Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 39
P31/13	OPINION OF LORD ARMSTRONG in the Petition of KA (AP) Petitioner; for Judicial Review of a Decision of the Secretary of State for the Home Department dated 4 January 2013 Respondent: ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: McGregor; Office of the Solicitor to the Advocate General

8 March 2013

Introduction

[1] The petitioner was born on 1 January 1984. Although it has been raised as an issue in the past, he has always claimed to be, and the respondent accepts that he is, an Afghan national. The respondent is the Secretary of State for the Home Department.

[2] On 22 January 2008, the petitioner was encountered in a trailer arriving in Purfleet from Zeebrugge and was detained by the UK Border Agency. On 25 January 2008, he claimed asylum in the UK. He was granted temporary release from detention whilst his asylum claim was considered. On 29 April 2010, his claim for asylum was refused. On 17 May 2010, he lodged an appeal against that refusal. The appeal hearing, heard by an immigration judge, was adjourned on 8 July 2010 and continued on 16 August 2010. In a written determination by the immigration judge, dated 3 September 2010, the appeal was dismissed. The petitioner sought and, on 12 October 2010, was granted permission to appeal to the Upper Tribunal. The appeal was heard on 27 April 2011 and by a written determination dated 27 November 2011 was dismissed. On 3 January 2012, an application by the petitioner for permission to appeal to the Court of Session was refused by the Upper Tier Tribunal. He applied to the Inner House for leave to appeal. That was refused on 10 July 2012. By that stage, all of the petitioner's appeal rights had been exhausted.

[3] 10 July 2012 was the last date on which the petitioner reported to the United Kingdom Borders Agency. Thereafter, he failed to maintain any contact with the Agency. On 14 December 2012, he was encountered working at commercial premises in Glasgow and was detained pending removal from the UK. On 19 December 2012, he was served with directions for his intended removal from the UK on 14 January 2013. By letter, dated 20 December 2012, the petitioner's solicitors submitted to the UK Border Agency intimation of a fresh claim for asylum together with an expert report, dated 31 August 2010, by Mr Peter Marsden. Despite the date of the report, it had not previously been disclosed to the UK Border Agency. On 4 January 2013, the UK Border Agency wrote to the petitioner's solicitor, intimating that the decision had been reached that the further submissions for the petitioner did not amount to a fresh claim. In the present petition, the petitioner seeks judicial review of that decision. In particular, he seeks reduction of that decision on the basis that it is irrational.

The applicable law
[4] Rule 353 of the Immigration Rules 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 previously been considered; and

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

[5] As to the correct test and the role of the court, I was referred to the observations of the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2007] IMM AR 337, per Buxton LJ:

"[6] There was broad agreement as to the Secretary of State's task under Rule 353. He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under Rule 353(i) according to whether the content of the material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the 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 .....

[7] The rule only imposes a somewhat modest test that the applicant has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, ... an 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 ...."

[6] As to the role of the court, in the opinion in Dangol v Secretary of State for the Home Department 2011 SC 560, an Extra Division of the Inner House opined at paragraph [7]:

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

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

"[10] ... Whilst, therefore the decision remains that of the Secretary of State and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed but whether there is a realistic chance of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that 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 in making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of these 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.'"

[7] There was common ground between the parties that the determination of the Secretary of State was only capable of being impugned on Wednesbury grounds. In addition, counsel for the respondent drew my attention to paragraph [24] of the decision in O, where in considering the court's role in addressing issues of this type the Second Division observed:

"... questions arise in this appeal: (a) whether the respondent erred in law by failing to ask himself the correct question, when he considered the fresh information; (b) whether the respondent erred in law by failing to satisfy the requirement of anxious scrutiny; and (c) ... In addressing all of these questions, it is important to consider the whole terms of the respondent's decision letter ... and to do so against the background of the determination of the immigration judge, rather than by merely looking at isolated passages of the decision letter."

Submissions for the petitioner

[8] At the outset, counsel for the petitioner recognised that although the petition was directed additionally to the respondent's decision of 19 December 2012, comprising the removal directions served on the petitioner, that aspect of the case was effectively rendered redundant by the passage of time. The submissions for the petitioner were therefore confined to a challenge to the respondent's decision of 4 January 2013.

[9] The basis of the petitioner's claim was as set out at paragraph 13 of the immigration judge's determination, dated 8 September 2010:

"The gist of the Appellant's claim for asylum is that he has been and will be on return the victim of revenge attacks from the "hundreds and thousands" of people who suffered at the hands of his cruel and brutal father during the Taliban period."

[10] The reasons for his refusal of the claim are set out by the immigration judge at paragraphs 20 - 38. In particular, the immigration judge stated:

"28. As I have not found the appellant, in general, a witness of truth, I am not prepared to find he is, as stated, an Afghan national. I make no affirmative finding he is a Pakistani; merely I cannot accept, even to a reasonable degree of likelihood, his evidence that he is Afghan. It will be for the Appellant and Respondent to clarify these matters in future.

29. Again, as I have not found the Appellant a credible witness, I make no finding as to his personal identity."

[11] The new information, on the basis of which it was said that there was now a fresh claim, was the content of the expert report by Mr Marsden, the general tenor of which is to the effect that the details of the petitioner's account are consistent with Afghan nationality.

[12] It was conceded by the petitioner that, in arriving at the decision of 4 January 2013, the respondent had identified the correct test. However, the respondent had fallen into error by failing to recognise that, in the application of paragraph 353(ii) of the Immigration Rules, the new information, taken together with the previously considered material, in the context of assessment of the claim by an adjudicator applying the rule of anxious scrutiny, created a realistic prospect of success. Counsel for the petitioner submitted that, properly assessed, the new information did present a realistic prospect of success.

[13] Counsel for the petitioner submitted that the respondent had failed to attach sufficient weight in her decision letter to the extent to which doubt over the petitioner's nationality had informed the decision of the immigration judge. He submitted that the issue of the petitioner's nationality was an integral part of all the necessary factors which the immigration judge had required to take into account.

[14] The rationale of the immigration judge's determination could only be properly understood by addressing the fact that he did not find that the petitioner was an Afghan national. It was clear that the immigration judge had not accepted the petitioner's account that he was at risk of persecution in Afghanistan, but the reasons for that were inextricably bound up with the issue of the petitioner's nationality. Reference was made to the immigration judge's observations, critical of the petitioner, in relation to his account of events (paragraph 20), his difficulties in providing the dates of significant events (paragraphs 22 and 24), his failure to provide any cohesive chronology (paragraph 34) and other similar failings in relation to time-frames (paragraph 32); all of which informed the immigration judge's conclusion at paragraph 38:

"For these reasons, I have been unable to accept the Applicant as an Afghan national, the son of this commander or that he has ever in the past or is likely in future to experience persecution for any reason at all in Afghanistan."

[15] Had the immigration judge had the benefit of Mr Marsden's expert report, it's content, bearing (at paragraph 7) on the lack of precision in relation to dates and to the passage of time in Afghan culture, would have explained these shortcomings and in taking it onto account the immigration judge would have found the petitioner to be of Afghan nationality. As a result, his determination would have been different and in the petitioner's favour. It followed that in assessing the new information contained in the expert report together with the material previously considered, the respondent should have come to the conclusion that the claim did indeed have realistic prospects of success.

[16] In short, under reference to the first sentence of paragraph 28 of his determination, although the immigration judge had not believed the petitioner's account, that was because he had not accepted that he was an Afghan national. Had the immigration judge had the expert report before him, he would have done so, and, it followed, would have found the petitioner credible. Any adjudicator approaching the matter in that way would have found there to be a realistic prospect of success. On that basis, in reaching the view that the further submissions did not amount to a fresh claim, the respondent had acted irrationally.

Submissions for the respondent
[17] Counsel for the respondent did not accept the interpretation of paragraph 28 of the immigration judge's determination as submitted for the petitioner. The clear meaning of the sentence was not that the immigration judge had not believed the petitioner's account because he had not accepted that he was an Afghan national but, rather, that as a matter of generality he had not believed the petitioner and, as part of that, did not accept that he was an Afghan national.

[18] The correct approach was to consider matters in the round by assessing the immigration judge's determination, including his findings on credibility, and thereafter considering whether the content of the new information materially affected the realistic prospects of success.

[19] Before the immigration judge, the petitioner sought protection from persecution but the inconsistencies within his account of events were such as to be impossible to reconcile. It was incumbent on the petitioner to provide evidence that he would be subject to an enhanced risk in Afghanistan. Under reference to GS Afghanistan CG [2009] UK AIT 00044, that would require more than the prospect of his mere presence in the country as an Afghan national. The immigration judge had found no reliable evidence to support the contention of enhanced risk (paragraph 40). In that regard, the content of the expert report, bearing as it did on the issue of nationality, added nothing.

[20] Before the immigration judge, the petitioner's conflicting account of events following on from the fall of the Taliban regime in Afghanistan emerged as "a tale of two versions" (paragraph 14) in which he simply failed to explain an apparent 41/2 years gap in the narrated chronology (paragraphs 30 and 31).

[21] The immigration judge had taken into account, and made allowances for, the petitioner's relative youth and lack of education (paragraph 20) and the peculiarities of Afghan culture as regards dates of the calendar (paragraphs 22 and 23). The contents of the expert report, bearing on these issues, added nothing to the matters considered in the round by the immigration judge when assessing the petitioner's credibility and reliability.

[22] In relation to the content of the respondent's decision of 4 January 2013, it was submitted that there had been recognition of the correct test (paragraph 2), the correct legal principles to be applied (paragraph 13), the fact that the test to be surpassed was a modest one (paragraph 15) and the correct starting point for any consideration of further submissions, that being the findings in fact made by the immigration judge (paragraph 16). The respondent had therefore considered the correct question, having regard to all of the relevant material, and had reached (at paragraphs 24 and 25) a valid and rational decision based on Wednesbury principles, applying the rule of anxious scrutiny.

Discussion
[23] At paragraph 21 of the respondent's decision dated 4 January 2013, reference is made to the written determination of the Upper Tribunal (Immigration and Asylum Chamber), dated 27 November 2011, in which Immigration Judge Farrelly assessed the findings in the written determination of the immigration judge, dated 3 September 2010, as follows:

"33. It is clear that the immigration judge was looking at all of the evidence in the round. The determination contains a detailed assessment of the evidence and provides adequate reasons for the conclusions reached. The outcome did not depend solely upon the question of nationality but has consisted of an evaluation of the entire claim with the shortcomings highlighted."

[24] The respondent's decision, dated 4 January 2013, took full account of the immigration judge's findings in relation to the credibility and reliability of the petitioner in so far as that could be assessed from the account which he gave (paragraphs 17 - 19). Further, the respondent's decision took full account of the content of Mr Marsden's expert report in that context (paragraphs 24 and 25). Against that background, the conclusions reached in the respondent's decision (paragraphs 26 and 27), clearly take account of all of the available information, viewed in the round, and comprising the matters previously considered together with the new representations.

[25] I am persuaded by the submissions for the respondent. There is nothing in the decision dated 4 January 2013 to suggest that the respondent has applied the wrong test. On the contrary, it appears that the author of the letter has applied precisely the test suggested in Rule 353 of the Immigration Rules. There is nothing in principle, nor in the observations of Buxton LJ in WM (DRC) v Secretary of State for the Home Department, nor in the opinion of the Inner House expressed in Dangol v Secretary of State for the Home Department which would justify interference by me with that decision. I am satisfied that the correct question has been asked and that the requirement of anxious scrutiny has been satisfied. It cannot be said that this decision is irrational. For these reasons, I shall sustain the pleas‑in‑law for respondent and dismiss the petition.