Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 32
P1231/12	OPINION OF LORD BANNATYNE in the Petition of A B C (AP) Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department dated 6 November 2012 to remove the petitioner from the UK to Afghanistan on Monday 19 November 2012 and a decision dated 18 November 2012 ________________

Pursuer: Forrest; Drummond Miller LLP

Defender: Gill; Office of the Advocate General

22 February 2013

Introduction

[1] The petitioner is a citizen of Afghanistan, born on 1 January 1990. He sought asylum in the United Kingdom on 16 April 2011. The respondent decided by letter and notice of 12 May 2011, to refuse the claim and remove the appellant to Afghanistan. The petitioner appealed to the First-tier tribunal on the grounds that he had a genuine fear of persecution if he were returned to Afghanistan, that he was a refugee and that his rights in terms of articles 2 and 3 of the Human Rights Convention would be breached if he were returned to Afghanistan.

[2] In summary the petitioner's account before the First-tier tribunal was this: the petitioner's father was living and working as a Mullah in Jalalabad. His father and friends were taking taxi drivers from the city and killing them. The petitioner's father's friends, one man and two women, were arrested and confessed and were then seen on television. The petitioner's father was not arrested. His father advised him and the rest of the family to leave the area as they would be arrested by the police. The petitioner's father also warned him that the family of the people he had killed would seek to take revenge on the petitioner. The petitioner and his family left their home village and went to their maternal uncle's house in Bagram. The petitioner then travelled on to Kandahar with an agent who took him out of Afghanistan.

[3] On the basis of the foregoing the petitioner's position was that he was afraid that if he was returned to Afghanistan, he would be killed by the families of the people whom his father had killed. He also feared ill-treatment from the authorities. He considered that there was nowhere in the country where he would be safe and the police and government would not protect him.

[4] On 11 July 2011 the First-tier tribunal refused his appeal on both asylum and human rights grounds. In making these findings the immigration judge held that she did not believe the petitioner's account and did not find him to be credible and reliable. The basis for her said findings are as set out in paragraphs 22 and 23 of her determination and are as follows:

"I found him to be particularly vague and evasive in giving his oral evidence. The Appellant seemed unable or unwilling to answer direct questions and I was particularly careful to check that this was not due to any difficulties understanding the interpreter. I have taken account of the fact that the Appellant is not well educated but he has given so many different accounts of what he claims to have happened in connection with his father in Afghanistan that I cannot accept his evidence. There are numerous inconsistencies, as highlighted in the reasons for refusal letter, in the evidence given by the Appellant at his asylum interview. In oral evidence further inconsistencies were apparent between the Appellant's oral evidence and his written statement given to his solicitors only two days before the hearing. The Appellant states in his statement that he heard on the radio that his father's accomplices had been deprived of sleep for three nights to make them confess but in his oral evidence he stated that he came by this information from the agent who read about it in a newspaper article and told him about it. The Appellant stated in his oral evidence that his father was not arrested however when the Home Office Presenting Officer asked him how his father could then have escaped if he had not been arrested, the Appellant stated that he did not know if his father had been arrested. I found this very unconvincing. The Appellant then went on in his oral evidence to state that his name was not (ABC) but was ZM. This is despite the fact that two days earlier he had given a statement to his solicitors stating that his name was (ABC). The Appellant's evidence with regard to how he came to have £413 on him when arriving in the UK, I also found very unconvincing. He stated in oral evidence that his uncle gave it to him when he came here but then went on to say that the agent gave it to him in France. However he had previously stated that he had had the funds since leaving Afghanistan. I find that all these inconsistencies seriously undermine the credibility of the Appellant's account. I am also required by Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to take as damaging to the Appellant's credibility the fact that he gave a false name to Border Control in France on 15 November 2008, that he travelled through a number of European countries before coming to the UK and did not take advantage of a reasonable opportunity to make an asylum claim and also that the Appellant did not claim asylum until after he was arrested for working illegally in the UK. The Appellant also initially gave an address and then stated that he had no address. These behaviours fall within Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and are extremely damaging to the Appellant's credibility.

The Appellant has provided a document which he claims to be a newspaper report about his father stating that his father had been charged with the killing of passengers of hijacked cars but escaped. The Appellant's oral evidence however was that his father had not been arrested. The Appellant has produced, what he claims to be, an identity card for his father. I however note that according to the background information these documents are the most widely forged documents in Afghanistan and I accordingly give this little weight. I also found the Appellant's evidence with regard to how he came to be in possession of these documents unconvincing. He stated that his uncle had sent them and that his uncle lives in Bagram. The DHL label shows that the documents were sent from Lahore in Pakistan. The Appellant has not given any satisfactory explanation for this."

[5] The petitioner did not appeal the decision of the immigration judge and accordingly his appeal rights became extinguished on 27 July 2011. Thereafter the petitioner absconded from immigration control until 19 September 2012 when he was encountered by Strathclyde Police and was detained. On 6 November 2012 the respondent issued a decision to remove the petitioner from the United Kingdom on 19 November 2012.

[6] On 12 November 2012 the petitioner's solicitors wrote to the respondent intimating a fresh claim for asylum, humanitarian protection and breach of articles 2 and 3 of the Convention (6/2 of process). In this letter the petitioner relied on what he contended was new material, namely: first, a letter from the Ministry of Interior, Afghanistan which contained a warrant for the petitioner's arrest. Secondly, a letter from the head of the crime branch which appeared to be addressed to all police stations advising them that the petitioner was to be arrested on account of criminal activities by his father.

[7] The respondent in her decision letter dated 18 November 2012 (6/4 of process) decided on the basis of the further submissions made to her first not to reverse the decision on the earlier claim and secondly that the submissions did not amount to a fresh claim in terms of paragraph 353 of the Immigration Rules.

[8] In holding as above the respondent stated:

"7. Your client's appeal was dismissed on asylum and human rights grounds and it was concluded that he did not qualify for humanitarian protection.

8. Your submissions have been considered against this background. We note that they do not seek to challenge the assertions, analysis and conclusions in the refusal letter of 12 May 2011, which were accepted by the immigration judge, but seek to rely on two pieces of evidence of unknown provinence. Both letters are undated and no explanation has been provided as to when they were issued and how they have come into your client's possession. Your client has also failed to explain why, if they were previously available, these documents have been produced now: or, in the alternative, if they have only recently been issued, why they should have been issued now when your client left Afghanistan several years ago. The fact that your client failed to challenge the findings made at appeal, absconded from immigration control, made no further representations and has produced further evidence only after being served with removal directions, is considered to be significant and suggest that your client is merely trying to frustrate his lawful removal from the UK.

.....

10. As stated above, in your client's case, there is no evidence indicating how the relevant documents came into existence, nor any evidence supporting their genuineness."

[9] The petitioner in light of the said decision letter raised the present petition seeking reduction of that decision together with that contained in the letter of 6 November 2012. It was accepted by both parties that if the decision of 18 November 2012 were reduced then it followed from that that the decision of 6 November 2012 should be reduced. All of the arguments before me related to the decision contained in the letter of 18 November 2012 (hereinafter referred to as "the decision letter").

[10] Having obtained interim suspension of the decision of 6 November 2012 this matter came before me for a first hearing.

The law

[11] Before turning to the parties' detailed submissions it is perhaps convenient to set out that parties were agreed on certain aspects of the law: first as regards the approach the court must adopt in cases of this type:

1. 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 (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3. The court must ask itself two questions:

1. Has the Secretary of State asked himself the correct question? - that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7).

Secondly, parties were agreed as to the approach to the issue of anxious scrutiny:

1. The Secretary of State's decision will be irrational if it is not taken on the basis of anxious scrutiny (see: Dangol at paragraph 7).

2. Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see: Dangol at paragraph 9).

3. But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner's account (see: Dangol at paragraph 9).

The submissions on behalf of the petitioner

[12] Mr Forrest's submissions fell into two chapters. The first ground of challenge which he advanced was this: he submitted that the respondent had asked the wrong question, namely: she had failed to ask herself the following when considering the 353 application: whether there was a realistic chance that an immigration judge, applying the rule of anxious scrutiny, would accept that the petitioner would be exposed to a real risk of persecution on return?

[13] Mr Forrest's point under this head was a short one. He directed me to the last sentence of paragraph 11 of the decision letter, which stated this:

"Having considered all the evidence in the round, we are not persuaded that any reliance can be placed on these documents." (My emphasis)

Mr Forrest submitted that having regard to the use of the word "we" in the said sentence, then on a proper construction of the decision letter it was shown that the respondent was applying this test: whether the claim would be successful before her, rather than the correct test as above set out.

[14] Counsel found additional support for this contention in the following: he accepted that the respondent had in the course of the decision letter referred to the correct test but only at paragraphs 17 and 18 of the decision letter. It was his position that on a proper analysis of the decision letter the respondent by the stage at which she made reference to the correct test, had already made her decision on the basis of the wrong test, namely at paragraph 11 as expressly confirmed in paragraph 12.

[15] In summary it was his position that if the respondent had applied the wrong test then the decision taken by her was not lawful and the decision letter should be reduced.

[16] The second chapter of Mr Forrest's submissions can be summarised as follows: even if the respondent had asked herself the correct question the application of that test would not result in the conclusion that there was no realistic prospect of success before an immigration judge.

[17] Mr Forrest, in elaboration of that submission, began by accepting under reference to Tanveer Ahmed v SSHD [2002] UKIAT 439 that it was for the petitioner to demonstrate that a document could be relied upon. He then turned to look at the issue of the approach which the decision maker should take to fresh material and directed my attention to TN (Uganda) v The Secretary of State for the Home Department [2006] EWCA Civ 1807 where Maurice Kay LJ at paragraphs 10 and 11 gave certain guidance regarding this issue:

"If ultimately the fresh material concerning the death of the aunt, the murder of the sister and the disappearance of the brothers is accepted, then the aspect of family support would look very different. It is important to remember the level at which I have to consider this case. I am not called upon to decide the ultimate credibility of the new material. As Collins J said in Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin) if that information is intrinsically incredible, or if when one looks at the whole of the case it is possible to say that no person could reasonably believe it, then of course it must be rejected. However, that is not this case. The Secretary of State's ultimate submission before Hodge J was in the form of scepticism about the new material but did not go so far as to characterise it as intrinsically incredible.

11. If it is on its face credible, even though it may ultimately not find favour, then it seems to me that it is at least arguable that the challenge to the decision of the Secretary of State has some prospect of success. I consider the appropriate questions to be those set out in paragraph 26 of Miss Hooper's skeleton argument to this court, namely:

1. Has the material been previously considered?

2. If not, could it reasonably be believed?

3. If it could, when considered with the previously considered material is there a reasonable prospect that a favourable view be taken of the new claim?"

[18] It was Mr Forrest's position that, accepting that the onus was on the petitioner, nevertheless if the new material which had been produced on behalf of the petitioner was approached having regard to the above guidance, the documents on the face of them were credible. They were intrinsically believable. They could, in those circumstances, reasonably be believed by an immigration judge. Accordingly he contended that there was a reasonable prospect that a favourable view could be taken of the fresh claim by an immigration judge. He accordingly submitted that the respondent had erred in law in holding to the contrary effect.

[19] It was Mr Forrest's submission that the respondent had not approached the fresh material by asking herself: could it reasonably be believed by an immigration judge? Was it on the face of it credible material? There was no analysis of the new material by the respondent. It was his contention in summary that the respondent had not approached the decision regarding the new material in the way set out above.

[20] In addition it was his contention that the respondent had not approached the matter of the consideration of the new material by looking at all the material before her in the round. The respondent had merely had regard to the adverse credibility findings of the immigration judge. The respondent had gone on to hold because of these adverse credibility findings that any fresh information provided by the petitioner could not be relied upon. This he submitted was an incorrect approach to the fresh material. The respondent made no reference to country information regarding Afghanistan which suggested that documents of the type now produced were often forged and were readily available. There was no foundation for the rejection of this fresh material.

[21] Mr Forrest submitted that the respondent's rejection of the fresh material on the basis of the adverse credibility findings of the immigration judge was irrational.

[22] Lastly counsel referred to WM (DRC) at paragraph 7 regarding the test to be applied as to whether an application amounted to a fresh claim:

"7. The rule only imposes a somewhat modest test that the application 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, as Mr Nichol, QC pertinently pointed out, 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" (per Buxton LJ).

[23] It was Mr Forrest's position that having regard to the modest test which the petitioner had to meet, the new material if properly considered, would have passed that test.

[24] For these reasons Mr Forrest submitted that I should grant the prayer of the petition.

Reply for the respondent

[25] As regards whether in the first place the respondent had asked the correct question, Mr Gill began his submissions by briefly analysing the structure of rule 353. Rule 353 is in the following terms:

"When a human rights or an 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."

[26] Mr Gill submitted that the rule imposed in the first place a duty on the respondent to "consider any further submissions" and only if these were rejected was the respondent then to go on and "determine whether they amount to a fresh claim". Turning, in light of that analysis of the rule, to the structure of the decision letter, Mr Gill submitted that in paragraphs 3 to 12 thereof the respondent was considering the first of these questions (whether any further submissions should be accepted or rejected?) and only at paragraphs 16 to 18 did the respondent turn to consider the second question of whether the submissions amounted to a fresh claim?

[27] He went on to contend (and this was not a matter of dispute) that in the second section of the decision letter, namely between paragraphs 16 and 18, the respondent asked the correct question when considering the issue of whether the submissions amounted to a fresh claim. The respondent then, he submitted, gave short but eminently intelligible reasons for rejecting these submissions as a fresh claim, which reasons were the same as those for rejecting the further submissions in terms of the first part of the rule.

[28] For the above reasons it was his submission that the respondent had asked herself the right question and that the passage relied upon by the counsel for the petitioner, when seen in context, related to the respondent's answer to the first question.

[29] Turning to the second broad branch of Mr Forrest's submissions, Mr Gill made a number of succinct points.

[30] He submitted that when considering a fresh claim the decision that is being looked at is the respondent's decision, so what is relevant is what was before the respondent at the time of the decision.

[31] As to the approach to new material he firstly directed me to the judgment of Buxton LJ in WM (DRC) where at paragraph 6 he made the following observations regarding the task of the Secretary of State in a rule 353 case:

"He has to consider the new material together with the old and make two judgments.....

Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment 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 both how the material relates to other material already found by an adjudicator to be reliable, and also 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."

[32] Mr Gill submitted that the findings of the immigration judge in the present case were relevantly probative in that the fresh material came from the petitioner. Thus he submitted the material was automatically suspicious. The material produced in the instant case was not independent objective evidence of the type set out in paragraphs 22 and 25 in WM (DRC) and which would not have been undermined by any such adverse credibility findings. Accordingly no criticism could be made of the way in which the respondent had approached the new material.

[33] Secondly Mr Gill referred me to Tanveer Ahmed at paragraph 30 in the determination of the Upper Tribunal where the following observations were made:

"It is trite immigration and asylum law that we must not judge what is or is not likely to happen in other countries by reference to our perception of what is normal within the United Kingdom. The principle applies as much to documents as to any other form of evidence. We know from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain 'forged' documents. Some of them are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are 'genuine' to the extent that they emanate from a proper source, in the proper form on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue.... It is necessary to shake off any pre-conception that official-looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind."

[34] It was Mr Gill's submission that the respondent in considering the fresh documents in this case was also entitled to have regard to these observations and thus approach these documents in the manner which she did.

[35] Thirdly Mr Gill turned to Asif Naseer v SSHD [2006] EWHC 1671 (Admin) and in particular paragraph 29. In this paragraph Mr Justice Collins made a number of observations regarding the fresh material produced in that case. He said this:

"First of all, they (the fresh documentation) are curious documents in themselves because they relate to alleged incidents a year after the claimant had left Pakistan. I accept, as Mr Cooray submits, that reports may be made which are dishonest and false. But it is very useful to the claimant's case that suddenly there are produced this FIR and this arrest warrant which is said to show that he is indeed at risk. True it is said - well, they could not have been produced before because they only came into existence in August 2005 after the hearing before the immigration judge. But it is rather extraordinary that they should have come into existence when, as we know, the contents simply could not be true. How they came into existence we do not know, and indeed how they were obtained by his brother we do not know. It is a little strange that his brother was apparently unable to obtain copies of all important FIR in August 2004 and yet was apparently able to get a copy of this FIR in August 2005."

[36] Mr Gill contended that these comments were of some significance in relation to the case before me in that how the fresh documents relative to the petitioner came into existence and came into his hands was unknown and equally they had come into his hands at a very convenient time. These factors were all matters taken into account by the respondent in the decision letter. He submitted that on the basis of the observations of Mr Justice Collins these were relevant factors which the respondent was entitled to have regard to. He submitted that the reasoning of the respondent in relation to these issues was very similar to the reasoning of Mr Justice Collins in Naseer.

[37] Overall in relation to the petitioner's argument on this second branch of the challenge to the decision letter it was Mr Gill's position that they were not well founded for the reasons he had set forth.

[38] For the foregoing reasons Mr Gill moved that I should repel the petitioner's pleas in law, uphold the respondent's pleas in law and refuse the petition.

Discussion

[39] The context of the argument before me was an application to be considered by the respondent in terms of rule 353 which I have quoted in full earlier in this opinion. I have earlier set out the test to be applied by the court and the questions which the court must ask itself.

[40] Turning to the merits of the discussion before me I am not persuaded by any of the arguments put forward on behalf of the petitioner. In brief, I find myself in agreement with the submissions made on behalf of the respondent as regards both parts of the petitioner's grounds for reduction.

[41] With respect to the first leg of the petitioner's argument, it seems to me plain that on a fair reading of the whole decision letter, the respondent has applied the correct test.

[42] I agree with Mr Gill's submission that the respondent when considering rule 353 must adopt a two stage process, and ask herself: first are the further submissions to be accepted or rejected, and only if rejected must she go on to ask herself, whether they amount to a fresh claim. The decision letter clearly follows the two stage process required by rule 353. The respondent makes it expressly clear that that is the approach which has been followed in the decision letter when this is said at paragraph 19:

"Because it has been decided not to reverse the decision on the earlier claim and it has been determined that your submissions do not amount to a fresh claim, there is no right of appeal against this decision".

[43] In addition at paragraph 12 of the decision letter the respondent says this:

"Your representations are, accordingly, rejected".

[44] This statement in paragraph 12 shows that what has been considered to that stage in the decision letter is the first question which has to be asked in terms of rule 353. Thus the respondent's use of the word "we" in paragraph 11 when viewed in terms of the overall structure of the decision letter does not show the respondent asking the wrong question. In paragraph 11 the respondent is concluding her consideration of whether the further submissions should be rejected and has not yet turned to determine whether they amount to a fresh claim.

[45] It is clear, on a fair reading of the whole terms of the decision letter, that it is from paragraph 16 of the decision letter that the respondent turns to determine whether the further submissions amount to a fresh claim.

[46] In this section of the decision letter, i.e. from paragraph 16 onwards, the respondent, as was conceded on behalf of the petitioner, at paragraphs 17 and 18 expressly asks the correct question namely: whether the submissions, when taken together with the material previously considered, would have created a realistic prospect of success before an immigration judge. Accordingly it is clear on a proper construction of the decision letter that when determining whether the further submissions amount to a fresh claim the respondent has asked the correct question. I do not find any merit in the petitioner's first attack on the decision letter.

[47] With respect to the second ground of attack I am satisfied that the respondent's consideration of the fresh material was properly carried out. She was in my view clearly entitled to approach the fresh material in the way that she did for the following reasons:

[48] Where there has been a rejection by the immigration judge of a claimant's account, namely: where the claimant's account has been disbelieved, then the starting point for the respondent in a fresh claim case is the decision of the immigration judge (see: Collins J in Asif Naseer at paragraph 22).

[49] In the present case there were such adverse credibility findings and the respondent took these as the starting point of her considerations.

[50] In this case these adverse findings were relevantly probative in that the fresh material emanated from the petitioner himself and not from an independent third party (see: Buxton LJ at paragraphs 6, 22 and 24 in WM (DRC)).

[51] In these circumstances the respondent was entitled to have regard to the findings of the immigration judge in the way that she did. It seems to me that the respondent's approach to these findings cannot be faulted.

[52] The respondent when considering the fresh documentation goes on to comment on the lack of information as to when they were issued and how they came in to the hands of the petitioner. In my opinion the respondent was entitled to have regard to these factors. They were clearly of relevance when considering these documents in the context of the whole facts and circumstances of the case (see: Collins J in Naseer at paragraph 29).

[53] In my judgment, having regard to the above, the approach which the respondent took to the fresh documentation cannot be the subject of proper criticism. The approach of the respondent was entirely consistent with the authorities to which I have been referred. Generally, looking to the issue of anxious scrutiny, I do not believe that any material factor which could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the information by the respondent.

Decision

[54] For the foregoing reasons I hold that the respondent was entitled to reach the conclusion that the petitioner's further submissions did not amount to a fresh claim. In making that decision she did not act unlawfully.

[55] Accordingly I repel the petitioner's pleas in law; uphold the respondent's pleas in law and refuse the petition. I was not addressed on the issue of expenses and reserve therefore all questions of expenses. The T