out of account. Counsel characterises the approach of the UKBA decision-maker as "giving a 'running commentary' on the material" submitted for her consideration [S (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 1153 at §§ 20-32 per Rix LJ with whom the other members of the Court of Appeal agreed; WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1780 at § 6 per Buxton LJ; SG (Iran) v Secretary of State for the Home Department [2012] CSOH 114 at §§ 6, 12 and 13; cf. Hassan v Secretary of State for the Home Department 2004 SLT 140; UKBA determination dated 3 May 2012, 6/1, §§ 26-28].

[23] Counsel for the respondent submits that the petitioner's story is so full of inconsistencies that it undermines the superficially persuasive narrative that is being advanced on his behalf. The petitioner told Dr Sam - for the first time, more than three years after the petitioner's arrival in the United Kingdom - that he had been caught in Iran "going out with other men". When the petitioner claimed asylum on 20 October 2008 it was on the basis that he believed he was perceived to be effeminate, not that he was gay; and according to his asylum interview he had never had a relationship with another man. He was interviewed by Dr Gerber on 16 December 2008 and on 27 January 2009: on both occasions the petitioner stated that he was heterosexual and had no homosexual inclinations. Paragraph 6 of the petitioner's witness statement placed before the immigration judge on 2 February 2009 (not produced) apparently stated that the petitioner is not gay. In spite of the petitioner's now claimed anxiety that he would be subject to persecution and execution in the event of removal to Iran he had twice applied for AVR. His first claim to be homosexual was in his witness statement of 16 August 2010, which was signed just five weeks after the Supreme Court issued the judgment in HJ (Iran). These matters had properly been taken into account by the UKBA decision-maker [report by Dr Sam, 6/2, page 4; determination of immigration judge, 6/5, §§ 24-26; petitioner's witness statement, 6/6, pages 1 and 2; UKBA decision dated 3 May 2012, 6/1, §§ 11, 15, 25].

[24] Referring to paragraph 24 of the UKBA decision letter of 3 May 2012, counsel continued to the effect that the primary fact in issue is whether there is a realistic prospect of another immigration judge, applying the rule of anxious scrutiny, finding that the petitioner has established that he is gay or that he would be treated as gay by potential persecutors. The "previously considered material" contradicted the position taken by the petitioner. The immigration judge expressed significant concerns about the petitioner's credibility in her determination of 13 February 2009. Counsel emphasised that Dr Sam had not been made aware of the petitioner's two applications for AVR. Counsel also pointed out that the consultant psychiatrist with clinical care of the petitioner, Dr Moodie, had expressed the view that the petitioner's major psychotic illness was linked with "abnormal beliefs of a religious nature". The treating consultant had expressed the view that it would be detrimental to the petitioner to be returned to Iran, but this had nothing to do with his sexual orientation. All these matters entered into the UKBA decision-making, and properly so [Harbachou v Secretary of State for the Home Department [2007] CSOH 18, § 10; first further submissions dated 7 July 2009, 7/1; report by Dr Gerber dated 29 January 2009, 6/2, pages 2 and 3; second further submissions dated 18 August 2010, 7/3; report by Dr Sam dated 26 July 2011, 6/2; letter from Dr Moodie dated 17 June 2010, 7/7; determination of immigration judge, 7/5, §§ 23-26, 32-33; UKBA decision dated 3 May 2012, 6/1, §§ 25, 28].

Discussion and decision

[25] What does not come across from the submissions as I have recorded them above is the severity of the petitioner's mental disturbance. The petitioner has been diagnosed as suffering from schizophrenia. According to Dr Sam the petitioner's psychosis manifests in hearing voices from an angel of God and thinking that he is the son of God by the name of Jesus or, on another account, the brother of Jesus. He believes that he is in contact with famous persons such as President Obama. I gather from the history taken by Dr Sam that the incident which resulted in the petitioner being sectioned and admitted to Stobhill Hospital for almost three months was an assault on an employee of UKBA. The petitioner's community psychiatric nurse reports that "on a few occasions he has interrupted Catholic Mass by walking on to the alter [sic] to declare to the congregation that he was the son of God and could cure anyone that had HIV or cancer". The petitioner has no insight into his delusions.

[26] On the face of it the mental health material referred to at paragraphs 26 to 35 of the UKBA decision letter of 3 May is potentially relevant to the issue of whether the petitioner is, or is at risk of being perceived as, homosexual were he to return to Iran. The potential relevance of the material is not disputed. It does seem that the UKBA decision-maker has not brought this material into her preceding evaluation at paragraph 24 of the prospect of success for the petitioner's sexual asylum claim. Paragraph 24 starts: "For the reasons given above..." Paragraphs 26 to 35 are obviously not "above" paragraph 24. At the same time it is clear, as counsel for the respondent submits, that the decision-maker well understands the correct legal framework for her decision-making; and it is also clear that she has, in one way or another, given full consideration to all the material with which she was presented. I agree that, on the face of it at least, the letter of 3 May 2012 looks like a highly competent decision on the second stage, rule 353 question.

[27] What I suspect has happened is that the decision-maker has indeed evaluated the material referred to at paragraphs 26 to 35 but she has done so in connection with a separate branch of the petitioner's claim, namely the claim that his removal to Iran would violate his ECHR article 3 (inhuman and degrading treatment) rights by depriving him of support, medication and medical treatment for his mental condition. There is no obvious coda at paragraph 35 and I have thus been induced to read beyond the point in the decision letter of 13 May 2012 where counsel's analysis stops. Properly I think paragraphs 26 to 35 should be read as belonging to a section consisting of paragraphs 26 to 45. This section starts, at paragraph 26, as follows:

"You have submitted a letter from Catriona Eaglesham, Social care Work [sic] dated 14/12/11 in which Ms Eaglesham states your client was referred to Social services in September 2011. Ms Eaglesham states your client has been diagnosed with schizophrenia and receives medication to manage the effects of his condition. She states that your [sic] has appropriate health care suppor5ts [sic] in place and that your client engages well with these supports. Ms Eaglesham states your client has disclosed to them that he is homosexual and that he struggles with the emotional and religious issues relating to his sexuality. She states your client is now able to explore his concerns with his community psychiatric nurse, however, he fears losing this support would be detrimental to his health and well-being."

After rehearsing the information provided by Ms Eaglesham, Mr Higgins and Dr Sam, the decision-maker at paragraphs 36 and 37 quotes the background information on the availability of mental health services and medicines in Iran. Paragraphs 38 and 39 summarise the law, of which it is said another immigration judge would be aware, applicable to ECHR article 3 medical cases, namely D v United Kingdom and N v SSHD [D v United Kingdom (1997) 24 EHRR 423; N v Secretary of State for the Home Department [2005] 2 AC 296]. The decision-maker states that in D "there was an absolute non-existence of any support or medical treatment available to the claimant back in his country of origin". Paragraph 40 the decision letter continues:

"With regard to the symptoms surrounding your client's mental health conditions, a new Immigration Judge would note that there is provision in Iran for your client to continue with any treatment or medication required."

Paragraph 41 quotes KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA 1354 as to the exceptionality test: "mental illness among failed asylum seekers cannot really be regarded as exceptional..."

[28] Paragraphs 42 to 44 deal specifically with the question of suicide risk in the event of removal to Iran. The mental health section concludes with the following evaluation at paragraph 45:

"With regards to your client's particular case, there is no realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, concluding that the extremely high threshold laid down in the case law of D v UK (1997) and N v SSHD (2005) would be breached. This is because, as detailed above in the background information provided, there are medical facilities and treatment available in Iran, albeit acknowledged that they would not be the same standard as that enjoyed in the United Kingdom. This treatment may not necessarily be the same as what your client is receiving in the United Kingdom, however an Immigration Judge would be likely to conclude that your client would be in the same position as others in Iran with the same conditions."

The decision letter then moves to the separate section dealing with the ECHR article 8 [private and family] claim.

[29] I have to conclude that the decision-maker did not bring the mental health material into her evaluation of the prospects of success for the petitioner's homosexuality claim and that this was an omission. I say it was an omission because it is plain from the third further submissions letter from the petitioner's solicitors dated 17 April 2012 that the mental health material was being founded on to support the claim for sexual asylum. The letter asserts that the petitioner "suffered from a major psychotic incident, which was, in some part, brought on by his struggling with his sexuality". The letter states that the petitioner's position at interview with Dr Gerber in 2009 - when he denied homosexual tendencies - has to be seen "in the light of subsequent developments, and these are set out in our client's previous Statement [statement of the petitioner dated 16 August 2010], the Report from Independent Psychiatry [report by Dr A Sam, psychiatrist, dated 26 July 2011], and further supporting evidence attached". The letter also states that the letter from Mr Higgins, community psychiatric nurse, is relied on "in its entirety in establishing our client's sexuality, and therefore the attendant risk of Persecution should he be returned to Iran".

[30] Does the omission amount to a material error? I agree with counsel for the respondent that there are arguments for attaching limited weight, possibly even no weight, to the mental health information in the rule 353 evaluation of the sexual asylum claim. Unlike Dr Gerber and Dr Moodie, Dr Sam is not apparently a consultant (and may well still be in a training grade). Unlike Dr Gerber, Dr Sam does not profess to be a specialist in psycho-sexual dysfunction. Unlike Dr Moodie, Dr Sam did not have clinical care of the petitioner; nor did he have access to the petitioner's psychiatric or medical records. Dr Moodie presumably had at least a discharge summary from the treating psychiatrist at Stobhill Hospital when she reviewed the petitioner. The instructions to Dr Sam from the petitioner's solicitors have not been disclosed. Dr Sam's impression of a connection between the petitioner's sexuality and his psychosis is tentative. Also as counsel correctly says, the information given by Dr Sam, Ms Eaglesham and Mr Higgins about the petitioner's sexuality is derivative and imprecise. All these points may be germane: but they do not detract from the argument advanced on the petitioner's behalf that the material has apparently been left out of account in the decision-maker's evaluation of the prospects of success for the sexual asylum claim. This is not a case in which, applying anxious scrutiny, I feel able to say that it would have made or would make no difference to put the mental health material into the mix. Therefore the decision has to be re-made taking account of the left-out material.

[31] The petitioner calls the UKBA decision of 3 May 2012 "irrational". In my view the decision is not irrational: but it is nonetheless technically flawed for the reasons given above. On that understanding I shall repel the respondent's pleas-in-law, sustain the petitioner's plea and reduce the decision complained of, reserving meantime the question of expenses.