Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 19

P762/14

OPINION OF SHERIFF P A ARTHURSON QC

(Sitting as a Temporary Judge)

In the cause

RUS

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner:  Winter;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

13 February 2015

Background
[1]        The petitioner is a national of Pakistan, born on 19 August 1990.  On 25 July 2012 he applied for a student visa.  On 7 August 2012 he was issued with a visa for the period 10 August 2012 to 6 January 2014.  He entered the United Kingdom on his own passport endorsed with the visa on 3 September 2012 and claimed asylum on the basis of his religion on 11 September 2012.  On 4 October 2012 the petitioner’s asylum claim was refused.  On 22 October 2012 the petitioner lodged an appeal against refusal.  An immigration judge refused the petitioner’s appeal in a decision dated 12 December 2012.  He was refused permission to appeal against the determination of the immigration judge on 9 January 2013.  Permission to appeal to the Upper Tribunal was refused on 5 February 2013.  By letter of 22 February 2013 further submissions were submitted on behalf of the petitioner.  These further submissions were refused in a decision of the respondent dated 22 July 2014, which the petitioner now seeks to reduce.  As developed in the course of the hearing before the court, the issue for determination was a familiar one, namely whether the respondent had erred in law in refusing to treat the petitioner’s further submissions as a fresh claim et separatim whether any further decision by a future immigration judge would be inevitable in all the circumstances, all in terms of Immigration Rule 353.  

[2]        The correctly applicable law, in the generality, can be set out briefly under reference to  ABC v Secretary of State for the Home Department [2013] CSOH 32 (22 February 2013), DFM v Secretary of State for the Home Department [2013] CSOH 182 (27 November 2013), Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraphs 7 and 9, WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 at paragraphs 9 and 11, O v Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22, and AK (Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855, per Laws LJ at paragraph 34.  The correct questions for the court to ask itself are accordingly:  (i) has the Secretary of State asked herself the correct question? – that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return;  and (ii) in addressing that question has the Secretary of state satisfied the requirement of anxious scrutiny?  In approaching “anxious scrutiny”, the following propositions apply, namely:  (i) the Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny;  (ii) anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence;  and (iii) anxious scrutiny does not mean that the Secretary of State must show undue credulity to the petitioner’s account.  With regard to the approach to whether further submissions amount to a fresh claim, and in particular to the “realistic prospect of success” test in Rule 353, Laws LJ in AK (Sri Lanka), supra at paragraph 34 has stated the position thus: 

“A case which has no realistic prospects of success...is a case with no more than a fanciful prospect of success. ‘Realistic prospect of success’ means only more than a fanciful such prospect.”

Of further note are the observations on the context of the jurisprudence on “anxious scrutiny” made by Lord Carnwarth of Notting Hill in MN v Secretary of State for the Home Department 2014 SC (UKSC) 183 at 194 (paragraph 31), in which his Lordship reiterated his observations in R (YH) v Secretary of State for the Home Department [2010] 4 ALL ER 448 at paragraph 24 in the following terms:

“[Anxious scrutiny] has by usage acquired special significance as underlining the very special human context in which such cases are brought [involving asylum or human rights], and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.  I would add, however, echoing Lord Hope [in R (BA Nigeria) v Secretary of State for the Home Department [2010] 1 AC 444, para 32], that there is a balance to be struck.  Anxious scrutiny may work both ways.  The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.”

Submissions for the petitioner
[3]        Mr Winter, for the petitioner, noted that it was not in dispute that the petitioner was a follower of the Ahmadi faith, and indeed that was the conclusion of the immigration judge on 12 December 2012.  That judge had considered the country guidance case of MN and others (Ahmadis- country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC).  In this guidance case the Upper Tribunal found there to be clear evidence that legislation restricted the way in which Ahmadis are able openly to practise and proselytise in connection with their faith; that this legislation is used by non-state actors to threaten and harass Ahmadis, which harassment includes the filing of first information reports (the first step in any criminal proceedings), which can result in detentions whilst prosecutions are being pursued.  The relevant provision of the Pakistan Penal Code referred to in MN pertaining to the petitioner’s situation is provision 298C relative to preaching or propagation of faith, which attracts a sentence of imprisonment extending to three years.  The Upper Tribunal note at paragraph 63 that the police have no power to grant bail in cases involving alleged offences under provision 298C.  If the police are unable to arrest an accused person pursuant to a first information report, they can apply to a trial court for a form of warrant to be issued (paragraph 64).  The Upper Tribunal in MN conclude that Ahmadis are an oppressed religious minority in Pakistan and that they can be harassed by groups such as KN and other non-state actors; and in particular the Upper Tribunal highlight the risk of unfair treatment by the police and trial courts following upon the issue of faith‑based first information reports (paragraphs 101-103).  Counsel observed that while the immigration judge had accepted that the petitioner is an Ahmadi, that judge had not accepted the petitioner’s truthfulness about his limited activity as an Ahmadi in Pakistan and indeed his account of the attack on him by a member of KN and the police in April 2012. 

[4]        Turning to the further submissions dated 22 February 2013, counsel founded in particular on the annexed documents in those submissions (“the  annexed documents”), namely a first information report referring to an incident on 8 November 2012, an arrest warrant dated 5 February 2013 and a certificate from an advocate of the High Court dated 9 February 2013.  That certificate bears the stamp of the Punjab Bar Council and provides a telephone number for the advocate.  Counsel observed that this first information report, which suggested a much broader range of proselytising activities on the part of the petitioner in Pakistan, was of course a false one, referring as it did to a date in November 2012 when, as set out in paragraph 1, supra, the petitioner was already in the United Kingdom, having entered on 3 September 2012.  Counsel emphasised that such a false first information report chimed with the risk issues raised MN, supra, and that in particular such reports can be raised to intimidate those of the Ahmadi religion.  In this case there had been an earlier first information report referring to an incident on 18 June 2012 which was consistent with the petitioner’s detailed account of events before the immigration judge.  Counsel accordingly submitted that further consideration required to be given by another immigration judge to the petitioner’s circumstances in the context of MN, it being clear from the annexed documents that the petitioner was likely to be arrested on any return to Pakistan and to face ill treatment and detention.  The author of the decision letter of 22 July 2014, having concluded that the petitioner “is not deemed to be at risk on return to Pakistan” (at page 7 of 18 of the decision letter), it was clear that anxious scrutiny had not been applied on behalf of the respondent to the petitioner’s case.  It was of note in the country of origin report dated 9 August 2013 now produced for the petitioner, which post‑dated the decision of the immigration judge, that there is no national system in Pakistan to track first information reports and that citizens who have a first information report registered against them can still leave Pakistan and would not be barred from obtaining a passport (paragraphs 12.05-12.09). 

[5]        Counsel at this stage in his submission proceeded to address the approach which he contended should be taken on behalf of the respondent to the annexed documents, against the background of the two apparently extant first information reports, the petitioner’s own account before the immigration judge and the risk pertaining to Ahmadis in Pakistan all as set out in MN, supra.  In WM (DRC) supra, it was of note that an adjudicator had found an asylum applicant’s evidence to be inherently implausible but nevertheless that the decision of the Secretary of State to refuse to treat new evidence as the basis for a fresh claim had in that case been quashed, Buxton LJ at paragraph 24 observing that the evidence could not be dismissed as simply implausible, and that in these circumstances

“it is impossible to say that an adjudicator could not properly come to the conclusion that the claim is well‑founded;  so the evidence’s bearing on the case is a matter for the adjudicator,and not for the Secretary of State.”

Dealing with another applicant considered in the same Court of Appeal determination, under reference to a newspaper article produced on behalf of that applicant, Buxton LJ at paragraph 26 noted that counsel for the Secretary of State had properly

“agreed that because the article, if genuine, changed the whole complexion of the case, the Secretary of State had to tread very carefully before rejecting it to the extent that an adjudicator was not to be allowed to pass judgement on it. “

Counsel then referred to PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011, observing that this being a second appeals case analogous to EP v Secretary of State for the Home Department 2014 SC 706, a considerably higher hurdle required to be surmounted by an applicant.  Notwithstanding adverse credibility findings at first instance made against the applicant, the Court of Appeal in PJ (Sri Lanka) nevertheless allowed the applicant’s appeal and remitted the case to the Upper Tribunal for a rehearing and made observations pertinent to the present case relative to an obligation upon the national authority to investigate documents in certain exceptional circumstances:  paragraphs 29-31 per Fulford LJ.  Counsel fully accepted that the involvement of a lawyer, such as the advocate who prepared the certificate (in the annexed documents) did not in itself create a rebuttable presumption of the reliability of such a document, but submitted that in the particular contextual circumstances of the annexed documents, exceptionally in this case an element of investigation by the respondent into the documentation arose.  This would be a relatively simply exercise and pertained to documents which appeared to go to the heart of what was required to protect the petitioner.  In these circumstances, counsel contended that the respondent had not met the limited obligation upon her to make some form of proper enquiry. 

[6]        Addressing the decision of Collins J in R (on the application of Asif Naseer) v Secretary of State for the Home Department [2006] EWHC 1671 (Admin), in which a first information report and arrest warrant were produced by an Ahmadi seeking asylum, counsel accepted that the dictum of Collins J at paragraph 37 to the effect that “there should be evidence indicating how the relevant documents came into existence and supporting their genuineness” did not assist his position.  Counsel observed, however, that the decision which he founded upon in PJ (Sri Lanka), supra, was instead a recent decision of the Court of Appeal and should, he submitted, be preferred to Asif Naseer.  Counsel made the same general submission with regard to the dicta of Lord Bannatyne (in respect of Asif Naseer) in ABC, supra at paragraphs 48-52.

[7]        In closing his submission, counsel for the petitioner contended cogently that at least some form of further enquiry was justified in respect of the annexed documents.  Absent such enquiry, the requirement of anxious scrutiny had not been satisfied.   The decision of the respondent dated 22 July 2014 was accordingly irrational.   It was, further and in any event, clear from the authorities founded on for the petitioner that it could not be said that any further decision by a second adjudicator would inevitably result in a refusal of the petitioner’s application.  Counsel accordingly invited the court to sustain his plea in law, repel the respondent’s pleas and reduce the decision letter of 22 July 2014. 

Submissions for the respondent
[8]        Mr Komorowski, for the respondent, submitted that it was clear from Devaseelan v Secretary of State for the Home Department [2013] Imm AR 1 at paragraph 39 that the decision of the immigration judge (as first adjudicator) required to be treated as the starting point for the approach of any second adjudicator.  The petitioner had had the opportunity to advance criticism of the decision of the immigration judge, and sought but was refused permission to appeal.  In any event, the decision of the immigration judge was balanced and well reasoned.  With regard to the further submissions dated 22 February 2013, counsel observed that no explanation had been tendered as to how the annexed documents had been obtained on behalf of the petitioner.  He noted that there was no addressee in the advocate’s certificate and that it was entirely unclear who had instructed it.  It was, he submitted, not necessarily an untainted document.  Nothing had been said on behalf of the petitioner concerning when the certificate had been instructed, and indeed why at that point such an instruction had taken place.  The exact scope of the instruction to the advocate was a further unknown factor.  The advocate was notably silent on the original first information report of 18 June 2012.  The annexed second first information report of 8 November 2012 contradicted the position of the petitioner before the immigration judge and it was of note that Collins J in Asif Naseer, supra, placed weight on this matter.

[9]        Counsel for the respondent submitted that the author of the decision letter of 22 July 2014 had substantively considered the new material attached to the further submissions, and further argued that it was for the petitioner to set up evidence which supported his case (the annexed documents) and to show that it could be relied upon.  One could not assume that official looking documents were genuine and there was in any event no obligation on the respondent to make detailed enquiries about documentation produced by applicants:  Tanveer Ahmed v Secretary of State for the Home Department [2002] Imm AR 318, Collins J at paragraphs 30 and 35;  and MJ (Singh v Belgium:  Tanveer Ahmed unaffected) Afghanistan [2013] Imm AR 799 at paragraph 50.  It is of note, however, in MJ (Singh) that at paragraph  50 the Upper Tribunal do appear to distinguish, when considering documents which “are at the heart of the request for protection” circumstances in which it would be easy to check their authenticity from circumstances in which attempted verification would perhaps not be so straightforward. 

[10]      Counsel placed considerable weight on R (Asif Naseer) and ABC, both supra, in determining the approach to be taken by this court to the question of whether further enquiries required to be made on behalf of the respondent in respect of documents such as the annexed documents.  In any event, counsel submitted, the petitioner was still under the burden of bearing the adverse findings of the immigration judge and this would of course be the starting point for any second adjudicator.  He submitted that there was “nothing of substance” (Lord Jones at paragraph 13 in OPA (Nigeria) v Secretary of State for the Home Department [2015] CSOH 3) arising in the further submissions and annexed documents which could constitute a fresh claim on the part of the petitioner.  There was accordingly no error of law in the decision of the respondent’s official dated 22 July 2014.  It was in any event inevitable, esto there was such an error of law, that any further immigration judge would reach the same decision.  Counsel accordingly moved the court to repel the petitioner’s plea in law, to sustain his first et separatim second pleas in law and to refuse the petition. 

Discussion and decision
[11]      Having considered the productions and authorities referred to by counsel in their submissions, I am satisfied that the refusal by the author of the decision letter of 22 July 2014 to treat the further submissions dated 22 February 2013 tendered on behalf of the petitioner as constituting a fresh claim is irrational.  The author of the decision letter does appear expressly to have asked himself the correct question (at page 17 of 18), namely whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, would accept that the petitioner will be exposed to a real risk of persecution on return to Pakistan.  I am further satisfied that, standing consideration of the full terms of the letter, read as a whole, the author has substantively sought to answer the correct question.  Nevertheless, in respect of the author’s approach to the annexed documents, I have determined that he has not satisfied the requirement of anxious scrutiny, and on this narrow point I accordingly conclude that a public law error has been made on behalf of the respondent as demonstrated to this cour  in submissions by counsel for the petitioner. 

[12]      Decisions made on behalf of the respondent require to show by their internal reasoning “that every factor which might tell in favour of an applicant has been properly taken into account”, standing “the very special human context” in which asylum cases are brought:  Lord Carnwarth in MN, supra, at paragraph 31.  The term “anxious scrutiny” has particular resonance when it comes to the approach which in my view was properly incumbent upon the respondent with regard to further enquiries arising from prima facie authentic and potentially supportive documentation tendered on behalf of the petitioner after the decision of the first adjudicator.  For my part I am not prepared to dismiss the evidence contained within the annexed documents as simply implausible, albeit based on a first information report which must be false (see paragraphs 1 and 4, supra).  I would accordingly go further in stating that it must, looking at the whole evidence and documentation now available to the respondent, be impossible to say that a potential second adjudicator could not properly come to the conclusion that the petitioner’s claim is well founded:  WM (DRC), supra per Buxton LJ at paragraph 24.  It follows that requisite level of (anxious) scrutiny was not applied by the decisionmaker to the whole evidence available to him, in the context of those risks to Ahmadis in Pakistan set out at length in MN, supra.

[13]      Counsel set out respectively the diverging lines of authority on this issue in their extremely helpful submissions to the court.  Counsel for the respondent placed particular reliance upon the express requirement desiderated by Collins J in Asif Naseeer, supra, at paragraph 37 to the effect that in analogous circumstances to those before this court there requires to be evidence indicating how the relevant documents came into existence and supporting their genuineness.  He correctly observed that Lord Bannatyne in ABC, supra, had endorsed and applied the approach of Collins J at paragraphs 48 – 52.  I do not seek to disagree with these dicta but in so far authoritative guidance is available on this issue as a generality, when one is considering the particular factual matrix of a different case in of course the very special human context of an asylum application, I prefer to rely on the dicta of the Court of Appeal in WM (DRC), supra, per Buxton LJ at paragraphs 24 and 26.  I have come therefore to the conclusion that the respondent requires not just to tread very carefully before rejecting the material now produced on behalf of the petitioner (the annexed documents), but that she will require to go further in the particular circumstances arising in this case which in my view, exceptionally, require at least some investigation by her officials:  PJ (Sri Lanka), supra, per Fulford LJ at paragraphs 29 – 31. 

[14]      Such an exceptional course is required in this case on its particular facts.  As a matter of uncontested fact the petitioner entered the United Kingdom on 3 September 2012.  The original first information report dated 18 June 2012 not only relates to a period in which it is clear that the petitioner was actually in Pakistan, but is entirely consistent with the position put by him before the immigration judge, as set out in the decision of that judge dated 12 December 2012.  The second first information report dated 8 November 2012, which refers to far more extensive alleged proselytising activities on the part of the petitioner, simply cannot be accurate on the basis that at that date the petitioner was already in the United Kingdom.  The warrant and certificate of the advocate refer specifically by number (No. 311) to the second first information report.  These matters of fact do not in my view render the position of the petitioner untenable;  on the contrary, in the context of the guidance on risk set out in MN, supra at paragraphs 63 and 101, while such a plainly false first information report can hardly be surprising it does not mean that the warrant and certificate following thereon are in turn themselves false.  What it does mean, however, is that the annexed documents are internally consistent.  Further, there is available to the respondent, in the original first information report, a document which is consistent with the petitioner’s position in evidence before the immigration judge.  Put short, then, I conclude that the annexed documents (to the further submissions) (i) are ex facie internally consistent, and therefore (ii) could be relied on by the petitioner before any subsequent adjudicator, and accordingly (iii) should be the subject of at least some further enquiry on the part of the respondent.  On the face of the documents there are some simple steps which could be taken in very short compass such as telephoning the telephone number (which appears thereon) of the advocate who produced the certificate and making, for example, appropriate checks with the Punjab Bar Council, the mark of which body also appears on the certificate.  The answers to the questions posed by counsel for the respondent pertaining to the circumstances surrounding the instruction of the advocate (see paragraph 8, supra) could thereby be expeditiously pursued as a matter of some facility. 

[15]      For the avoidance of doubt, I confirm that for the reasons set out supra, I am not satisfied that the respondent has demonstrated that any further decision by a second adjudicator against the petitioner would inevitably be a refusal of the petitioner’s claim, having regard to the prospect of success test set out by Laws LJ in AK (Sri Lanka), supra at paragraph 34.  

Disposal
[16]      For these reasons I hold that the respondent failed in this case to satisfy the requirement of anxious scrutiny.   I further hold that it has not been demonstrated on her behalf that the petitioner would inevitably fail before any further adjudicator.  I will therefore sustain the plea in law for the petitioner, repel the pleas in law for the respondent, and pronounce an order reducing the decision letter dated 22 July 2014.  I reserve meantime all questions of expenses.