Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 7
P605/11	OPINION OF LORD JONES in Petition of RAA (IRAN) (AP) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 20 March 2012 ________________

Petitioner: Forrest, advocate; Drummond Miller LLP

Respondent: MacIver, advocate; Office of the Advocate General for Scotland

24 January 2014

Introduction

[1] The petitioner avers that he was born on 25 March 1984, and is a national of Iran. It is also averred that he fled from Iran in 2009 and entered the United Kingdom in October of that year. He claimed asylum on the basis that he feared persecution should he return to Iran, because of his "anti-regime political stance", but the Secretary of State for the Home Department ("SSHD") rejected his claim. The SSHD's decision was appealed, and the appeal failed. The petitioner unsuccessfully sought permission to appeal the latter decision, and his rights of appeal were exhausted as at 29 March 2010.

[2] The petitioner further avers that, in 2011, he received a summons which required him to appear before the Islamic Revolutionary Court in Iran on 29 January 2011. He contacted his solicitors and, after legal aid cover had been granted, they wrote to the SSHD on 16 February 2012, enclosing the summons and a translation thereof, and submitted that this was information which amounted to a fresh claim for asylum and humanitarian protection. An official acting on behalf of the SSHD ("the decision maker") replied by letter, dated 20 March 2012 ("the decision letter"), rejecting the submission. The petitioner seeks to bring that decision under review in these proceedings. At the heart of that decision is the decision maker's finding that, in effect, the court summons is not a document that could be relied on as genuine.

Rule 353

[3] Acting under the provisions of section 3(2) of the Immigration Act 1971, the SSHD has laid down rules to be followed in the administration of the Immigration Acts, for regulating entry into and the stay of persons in the United Kingdom. Under the heading "Fresh Claims", paragraph 353 of the Immigration Rules (HC 395) provides, so far as is relevant, as follows:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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."

The issues

[4] The issues raised by the petitioner for determination are set out in statement 7 of the petition and they are as follow:

1. Whether the decision maker acted irrationally because he did not properly consider whether there are realistic prospects of success before another judge;

2. Whether the decision maker erred in law by basing his decision, that there is no realistic prospect of success before another judge, on the adverse credibility findings of the immigration judge, when the decision of the immigration judge was "not only distinctly different but of limited assistance in assessing an entirely different question, viz, whether there is a realistic prospect of success before another judge on the basis of entirely new information";

3. Whether the decision maker erred in law and/or acted irrationally by (a) relying on certain objective evidence [about which I shall say more later] and (b) failing "to conduct a rigorous examination of" the "information about documents from Iran";

A fourth issue concerning anxious scrutiny was departed from by Mr Forrest during oral submissions.

Submissions

[5] The case came before me for a hearing on 15 November 2013. In order properly to understand parties' submissions, it is necessary to place them in the context of the decision letter.

[6] Under the heading "Consideration of New Material" the decision letter reads as follows:

"8. It is accepted that these documents have not been previously considered. The question is whether, when these issues are taken together with the previously considered material, they create a realistic prospect of success. The question is not whether the Secretary of State herself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an Immigration Judge applying the rule of anxious scrutiny, thinking that your client will be exposed to a real risk of persecution on return or a breach of the European Convention on Human Rights. The Secretary of State can and should treat her own view of the merits as a starting point for the enquiry. It is also clear that the Secretary of State when addressing that question, both in respect of the evaluation of the facts and in respect of the evaluation of the facts (sic) and in requirement of the legal conclusions to be drawn from those facts (sic), must also satisfy the requirement of anxious scrutiny.

9. In considering whether this new evidence creates a realistic prospect of success the Secretary of State has taken into account the prior evidence in this case as contained within the Reasons for Refusal Letter of 02/12/2009, the dismissed appeal determination of 26/01/2010, the refused application to appeal to the First-tier Tribunal of 18/02/2010 and the refused application to appeal to the Upper-tier Tribunal dated 19/03/2010 which she considers that another Immigration Judge applying the rule of anxious scrutiny would take into account.

...

11. Your clients Further Representations have also been considered in line with WM (DRC) and AR (Afghanistan) v Secretary of State for the Home Department {2006} EWCA Civ 1495 which states at paragraph 6:

'To set aside one point that was said to be a matter of some concern, the Secretary of State in assessing the reliability of new material can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind where that is relatively probative, any finding as to the honesty or reliability of the appellant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.'"

The decision maker then considered "Issues of Credibility" in some detail, noting that the immigration judge had "made a number of detrimental credibility findings against (the petitioner)", concluding with this:

"This case stands and falls on credibility. I do not accept the Appellant's account as narrated by him. I do not believe the Appellant would be at risk if he were to be returned to Iran. The contradictions and inconsistencies reflected in the Appellant's oral and written evidence as well as the lack of plausibility of his assertions are such to go to the core of his claim so as to deny it." (Decision letter, paragraph 18)

[7] The decision maker next dealt with the court summons, in the following passages:

"22. In your client's fresh representations you have submitted what is claimed to be an original Court Summons, together with a translated copy which you claim indicates that your client was summoned to appear before the First Branch, Paveh Court on 29^th January 2011. You claim that the summons helps show that your client has attracted the adverse attention of the Iranian authorities.

23. The Court Summons would be viewed applying the principles of Tanveer Ahmed [2002] UK 0039 Starred where it is for the individual to show that the document on which he seeks to rely, can indeed be relied upon and should be considered in the round.

24. Another Immigration Judge would note that there is no provenance as to how this document was acquired and as to how it came into your clients possession. It is unclear as to who this summons was given to (sic) and how it was passed to this person or served. The Court Summons is dated 22/01/2011 which it is noted was after your client became appeal rights exhausted. It is further noted that your client claimed Asylum in the United Kingdom on 26/10/2009 and it is therefore unclear as to why a court summons had been issued some 15 months after your client had left the country. Nor is there any indication that any summons or warrants had been issued before this time directly following the alleged incidents in question or after January 2011 when it was issued. Furthermore given that the Court Summons was issued on 22/01/2011 it is unclear as to why it has taken nearly 14 months for this document to have been submitted to the UKBA. Additionally there appears to be no reason given on the court summons (sic) itself as to why it has been issued or what your client is being summoned for. Moreover the summons states "if the person who is summoned does not attend the court at the given date an arrest warrant will be sent." This summons was issued on 22/1/2011 with a reporting date of 29/01/2011 yet there is no indication that an arrest warrant has been served or that the authorities have had any interest in you.

25. Applying the legal principles enunciated in the case of Tanveer Ahmed whereby it is for the individual to show that the document on which he seeks to rely, can indeed be relied upon and should be.

26. The Country of Origin Information Report on Iran dated 28/06/11 quotes a CIRB report from May 2009 which states:

'AI [Amnesty International] has no information on the relative difficulty in obtaining forged or false documents in Iran ... It is impossible to determine whether forged court documents found outside Iran are produced within or outside the country' [para 30.03]

27. Moreover, according to the Danish Immigration Service Fact-Finding Mission Report on Iran dated April 2009 entitled "Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting" it is stated:

'The Attorney at Law stated that summonses can easily be obtained illegally and that it is also easy to forge summonses by erasing information in the summons and adding new details' [para 9.1, Pg. 43]

28. Therefore taking into account the objective information on documents; the uncertain provenance of the documents, the negative credibility findings made by the Immigration Judge and alongside the principles laid out in the authority Tanveer Ahmed all taken into account this does not create a realistic prospect of success applying anxious scrutiny under another Immigration Judge."

[8] Mr Forrest submitted that, rather than addressing the question whether the court summons, taken together with the previously considered material, created a realistic prospect of success, the decision maker simply assumed that another immigration judge would agree with him. In doing so, he focussed his attention unduly on two matters: first, on the adverse credibility findings made by the immigration judge; and second, on the general information about documents emanating from Iran, which is recorded in paragraph 27 of the decision letter. That information, Mr Forrest contended, is inconsistent, and ought not to have been relied on by the decision maker. Further, he argued, the adverse findings made by the immigration judge about the petitioner's credibility were not relevant to the determination of the question whether the court summons could be relied on. Under reference to an unofficial translation of the unreported ECtHR decision in Singh and others v Belgium (Application No. 33210/11), at paragraphs 101 to 104, Mr Forrest submitted that, if the decision maker considered the provenance of the court summons to be uncertain, as he said that he did, it was incumbent on him to "conduct a rigorous examination" to determine whether or not it was genuine. When questioned about what that might mean in practice, I understood Mr Forrest to say that it might have been sufficient if enquiries had been made to ascertain whether the court summons was the sort of document that the Paveh court might have issued.

Discussion

[9] The "task of the court", in a rule 353 case such as this, was considered by the Court of Appeal of England and Wales in WM (DRC) v Secretary of State for the Home Department (2007) Imm AR 307. Buxton LJ, with whom Parker and Moore-Blick LJJ agreed, said that the reviewing court must address the following matters:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting−point for that enquiry; but it is only a starting−point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision. " (I refer to this later as "the WM approach".)

[10] In my opinion, the logic of treating the decision maker's own view of the merits as the starting point for the enquiry as to whether there is a realistic prospect of success before another immigration judge lies in the fact that rule 353 requires him to consider further submissions when they are presented and decide, first, whether or not to grant asylum or human rights protection in light of such further submissions. Clearly, if the application is granted, rule 353 has no further part to play. If the further submissions are rejected, the decision maker must then address the realistic prospect of success issue. The practical question for the decision maker to ask himself is whether an immigration judge might reasonably come to a different view on the merits.

[11] In this case, at paragraph 8 of the decision letter, the decision maker makes it clear that he has adopted the WM approach in his consideration of the new material, and says:

"(t)he question is not whether the Secretary of State herself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an Immigration Judge applying the rule of anxious scrutiny, thinking that your client will be exposed to a real risk of persecution on return or a breach of the European Convention on Human Rights."

I can find nothing in the decision letter to suggest that, having said that, the decision maker simply formed his own view and assumed that another immigration judge would agree with him. On the contrary, in paragraph 12, on the issue of credibility, the decision maker says this: "Your client's submissions would be viewed by another Immigration Judge in the context of the previous findings and in the context of your client's general credibility." As I have noted in paragraph [5] of this opinion, in paragraph 23 of the decision letter the decision maker refers to how another immigration judge would view the court summons and, at paragraph 24, discusses the provenance of the court summons from the perspective of another immigration judge. I therefore reject Mr Forrest's submissions on the first issue.

[12] I also reject his submissions on the second (credibility) and third (country information) issues, which overlap. In applying his mind to the question whether there was a realistic prospect that the petitioner's claim would succeed before another immigration judge, the critical question for the decision maker was whether or not there was more than a fanciful prospect that the court summons would be regarded as genuine. (R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855, per Laws LJ at paragraph 34) As is noted at paragraph 23 of the decision letter , the court summons would be viewed by another immigration judge applying the principles laid down in Tanveer Ahmed [2002] Imm AR 318 (starred), which, so far as is relevant in the circumstances of this case, are summarised at paragraph 37 of the decision letter as follows:

"1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.

2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round."

[13] The court summons was a photocopy. As is noted in the decision letter, at paragraph 24, the decision maker was given no information as to how it came into the petitioner's possession. In their letter of 16 February 2012 to the Further Submissions Department of the UK Border Agency, the petitioner's solicitors say only this on the matter of its provenance:

"We enclose herewith a Court Summons (together with a certified translation thereof) indicating that our client was summoned to appear before the First Branch, Paveh Court on 29^th January 2011. It is our client's position that this summons was issued as a result of his previous involvement with PJAK whilst he was resident in Iran ... We would indicate that the document bears the rudimentary scales of justice and appears to be prima facie a genuine Court document." (Number 6/5 of process)

[14] In my judgment, the decision maker was entitled, indeed bound to have regard to the petitioner's credibility in deciding whether an immigration judge could place reliance on the court summons. In the decision letter, he introduced the credibility issue by citing the following passage from WM:

"To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source."

[15] In this case, the court summons did emanate from the petitioner himself. The immigration judge, who had heard oral evidence from him, made a number of adverse findings against him on the issue of credibility, including the following:

"I do not believe the Appellant has ever attracted the adverse interest of the Iranian authorities. I do not accept the Appellant's account as an accurate finding in fact. ..."(Paragraph 57)

This case stands and falls on credibility. I do not accept the Appellant's account as narrated by him. I do not believe the Appellant would be at risk if were to be returned to Iran The contradictions and inconsistencies reflected in the Appellant's oral and written evidence as well as the lack of plausibility of his assertions are such to go to the core of his claim so as to deny it." (Paragraph 58)

[16] In my view, Mr Forrest's criticism of the decision maker's reliance on the immigration judge's findings on credibility is misconceived. The petitioner was, as I have said, the source of the court summons. In determining whether it might to be relied on by another immigration judge, it is relevant to know that the petitioner has been found to be incredible.

[17] In my opinion, the reference to the country information in the decision letter is entirely justified. Having determined that the court summons was produced to his solicitors by the petitioner, apparently without explanation as to its provenance, and that the petitioner had already been found to be a wholly incredible witness, it was relevant, in the exercise of anxious scrutiny, to consider whether there may be explanations for the existence of the document other than its having been issued by the court. The country information does no more than demonstrate that there may be such explanations.

[18] Finally, I reject the submission that, in the circumstances of this case, it was incumbent on the decision maker to cause enquiries to be made about the authenticity of the court summons. In my opinion, the decision in Singh has to be understood in the context of the facts of that case. The petitioners were a family of Afghan nationals, who had travelled to Belgium from Russia. The Belgian authorities proposed to deport them to Russia. They argued that that would entail a risk of repatriation to Afghanistan in breach of their article 3 rights. Their argument was rejected by the relevant authority, the CGRA, and they appealed, filing emails which had passed between their solicitor and a representative of the Belgian Committee for the Support of Refugees, ("CBAR"), an operational partner of the UNHCR. These included emails from an official of the UNHCR in New Delhi to which were attached certificates, stating that the petitioners had been recorded as refugees under the UNHCR mandate. (Ruling, paragraph 14) At the appeal hearing, it was deemed that the petitioners had failed to prove either their Afghan nationality or that they had been afforded the protection of the HCR. The appeal court was of the view that the HCR documents were easy to falsify and, because the petitioners had failed to provide originals, they were of no persuasive value. (Paragraph 15)

[19] At paragraph 101 of the ruling, the European Court of Human Rights noted that the documents provided were not insignificant, since they were emails sent by the intermediary of CBAR, a partner of the UNHCR in Belgium, and by a UNHCR official in New Delhi. These emails had attachments which, said the court, were certificates from the UNHCR showing that the petitioners had been recorded as refugees under the UNHCR mandate and which confirmed the dates of their travels, as given by the petitioners to the OE (the Belgian Bureau of Foreigners) services during interviews.

[20] In my view, it is important to have regard to the reasons given by the ECtHR for concluding that the national authorities had failed to conduct the "careful and rigorous investigation" to be expected of them. At paragraph 104 of its ruling, the ECtHR considered that the documents in question were "at the heart of the request for protection". It held that "it would have been easy" for the Belgian authorities to check their authenticity with the UNHCR. It was in these circumstances that the steps taken by the national authorities "cannot be viewed as a careful and rigorous investigation". There was, therefore, a breach of Article 13, the right to an effective remedy which, in turn, gave rise to a breach of article 3.

[21] The Singh decision is, in my opinion, quite consistent with what was said in Tanveer Ahmed. At paragraph 35, the tribunal said this:

"There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are cost and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case, a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office."

It can be seen, therefore, that there may be cases where, having regard to their particular facts, the Home Office should make enquiries. In my view, on its facts, Singh could be regarded as that type of case. In this case, by contrast, the court summons is not "at the heart of" the petitioner's request for asylum, nor can it be said that it would have been easy for the decision maker to have checked its authenticity with the Iranian authorities. On the facts of this case, there was no "particular reason" for the decision maker to make enquiries.

Decision

[22] For the foregoing reasons, I shall dismiss the petition, find the petitioner liable to the respondent in the expenses of process and modify such expenses to nil.