Scottish Court of Session Decisions

Pursuer:  Caskie;  Drummond Miller LLP

Defender:  McKendrick;  Office of the Advocate General

19 August 2014

[1]        In this petition for judicial review the petitioner seeks reduction of part of a letter written on 1 July 2013 by the respondent’s officials.  The facts can be briefly summarised.  The petitioner is a stateless Palestinian from the Gaza Strip.  He sought asylum based upon the risk to himself of being returned to that country.  He left Gaza in October 2007, went to Libya then Greece and in February 2011 claimed asylum here.  On 21 March his claim was refused.  He appealed and on 9 May there was a hearing before Immigration Judge Grant-Hutchison.  His claim was refused on 25 May on both asylum and human rights grounds (no 7/2 of process).  Adverse credibility findings were made.  On 14 June his application to appeal was dismissed by the First Tier Tribunal and on 15 August the upper tribunal dismissed a further appeal.  On 11 May 2012 he made further submissions which the Minister refused on 31 May and on 12 June 2013 again made further submissions which on 1 July were refused (no 6/1 of process) by the Minister who also refused to accept them as a “fresh claim”.  Paragraph 27 of no 6/1 of process is in these terms viz:

“…27.  Whilst it is acknowledged that there have been incidences of violence within the Gaza Strip, it is not considered that another Immigration Judge, applying the rule of anxious scrutiny and the relevant case law as outlined above, would consider that the level of violence in the Gaza Strip is of such of a high level or indiscriminate nature as to place… (the petitioner) …at real risk on return solely by virtue of his presence in his home area…”

[2]        Mention should be made of the findings of the immigration judge.  It is only necessary for present purposes to notice two things.  Firstly, as already noted, he made adverse credibility findings; and secondly he relied on two cases which are country guidance cases and are tribunal decisions.  The cases are MA and HS which I mention elsewhere, the latter case dating from 2011.  Let me look in more detail at what the respondent made of 7/2 in no 6/1.  The immigration history is correctly recorded as are the fresh representations.  Between paragraphs 10 to 13 the correct tests are set out under reference to WM (DRC), as are the earlier findings of the immigration judge.  No issue was or could be made about any of these matters.

[3]        Under reference to article 3 the respondent there refers to the case of MA reported in 2008 and a succeeding authority to do with Gaza and the West Bank, both of which cases were before the Immigration Judge.

[4]        In the course of the debate a number of authorities were before the court in the judge’s bundles.  The following were specifically cited and discussed:

FH v Secretary of State [2014] CSOH 18

R v Secretary of State 2011 SLT 970

ANA [2011] CSOH 120

H F (Iraq) 2013 EWCA Civ 1276

R (Iran) [2005] EWCA Civ 982

HS [2011] UKUT 124

WM (DRC) [2006] EWCA Civ 1495

FO Petr [2010] CSIH 16

D Petr [2011] SCIH 20

AAN [2012] CSOH 151

The case of MA [2007] UKAIT 00017 was not specifically cited from the bundle but I have taken account of it. 

[5]        The Council Directive of 29 April 2004 (2004/83/EC) provides inter alia:-

“Article 15

Serious Harm

Serious harm consists of:

1. death penalty or execution; or
2. torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
3. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict…”

Rule 353 provides:-

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn…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:

1. had not already been considered; and
2. taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

[6]        The argument for the petitioner was to this effect.  Reduction was sought only of paragraph 27 of the decision letter of 1 July 2013 (no 6/1 of process).  The effect would be to send the case back to the Minister who, on reconsideration would conclude that there was more than a fanciful prospect of success.  In rejecting the application the respondent said it was not a fresh claim.  The rejection had to be accepted but not her view that an immigration judge could not disagree with her.  There was now new material that had not previously been considered, and the issue was whether she was entitled to conclude there was no realistic prospect of success.

[7]        In the respondent’s own guidance (4.2) the threshold was a low one.  Possibility was enough and the way the refusal was stated it did not amount to an immigration decision under section 82(1), thus leaving no avenue of appeal to any immigration judge.  Either he now left voluntarily or lived on in limbo.  As he was a Palestinian the Israelis would not let him return.  His only remedy was one of judicial review (FH).  It was the situation in Gaza that gave rise to the fear since he was Palestinian and from Gaza.  That material was not addressed and so by leaving things out of account the correct question was not addressed. (R v Secretary of State).

[8]        To have prospects of success the petitioner had a number of things to rely on.  There was the Common Asylum Scheme, and the Council Directive of 2004.  Counsel referred me to the definition of refugee.  He then looked at article 15(a) and (b) of the Directive noticing that these mirrored the ECHR legislation, articles 2 and 3.  However article 15(c) was new and the real problem was of: “...indiscriminate violence…”.  It was clear from 6/1 that the respondent had looked at article 15(c) (see paragraph 27), but in seeking to apply it she got it wrong.  (ANA a case about a doctor).  Not everyone was subject to the same risk as were doctors and judges.  There were no special features about this petitioner and no “sliding scale” argument was open as in HF (Iraq).  R (Iran) was an important case and gave much guidance especially at paragraphs 26/27.  Decision makers should only depart from findings in a country guidance case if new material made it appropriate and for good reasons.

[9]        The case of HS was now old and may have been correct in 2010 but it and other older cases relied on have been overtaken by events.  He referred me to the OGN 3.9.5.  The matter should not be looked at as if it were 2007.  The respondent has not applied the correct test nor looked at up-to-date evidence.  There had, therefore, been no anxious scrutiny.

[10]      In his reply counsel for the petitioner said that the facts were looked at in 2011 (No 7/2 of Process).  It was necessary under 4.1 to look at all the facts as that was where article 15(c) came from.  You could not just look at what was presented.  It had to include what the petitioner said but was not limited to that.  Content had to be given to the word “substantial” in the regulations (HF (Iraq)).  The respondent did refer to “indiscriminate violence” and so must have thought of 15(c) which was in any event mentioned in 6/3.  The contents of the OGN were entirely reasonable but the respondent used a different test to the correct one which was a “reasonable degree of likelihood”.

[11]      Mr McKendrick for the respondent took me to the (undisputed) salient dates from his leaving Palestine in October 2007, arriving in the UK in February 2011 and the subsequent asylum claims.  This showed that it was now the fourth time his case had been before a judge, having been three times before civil servants.  The claim had been consistently refused.  Counsel took me to WM (DRC) a decision by a strong court showing the correct application of rule 353.  He looked at paragraphs 6, 7 and 11.  The correct test was whether the refusal letter of 1 July 2013 (no 6/1) was unreasonable or irrational and that was a high test (he referred to FO Petr paragraph 22/3 and to D Petr which followed WM).

[12]      Looking to article 15(c) in the Directive and rule 339(c)(iii) there had to be substantial grounds and the test of serious harm was a high one.  Counsel looked at HF (Iraq) and the opinion of Elias LJ paragraphs 5-10.  No special circumstances attached to this petitioner, and he ought to focus on the point he relied on (AAN paragraph 24).  He then looked at the Operational Guidance Notes (OGN), pages 22 and at 3.9.20 to 24.  In March 2013 the Minister’s view was not a breach of 15(c) unless on the “sliding scale” and merely to show a state of difficulty was not enough.  Nowhere in no 6/2 does it say why the conclusions are wrong or go on to rely on further information to show that it was wrong.  No “sliding scale” argument had been advanced and the petitioner did not challenge the rationality of these conclusions.  [At this point counsel for the petitioner conceded that they were not irrational.]

[13]      Next he looked at the decision of the Immigration Judge Grant-Hutchison (no 7/2) paragraphs. 2, 10, 11b, 12, 13.  He had applied the correct standard which was lower than “a balance of probabilities”.  No 6/2 was an article 3 referral and did not rely on Israel’s groups or statelessness.  No point was made about 15(c) or rule 339, the Amnesty International Report related to 2012.

[14]      It was clear from 6/1 that the respondent did ask the correct question when looking at the only decision which had been made (7/2).  Adverse credibility findings had been made.  She had regard to article 3 and the court would have to say that her own guidance at 3.9.20 of the OGN was wrong.  The court could not and should not do that.  How could it be unreasonable not to accede to an article15(c) case when none was made?  Further, it could not be said she had acted unreasonably in any Wednesbury way.

[15]      Let me now give a brief summary of the cases.  The case of FO heard by the Second Division was referred to merely to confirm that the tests laid out by the Court of Appeal in WM (DRC) should be followed in Scotland.

[16]      R v Secretary of State was again a “fresh claim” case.  One of the issues before Lord Hodge was whether new facts had been put to the Minister requiring reconsideration of earlier material and the issue of relocation.  The issue of the petitioner’s children and family was not specifically raised in the new material.  Nonetheless the Lord Ordinary was of the opinion that it should have been considered and was not.  He was also of the opinion that the supervening aggravation of his mental condition had not been properly considered in the assessment of the relevant factors.  The Lord Ordinary held that because of the failure properly to consider these matters of fact (even though one was not specifically raised) that amounted to an error in law and on Wednesbury grounds returned the case for reconsideration.

[17]      FH is an Outer House decision of Lord Bannatyne concerning a young person from Afghanistan whose appeal rights were exhausted.  The claim concerned tribal rivalry and the murder of his father.  Several further submissions were made and rejected in themselves and as a “fresh claim”.  The proper tests were set out at paragraphs 12 and 13.  It is clear that the case turned on its own facts and in particular on matters which were inconsistent and presented very late.

[18]      In AAN the petitioner was a student from Malawi claiming asylum and whose appeal rights were exhausted.  The issue for the Lord Ordinary concerned whether further submissions amounted to a fresh claim.  The new material was all factual and concerned medical matters, his children and the adverse impact on family life if they were returned to Africa.  The decision to refuse the petition was influenced by the careful scrutiny which the Minister gave to all the points put to her.  Adverse comment was made of the petitioner who had not put certain detailed matters of fact to the respondent which were now relied on.  (See paragraph 24).

[19]      In the petition ANA the Minister had held that certain further representations did not amount to a “fresh claim”.  The original immigration judge had not found the petitioner to be credible.  He was a medical doctor and argued that he was therefore at greater risk of violence than other civilians in Iraq.  In questioning the decision and remitting the case Lady Stacey found that the Minister had not explained why a new immigration judge might not take a different view.  She had not considered a recent authority and the special vulnerability of medical doctors.

[20]      R (Iran) was referred to only for the purpose of showing how country guidance cases arise and how they have to be used.  To prevent continually answering the same questions, there has to be a good reason for departing from them (paragraphs 26 and 27).  There can be significant new evidence and material changes in circumstances.  That is what is being said in the case before me.

[21]      MA was referred to and is important for two reasons.  It is a decision of the AIT after what must have been a lengthy and detailed hearing involving evidence and a large number of documents.  It is of course fact specific but at the time, 2007, it became the country guidance for Palestinian Arabs in the occupied territories.  In the present case the Immigration Judge properly took account of it.  The same comment applies to HS which is a  more recent [2011] decision of the Upper Tribunal concerning Gaza.  It became up-to-date guidance for general issues arising in this area.  Again Immigration Judge Grant-Hutchison was obliged to have regard to it.  It should be noted that the most up-to-date information in HS was dated early in 2010.

[22]      WM (DRC) and AR (Afghanistan) is a decision, in two separate cases, of a strong Court of Appeal.  I look first at the facts.  WM was a lab technician and feared persecution on political grounds.  He had refused to murder people by poisoning them.  AR feared death at the hands of the Taliban on political grounds.  Each had had adverse credibility findings before adjudicators and each submitted new material arguing it amounted to a “fresh claim”.  The importance of the case lies in what the court laid down in paragraphs 8 to 12, and in particular 11.  As will be noted below both applicants succeeded and what was presented was new fact.

[23]      In granting review in WM the court attached importance to the fact that the new information from the Congo did not emanate from WM and was not influenced by him.  It was therefore impossible to say that a new adjudicator could not properly come to the conclusion that the claim was well founded.  New facts had not been properly considered. 

[24]      In AR the new material was a newspaper article about specific problems in Afghanistan and an expert report which said the publication could be genuine.  The court took the view that the necessary level of scrutiny was not applied to this evidence.

[25]      The four cases under HF (Iraq) are most recent [2013].  They challenged recent country guidance decisions on Iraq, and put in issue the Qualification Directive (article 15(c)).  The tribunal had conducted a lengthy inquiry into all four cases and the Court of Appeal held that the tribunal was not bound to follow a more up-to-date UNHCR report dealing with, inter alia, article 15(c) the importance of which was clearly stated and identified.

[26]      Let me now look to the decision letter 6/1.  The only matter arising up to paragraph 25 is that the respondent, by accepting the correctness of the decision of the Immigration Judge, has by necessary implication relied on the country guidance cases of MA and HS, none of which are recent.  In paragraph 26 it says that she considered “all of the avoidable evidence”.  From a close reading of 6/1 it is not clear to me that the respondent has taken account of her own up-to-date OGN and in particular paragraph 3.9.5 onwards.  She was specifically asked to look at that in the letter of 7 June 2013 (no 6/2 of process) which predates her decision letter (6/1) of 1 July 2013.  The OGN is dated March 2013.  In my opinion she has left out of account an important matter of fact. 

[27]      The respondent does not say that article 15(c) of the Directive was considered and I am critical of this.  It may be that the matter was considered but the problem is that it could not be clear to the petitioner that it was and, if it was, why it was rejected on the up-to-date information.  I might have taken a more liberal view of what is said to the new factual evidence but what I think does not matter.  The decision about that is properly left to others with skill and experience in this area of law.  I have, following the words of Lord Hodge in R, some sympathy with the Minister since the precise issue of article 15(c) was not specifically put to her.  It is only specifically raised on page 4 of the pre-action protocol letter of 22 November 2013 (No 6/3).  It is however a matter of law of which she must be aware.  Her use in paragraph 27 of the word “indiscriminate” causes me to think that she did have it in mind.  It is my opinion that the respondent ought to have addressed article 15 and given reasons why it did not apply if that was her view.  Not to have done so in my view has left out of account a highly relevant matter.  It is my opinion that by relying on old cases, not focussing on her own OGN and not referring specifically to the Directive there has been no anxious scrutiny.  For that reason the decision is unreasonable in the Wednesbury sense, and must be returned for reconsideration. 

[28]      I will accordingly sustain the plea in law, and grant reduction of paragraph 27 as sought.  I will repel the three pleas for the respondent.  I will reserve all questions of expenses meantime.