Scottish Court of Session Decisions

Petitioner:  Mullan; advocate;  Drummond Miller LLP

Respondent:  Komorowski; advocate;  Office of the Advocate General

3 July 2014

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

Introduction                     

[2]        The petitioner, who was born on 25 November 1975, is a national of Iraq and entered the United Kingdom on 19 November 2008.  He made an application for asylum which was refused and the petitioner appealed to the First tier tribunal of the Asylum and Immigration Tribunal (FTT) which, by determination dated 15 February 2009, dismissed his appeal.  Between 19 December 2008 and 5 January 2011 the petitioner made three further applications all of which were refused as fresh claims by the respondent. 

[3]        By letter dated 18 June 2013 (the application letter), the petitioner's solicitor made a fourth fresh representation and asked that it be treated as a fresh claim for asylum under paragraph 353 of the Immigration Rules.

[4]        It had repeatedly been submitted both to the respondent and to the FTT that the petitioner was at real risk of harm if returned to Iraq since he was perceived as a collaborator and would be targeted by terrorists.  It was stated in the application letter that he had been targeted on a number of occasions by the Al Qaeda Iraq terrorist group who were capable of mass casualty attacks throughout Iraq.  However, the immigration judge at FTT rejected these claims and found the petitioner's evidence incredible.  The petitioner also submitted in the application letter, as he had done previously, that he would be exposed to a real risk of harm if returned to Iraq by reason of the high levels of indiscriminate violence within the country.  In that respect, the application letter enclosed a number of articles obtained from various internet sites to the effect that in around April 2013 there had been a significant resurgence of indiscriminate violence throughout Iraq and that these articles provided a proper basis upon which the decision-maker could depart from country guidance set out in the case of HM and Others 2012 UKUT 00409 (IAC) (HM2).  Further and in any event, the information provided a basis upon which there was a reasonable prospect that a different immigration judge might uphold the claim for asylum.  That claim was based upon the view that the petitioner was entitled to the subsidiary protection set out in article 15(c) of the Council Directive 2004/83/EC (the qualification directive).  It was therefore contended that he would be at risk in terms of article 15(c), of serious harm consisting of "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict".  The operation of article 15(c) had been analysed by the European Court of Justice in the case of Elgafaji v Staatssecretaris van Justitie 2009 1 WLR page 2100 (Elgafagi) to which reference was made in the application letter. 

[5]        The decision-maker for the Secretary of State considered the application letter but by decision letter dated 13 August 2013 refused the application and refused to treat the application letter as a fresh claim.

[6]        As a consequence of that decision, the petitioner presented the present petition to this court for judicial review.

[7]        The decision letter found that there was no exceptional level of violence to engage the subsidiary protection of article 15(c) and that the country guidance contained in HM2 was to be preferred to the UNHCR guidance upon which the petitioner had founded.  There were no circumstances sufficient to warrant a departure from the country guidance.  Nor was there any realistic prospect of another immigration judge reaching a different conclusion.

[8]        Six specific criticisms are advanced in paragraph 15 of the petition.  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 HM in that he failed to consider that another immigration judge might depart from that country guidance if sufficient, clear and cogent evidence was produced.  Thirdly, there had been a failure to exercise anxious scrutiny by failing to consider whether the situation described in that country guidance was durable in the light of the change of circumstances evidenced by the new material provided in the application letter.  Fourthly, inadequate reasons had been given for concluding that the new information did not give rise to reasonable prospects of success before another immigration judge.  Fifthly, an informed reader would be left in real and substantial doubt as to the reasons why the decision-maker reached the conclusion he did and sixthly, the decision-maker failed to apply anxious scrutiny to the further submissions.

Submissions for the petitioner

[9]        The primary submission which Mr Mullan advanced before me was that the decision letter provided no proper analysis of the new material provided in the application letter.  There was no qualitative evaluation thereof.  The new material covered a three month period in 2013 and, although none of it related to the petitioner's individual circumstances, it revealed that across Iraq in the north and the south there had been a recent escalation (“a spike” as Mr Mullan described it) of violence.  The relevant country guidance was to be found in HM2 which dealt with the situation as described in the evidence before that tribunal in a period around 2011 and 2012 (see paragraph 125-133).  I was referred to the case of DSG & Others (Afghan Sikhs: Departure from CG) Afghanistan 2013 UKUT 00148 (IAC) (DSG) paragraphs 20-21 and 26 which showed that country guidance can be departed from.  Mr Mullan submitted that this was such a case.  I was also referred to the opinion of Lord Malcolm in MAS v SSHD 2013 CSOH 95 paragraph 8 to the effect that an appellant might advance different submissions and base his claim on material other than that advanced to the decision-maker and Mr Mullan submitted that this had not been appreciated in this case. 

[10]      Mr Mullan also submitted that the Secretary of State had lost sight of the appropriate test in considering whether this application was a fresh claim and instead had looked at and decided the merits of the application and not whether there was a reasonable prospect of success before an immigration judge applying anxious scrutiny.  He reminded me of the proper approach set out in WM (DRC) v SSHD 2006 EWCA Civ 1495.

[11]      In addition the decision was irrational since there appears from the decision letter to be no acknowledgement that country guidance can be departed from. 

[12]      Mr Mullan also addressed the various subheads in paragraph 15 of the petition.  In relation to paragraph (i) he submitted that the Secretary of State had erred in focusing on the evidence of general violence in Iraq and instead had concentrated on the individual threat to the petitioner and dismissed that threat because of the immigration judge's adverse findings on the credibility of the petitioner.  In that respect he referred to paragraphs 20 and 21 of the decision letter.

[13]      In relation to (ii) he reiterated that the decision letter failed to consider that country guidance could be departed from in the light of new material provided by the petitioner's solicitor which, in this case, justified such a departure.

[14]      In relation to (iii) to (v), if the decision letter was looked at as a whole, there was no evaluation or consideration of the new material or the representations made on the basis of that material.  That omission rendered the decision irrational since it could not be said to be based on anxious scrutiny.  There was real doubt as to why the conclusion had been reached that the new information lacked the necessary cogency which would create a realistic prospect of success before a different immigration judge.

[15]      In addition, it was argued that the decision letter failed to address the issue raised in the case of Elgafaji namely that there may be exceptional circumstances where because of the individual’s personal circumstances, the risk of indiscriminate violence is shown to be such that he should be found entitled to the subsidiary protection of article 15(c).  I was referred to paragraphs 35 to 40 of that case.  In the present case, the new material created the situation envisaged in Elgafaji. 

Submissions for the respondent

[16]      Mr Komorowski 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.

[17]      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.

[18]      He pointed out that the criticism in this case was that the Secretary of State had undertaken no analysis at all of the new material.  In the application letter at page 2 it is contended that there had been a "significant insurgence" of groups such as Al Qaeda Iraq, which was the group feared by the petitioner, and that group was closely aligned to Ansar-Al-Sunnah and other insurgent groups.  That resurgence had occurred since the withdrawal of US and coalition forces in December 2011.  However, country guidance in HM2 paragraph 289 specifically dealt with that question and concluded that "the phased withdrawal of US forces has not led to return to generalised sectarian conflict".  There was no explanation in the application letter as to why that country guidance should be departed from other than a reference to the new material.  In addition, it was clear that the tribunal in HM2 had examined the UNCHR 2012 guidelines (see for example paragraphs 60 and 284). 

[19]      The only justification, therefore, for a departure from country guidance was the material which had been supplied in the form of internet press reports.  This did not provide a sufficient basis upon which to depart from country guidance and the Secretary of State had not erred in concluding that this material did not amount to a reasonable prospect of success before an immigration judge.  The tribunal in HM2 was aware of the existence of general violence throughout the country but concluded that it was not of such intensity as to justify the granting of refugee status.  It had examined evidence of trends of violence over a period of years.  The material supplied by the petitioner's solicitor was essentially anecdotal in nature and could not be compared to the sort of evidence based exercise conducted by the Upper Tribunal.  Although the quality and the detail of the reasons advanced to justify departure from country guidance will depend on the particular circumstances, in general the more cogent the material advanced, the more substantial the reasons required to be in refusing to depart from country guidance.  Here, it could not be said that the material provided any substantial grounds for departure from country guidance.

[20]      Since Mr Mullan had described the material as demonstrating that "a spike" of violence had occurred over a short period around April 2013, even if that were correct, it could not be assumed that such levels would persist.  The tribunal in HM2 had analysed the patterns of violence and trends at paragraphs 288 and following.  It was simply not sufficient for the petitioner to produce a bundle of articles gleaned from the internet and suggest that the detail findings of the Upper Tribunal should be departed from, without performing some analysis of the material to show what the overall instance of violence is and whether it applies to a particular locality.

[21]      So far as the point made by the petitioner in relation to the use of the original immigration judge's findings on credibility were concerned, the application letter advanced a claim based on persecution at the hands of Al Qaeda, owing to his imputed political opinion (page 2 of the letter) and a case based on real risk of harm on account of high levels of indiscriminate violence prevailing within the country (pages 3 and 4 thereof).  It could be seen from the decision letter at paragraphs 15 to 21 that those findings were considered in the context of the first element of the application, namely the claim based on persecution and the decision-maker had been correct to have regard to the findings of the immigration judge in that context.

[22]      The petition should be refused.

Discussion and decision

[23]      It is important to examine the content of the application letter so that the decision letter itself can be properly understood.  As Mr Komorowski submitted, the claim for asylum was being advanced both on the basis of persecution, if returned, and on the basis of risk of indiscriminate violence.  The new material provided was aimed at demonstrating that the current levels of violence in Iraq was of greater intensity than that which had existed when the Upper Tribunal examined the situation in the case of HM2 and, accordingly, there was a reasonable prospect that a different immigration judge seized of an appeal might come to a different conclusion than the original immigration judge.  It was therefore necessary and legitimate for the decision-maker to have regard to the findings on credibility when the claim based on fear of persecution was put forward on this occasion.  But it can be seen from the terms of the letter at page 2 that the suggestion was also being advanced that "the group feared (ie Al Qaeda) have experienced a significant resurgence since the withdrawal of the US and coalition forces from Iraq in December 2011".  While the new material was being offered principally in support of the ground based on indiscriminate violence, it was also being used to support the other ground.  To that extent, it was also legitimate for the decision-maker to have regard to the previous findings on credibility when assessing whether the application letter provided a basis on which a new immigration judge might find in his favour.  Since the original immigration judge had robustly criticised the credibility of the petitioner, those findings were relevant matters to which to have regard in relation to both grounds advanced in the decision letter.  I therefore reject the criticism advanced in paragraph 15(i) of the petition.

[24]      The decision letter at paragraph 47 states that:

"In addition, it is not accepted that these internet reports disturbed the Upper Tribunal's findings in HM and there is no realistic prospect of another immigration judge concluding otherwise".

This seems to me to demonstrate clearly that the decision-maker was aware that another immigration judge could depart from country guidance but had concluded that the material advanced was not of a sufficient nature to open up a realistic possibility of such an occurrence.  I therefore reject the ground advanced in paragraph 15(ii). 

[25]      The decision-maker was faced with a further application which enclosed a large number of internet articles which related to the insurgent activity in Iraq over what was said to be a relatively short period of time in around April 2013.  I agree with Mr Komorowski that the nature and extent of the response to such an application must depend on the terms of the application itself.  I have 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 wholly 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".

In the application letter there was no attempt to analyse the internet material or to explain why that material amounted to cogent evidence far less to advance “very strong grounds” for departure from that country guidance.  In those circumstances, the reasoning of the decision letter cannot be faulted.  At paragraph 11 the author acknowledges that there are 63 internet news articles (the application letter had made no effort even to list these or to quantify them) and reminds the reader that, because no specific mention is made of a piece of evidence, that does not mean that it is not been read and considered.  Those articles are dealt with in paragraph 47 and it is observed that they do not relate to him in any way.  That was of relevance in relation to his claim that he would be persecuted by Al Qaeda on return and that that organisation was increasingly active.  But the author goes on to conclude as quoted above that "in addition, it is not accepted that these internet reports disturbed the Upper Tribunal's findings in HM and there is no realistic prospect of another immigration judge concluding otherwise".  It is evident from that conclusion that the author has considered this material and has decided it does not meet the high test set out in DSG and thus neither the Secretary of State, nor another immigration judge, would be justified in departing from the country guidance in HM2.  The decision-maker was entitled to come to that view and has given adequate reasons for reaching it.  It demonstrates, in my opinion, that anxious scrutiny has been exercised in this decision.

[26]      In any event when the material is considered it becomes apparent that it is insubstantial and quite incapable of amounting to "cogent evidence".  Much of it is duplication of the same information.  Many of the reports point out that the violence in April 2013 coincided with provincial elections on 20 April which were preceded by acts of terrorism.  Thus “the spike of violence” mentioned by Mr Mullan may have been as a result of those elections and would not be a reliable predictor of future activities.  Some state that the levels of casualties in 2013 had reached levels "almost exactly the same as in 2009" whereas the application letter at page 4 had described those levels of violence in April 2013 as exceptional.  The period of 2009 was one which the Upper Tribunal in HM2 had examined and thus indicated that the levels in April 2013 were not exceptional and not unprecedented.  Further, the reports differ in estimates of casualties.  One states that the number of deaths in May was 1,045 whereas another states that "more than 500 have been killed in that month".  One states that 700 were killed in April whereas another gives a figure of 460 for that month.  From this brief review of what was, on any view, conflicting material, it would not be difficult to the informed reader to understand that the decision-maker's conclusion.  For these reasons I reject the grounds set out in paragraphs 15(iii) to (vi).

[27]      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. 

[28]      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.

[29]      In those circumstances I have come to the view that this petition is not well founded.  I will sustain the plea-in-law for the respondent and repel that of the petitioner and dismiss the petition.  I will reserve meantime all questions of expenses.