Scottish Court of Session Decisions

Petitioner:  Mr Mullen, Advocate;  Drummond Miller LLP

Respondent:  Mr Komorowski;  Office of the Advocate General

24 June 2014

[1]        The petition called before me on 12 March 2014.  The petitioner was represented by Mr Mullen, Advocate and the respondent by Mr Komorowski.  On the same date a petition of H.A.H was also called before me for a first hearing.  The two petitions raised very similar issues.

[2]        The petitioner is a national of Iraq and was born on 11 November 1986.  He entered the United Kingdom on 17 October 2008 and made an application for asylum.  That was refused by letter dated 6 November 2008 and the petitioner appealed to the First-tier Tribunal (FTT).  An immigration judge dismissed his appeal by determination dated 22 December 2008.  An application for an order for reconsideration of that determination was refused on 22 January 2009.  The petitioner then made an application to the Court of Session for an order requiring the Upper Tribunal to reconsider the determination but the court refused to make that order by interlocutor dated 25 February 2009. 

[3]        Fresh representations were made on behalf of the petitioner by his solicitors by letter of 26 June 2009 but by letter of 3 July 2009 the Secretary of State refused to treat those submissions as a fresh human rights claim.  The petitioner raised a petition for judicial review of that decision whereupon the Secretary of State withdrew the decision of 3 July.  By letter dated 26 March 2010 the petitioner was advised by the Secretary of State that his further submissions had been reconsidered but a decision made that they did not amount to a fresh claim. 

[4]        Further representations were made by the petitioner by letter of 25 October 2010 but again a decision was made by the Secretary of State dated 10 November 2010 that those further submissions did not amount to a fresh claim.  Yet further submissions were made by letter of 21 March 2012 but again by letter dated 1 May 2012 the Secretary of State decided to refuse to treat those as a fresh claim.

[5]        On 18 July 2012 the petitioner made an application to the Court of Session seeking to reduce the decision of 1 May 2012.  A first hearing was assigned for 7 November 2012 but on 9 October on the respondent’s unopposed motion the matter was sisted for four months to await the outcome of the decision in HM &c (Iraq) 2012 UK UT 00409 (HM2).  On 7 March 2013, on the unopposed motion of the petitioner, that petition was dismissed.

[6]        By letter dated 5 April 2013, the petitioner’s solicitors made yet further representations and asked that these be treated as a fresh application for asylum under paragraph 353 of the Immigration Rules (HC 395).  That letter is 6/4 of process (the application letter).  It was maintained therein that the petitioner maintained his position that he fled Iraq in fear of his life having been targeted on a number of occasions by the Ansar-Al-Sunna terrorist group.  Reference was made to annex D of the Iraq COI report which, it was said, confirmed that this terrorist group were closely aligned to Al-Qaeda in Iraq and other prominent insurgent groups.  It was claimed that the group had experienced a significant resurgence since the withdrawal of US and coalition forces from Iraq in December 2012.  The petitioner based his claim for asylum on a well-founded fear of persecution owing to his imputed political opinion.  He was perceived as a collaborator in Iraq and targeted by terrorists.

[7]        He also maintained his position that he would be exposed to a real risk of harm if returned to Iraq on account of the high levels of indiscriminate violence prevailing there.  His home area was Mosul which experienced high levels of insurgent activity.  Reference again was made to the COI report paragraph 8.75.  That report was said to confirm that in areas such as Mosul, Ansar-Al-Sunna were particularly prominent.  The petitioner’s position was said to be “strongly supported by the background information enclosed herewith which serves to highlight the current levels of violence prevailing within Iraq”.  These comprised news reports culled from the internet which were said to be among the most up-to-date available and to make reference to widespread and indiscriminate violence which continues to occur with significant frequency throughout Iraq.  Reference was made to the UNHCR 2012 Guidelines which, together with the news reports, were said to justify a departure from the current country guidance as approved in HM 2.  It was further contended that that guidance was in any event flawed. 

[8]        In the decision letter of 20 June 2013 (the decision letter), the decision maker makes reference, at paragraphs 20 – 24, to the immigration judge’s findings in the determination of 8 January 2009 which criticised his credibility and did not accept the petitioner’s account of events in Iraq.  In relation to the fear of persecution it was accepted by the decision maker that Ansar-Al-Sunnah did appear to have close ties with Al-Qaeda Iraq but at paragraph 30 it is pointed out that the objective evidence indicated that Ansar‑Al‑Sunnah had not yet been able to secure base areas in its primary areas of operation.  In any event the issue of persecution had been fully considered in the refusal letter of 6 November 2008 and in the responses to further submissions dated 3 July 2009, 26 October 2010 and 18 April 2012.  It was noted that the immigration judge had considered that the petitioner’s claim of persecution to be “a complete fabrication” and at paragraph 34 the conclusion was reached that an immigration judge “applying the rule of anxious scrutiny would consider the findings of the Secretary of State and the previous immigration judge and would be unlikely to find that your claim that your client would be persecuted by Ansar-Al-Islam (sic) on return to Iraq would stand a realistic prospect of success”. 

[9]        In relation to the petitioner’s claim that he would be exposed to real risk of harm due to the level of indiscriminate violence, especially in his home area of Mosul, reference was made at paragraph 36 to the internet articles which were submitted in the application letter.  It was, however, pointed out that the petitioner had failed to provide any indication to show that these articles related to him directly in any way beyond making reference to one article in the telegraph which referred specifically to the northern city of Mosul.  It was repeated that the issues raised in the letter of 5 April 2013 had been previously addressed at length by the Secretary of State in the refusal letter dated 1 May 2012 and 26 March 2010.  Reference was made to the current country guidance in HM2.  At paragraph 49 the decision maker points out that HM2 confirmed that the current evidence did not establish that indiscriminate violence in Iraq was at a level to demonstrate that any civilian returned there would, solely on account of his presence, face a real risk of being subject to a threat.  An analysis was then carried out at paragraph 52 of concentrated violence in Iraq by reference to various provinces as set out in a table which appears at page 10 of the decision letter.  This was derived from Iraq’s Central Organisation for Statistics and Information Technology (COSI) for the year 2012.  The report was published on 1 January 2013 and post-dated the findings of HM2.  It was concluded at paragraph 54 and 55 that the current evidence provided did not demonstrate that the threshold for the engagement of article 15c of the Qualification Directive was met in any area of Iraq and that the further submissions did not create a realistic prospect of another immigration judge arriving at a different conclusion. 

[10]      The decision maker also addressed the question of relocation of the petitioner at paragraphs 71, 74, and 78.  It was not accepted that the petitioner had been threatened by Ansar-Al-Islam or that he would require to relocate internally owing to a well-founded fear of persecution, but that there were no factors preventing him from doing so. 

[11]      At paragraph 16, the petition advances a number of grounds of challenge to the decision letter.  First, it is said that the decision-maker had regard to an irrelevant consideration by considering the adverse findings as to the petitioner's credibility as determinative of the levels of indiscriminate violence currently prevalent in Iraq.  Secondly, the decision-maker proceeded on an erroneous understanding of the country guidance contained in HM2 in that she failed to consider that another immigration judge might depart from that country guidance.  Thirdly, there had been a failure to assess properly the available information to show that the level of indiscriminate violence in Mosul was such as to present a real risk of harm to the petitioner and in particular, the conclusion that as the levels of death were proportionately lower in other parts of Iraq, internal relocation was possible.  Fourthly, the decision-maker failed to exercise anxious scrutiny.  Fifthly, inadequate reasons had been given for concluding that the new background information did not give rise to reasonable prospects of success before another immigration judge and no decision-maker exercising anxious scrutiny would have concluded that there was no such prospect.  Sixthly, an informed reader would be left in real and substantial doubt as to why the decision-maker decided that the “country background evidence” did not give rise to a realistic prospect of success.  She only stated that it did not relate to the petitioner.  Seventhly, the decision-maker failed to apply anxious scrutiny to the further submissions.    The test was a modest one (WM (DRC) v SSHD).

The petitioner’s submissions

[12]      Mr Mullen submitted that in considering the petitioner’s claim based on a real risk of harm from indiscriminate violence, the Secretary of State was not entitled to take account of the findings of the immigration judge in relation to the petitioner’s credibility.  In paragraphs 35 to 52 the decision-maker deals with this aspect of the application letter.  It is apparent from paragraph 48 that the immigration judge’s findings on credibility were taken account of in the context of the indiscriminate violence.

[13]      Mr Mullen criticised the reasoning of the decision-maker and pointed out that in  paragraph 54 where “the current evidence provided” is dealt with, no analysis of that material was made.  No reasons were given why that new material did not create reasonable prospects of success before an immigration judge and there had been, in effect, no real consideration or treatment of that new material.

[14]      In addition, as was set out in paragraph 13(iii) of the petition, there had been a failure to assess properly the information before the Secretary of State to the effect that the level of indiscriminate violence in Mosul was such as to present a real risk of harm to the petitioner.  He submitted that the exercise carried out at paragraphs 52 and 53 was meaningless for the reasons set out in paragraph 16(iii).  There was no reasoned evaluation of the new material submitted which, Mr Mullen claimed, would create at least a more than fanciful prospect of success before an immigration judge.  Having regard to the lack of proper evaluation, it could not be said that the Secretary of State had applied anxious scrutiny to the further submissions and the newly submitted material. 

[15]      There was no indication from the terms of the decision letter that it had been appreciated that another immigration judge might be presented with different arguments and further material on which to make a decision on a fresh appeal.  In that regard reference was made to the opinion of Lord Malcolm in the case of MAS v SSHD 2011 CSOH 95.  I should conclude that there was reasonable prospect of success before an immigration judge and the petitioner should be allowed to present his claim to the First-tier Tribunal.

Submissions for the respondent

[16]      Mr Komorowski referred me to the terms of Answer 16.  The decision-maker did not have regard to the adverse findings on credibility when considering the petitioner’s claim relating to indiscriminate violence.  She was aware that country guidance could be departed from since she refers in paragraph 53 to information which post-dated that decision.  The information from COSI provided a better basis for assessment of the situation in Iraq at that time than the internet articles provided in the application letter.  In any event, there had been no attempt by the petitioner’s solicitors to analyse the new material advanced in order to show why departure from country guidance was justified.  There was no need for the decision-maker to go any further than she had in this case. 

[17]      Even if the decision letter was defective in any way in its treatment of the information set out in paragraph 52 as Mr Mullan submitted, it could not be said that the use of that information was in any way crucial to the decision-maker conclusions since she had been correct to state that the application letter provided no proper basis for departing from the country guidance in HM2.  Further, even if the petitioner could be said to be at risk in Mosul, the decision-maker had been correct to point out that he could relocate. 

[18]      He further submitted that the petitioner's criticisms failed to take account of the terms of the representations made in the application letter and when the terms thereof were examined, the criticisms advanced were seen to be unfounded. 

[19]      He examined the decision of Lord Malcolm in MAS and submitted that the Secretary of State was not entitled to speculate on what arguments or material might be placed before a different immigration judge in any future appeal.  The Secretary of State required to decide the matter on the basis of the information advanced by the petitioner.  Insofar as Lord Malcolm had found otherwise, Mr Komorowski submitted that he was in error.  The petition should be dismissed. 

Discussion and decision

[20]      In relation to the contention that the decision-maker took irrelevant matters into account by having regard to the petitioner’s claim relating to indiscriminate violence.  I am unable to agree that the decision-maker considered those matters as “determinative”.  I do accept that she had regard to them as is plain from the wording of paragraph 35.  It was because he was contending that he was “set apart” from the general population that his personal circumstances justified departure from country guidance.  While it is correct that the issue was whether the level of violence in Mosul was at such a level as to expose him to risk, that assessment required to take into account of the petitioner’s  circumstances and whether, in the light of those, he was “specifically affected by reason of factors particular to his personal circumstances” so that a lower level of indiscriminate violence would render him eligible for the subsidiary protection of Article 15(c) (see paragraph 39 of HM2 and paragraph 39 of Elgafajil).  For that reason, I reject the petitioner’s argument as set out in paragraph 16(i). 

[21]      It was also argued that there was a failure to consider that another immigration judge might depart from the Country Guidance contained in HM2.  However, at paragraph 80 the decision-maker deals with the contention that the terms of the UNHCR Guidelines of 2012 justified a departure from the Country Guidance in HM2.  At paragraph 83 she accurately summarises the contention in the application letter that due to “arguable deficiencies in the case of HM2”, the UNCHR Guidelines and the objective evidence presented justified a departure from the country guidance.  At paragraph 85 it is stated:

“It is therefore submitted that another immigration judge applying anxious scrutiny would be unlikely to disturb the findings of the previous appeal tribunal or the findings of the Tribunal in HM2.”   

That seems to me to be a clear indication that the decision-maker was aware that an immigration judge could depart from country guidance.  In addition, I agree with Mr Komorowski that the exercise which the decision-maker undertakes in paragraph 52-55 indicates that she was aware that an immigration judge might depart from country guidance.  I therefore reject the argument based on paragraph 16(ii) of the petition. 

[22]      Mr Mullen’s also criticised the use of the table in paragraph 52 which led the decision-maker to conclude that the new material was of no value in assessing the current levels of violence in Iraq and Mosul in particular.  I do not agree that this exercise was a meaningless one.  It showed that, although the number of deaths 2012 in the province of Ninewa (of which Mosul is the capital) was the fourth highest in Iraq, the figures demonstrated that violence in that country was “unevenly distributed” and 43% of deaths occurred in only two provinces (including Ninewa).  This led the decision-maker to conclude that the petitioner would be able to relocate to another part of Iraq, although it was not accepted that he would require to do so.  Accordingly, I do not accept that this element of the decision was irrational.  In any event, as Mr Komorowski submitted, if it is right that, in the light of the information contained in the application letter, HM2 could not be departed from and that there was no realistic prospect of an immigration judge coming to a different decision, then this material, even if it was in some respect irrational, is not crucial to the decision and would not justify its reduction.   

[23]      The other point made in this connection was that there was no reasoned evaluation of the new material presented in the application letter.  I agree with Mr Komorowski that whether the reasons advanced for rejection of further submissions was adequate will depend on the nature of those submissions.  Here there was no effort to indicate why the material contained in the internet articles could justify departure from the country guidance in HM2.  It did not attempt to show what trends might be derived from the material which could be said to be different from those set out by the Upper Tribunal in HM2.  At paragraphs 108 to 110 there is a detailed analysis of the available figures for deaths in Iraq in 2010 to 2012.  The figures for 2012 include the months of January to September.  At paragraph 209 and 210, the position in Ninewa itself is examined in detail.  This includes an examination of the information contained in the UNHCR Guidelines of 2012.  The position there is described as volatile with attacks on civilians and regular kidnappings and assassinations.  The material submitted with the application letter were press reports.  There was no attempt to demonstrate why or in what respect they undermined the findings of the Upper Tribunal.  When the articles are examined the gist of some of them is that in March and April 2013 there was a surge of violence in Iraq.  However, there does not appear to be any indication that the level of reported deaths in March 2013, for example, was out of the ordinary.  One states that in that month 163 Iraqi civilians, policemen and soldiers were killed.  At paragraph 109 the Upper Tribunal in HM2 had recorded that in January to September 2012, there were 2157 civilian deaths.  That would amount to an average of 239 civilian deaths per month.  Others do not focus on 2013 but refer to a period from January 2012 to March 2013.  Without some attempt to explain how it is that this material could justify departing from the conclusions of the Upper Tribunal who conducted a detailed evidence based exercise to reach those conclusions, it was sufficient in my view for the decision maker in this case to deal with the material as she did.

[24]      It cannot be said that the decision is in any way irrational or that adequate reasons have not been given.  Reference is made at paragraphs 35 to 37 to the findings of the Upper Tribunal in HM2 and to the trends in violence which it detected from the evidence it heard.  Having regard to that evidence, it cannot be said that the decision-maker erred in concluding that material provided in the application letter did not justify a departure from the country guidance.  I consider that the decision letter demonstrates that anxious scrutiny has been applied to the decision.

[25]      I bear in mind the cogent advice set out by the Upper Tribunal in DSG as to the circumstances in which country guidance can be departed from, which I endorse.  At paragraph 26 the tribunal stated:

"A country guidance case retains it status until either overturned by a higher court or replaced by subsequent country guidance.  However, country guidance is not set in stone.  Decision-makers and tribunal judges are required to take country guidance determinations into account and to follow them unless very strong grounds supported by cogent evidence are adduced justifying their not doing so. To do otherwise will amount to an error in law."

[26]      The application letter cannot be said to have advanced “cogent evidence” or “very strong grounds” to justify the decision-maker concluding that the country guidance should be departed from or that there was a realistic prospect of an immigration judge taking a different view.  I therefore reject the grounds set out in paragraph 16 (iii), (iv), (v) and (vi).

[27]      It was argued that the informed reader would be left in real and substantial doubt as to the reasons why the decision-maker concluded that the background material did not give rise to a realistic prospect of success before another immigration judge.  I do not agree.  Such a reader would also have read the Upper Tribunal’s decision in HM2 and the new material advanced in the application letter.  He would have been able to see the detailed analysis of the levels of and trends in violence throughout Iraq from 2010 to 2012 conducted in HM2 and could compare that to the imprecise and selective material provided in the application letter which was not supported by any analysis or comparison with the information available to the Upper Tribunal.  In those circumstances, he would be left in no real or substantial doubt as to the reasons for rejection of that material.  I reject the ground advanced in paragraph 16(vii).  For the reasons already set out above, I consider that the  terms of the decision letter shows that anxious scrutiny was applied to the submissions advanced in the application letter.  I reject ground 16(viii) also. 

[28]      As to the argument that there is no appreciation that the petitioner might advance different or additional material as envisaged by Lord Malcolm in the case of MAS, this submission takes no account of the fact that in that case the immigration judge who originally decided it did so on the basis of the state of the law prior to the European Court's decision in Elgafaji (see paragraph 10 of MAS).  However, a fresh claim would have required to be decided in the light of that decision which had changed the legal landscape surrounding article 15(c) of the qualification directive.  Accordingly, an immigration judge could have regard to other factors than a risk based on the applicant's personal circumstances.  The decision-maker in MAS had looked at the case upon the assumption that a different immigration judge would look only at the material which he, the decision-maker, had looked at.  Accordingly, Lord Malcolm stressed at paragraph 9 that "it is important to appreciate that, because of the then state of the law, the earlier hearing had not focused on the current issue".  That issue was whether there was a sufficient level of indiscriminate violence in southern Somalia to satisfy the requirements of article 15(c), whereas, in the main, the previous hearing dealt with a petitioner's claim to be from a minority clan.  It is therefore clear that MAS is no warrant for the proposition that the decision-maker in the present case required to entertain the possibility that different, and unidentified, evidence might be advanced to a different immigration judge in any new appeal.

[29]      The case of Elgafaji is relevant in another respect.  If the claimant can demonstrate that he is at particular risk of harm by reasons of factors particular to his personal circumstances, a lower level of indiscriminate violence may be required to be shown for him to be eligible for the subsidiary protection under article 15(c) (see paragraph 39 of Elgafaji and paragraphs 39 to 40 of HM).  It was therefore necessary for the petitioner, as the decision-maker stated at paragraph 37 of the decision letter, to identify characteristics which might set him apart from the general population if he was unable to demonstrate exceptional levels of indiscriminate violence in the country.  In the present case the original immigration judge had found the petitioner's account of the persecution he faced in Iraq incredible and accordingly, the petitioner failed to show that he had any such characteristics.  No new material in that regard was advanced in the application letter.  Nor was the petitioner able to show exceptional levels of indiscriminate violence for the reasons that I have given.

[30]      In the circumstances I will sustain the respondent’s plea in law, repel those of the petitioner and dismiss the petition.  I will reserve all matters of expenses meantime.