Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 171

P595/15

OPINION OF LORD CLARKE

In the petition of

ZACHERIE CYRIAQUE AYARD-NZAPADJIMAN

Petitioner;

for

JUDICIAL REVIEW OF A DECISION BY THE SECRETARY OF STATE FOR THE HOME DEPARTMENT DATED 25 MARCH 2015

Petitioner:  Forrest; Drummond Miller LLP

Respondent:  Pirie; Advocate General for Scotland

16 December 2015

[1]        In this petition for judicial review of decisions by the Secretary of State for the Home Department the petitioner’s pleas-in-law are to the following effect:

“1.       The respondent or those from whom she is responsible having erred in law in reaching the decision dated 29 May 2015 directing that the petitioner be removed from the UK on Tuesday 9 June 2015, the decision should be reduced as sought.

2.         The respondent or those for whom she is responsible having erred in law in reaching the decision dated 25 March 2015 certifying as clearly unfounded a subsequent claim for asylum and breach of human rights the decision should be reduced as sought.”

[2]        Before me it was conceded, however, on behalf of the petitioner that plea-in-law 1 was otiose since the secretary of state has not removed the petitioner from the United Kingdom in accordance with her decision of 19 May 2015 to that effect.

[3]        The background to this petition is as follows.  The petitioner on 12 September 2012 applied for asylum in the United Kingdom and asked to be recognised as a refugee under the 1951 Convention relating to the Status of Refugees, on the basis that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed or required to leave the United Kingdom since he had a well-founded fear of persecution in the Central African Republic (CAR) from where he had come to this country. 

[4]        The petitioner had been a coach for athletes in CAR attending the Paralympics in London 2012.  He arrived in the United Kingdom on 22 August 2012 with the Paralympics Team.  The petitioner resided in the Olympic Village in London and attended events.  On 10 September 2012 the petitioner left his team and thereafter slept rough until 19 September 2012 when he claimed asylum on the basis that he would be imprisoned, kidnapped or just disappear if he returned to CAR because of his alleged involvement in a demonstration there on 2 August 2012, just shortly before he left for London to act as coach to the Paralympic team from the CAR.  The respondent considered the petitioner’s application for asylum and in a letter dated 12 March 2013, 7/1 of process, determined that, in light of all the evidence made available to her, the petitioner had not established a well-founded fear of persecution and that he did not qualify for asylum.  She also concluded that he had not established that there were substantial grounds for believing he faced a real risk of suffering serious harm on return from United Kingdom and that he, accordingly, did not qualify for humanitarian protection.  In the same letter the respondent thereafter decided that the petitioner, accordingly, did not qualify for discretionary leave to remain in the United Kingdom and that removing him from the United Kingdom or requiring him to leave the United Kingdom would not be contrary to the United Kingdom’s obligations under the ECHR.

[5]        The petitioner appealed those decisions to the First Tier Tribunal (Immigration and Asylum Chamber).  The First Tier Tribunal judge, Judge Pickup, upheld the substantive decisions of the respondent in relation to the petitioner’s contentions regarding his claim for asylum.  The tribunal judge, however, at para 50 of his judgment, 7/2 of process, noted as follows:

“The decision of the respondent combined both a refusal to vary leave and a decision to remove the appellant pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006.  As Ahmadi (S 47 decision);  validity; Sapkota) [2012] UKUT 00147 (IAC) makes clear, such a removal decision is not in accordance with the law.  Adamally and Jaferi (section 47 removal decisions:  Tribunal Procedures) [2012] UKUT 00414 (IAC) makes clear that while the section 47 decision is unlawful, the decision refusing leave was a separate decision requiring determination.”

At the conclusion of his decision the Tribunal Judge at para 54 stated as follows:

“Decision

The appeal on asylum grounds is dismissed.

The appeal on humanitarian protection grounds is dismissed.

The appeal on human rights grounds is dismissed.

The appeal is only allowed in respect of the section 47 removal decision.  It remains for the respondent to make a removal decision which is in accordance with the law.”  (Emphasis added.)

[6]        As a consequence of that decision the petitioner’s claim was reconsidered by the respondent.  As I read the decisions in the cases of Ahmadi and Adamally, however, it appears that in a situation where an appeal is allowed simply on the basis of a failure of the respondent to issue separate decisions in relation to a section 47 determination to remove and a decision refusing to vary leave to remain, other determinations in the decision, as a whole, are not necessarily impugned.  In any event, in the present case, after the decision of the First Tribunal Judge was issued the respondent, in a decision letter dated 25 March 2015, 6/2 of process, which contains the decision which the petitioner now seeks to have reduced the respondent did review the petitioner’s claim de novo, albeit having regard to the findings of the tribunal judge in respect of the petitioner’s claim for asylum.  After the immigration judge’s judgment, was issued there had been submitted, on behalf of the petitioner a document headed “Further submissions relating to claim for asylum, humanitarian protection or discretionary leave” together with certain supporting material, 7/3-7/12 of process.

[7]        At paragraph 11 of 6/2 of process the respondent stated:

“Following your asylum application you were issued with a notice which informed you of the refusal to vary your leave and issued directions for your removal in accordance with section 47 of the Immigration, Asylum and Nationality Act 2006 on 12 March 2013.  As detailed in the determination of Immigration Judge Pickup (promulgated on 25 June 2013) and following the determination of the Upper Tribunal in Ahmadi (S 47 decision);  validity; Sapkota) [2012] UKUT 00147, whilst the decision to refuse to vary your leave was correct, it was not possible to issue removal directions at the same time, consequently the decision to remove you from the United Kingdom was considered to be unlawful.  As a consequence, it is necessary for the Home Office to issue you with a new immigration decision pursuant to the Immigration (Notices) Regulations 2003 made under section 105 under the Nationality, Immigration and Asylum Act 2002. “

The respondent then went on to refer to her previous refusal letter dated 12 March 2013, 7/1 of process, in which it had been considered that the petitioner would not be at risk on return to CAR as he claimed.  The respondent also, at para 13, referred to the decision of the immigration judge which had held that the petitioner was not a credible witness and that he would not be at risk on return to CAR for any reason.  The respondent then set out certain of the specific findings of the immigration judge including his finding that:

“there is little in the appellant’s account that I can accept as credible”  (at para 41 of the judgment) and “the appellant’s whole account makes no logical sense and is internally consistent (sic).  It is so flawed that I cannot (sic) any part of it credible or reliable, except as set out above.  Even if the appellant is genuinely in fear, which I do not accept for one moment, it is a fear that is not well-founded in fact or evidence.  I find there is no reason at all why the appellant cannot be returned to CAR.”

[8]        The respondent took the view that she was entitled to take those findings into account in reaching her fresh immigration decision following the reasoning in such cases a as Devaseelan [2002] UKIAT 00702 and TK (Consideration of prior determination – directions) Georgia [2004] UKIAT 00149.  It was not submitted by counsel for the petitioner, before me, that she was wrong to do so and indeed counsel for the petitioner expressly accepted that in reaching her decision, 6/2 of process, the respondent was entitled to take into account the strong findings of incredibility and unreliability arrived at by the tribunal judge.  Counsel recognised that these indeed, presented the petitioner with a formidable difficulty.

[9]        The respondent went on to consider, however, the additional material which had been submitted by the petitioner or on his behalf.  It should be noted that the only part of the material in question which counsel for the petitioner sought to rely on before this court, in support of the petition, was an article from a newspaper “Le Democrate” dated 03-07 – 2013 and an English translation thereof dated 27/08/2013, numbers 7/7, 7/8, 7/9, 7/10 of process.  At paragraphs 44 and 45 of 6/2 of process the respondent wrote as follows:

“44       After carefully considering all of the factors listed above, it is concluded that you do not qualify for leave to remain in the United Kingdom in accordance with para 353 of the Immigration Rules.

45        Therefore you do not qualify for Discretionary Leave.”

[10]      On  behalf of the respondent it was said that the reference to rule 353 was a typing mistake.  Rule 353 of the Immigration Rules is to the following effect:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of the 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.

This paragraph does not apply to claims made overseas.”

[11]      That reference to rule 353, if it was made in error, seems to have set running a hare which the petitioner has, in the present petition, pursued and sought to use to build his case.  It appears to me that the respondent had, nevertheless, in her letter identified the one issue which remained to be determined by her, standing the decision of the immigration judge, namely the question as to whether the petitioner should be allowed to have his right to remain extended.  The respondent did, however, go on to re-state her conclusions on the merits of the petitioner’s claim for asylum, his claim based on ECHR at paras 46-50 of 6/2, certifying them as being clearly unfounded in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002.

[12]      The petitioner’s case, before me, was that in reaching her decision in 6/2 of process the respondent had applied the wrong test.  What she was in effect, it was argued, engaged upon, as evidenced by her express reference to rule 353, was a consideration of whether or not there was a fresh claim and that she was accordingly obliged to consider whether or not, if the new material submitted was “rejected” by her as a fresh claim it could, together with the previously considered material, create a reasonable prospect of success, applying the language of rule 353(ii).  The petitioner had, it was submitted, a fall-back position which was that if that last submission was held to be unfounded and if the decision was simply subject to “Wednesbury” reasonableness, it was an unreasonable decision as it had failed to place sufficient weight on the new material now relied upon.

[13]      It is necessary for me now to make some reference to that new material, namely the newspaper article, and its translation, within the context of the other findings of the tribunal judge in his decision which have not otherwise been impugned.  The fundamental basis of the petitioner’s case, as it was, and as it now remains, is as follows:

[14]      In July 2012 the petitioner applied to join the government military in CAR.  He claims that the results of applications, including his own, to join were announced on the radio on 1 August 2012 and some 500 to 600 successful candidates, including himself, were told to report to a camp on 2 August 2012.  On arrival the petitioner and many others found that the printed list of successful applicants was different to that which had been announced on the radio.  The disappointed crowd of applicants began to protest.  This developed into a violent disturbance.  The military responded with tear gas and bullets.  The crowd destroyed a liberation freedom monument and the head of the then President of CAR, President Bozize, was removed from another monument.  The protesters were then surrounded and the petitioner claims he was detained, beaten and thrown into a vehicle.  He was held in a cell at a police station.  He was subsequently beaten with sticks and became unconscious.  He subsequently woke up in a hospital on 3 August 2012 but was unable to say how he came to be there.  His family members were in the hospital but there were no security forces there.  A couple of hours later his family helped him to escape through a side entrance to the hospital.  He was taken to stay with his brother, a retired nurse, for two weeks.  He, however returned home on 16 August 2012 and returned to train with the country’s Paralympic Team on 18 August 2012.  He then subsequently left CAR with the rest of the team and arrived in the United Kingdom on 22 August 2012.  On 28 August 2012 he was informed by his wife that men from the CAR security service visited their home asking for his whereabouts.  He was required to attend the following day for questioning but the security forces did not say why they were looking for the petitioner.  The petitioner advised his wife to move house.  He said that his wife and children had then fled.

[15]      Against all of the foregoing, the petitioner’s position, before the immigration judge, was that he feared that if he returned to CAR he would be imprisoned, kidnapped or disappear due to his involvement in the demonstration.  The immigration judge, as has been seen, having considered the material placed before him concluded, at paragraph 41 of his judgment that the petitioner’s account was incredible.  While the tribunal judge had been prepared to accept that there had been a demonstration of the sort described by the petitioner and that the petitioner might have been involved in that demonstration, he found, for reasons set out, that on the appellant’s evidence he had no well-founded reason to fear persecution or serious harm on return to CAR.  In particular he found that there was no evidence that the petitioner had been identified as one of the persons who destroyed the President’s statue.  But more particularly at para 45 the tribunal judge said:

“The biggest difficulty in the appellant’s case is that the authorities involved in suppressing the disorder of 2.8.12 are no longer in power.  It was put directly to the appellant that the president whose statue was destroyed was removed in a coup and is no longer in power.  In essence, the question was why the appellant had anything to fear from the former president, the deposed government or its supporters.  The appellant’s explanation is that some of the people have joined with the new government, some have joined with the militia and others are with the deposed leader waiting to return to power.  I did not find his explanation credible, logical or sensible.”

At paragraph 46 of the tribunal judge’s decision he stated:

“A further difficulty with the appellant’s case is that after fleeing the hospital and hiding at his brother’s home, he in fact returned to his role as Paralympics coach and openly left CAR in his own name as part of the Paralympics Team  I find it incredible that the appellant would do that if he was really in fear for his life, especially as at that stage President Bozize was still in power.  The appellant claims that the head of the Paralympics Team Federation managed to find him, which is remarkable in itself, as if the authorities were looking for him they also could have found him.”

[16]      In her decision letter 6/2 of process, the respondent had regard to the petitioner’s statement evidence in support of his application for asylum.  She also had regard to the tribunal judge’s findings.  She had regard to the additional evidence submitted by the petitioner on 6 September 2013.  As has been noted, it is now accepted on behalf of the petitioner, that the only part of the additional material that is now relevant to the petition is the newspaper article and its translation.  Nevertheless it was argued that the significance of that material was insufficiently recognised by the respondent in reaching a decision which is now subject to review.  The result of that, it was contended, was that had she properly treated the presentation of the new material as amounting to a fresh claim then she should have reached the conclusion, in an exercise of her discretion, that in the light of that material, taken together with the other evidence previously presented by the petitioner, there was a realistic prospect of another adjudicator, applying the rule of anxious scrutiny, concluding that the appellant would be exposed to a real risk of persecution on return - see WM (DRC) v The Secretary of State for the Home Department [2007] Imm AR 337 at para 11 per Buxton LJ.  If, however, contrary to the petitioner’s primary submission to that effect, and what the respondent was dealing with was, not a fresh claim, then she had placed insufficient weight upon the new material, in the context of the other material and that her decision, accordingly, fell to be reduced as being “Wednesbury” unreasonable or irrational.

[17]      The respondent’s treatment of the material in question is set out at paras 18-20 of 6/2 of process and is in the following terms:

“18.      The newspaper article in Le Democrate dated 3 July 2013 (or Tuesday 27 August according to the translation) and also to the website http/ledemocrate.Wifeo.com.  It was noted that according to the general information page of the newspaper the newspaper is a ‘daily’ one.  However, when the website is visited using the above link, it opens directly at the article about you which is dated 3 July 2013.  There are no other, more recent articles about any other subject.  Further down on the same page there are other articles from older dates, however none of the other articles from the printed version of the newspaper you have provided are present on the online version.

19.       It is also noted that you left CAR on 22 August 2012.  The article about you in La Democrate is dated 3 July 2013 which is almost a year after you left CAR.  It is not considered a coincidence that an article about you appeared in a newspaper a mere six days after you received your appeal determination (verified by Royal Mail Track and Trace). 

20.       Taking into account your previous credibility findings, it is considered that this newspaper article is self-serving and as a result no weight can be attached to it.”

Conclusions

[18]      I deal, first of all, with the question as to what is the correct categorisation of the legal exercise which has been carried out by the respondent in 6/2 of process.  I am satisfied that the petitioner’s primary position that the respondent was being faced with a “fresh claim” and that, accordingly, she should have been applying section 94(2) of the 2002 Act is ill-founded and misconceived.  What she was doing, in my opinion, was reaching a decision de novo.  In the light of the tribunal judge’s decision and direction, the tribunal judge had entertained an appeal against the immigration decision in terms of section 82 of the Immigration Act 2002.  That appeal had not, in the language of Immigration Rule 353, “been refused or withdrawn or treated as withdrawn”.  There was, furthermore, no appeal pending.  Therefore Immigration Rule 353 had no application.  It is regrettable that the respondent referred to Rule 353 as she did in her letter.  That was compounded by the fact that she referred to 353B of the rule, at paragraph 43 of her decision.  As previously noted, I was informed, on her behalf, that the reference to 353 was a mis-typing and should have been a reference to 353B.  The explanation went on to the effect that the respondent has a practice, apparently, of having regard to the exceptional circumstances provisions in Immigration Rule 353B to situations like the petitioner’s, even where, in law, these provisions do not apply to such a case.  Consideration of those provisions, however, was to the petitioner’s advantage.  I cannot forbear to comment, however, that reference to legal rules, however well-meaning in decision letters like 6/2, when they have no legal effect in relation to the issues in question, and without further explanation, can only cause confusion and produce opportunities for points being taken of the kind which has been taken in the present case.

[19]      I accept that, notwithstanding the references to Immigration Rule 353 what the respondent was doing, and what she was required to do was to consider the new material submitted by the petitioner in support of his outstanding claim in reaching her decision de novo in light of the tribunal judge’s decision.  Accordingly the approach as desiderated by the court in relation to fresh claims in the case of WM did not apply.  Even if I am wrong about this, I am entirely satisfied that if the new material, set in the context of the other material and the tribunal judge’s robust findings on the petitioner’s credibility and reliability, fell to be treated as a fresh claim, and the respondent had been required to address the question of realistic prospect of success, she would clearly have come to the conclusion that there was no such prospect.  That material, as more fully discussed below, was of a character insufficient to displace the tribunal judge’s credibility findings.

[20]      Dealing with the petition before me on the footing that the decision was, nevertheless, to be tested according to “Wednesbury” legality, I am satisfied that the respondent’s decision in 6/2 of process that the petitioner’s claims were clearly unfounded cannot be impugned for being unreasonable or irrational.  She sets out logical and compelling reasons for considering the new material as having added nothing to the claims in relation to which the tribunal judge had already found the petitioner to be, in all material respects, entirely incredible and unreliable.  The tribunal judge’s decision to that effect on the basis of the material before him was, in no way, challenged or impugned.  The material, in the shape of the newspaper article and its translation, in my judgment, was correctly considered by the respondent as failing to displace those conclusions.  The newspaper article did not address, the issue as to why the petitioner should be at risk of a regime which was no longer existed.  The alleged suppression by the earlier regime was over by February 2013 which preceded the date of the newspaper article.  It is, perhaps, significant that the translation of that article refers to it being “curious” that the new regime threw itself into a search for the petitioner.  There was no evidence before the respondent suggesting that the newspaper in question was a reliable record of fact.  Nothing is said about the authorship of the article.  There were inconsistencies between what was said in the article and what the petitioner himself had given as his own account.  His family was, in the article, said to be in fear in July 2013 of his being found dead when they knew that he had been in the United Kingdom since August 2012.

[21]      For all the foregoing reasons I reached the conclusion that the decision of the secretary of state has not, in any respect, been shown to be illegal.  It appeared to be common ground between counsel on both sides that the petitioner still has an “out of country” right of appeal against the removal decision under section 82 of the 2002 Immigration Act.

[22]      In all the circumstances I accede to the respondent’s motion to repel the petitioner’s pleas-in-law, to sustain the respondent’s pleas-in-law and to dismiss the petition.