Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 52
P1104/13	OPINION OF LORD STEWART in the Petition SK Petitioner; for Judicial Review of a certification decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 27 February 2013 in terms of the Nationality, Immigration and Asylum Act 2002 s. 96(2) etcetera, and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: Komorowski; Office of the Advocate General

18 March 2014

[1] This is a "last gasp" petition according to counsel for the respondent, Mr Komorowski. The petitioner is an adult male national of Namibia of uncertain age. He has been in the United Kingdom for almost ten years. He is a visa overstayer. He arrived on 12 August 2004. Since 29 August 2006, that is, for the last seven and a half years, he has been in the United Kingdom without leave. In the period up to 2012 he made three unsuccessful applications for leave. He became rights-of-appeal-exhausted at the end of 2012. Then, on 28 January 2013, he made a claim for asylum. He had never previously claimed asylum. By decision letter dated 27 February 2013 the United Kingdom Border Agency [UKBA] on behalf of the Home Secretary refused the petitioner's asylum claim and certified the petitioner's application in terms of section 96(2) of the Nationality, Immigration and Asylum Act 2002.

[2] The refusal of the petitioner's asylum claim is "an immigration decision" in terms of section 82(1) of the 2002 Act. As a rule immigration decisions can be appealed to an immigration judge of the First Tier Tribunal (Immigration and Asylum Chamber). The effect of certification in terms of section 96(2) is to deny the applicant the right otherwise available of appeal to an immigration judge with potential further appeal rights from the decision of the immigration judge. By this petition for judicial review lodged with the court on 29 October 2013 the petitioner seeks to have the UKBA decision of 27 February 2013 set aside. Mr Forrest who appeared for the petitioner at the first hearing on 28 February 2014 restricts his application to having the certification decision set aside. The effect of reducing the certification decision, according to Mr Forrest, would be to allow the question of certification to be re-decided with the possible result that the petitioner will get his appeal to a fact-finding hearing before an immigration judge. (An alternative view might be that reducing the certification decision opens up the immediate possibility of an appeal.)

[3] Having heard submissions from Mr Forrest, counsel for the petitioner, and Mr Komorowski, counsel for the respondent, on 28 February 2014 I decided there and then that the petition should be refused. Mr Forrest has asked me to provide reasons in writing which I now do.

The statutory framework

[4] Section 96(2) of the Nationality, Immigration and Asylum Act 2002 provides as follows:

"(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a)  that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b)  that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c)  that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

As is explained below the Home Secretary accepts that in addition to the criteria (a), (b) and (c), a fourth-stage test is implied.

The decision of 27 February 2013

[5] Paragraph 117 of the decision of 27 February 2013 states:

"For the reasons given at paragraphs 64―70, it is not considered that you have given satisfactory reasons for the matters raised in your current claim not having been raised in response to the notice served on 29 August 2006."

Paragraphs 64―70 are part of the section headed "Immigration history and related issues". The whole section consists of paragraphs 58―70. The "related issues" include credibility. The credibility issues dealt with in paragraphs 58―63 are, first, the fact that the petitioner employed deception to obtain his original visa and, secondly, that despite service of the "One Stop Warning" notice in terms of section 120 of the 2002 Act on 29 August 2006, three previous applications for leave in 2006, 2010 and 2012, one previous appeal in 2012, one previous immigration arrest in 2012, and service of a notice of liability to removal in 2012, it was not until the petitioner became rights-of-appeal exhausted at the end of 2012 and was again subject to immigration arrest that he for the first time made his current asylum application. This is the background to paragraphs 64 - 70.

[6] Paragraphs 64 and 65 in turn rehearse the terms the 2002 Act s. 120 and the content of the "One Stop Warning" notice served on the petitioner in terms of section 120. I should highlight three of the bullet points in the notice:

"* You must now make a formal statement about any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.

[...]

* If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.

[...]

* If you later apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused."

[7] Paragraph 66 of the decision records that at no point prior to 28 January 2013 did the petitioner put forward a completed statement of additional grounds or raise the asylum issues now raised "despite having had ample opportunity to do so, and despite having been advised of your obligation to do so". Paragraph 67 assesses the reasons given by the petitioner for raising asylum issues for the first time in 2013. The petitioner blames his solicitors in England for giving him the wrong advice. The UKBA decision maker rejects the explanations as incredible. The decision maker also notes that the petitioner's account does not explain the failure of the petitioner to raise the asylum issues after he came to Scotland in 2008 and got a new solicitor. Paragraph 70 concludes this section of the decision in the following terms:

"It is therefore not considered that you have reasonably explained your failure to raise the issues on which you now seek to rely at an earlier point, despite your having more than reasonable opportunity to do so. The credibility of your claim is therefore considered to have sustained the most grave damage."

Submissions

[8] Mr Forrest submits that there are two errors in the certification decision of 27 February 2013, namely (1) the absence of a proper basis for the UKBA decision maker's finding that there is "no satisfactory reason" in terms of the 2002 Act s. 96(2)(c) for the petitioner not having raised the asylum matter previously; and (2) the failure of the decision maker to "have regard to all relevant factors" in making the certification decision. Mr Forrest looks for support to the case of R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) citing paragraphs 1 - 3, 38, 39, 63, 68, 69, 102 - 114 although I am not sure that all of these references are relevant.

[9] As regards the first supposed error, the argument runs as follows. Paragraphs 64 to 70 are referred to in support of the "no satisfactory reason" determination. Paragraph 70 offers a conclusion from what has gone before. Paragraph 70, rightly or wrongly, makes a negative assessment of the credibility of the petitioner's claim for asylum. The question whether a claim could or could not reasonably have been raised earlier should not be determined by the UKBA decision maker's view of the credibility of the substantive underlying claim. Even if the decision maker did assess the asylum claim to be incredible, that cannot amount to the statutory absence of a satisfactory reason such as would justify excluding the right of appeal. Precisely the opposite. If there be a question as to the credibility of the claim, that is a question fit to be determined on appeal to a fact-finding immigration judge of the First Tier Tribunal. The tribunal will hear oral evidence subject to cross-examination.

[10] The second alleged error assumes that in addition to the three stages (a), (b) and (c) of the statutory section 96(2) certification process there is a fourth stage. The fourth stage is the stage identified by Stadlen J in R (J) [at § 106]: "Fourth [the Home Secretary] must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification." The UKBA decision maker acknowledges, quoting from R (J), the existence of the fourth-stage; and using Stadlen J's formula the decision maker exercises the Secretary of State's discretion at paragraph 118 in the following terms:

"Having considered all relevant factors, it is considered appropriate to exercise the Secretary of State's discretion in favour of certification. As a result, your application has been certified under Section 96 of the Nationality, Asylum and Immigration Act 2002."

This is what Mr Forrest says should be done. Mr Forrest's complaint is that this is only a purported exercise of the discretion. In a situation in which an applicant may face persecution if returned, reasons should be given for excluding the right of appeal.

[11] An additional perspective, not expressly foreshadowed in the pleadings, emerged during Mr Forrest's submissions. Mr Forrest says that the UKBA decision maker should have treated the petitioner's asylum claim as a "fresh claim" application in terms of the Immigration Rules (HC 395 as amended), rule 353. The text of the rule is as follows :

"353 .- Where a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

i) had not already been considered; and

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

There is "a tension" between rule 353 and section 96 according to Mr Forrest. Applying the "modest" rule 353 test the decision maker should have asked himself the question whether the claim had something more than a "merely fanciful" prospect of success if determined by an immigration judge. Nothing like this has been done. Assuming a rule 353 fresh claim, when it came to Stadlen J's fourth-stage test the decision maker, applying "anxious scrutiny" and giving consideration to "all relevant factors", was bound to ask whether the fresh claim would necessarily fail on its merits if all issues including credibility were to be addressed by an immigration judge having the benefit of oral evidence subject to cross-examination. Unless that question were asked, and answered in the negative, the decision maker was not in a position to lawfully exercise the section 96 power of certification with the effect of denying the petitioner a fact-finding hearing before an immigration judge [R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) at §§ 91, 98, 102―106, 152, 153].

[12] For completeness Mr Forrest tells me that there is no insistence on the article 8 ECHR (respect for private and family life) claim which is part of the application. I granted Mr Forrest's motion made at the bar, unopposed, to amend the petition by deleting paragraph 8 of the petition which deals with the article 8 ECHR claim. The asylum claim was treated by UKBA as an asylum claim stricto sensu and also as a claim for humanitarian protection on the ground that the petitioner "would face a real risk of suffering serious harm in the country of return" etcetera. I understood Mr Forrest to say that he was not insisting on the humanitarian protection claim but I am not sure that his submissions were restricted in that way. The petition (following amendment) seems to be confined to the asylum issue in the strict sense. Looking at the UKBA decision, the recognisably asylum element is to be found in the petitioner's assertions that he would face mistreatment due to his minority Herero ethnicity and due to his claimed political stance in refusing to obey an order. Mr Komorowski treats the application and the petition as "a real risk of serious harm" case, however labelled.

[13] Mr Komorowski, counsel for the respondent, defines the issue for determination by this court in the following terms: was the decision to certify the petitioner's application unlawful given that the asylum point could have been raised six years earlier? He says that the prospects of a successful appeal are abysmal. As to the "no satisfactory reason" point, Mr Komorowski reminds me that the question of certification arises only when an adverse decision is made on the merits of the claim, as has happened emphatically in the petitioner's case. There is no explanation for the failure to make the claim earlier. This is clear from the findings at paragraphs 68 and 69 of the decision which have not been challenged. The conclusion at paragraph 117 that the petitioner has given no satisfactory explanation based on paragraphs 64 - 70 is perfectly sound. For the purpose of determining the "no satisfactory reason" point there is no need, at least in this case, to say anything about the substance of petitioner's asylum interview claim, recorded at paragraph 41 of the decision: there the petitioner explains that he employed deception to obtain his original visa in 2004 because "if the [Namibia Defence Force] hear about me I could face torture, detention, even face death". (At this juncture Mr Forrest indicated his assent.)

[14] As to the R (J) fourth-stage test point, Mr Komorowski submits that the background disclosed by the petitioner at the asylum interview does not evidence persecution, serious harm or a risk of serious harm. The petitioner's complaints are that when in military detention for a period of three weeks for, on his account, disobeying a lawful order ― and assuming that he was in detention for that reason despite the contraindications ― he was made to work in a garden, made to bring food to other inmates, not permitted to talk to his friends, not allowed to go outside and not allowed to use his mobile phone. The petitioner got himself "a good lawyer" and was released. Not long afterwards he was discharged from the military. His complaint thereafter is that there is underpayment of his army pension. While the petitioner was still in the army, on his account, he was arrested by the civilian police and charged with assaulting a civilian. The petitioner was identified because his car was allegedly noticed driving from the scene of the assault. He was remanded in a civilian prison and then apparently released pending his trial. A hearing was fixed for 9 August 2004. The petitioner did not attend court. Instead he went to the British High Commission at Windhoek to obtain a visa. He sold his car to pay for tickets. On 11 August 2004 the petitioner left Namibia to travel to the United Kingdom. His complaint about his period in civilian detention is that he was made to do work such as cleaning. The UKBA decision expressly applies the R (J) test stating in terms that "all relevant factors" have been considered.

[15] Mr Komorowski contests that there is tension between section 96 and rule 353. After an adjournment to find the decision in question Mr Komorowski handed up the opinion of Lord Jones in ANR (Pakistan) [2013] CSOH 107 along with the unpublished opinion of Lady Smith (31 July 2013) relating to the motion of ANR for interim suspension of removal directions when the case went to the Inner House. Lady Smith refused the motion and stated [at § 10]:

"The grounds of appeal and arguments presented in support of them were palpably without merit. At their heart lay a wholly unstateable proposition that certificates under section 96(1) or (2) of the 2002 Act cannot be issued where an applicant's claim has been accepted as a fresh claim. If that were correct, those statutory provisions would be rendered practically useless, despite their terms plainly demonstrating an intention that they are to apply to fresh claims."

Referring to the decision, Mr Komorowski argues that the petitioner's application was not presented as a fresh claim: but, if it were so presented or if in any event it should have been treated as a fresh claim application, that did not stand in the way of certification in terms of section 96.

[16] In a brief response Mr Forrest submits that the pursuer's application has every indication of being a fresh claim application. Therefore the "realistic prospect of success" test should have been applied. Finding that there is a realistic prospect of success before an immigration judge ― if that were done ― is totally inconsistent with refusing a right of appeal to an immigration judge.

Discussion

[17] If UKBA rejects human rights and asylum claims on first presentation there is a right of appeal to an immigration judge sitting in the First Tier Tribunal (Immigration and Asylum Chamber) with potential onward appeals as far as the Supreme Court. For second and subsequent human rights and asylum submissions ["subsequent submissions"] rights of appeal are restricted. Rule 353 is effectively the leave-to-appeal provision governing subsequent submissions: a subsequent submission is appealable from the UKBA refusal only if it is assessed to be a "fresh claim". A "fresh claim" has to contain material (i) which has not previously been considered and (ii) which taken together with previously considered material has "a realistic prospect of success" if submitted to the determination of an immigration judge.

[18] Focusing on the second branch of the "fresh claim" test, the branch that includes "a realistic prospect of success", I agree with Mr Forrest to this extent: there is potential for tension between rule 353 and section 96 in extreme risk cases ― cases, that is, where there is a risk of persecution, unlawful killing, torture, inhuman and degrading treatment, etc on removal to the state of origin. These are the cases which demand anxious scrutiny. There has to be a degree of paradox in saying that an applicant has a "realistic prospect" of persuading an immigration judge that he or she is at extreme risk and then denying the applicant the right to put his or her case before the immigration judge. I do not have to express a concluded view on this controversy. I simply note that there is a problem for the petitioner in this submission. The problem is that the R (J) judgment, on which Mr Forrest relies, is authority for the proposition ― albeit obiter since the case was decided on other grounds ― that rule 353 and section 96(2) are not necessarily at odds; and that it is not per se Wednesbury unreasonable to certify rule 353 fresh claims under section 96(2). When Mr Forrest advanced the contrary proposition to Lady Smith during the procedural hearing in the case of ANR, her ladyship described his submission as "untenable" although again, I think, the dictum is obiter or arguably so [R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) at §§ 102―104, 153―161, 162―166, 177, 181, 189―191, 210, 216―221, 234―235, 248, 249, 256, 279, 283, 284, 288, 293, 298; ANR (Pakistan) v Secretary of State for the Home Department Inner House, Lady Smith, 31 July 2013, (unpublished) at § 10].

[19] Having now skimmed the whole of Stadlen J's 316-paragraph judgment in R (J) I think it would be fair to say that reading the fourth-stage test into section 96(2) was, in his lordship's view, a precondition for achieving consistency between rule 353 and section 96(2) and for ensuring the compatibility of section 96(2) with claimants' rights in terms of the European Convention and the Refugee Convention. I respectfully agree with Stadlen J that there is scope for implying the fourth-stage test: but, standing back from the particular arguments that Stadlen J had to address and the way in which they were expressed, a different formulation might possibly suit. Is it entirely meaningful to talk about exercising a discretion "in favour of" denying a right ― in this case the section 82(1) right of appeal? Indeed, does the phrase "exercising a discretion" properly capture what happens when the decision maker wields the power to exclude the right of appeal? The power becomes exercisable when conditions 96(2) (a), (b) and (c) are satisfied; and it is properly exercised when, to put the matter simply, nothing in the case precludes certification.

[20] Is it correct, as Mr Forrest contends, that "the pursuer's application has every indication of being a fresh claim application" in terms of rule 353? Well, as Mr Komorowski points out, there is absolutely no indication that the application was presented as such. It is clear that the decision maker did not treat the application as a "fresh claim" application; there is no criticism of this aspect of the determination in the petition; there is no averment in the petition about a "fresh claim"; and a copy of the asylum application dated 28 January 2013 has not been produced. This state of affairs is consistent only with the petitioner's solicitors not having presented his asylum application as a "fresh claim" application in terms of rule 353; and I think correctly so for the reason that as a first-time asylum application the application is a truly new claim, not one which has to try and get itself recognised as a "fresh claim" within the meaning of rule 253.

[21] Mr Forrest's premise seems to be that rule 353 is engaged whenever there is a subsequent human rights or asylum submission of any kind whatsoever, even if completely unrelated to the previous unsuccessful claim. I disagree. The rule 353 injunction to assess the "new submissions... together with the previously considered material" implies subject matter that can be aggregated: it does not apply to a new claim different in kind. In R (J) the claimant made an unsuccessful asylum application in 2001 and in 2004 made another asylum application based on additional facts which, it was conceded, together with the previous material, amounted to a "fresh claim" in terms of rule 353 [R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) at §§ 3, 4, 29, 30, 63 (ground two)]. Notwithstanding that the petitioner in the present case has made previous unsuccessful human rights applications, his first-time asylum application is an entirely new application which does not need to engage rule 353 and to which - in the absence of section 96 certification - an unrestricted right of appeal attaches whether or not it has any "realistic prospect of success". To read rule 353 as Mr Forrest does is to be unduly restrictive of rights of appeal.

[22] I therefore reject Mr Forrest's submission that the decision maker should have treated the petitioner's asylum application as a rule 353 "fresh claim" application. If I am wrong about that, the question has to be confronted whether treating the asylum application as a rule 353 "fresh claim" application would make any difference. This is one of those rare cases in which I think the Court is entitled to answer that question rather than remitting it to the UKBA decision maker. I have to say that on no reasonable view could the petitioner's asylum application, taken together with the previously considered material (so far as the previous material is disclosed by Mr Forrest's presentation), be described as having "a reasonable prospect of success". The scrupulous analysis by the UKBA decision maker reveals that a factual basis for the petitioner's claimed fear of persecution is non-existent. The findings are not criticised by Mr Forrest.

[23] Returning then to the first of the two supposed process or reasoning errors identified by Mr Forrest at the outset of his submissions, I agree that an adverse assessment of the credibility of the asylum claim cannot amount to the statutory absence of a satisfactory reason such as would justify excluding the right of appeal. That is not however what has happened here. I accept the reading of the UKBA determination proposed by Mr Komorowski: against the background of paragraphs 58-63 paragraphs 64-70 are a cogent exposition of the facts and inferences supporting the conclusion at paragraph 70 that the petitioner has not "reasonably explained" his failure to raise at an earlier point the issues on which his asylum application relies. This is more than enough support for the section 96(2)(c) determination at paragraph 117 to the effect that the petitioner has not given satisfactory reasons for the matters raised in his current claim not having been raised in response to the "One Stop Warning" notice served on 29 August 2006. The last sentence of paragraph 70 is superfluous to the section 96(2)(c) determination and is directed to the different question of the merits of the asylum application: "The credibility of your claim is therefore considered to have sustained the most grave damage." This finding is relevant, as I understand Mr Forrest to accept, to the implied fourth-stage test.

[24] I reject Mr Forrest's submission that the decision maker has made a second error by failing to apply the fourth-stage test. As Mr Komorowski emphasises the decision maker states in terms and under reference to the case of R (J) that the power to certify has been exercised "having regard to all relevant factors". On a fair reading of the determination as a whole it is quite unreasonable not to take this statement at its face value. Relevant factors include the detailed findings and inferences at paragraphs 33 to 47 which support the conclusion that the petitioner has not previously been persecuted or tortured and that there is no logical reason to believe that he would face a real risk of such treatment if returned. It would have been unnecessarily repetitious to rehearse the clear findings made earlier as to the merits of the application and as to the petitioner's credibility. There is no error. Indeed this is a case in which the court is entitled, I think, to express its own view that there is absolutely nothing in the petitioner's application to preclude the use of the section 96(2) certification power. It would have been unreasonable, not to say dysfunctional, for the UKBA decision maker not to have exercised the power of certification which has been conferred by the legislature to put a stop to abuses of the kind that this petitioner's application exemplifies.

Decision

[25] I made my decision on 28 February 2014 as a matter of impression. I have since read the determination a number of times; exercising anxious scrutiny, I am confirmed in the impression I formed at the time; and I now offer the foregoing worked-out reasoning in support of the decision previously made to refuse the petition. I refused the petition by sustaining the respondent's plea and repelling the petitioner's plea. There was uncertainty about the petitioner's legal aid certificate and I therefore reserved the question of expenses.