Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 18
P860/13	OPINION OF LORD BANNATYNE in the Petition of F H Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: McIlvride; Office of the Advocate General

6 February 2013

Introduction

[1] This judicial review came before me as a first hearing on 13 December 2013. The petitioner was represented by Mr Caskie, advocate. The respondent, the Secretary of State for the Home Department, was represented by Mr McIlvride, advocate.

[2] The petitioner sought reduction of the decision of the respondent to decline to accept that representations made on behalf of the petitioner amounted to a fresh claim for asylum. The said decision hereinafter referred to as "the operative decision" was made on 23 August 2013.

Background

[3] The petitioner is a citizen of Afghanistan who arrived in the United Kingdom on 29 November 2007 and claimed asylum on 7 December 2007. When the petitioner arrived in the United Kingdom he contended that he was aged 14. His asylum claim was determined on 2 May 2008. The decision of the respondent was to refuse the claim for asylum but to grant the petitioner leave to enter the United Kingdom until 25 September 2010, when the petitioner would be 171/2.

[4] On 17 September 2010 the petitioner applied to the respondent for an extension of his leave to enter the United Kingdom. That application was determined on 19 April 2011. The decision was to refuse the petitioner leave to remain in the United Kingdom and to remove him therefrom. The petitioner appealed against that decision and his appeal was heard on 17 June 2011. His appeal was dismissed on 6 July 2011 and his applications for permission to appeal against the immigration judge's decision were refused as it was held that the immigration judge had not erred in law. His appeal rights ended on 13 January 2012.

[5] The basis of the petitioner's claim for asylum was this: he was the son of a lorry driver who had been involved in a road accident in Afghanistan in which two men in the other vehicle involved had died. Those men were said to be from a different tribe. Some months later the family of the deceased killed the petitioner's father (and his assistant) and sought the petitioner to kill him, to prevent the petitioner seeking revenge against them. A friend of his late father (Mr T or MT) subsequently cared for the petitioner and arranged for the petitioner to travel to the United Kingdom.

[6] For the purposes of the present proceedings the relevant findings, of the immigration judge in her decision of 6 July 2011 are as set out in paragraphs 12 to 15 of her decision and these are in the following terms:

"12. Even if the Appellant had been at risk at the time of his asylum claim (which was denied by the Respondent and the Appellant did not appeal the finding), I find that his claim now to be at risk for these reasons is not credible, my reasons are as follow.

13. In his application for extension of leave to remain, the Appellant does not state how or why he would still be at risk almost four years after the deaths (R1.E). Nor has he, since that application, indicated that there is any up-to-date evidence to show that he is still of interest to the relatives of the men who died. The Appellant gave evidence that he had lived with his father's friend, M T, in Afghanistan, 'for a long time' after he and his father had moved from Kabul. He also claimed to have continued to live with him and be protected by him for two weeks after his father's death during which time he claimed the deceased men's relatives were coming to his home, seeking him out. There was no evidence either from the Appellant or from his witness, that M T and his family are no longer living in L or are otherwise unable to unwilling to up-date the Appellant regarding any continuing risk to him in Afghanistan, and yet there was no evidence of any recent interest in the Appellant by relatives of the deceased. Nor was there, on examination of the country evidence, any credible basis for fear of persecution of this kind. I was not directed to any basis in that evidence for such a fear. It was not credible, given that there was no evidence that M T and his family were no longer in or near L, that when asked by Mr Fee if he had been in touch with anyone in Afghanistan since he came to the UK, the Appellant replied 'No, there is nobody there' (ROP Page 3)

14. The Appellant provided no evidence to show that, even if he was still sought by relatives of the deceased men, the authorities in Afghanistan were unable or unwilling to negate this risk. There was no evidence to show that the Appellant had sought the protection of the Afghan authorities prior to his departure from Afghanistan, or that there was no such protection now in Afghanistan. Mr Barnes directed me to an excerpt from the COI report for Afghanistan of three years ago, which referred to the ineffectiveness of state protection from non-state actors because of the ability of local commanders and armed groups to extend their influence beyond local areas (A1.19.30.05). However, not only was this country material out-of-date, but also it did not refer to the type of risk which the Appellant claimed to face, that is reprisals from the relatives of the two dead men. There was no evidence that local commanders and armed groups had become involved or were likely to become involved. Similarly, the evidence to which I was referred, for the Appellant, regarding the ease of tracking down people in Afghanistan(A1.19.30.06), was given five years ago and was not supported by current country material, and, in any event, there was no evidence to show that the relatives of the deceased men had an interest in the Appellant now or had such an interest in the recent past.

15. I find that the evidence does not support a finding that there are substantial grounds for believing there is a real risk of harm to the Appellant, or, put another way, a reasonable degree of likelihood of harm were he to return to Afghanistan. I find that the Appellant has failed to provide credible evidence to show that his rights under Articles 2 or 3 of the Convention would be engaged were he to return to Afghanistan."

On 31 January 2013 and 16 May 2013 the petitioner's agents lodged further submissions on his behalf and on 24 April 2013 the respondent replied to the first of those representations and (a) refused to grant the petitioner leave to remain on the basis of those submissions; (b) decided that the representations did not amount to a fresh claim for asylum, and (c) ruled that despite the terms of the representations it remained appropriate to remove the petitioner.

[7] The petitioner lodged further submissions that resulted in his proposed removal on 22 May 2013 being cancelled and the Secretary of State issued a further decision to the same effect on 27 June 2013.

[8] On 9 July 2013 further submissions were again made on behalf of the petitioner. The respondent's reply to those submissions was dated 19 July 2013.

[9] The petitioner's decision of 19 July 2013 was challenged by way of judicial review. A contested hearing took place before Lord Tyre at which a first order was granted but suspension ad interim was refused. Agents for the petitioner intimated to the respondent that a first order had been granted and the respondent cancelled the proposed removal. The said cancellation of the petitioner's removal was made in error by the respondent.

[10] On 22 August 2013 further submissions were made. Those representations were also rejected by the operative decision. These further representations were based on information emanating from Mr T which was asserted to support the contention that the petitioner was still at risk and information from Mr R, the petitioner's uncle, as to his knowledge of Mr T, how he had contacted him and why certain information had not been supplied to the petitioner at an earlier stage.

The Law

[11] Before turning to the parties' detailed submissions, it is perhaps convenient to set out the legal framework.

[12] First, as regards the approach of the respondent to the assessment of whether the petitioner has made a fresh claim in terms of immigration rule 353, the parties were agreed that the respondent requires to consider three matters sequentially. She must consider whether to grant the petitioner leave to remain in the United Kingdom; she must then consider whether new material has been produced; and finally she must consider whether the petitioner has a realistic prospect of success in an appeal to an immigration judge who is being as favourable as possible to the petitioner without being perverse.

[13] Secondly, as regards the approach the court must adopt in cases of this type it was accepted by parties that the observations of Lord Bannatyne in ABC Petitioner [2013] CSOH 32 at paragraph 11 set out the law with respect to this issue:

"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).

.......... 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)".

Submissions on behalf of the petitioner

[14] Mr Caskie in light of the above then turned to set out his detailed argument. The first branch of his submissions flowed from the obligation incumbent upon the respondent to seek to trace the petitioner's family in Afghanistan. This obligation is in terms of the Asylum Seekers (Reception Conditions) Regulation 2005 ("the regulations"), regulation 6 which requires the respondent to endeavour to trace family members of unaccompanied asylum seeking children such as the petitioner.

[15] The court in considering the said obligation incumbent upon the respondent first in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014 held that the duty incumbent upon the respondent had been systematically breached by her in respect of such children from Afghanistan. The court went on to hold that this breach was material to whether the respondent should grant leave to remain to such persons. The obligation was further considered by the courts in EU (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 32 in which case it was held that to be of any materiality such a failure by the respondent to seek to trace family members required to have had some potential impact on the applicant's prospects of success in a claim for asylum or an appeal.

[16] As originally advanced in the petition and in the statement of issues lodged on behalf of the petitioner, the contention on behalf of the petitioner was that the duty to trace family members might be thought by an immigration judge to extend to the petitioner's carer in Afghanistan, namely Mr T, who was not a family member of the petitioner and that if an immigration judge so held, the immigration judge might think that this brought the protective principle outlined in the above two cases into play.

[17] In the course of his oral submissions before me, Mr Caskie stated that he wished to change the emphasis of the argument put forward in the written case on behalf of the petitioner.

[18] As I understood the submission then advanced by Mr Caskie it was this: he contended that an immigration judge on considering the above two cases would hold that in the circumstances of an individual (such as the petitioner) who did not have family in his homeland but who had a carer who was not a family member, that the carer was the equivalent of such a family member and therefore hold that there was an obligation on the respondent to find that carer. He accepted, however, that the breach of that obligation of itself was insufficient to give rise to conspicuous unfairness and therefore bring into play the protective principle as outlined in the above two cases.

[19] Turning to the issue of how the obligation in regulation 6 impacted in the circumstances of this case Mr Caskie submitted this: although the breach of the obligation did not engage the protective principle nevertheless it was of relevance in that an immigration judge could have regard to the special position of children reflected in the obligation set out in regulation 6 when considering the issue of the lateness of the production of the material flowing from Mr T which supported the petitioner's contention of ongoing risk. Thus he submitted an immigration judge could conclude differently from the respondent regarding this issue. The respondent's position was to reject that material from Mr T for among other reasons the late stage at which it had been produced, see: 6/8 of process at paragraph 34:

"It is further noted that your client has only offered such documentation following the exhaustion of his appeal rights in the United Kingdom. Your client has also provided no reasonable explanation to the delay in submission of the documents as to why he has not attempted to produce these earlier".

This position was reiterated in the operative decision letter.

[20] In conclusion, in terms of this branch of his argument, he submitted that the respondent had not had proper regard to regulation 6 and the said cases and if she had she would not have held that an immigration judge would inevitably reject the petitioner's position. If properly looked at, regulation 6 blunted the force of the lateness of the production of the information from Mr T, the lateness of which had been a material factor in the respondent's decision.

[21] Mr Caskie then turned to the second detailed branch of his submissions. His position was that the respondent had erred in law in that she had not asked herself the correct question, namely: is 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? Specifically she had wrongly approached the issue by deciding the matter on the basis of her own views of the issue, rather than considering the position of the hypothetical immigration judge. Further she had not applied anxious scrutiny in that she did not approach the matter on the basis of considering the most favourable view of the petitioner's case which could be taken by an immigration judge without being perverse. On the contrary he submitted that overall looking to the operative decision and the background to it (the preceding letters from the respondent) the respondent's approach showed what he described as a culture of disbelief. Moreover, it was his position that the various decision letters from the respondent showed increasing frustration with the pursuer and eventually an entrenched position that the petitioner was not to be believed. It was his position that an approach affected by this culture would not be one which would be adopted by an immigration judge.

[22] He then turned to examine the operative decision letter in light of these submissions. He turned first to the following section of it at pages 3 and 4:

"Finally, you have provided a letter from Chris Perkins, a Social Worker from Glasgow City Council, who confirms that your client first met Mr R around June 2008.

Turning first to the statement of Mr R it is not accepted that he has given satisfactory explanations for some of the points made in our letter of 19 July 2013. It is, however, accepted that the letter of Chris Perkins dated 26 July 2013 confirms that there was contact between Mr R and your client before March 2009, notwithstanding the fact that this is directly contrary to what the latter said in his statement for your client's appeal hearing.

There are however other aspects of Mr R's latest statement which are plainly still unsatisfactory. Firstly, in Mr R's statement provided for your client's previous further submissions he says the following

'I went to Afghanistan for a holiday in 2008. While I was there I asked people in my village, J, if they knew anyone by the name of MT. They were aware of the story of F and his family.

I was surprised about how easily I found MT. I was introduced to him by family in Afghanistan. I met with MT and he told me that he had sent F to the UK because his life was in danger. I told him that F was safe in the UK and that he had met some relations there."

Mr R now says:

'I met MT in 2008. I went to Pakistan to visit my own family. This was the purpose of my travel. While I was in Pakistan some family came to see me from Afghanistan for a visit. I gave them MT's details. These people could not bring MT to Pakistan. He did not have any documents to travel. They arranged a metting for me and MT at the border between Pakistan and Afghanistan (in Afghanistan) for us to meet. I was staying in Peshawar and it is about half an hour by car to the border area of Afghanistan. There were two people with me and one with MT. However MT and I spoke face to face on our own.'

It is clear that the above two statements are not consistent. In Mr R's original statement it was his position that he went on holiday to Afghanistan in 2008. The only logical way to interpret ('w)hile [sic] I was there I asked people in my village, J, if they knew anyone by the name of MT' is that Mr R was saying that he asked about Mr T whilst he was in Afghanistan. However, in his latest statement Mr R says that he went to visit family in Pakistan, not that he went on holiday to Afghanistan. He now says that whilst he was there some other family members came to see him from Afghanistan, while he was in Pakistan, and they arranged for a meeting with Mr T at the border, just inside Afghanistan.

This is an obvious inconsistency and Mr R has chosen not to give an explanation for it. It is not one that you would expect to arise in truthful evidence. If Mr R went to Pakistan to see family not Afghanistan as claimed it is unclear why he did not say that from the outset. The likely explanation for his change in evidence is that Mr R's passport does not in fact show him as being in Afghanistan at the relevant time but shows that he went to Pakistan instead. The latest explanation that he met Mr T in Afghanistan by travelling over the border from Pakistan is considered to be directly contrary to his previous statement and appears to be no more than a thinly veiled attempt to cover up obvious problems in his evidence without directly addressing them. Whilst Mr R may have been in Pakistan in 2008 it has not been established that he was in Afghanistan at that time or that he met Mr T."

[23] Mr Caskie accepted that the conclusions reached by the respondent in the said passage were open to her and accordingly properly made by the respondent in deciding whether to grant leave. However, it was his position that an immigration judge could reach a contrary conclusion and it was with this question with which the respondent had failed to engage.

[24] The next section of the operative decision letter was in the following terms:

"There are further difficulties with Mr R's latest statement. He says

'In 2011 I knew that F had a problem with his status. He told me about his appeal hearing. I think I was misunderstood in my previous statement. I knew what was going on with F's case in 2011. I knew that the Home Office did not believe him. However I was not aware that the meeting with MT would help his case. When F asked me for MT's contact details a couple of months ago I gave them to him.'

It now appears that Mr R says that he knew about the Home Office not believing your client's claim in 2011, not a few months ago as was his position in his last statement. Those are plainly not consistent statements and the only explanation offered is he 'think(s) he was misunderstood in my previous statement'. No further explanation is offered about how that misunderstanding arose. Mr R is a British citizen who presumably is competent in English. There is no suggestion that his statement wasn't given in English. He signed it at the bottom which is usually an indication that a deponent is satisfied with the contents. Merely saying that he was 'misunderstood' is an unsatisfactory explanation for what is now a further inconsistency in his evidence."

[25] Again Mr Caskie accepted that the conclusion reached by the respondent was one which was open to her. However, he submitted that the respondent holding that the explanation tendered was an unsatisfactory one was not an inevitable result and that an immigration judge acting in the most favourable manner may, without acting perversely, reach an opposite conclusion and that this had not been considered by the respondent.

[26] Thereafter the following is said in the decision letter:

"In any event if Mr R did know that your client had been disbelieved by the Home Office it is staggering that he thought that the fact that he had, on his evidence, met someone who had confirmed his nephew's account would not help F's case. Given that he had gone to the trouble to give a statement in support of your client's case, it is inconceivable that having set out why he could not return to Afghanistan, that Mr R would not have then disclosed his meeting with Mr T. To say that he was not asked is simply no answer to that point.

Similarly, it is inconceivable that your client, knowing that his uncle had met Mr T and had his account confirmed, would not have mentioned this during the course of his appeal."

[27] With respect to the above section of the operative decision letter Mr Caskie submitted that the nature and strength of the language used showed the respondent's frustration. He contended that what was said there was based on an assumption that had no basis, namely: that an immigrant from a different culture to that in the UK would understand the importance of support for the asylum seeker's position. An immigration judge he submitted would not necessarily make such an assumption.

[28] He went on to submit that support for the proposition that the respondent's decision was infected by a culture of disbelief could clearly be gained by reference to the paragraph of the operative decision letter at page 5 which stated as follows:

" The fact that no mention of the meeting with Mr T was made until this year when removal was imminent inexorably leads to the conclusion that what is now being averred is simply untrue. The fact that Mr R in 2008 travelled to Pakistan, not Afghanistan as previously claimed, does not make the evidence any more reliable"

He argued that the use of the word "inexorably" massively overstated the position. It could not be the case he submitted that an immigration judge would inexorably be drawn to the conclusion reached by the respondent on the sole basis of what was said in that paragraph.

[29] The above use of the word "inexorably" and the following in the immediately preceding passage "staggering" and "inconceivable" illustrated that the respondent's decision was infected by this culture of disbelief. Moreover it illustrated that she had had no regard to how an immigration judge might view these particular matters.

[30] Overall, he submitted that in these sections of the operative decision letter the respondent came to the view that taken together these factors fatally undermined the petitioner's version of events. However, what he submitted the respondent did not do was to consider whether an immigration judge might hold differently in relation to any of the specific points and therefore looking at them as a whole come to a different overall conclusion.

[31] Mr Caskie turned lastly to the following section of the operative decision letter at page 5:

"The latest statement from MT purports to confirm that he met Mr R in Afghanistan and to clear up that he did not arrange that your client went to the UK to stay with him. He says that he cannot read or write and that he thinks there must have been a mistake made by the person who wrote the letter for him. What he meant to say was that he tried to contact Mr R in 2007 and failed to reach him.

Mr T's first letter makes no reference whatever to meeting Mr R in Afghanistan which in itself is surprising. No information has been given about how it was confirmed that the deponent of the telephone statement was Mr T. Other than saying that he thinks there must have been a mistake (and it is worth noting there is either was or there wasn't in this case, as there does not seem to be room for doubt) no satisfactory explanation has been given for how that mistake could have arisen. The terms of the letter do not obviously give rise for room for the error alleged."

[32] He submitted that there was always room for genuine error in a situation of the type set forth above. However, once more the respondent had taken a wholly negative view of the said factor (the culture of disbelief operating once again) and had not sought to ask how an immigration judge looking at this in the most favourable manner without being perverse would view this situation.

[33] Finally Mr Caskie submitted that looking to the operative decision letter no account had been taken by the respondent of the various points raised by her in earlier correspondence which had been answered by the petitioner to the satisfaction of the respondent.

[34] In summary he submitted that he did not say that an immigration judge would be bound to grant the petitioner's appeal. However, he submitted that an immigration judge on the information available was not bound to find against the petitioner. For these reasons he moved that I should sustain the petitioner's second plea-in-law and grant the relief sought in the petition.

Reply for the respondent

[35] Mr McIlvride submitted this regarding the petitioner's argument based on regulation 6 of the regulations: the regulation contained no definition of family, thus it should be given its natural and normal meaning. Accordingly Mr T who was not a relative of the petitioner was not a member of the petitioner's family.

[36] In the cases of KA and EU the court was considering the respondent's failure to comply with a particular statutory duty. The regulation imposed a specific positive duty. He submitted that it was not appropriate for the court to leap to the view that the respondent was under a general obligation to find someone outwith the "family" as properly construed. It was he submitted, in the circumstances of this case, for the petitioner to substantiate his claim for asylum.

[37] Moreover the petitioner's uncle (Mr R) had known since 2008 what Mr T could say and where he could be contacted. The information which was now being presented had therefore all along been available through Mr R and ought to have been known to the petitioner from the outset. So in any event, there was no obligation on the respondent to find such a person, who was in fact known to the petitioner.

[38] In consequence the respondent was entitled to take into account certain factors bearing on the petitioner's credibility, namely: that information had emerged at a very late stage which supported the petitioner's position and that this had occurred without any proper explanation as to why it had only now emerged. An immigration judge was entitled to take these factors into account when considering the petitioner's credibility. He did not suggest that these factors would in themselves be determinative but they were factors an immigration judge could have regard to as showing that there was no reasonable prospect of success on the part of the petitioner.

[39] Moving on to the second detailed branch of the petitioner's submissions Mr McIlvride began by contending that the appropriate starting point in considering this branch was the decision of the First Tier immigration judge as set forth in the decision of 6 July 2011. He in particular directed my attention to certain parts of that decision:

"11. In his application for extension of his discretionary leave to remain, the Appellant stated 'I cannot return to Afghanistan as I am still in fear for my life. I will be killed if I return. It is too dangerous for me there and it is not safe for me....The same problems exist for me in Afghanistan now as when I left'. (R1.H. final paragraph). Accordingly, he maintains that he is still at risk for the same reasons as he gave in his asylum claim. The Appellant's claim for asylum was as follows. He maintained that he was a member of the OK tribe. He had lived most of his life in Kabul, but latterly had moved to L with his father, where he lived with his father's friend MT and his family. He claimed that his father (who was a lorry driver) was involved in a road accident in which two men of the S tribe died. He claimed that a Jirga formed from the elders of both tribes about a week after the accident ordered his father to pay compensation to the relatives of the deceased men, in the form of two sheep and some money and that his father paid this. The Appellant maintained that about five to six months after the accident, the father of the deceased men travelled from Kuwait to Afghanistan and killed his father and his father's assistant, B, and accompanied by others came looking for the Appellant a number of times in order to kill him lest he would, later, take revenge on them for the death of his father. He claimed that MT made arrangements for the Appellant to travel to the UK where he arrived on 29^th November 2007. That the Appellant was at real risk for these reasons was not accepted by the Respondent in his 'reasons for refusal' letter of 2^nd May 2008 (R1.E) and the Appellant's credibility was attacked on a number of grounds. The Appellant failed to appeal this decision. He now claims that he is still at risk of death at the hands of the relatives of these men who died almost four years ago".

[40] He submitted that from the above passage the petitioner must have appreciated that the matter in issue was whether he was still at risk.

[41] He further referred me to the following passage in paragraph 13 of the said decision:

"There was no evidence either from the Appellant or from his witness, that MT and his family are no longer living in L or are otherwise unable or unwilling to up-date the Appellant regarding any continuing risk to him in Afghanistan, and yet there was no evidence of any recent interest in the Appellant by relatives of the deceased".

[42] On the basis of that finding he submitted the petitioner must have known the importance of Mr T.

[43] This was a case in which at all stages the petitioner knew that the continuing risk on his return was the real question at issue.

[44] Counsel then turned to look at certain of the documentary productions which had been produced by the petitioner to the respondent.

[45] He turned first to 6/7 of process, a statement of Mr T dated 14 May 2013 and drew my attention to this section of that statement:

"I thought about saving F's live and contacted his uncle, N (Mr R), who lives in Scotland. He advised me to send F to Scotland, and as such I sold the truck that was left by F's Father, H and sent F there."

[46] Counsel took from the foregoing that it contained a clear indication that Mr T had looked after the petitioner, wanted to save him and contacted Mr R and Mr R had advised sending the petitioner to Scotland.

[47] He then turned to 6/9 of process which included a statement of the petitioner dated 9 July 2013 which contained the following section:

"5. My uncle, NR, lives in the UK and he travelled to Afghanistan in 2008. It was only then that he came across MT. MT asked if I was well and my uncle told him that I was safe. He lives in J and my uncle found him through his family there."

[48] Counsel took from the foregoing that Mr T had met Mr R in 2008.

[49] Counsel then turned to a statement of Mr R which was attached to 6/9 of process and drew my attention to the following:

"2......We have a close relationship. He (the petitioner) lived with me for a period of time between 2009 and 2010".

[50] Counsel submitted that this showed that Mr R was close to the petitioner yet he had not given information about the continuing danger to his nephew until well after the original hearing.

[51] Counsel then turned to paragraph 5 of said statement which is in the following terms:

"I went to Afghanistan for a holiday in 2008. While I was there I asked people in my village, J, if they knew anyone by the name of MT. They were aware of the story of F and his family".

[52] Counsel submitted that from this section what was clear was that Mr R was saying that he went to Afghanistan and in particular went to J, his own village during 2008.

[53] Turning to paragraphs 7 and 8 of this statement they were in the following terms:

"I remember taking down contact details for Mr T and we said our goodbyes. F was a young boy at this time. When I returned to the UK I did not think it was necessary to give him contact details for MT.

A few months ago F explained his current situation to me. He told me that the Home Office did not believe his story and that he needed further evidence from Afghanistan about what happened to him. I told him he should contact MT. It was him who sent F to the UK because his life was in danger. I thought he would be able to help. I gave F his contact details and it is my understanding that he contacted MT. Thereafter MT sent papers from Afghanistan confirming that F's version of events are true".

[54] Mr McIlvride submitted that the above was simply incredible. Mr Caskie had said that lay people from a different culture would not be aware of the need for corroboration. However, Mr McIlvride submitted that it did not take much to understand that if the petitioner's claim was not believed he would be returned to Afghanistan. It was simply incredible for Mr R to state that he did not think it was necessary to give the petitioner this information at a much earlier stage.

[55] Mr McIlvride then turned to 6/11 of process and looked first at a further statement of MT dated 31 July 2013. He pointed out that this was in starkly different terms from his original statement. In contrast to his previous statement he now advised that he had had no arrangement with Mr R for the petitioner to go to the UK. He said he had not spoken to Mr R before the petitioner went to the UK. His position was that he had not spoken to Mr R until 2008 when he had travelled to Afghanistan to meet him.

[56] Mr McIlvride then referred to a further statement from Mr R also dated 31 July 2013 and under reference to this made a number of submissions: first he submitted that this statement again reinforced the close relationship between Mr R and the petitioner, however, he then highlighted the fact that he had not given the information regarding Mr T to the petitioner until a very late stage. No good reason was given for his not having given this information at an earlier stage to the petitioner. Mr McIlvride reiterated that Mr Caskie's position that lay people from a different culture would not have been aware of the need for corroboration did not stand up to any serious scrutiny. He submitted that it did not take much to understand that if the petitioner's claim was not believed then he would be returned to Afghanistan. It was simply incredible to say, as Mr R did in this statement, that he did not understand that his meeting with Mr T would help the petitioner's case (see: paragraphs 4 and 8 of the statement).

[57] Mr McIlvride also drew my attention to paragraph 9 of the statement and said this was in starkly different terms to Mr R's previous statement regarding the circumstances of his meeting with Mr T in 2008. In this statement he said that he went to Pakistan to visit his own family. At that time certain members of his family had come to see him from Afghanistan. They had given him MT's details. Thereafter a meeting was arranged between him and Mr T in Afghanistan. Mr McIlvride said that there were glaring contradictions between Mr R's first and second statements regarding the circumstances of his meeting with Mr T.

[58] Mr McIlvride went on to submit that in considering whether there were reasonable prospects before an immigration judge, the respondent had to consider that decision on the basis of this information which was before her. He submitted on the basis of the above information and in particular having regard to the lateness of the provision of information regarding Mr T and the inconsistencies and contradictions in the statements provided by Mr T and Mr R the respondent was entitled to hold that there was no realistic prospect of success before an immigration judge who was being as favourable as possible to the petitioner without being perverse. The decision was not irrational in a Wednesbury sense.

[59] Turning to the operative decision letter itself Mr McIlvride submitted that it was clear therefrom that the respondent had carried out a very careful analysis of the material before her and which would be put before an immigration judge.

[60] Throughout the process of the various applications by the petitioner it was his submission that each letter from the respondent gave detailed consideration of all material presented.

[61] For the above reasons he moved that the court should refuse the petition by sustaining his third plea-in-law.

Discussion

[62] Turning to the first branch of the petitioner's argument it seems to me for the following reasons that it has no merit: first, the obligation placed on the respondent, in terms of regulation 6 of the regulations is to "endeavour to trace the members of the minor's family". In the absence of a definition of "family" contained within the regulations, then applying the normal rule of construction the word "family" should be interpreted on the basis of the application of the natural and normal meaning of the word. Applying the natural and normal meaning of the word "family" to the circumstances of the instant case, Mr T is not a member of the petitioner's family. He is not a relative by blood or affinity of the petitioner. Accordingly regulation 6 is not in the circumstances of this case engaged.

[63] Secondly, the argument, which underlay the position advanced on behalf of the petitioner, that although the regulation, on the face of it, limits the duty to trace to members of the family, it nevertheless in some way could be extended to impose a duty to trace a non-family member, cannot be correct. A specific, clearly defined duty, imposed in a regulation cannot be extended in this way. To do such would be to breach the canons of statutory interpretation.

[64] Thirdly, and in any event, I accept the submission made by Mr McIlvride that in the circumstances of this case the petitioner should have all along known of the existence of Mr T and of his whereabouts. That information was available all along through Mr R. In these circumstances it was for the petitioner to substantiate his claim and there was no obligation on the respondent to find such a person who was in fact known to the petitioner.

[65] Fourthly, it would not for the reasons above stated have been appropriate for the hypothetical immigration judge to have regard to regulation 6, as in any way blunting the force of the points made by the respondent regarding the lateness of the provision of information by the petitioner regarding Mr T. Regulation 6 is not relevant in the circumstances of this case.

[66] It follows from the above that: the respondent was entitled against that background and when taken in the context of the known issue in the case, namely: continuing risk on return to the petitioner, to take into account the late stage at which the above information appeared and the lack of proper explanation therefor and to take into account that an immigration judge would have regard to this factor when considering all of the information before him. Moreover, it was a factor which the respondent was entitled to conclude would be one that the hypothetical immigration judge would in the circumstances inevitably hold was adverse to the petitioner's case. It would be perverse for a hypothetical immigration judge to hold to the contrary. It was accordingly a factor which pointed to there being no reasonable prospects of success before an immigration judge. I can identify no error in law in the way that the respondent has approached this particular issue.

[67] Turning to the second branch of the petitioner's argument I would first observe that I am unable to identify within the operative decision letter or any of the preceding decision letters the culture of disbelief of and frustration with the petitioner which Mr Caskie contended infected the whole decision-making process. On the contrary, at each stage and in particular in the operative decision letter the respondent had proper regard to all of the material before her. There is throughout the operative decision letter and in the previous correspondence full and detailed discussion of the issues before her. With respect to the credibility of the petitioner, Mr T and Mr R, the respondent fully considers this issue including the various representations made on behalf of the petitioner during the course of the whole decision-making process. She fully and carefully analyses the position before her on the material issues and gives cogent and detailed reasons for the ultimate decision which she reaches.

[68] Secondly, throughout, her approach to the information before her is to look at the information in the round and to approach the evidence in a holistic manner. This approach is correct in law and in my view cannot be criticised.

[69] Thirdly, it is clear from the terms of the operative decision letter that the respondent is aware that she must place herself in the position of the "hypothetical immigration judge" when approaching the issue of whether the further submissions amount to a fresh claim (ie when considering the third question). She correctly sets this out at pages 2 and 3 of the operative decision letter including referring to the relevant authorities and appropriate passages therein. Further at the top of page 3 she recognises that the test which the petitioner requires to meet is a modest one. Finally, when she reaches her conclusion at the bottom of page 5 of the operative decision letter she clearly applies the correct test. There is no substance in the general submission of Mr Caskie that the respondent did not apply the correct test.

[70] I now turn to consider Mr Caskie's specific submissions regarding the detailed points made by the respondent in the operative decision letter supporting her refusal. I observe that the discussion of these points begins towards the bottom of page 3 of the operative decision letter. It is noteworthy that this section of the decision letter begins with an acceptance by the respondent that certain information provided on behalf of the petitioner, namely: a letter from Mr Perkins answers certain points made by the respondent at an earlier stage. This does not support the petitioner's contention of a culture of disbelief. Rather this shows that in the operative decision letter the respondent is carefully considering all of the information which has been placed before her.

[71] Mr Caskie in the course of his submissions accepted that the respondent was entitled to make the criticisms of the petitioner's position which she made. However, his challenge was to this effect: an immigration judge looking at this information in the most favourable manner might have come to the opposite conclusion. It seems to me clear that this contention is not well founded, for the following reasons:

[72] First, the lateness of the production of supporting information from Mr T together with the lack of a proper explanation therefor is in my view a matter which the respondent was entitled to conclude was something which an immigration judge would hold as a factor which materially undermined the petitioner's credibility. In my view for any immigration judge to have come to a contrary view would have been perverse.

[73] Secondly, turning to the statements of Mr T and Mr R, these were carefully gone through by Mr McIlvride. These statements it seems to me contained material inconsistencies and contradictions without any proper explanation for these inconsistencies and contradictions. The evidence contained in these statements was central to the petitioner's case. The inconsistencies and contradictions went to the core of that evidence. They were of such a nature and materiality that the respondent could properly conclude that no reasonable immigration judge would consider that any weight should be attached to that evidence as justifying a finding that the petitioner would be at risk of persecution on return to Afghanistan. In particular this would be the case when considered in the context of the inevitable adverse findings arising from the lateness of the production of this evidence without proper explanation. Looking at the evidence as a whole and in the round the respondent was entitled to hold that there was no realistic prospect of success in an appeal to an immigration judge who was being as favourable as possible to the petitioner without being perverse. I would observe that anxious scrutiny does not mean that the respondent should show undue credulity to the petitioner's account.

[74] Lastly, particular criticism was made by Mr Caskie of the following passage in the operative decision letter at page 5:

"The fact that no mention of the meeting with Mr T was made until this year when removal was imminent inexorably leads to the conclusion that what is now being averred is simply untrue. The fact that Mr R in 2008 travelled to Pakistan, not Afghanistan as previously claimed, does not make the evidence any more reliable".

[75] The above is perhaps a passage which is not particularly felicitously worded. That single finding on its own I do not believe could be said to inexorably lead to the stated conclusion. However, I do not believe it has undermined the decision as a whole. It is clear from the second last paragraph at page 5 of the operative decision that the respondent has considered all of the evidence in a holistic manner; she states specifically: "When considering all of the evidence in the round, old with the new".

[76] Overall I am satisfied that there is no error of law or Wednesbury unreasonableness on the part of the respondent in her approach to this matter.

[77] In summary, first the new material which was presented was inconsistent and contradictory and the respondent had proper regard as to how an immigration judge would be obliged to assess such material (ie he would attach no weight to it). Secondly, the new material was presented at a late stage in circumstances where there was no good reason why it was presented at that late stage and all of the circumstances pointed, if the information was true, to its availability at a much earlier stage and accordingly it should have been presented at a much earlier stage. Against that background, the respondent was again entitled to hold that an immigration judge would not be entitled to place any weight on the information then presented. In the whole circumstances, on the basis of all of the information before her when taken together as a whole, as she did, the respondent was clearly entitled to hold that even having regard to the modest test the petitioner had to satisfy that he had clearly failed to do so.

Disposal

[78] For the above reasons I repel the petitioner's pleas-in-law, sustain the respondent's third plea-in-law and refuse the petition. I have reserved all issues of expenses.