Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 3

P1274/13

OPINION OF LORD JONES

In the cause

OPA (Nigeria) (AP) (FE)

Petitioner;

for

Judicial Review of a decision of the Secretary of State for the Home Department to decline to accept that the petitioner has made a fresh claim for asylum

Pursuer:  Forrest;  Drummond Miller LLP

Defender:  Komorowski;  Office of the Advocate General

14 January 2015

Introduction

[1]        The petitioner is a citizen of Nigeria.  He arrived in the United Kingdom on 2 January 2012.  He was refused leave to enter but sought asylum, asserting that:

“The appellant has a well-founded fear of persecution in Nigeria by reason of membership of a PSG [particular social group] (homosexuals in Nigeria); and is a refugee whose removal would breach the United Kingdom’s obligations under the Refugee Convention.”  (Number 7/1 of process) 

His claim was refused by the Secretary of State and his appeal against refusal was dismissed.  The original decision letter has not been produced, but the appeal failed because the First Tier Tribunal (“FTT”) judge was “not satisfied from the evidence that the Appellant is gay.”

[2]        Although it was not necessary for him to do so, the judge considered the question whether, if the petitioner were gay, he would live discreetly in Nigeria “mainly for some reason (such as by choice or because of social pressures) other than in order to avoid persecution.”  The judge found that, if gay, the petitioner would live discreetly “wholly or mainly for reason(s) other than to avoid persecution”.  The significance of that finding can be understood by reference to the judgment of Lord Rodger of Earlsferry JSC in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 (“HJ (Iran)”), at paragraph 82.  Under the heading “The approach to be followed by tribunals”, his Lordship said that, when an applicant applies for asylum on the ground of a well-founded fear of persecution on account of his or her homosexuality, the tribunal must first ask itself whether it is satisfied on the evidence that he or she is gay, or that the individual would be treated as gay by potential persecutors in the country of nationality.  If so, the tribunal must go on to consider what the individual applicant would do if returned to that country.  If the tribunal concludes that the applicant would live discreetly and so avoid persecution, it must go on to ask itself why that person would do so.  If the tribunal concludes that the applicant would choose to live discreetly simply because that was how that individual would wish to live, or because of social pressures, then the application should be rejected.  Social pressures, such as not wanting to distress parents or embarrasses friends, do not amount to persecution.  If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on return would be a fear of persecution if he or she were to live openly as gay, then the application should be accepted, because such a person has a well-founded fear of persecution.

[3]        Following the dismissal of his appeal to the FTT, the petitioner appealed to the Upper Tribunal.  That appeal, too, was dismissed.  Thereafter, further correspondence passed between solicitors acting for the petitioner and officials acting for the SSHD.  The petitioner contends that, in the course of that correspondence, he made a “fresh claim”, which was wrongly declined by the SSHD. 

Fresh claims

[4]        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.”

[5]        The issue in this case is whether the petitioner has made a fresh claim within the meaning of paragraph 353.

The petitioner’s contentions as to what constitutes a fresh claim in this case

[6]        Under cover of letter, dated 14 May 2013, solicitors acting for the petitioner sent the United Kingdom Borders Agency (“UKBA”) certain documents, including what is described as “Report on our client by Ms Kay Foulkes”.  It is explained in the solicitors’ letter that the petitioner had appealed to the Inner House of the Court of Session against the dismissal of his appeal by the Upper Tribunal, but that the appeal had been abandoned.  According to the solicitors:  “The reason for this is that our Advocate advised the enclosed fresh submissions should be made to you.”  The letter continues: “It is submitted that had the enclosed evidence been available to the Tribunal, the judge may well have made a different finding in relation to our client’s sexuality.”  (7/3 of process).  The writer of the letter concludes by referring the UKBA “to the decision of HJ (Iran) and the test established in that case”, and observes:  “As you are no doubt aware, homosexuality is illegal in Nigeria and in terms of the penal code alone, our client could face a 14 year prison sentence.” 

[7]        In her “report”, number 6/3 of process, which is more accurately described as an open letter, dated 8 January 2013, Ms Foulkes states that she is a former Home Office Presenting Officer with eight years’ experience representing the SSHD where, as Senior Country Officer for Iran, she was responsible for instructing Treasury Solicitors in relation to HJ (Iran), in the Court of Appeal.  She says that she was also the bisexual representative on the Home Office lesbian, gay, bisexual and transsexual employee network for a number of years “being at that time the most high-profile bisexual person working for the Home Office.”  She goes on to say that, having met the petitioner and his partner Charles on a number of occasions, she is “satisfied that he is a gay man as he claims”.  Later in her letter, she quotes from paragraph 82 of the judgment of Lord Rodger in HJ (Iran), and purports to apply it to the petitioner’s case.  She expresses the view that the petitioner is likely to live discreetly were he to return to Nigeria but that: “it is clear from [the petitioner’s] evidence that a material reason behind why he would choose to live his life this way [is] due to his fear of persecution by the authorities and the general population in Nigeria”.  She concludes:  “It is therefore clear that [the petitioner] qualifies for international protection under the refugee convention.”

[8]        A Home Office official responded by letter, dated 10 December 2013 (erroneously referring to the solicitors’ letter of 14 May 2013 as having been dated 18 June 2013).  (Number 6/2 of process.)  The official records that he had given consideration to Ms Foulkes’ letter and remarks that it is unclear from the letter how Ms Foulkes knows the petitioner, in what capacity she wrote the letter, or how she came to form the view that he is gay.  He then quotes from a determination, dated 22 March 2013, of the FTT, in an appeal against an immigration decision by the SSHD, refusing the petitioner’s partner leave to enter the United Kingdom.  In that appeal, the partner relied on what is described as “a report from Kay Foulkes”.  The FTT judge had expressed the view that the material from Kay Foulkes “was of little value”.  He remarked that she was not available to be cross-examined and that that affected the weight to be given to her letter.  The judge gave a number of other reasons why, in the result, he “considered that her letter added little to the claim seen in its own terms and against the background of the other difficulties with the claim.”  Having quoted these reasons, the writer of the letter of 10 December 2013 concluded as follows:  “Taking into account the report from Kay Foulkes and findings of Immigration Judge Blair, it is not considered that your submissions in this regard create a realistic prospect of success before another Immigration Judge.”

[9]        On or about 9 April 2014, the petitioner’s solicitors wrote to an official at the UK Visas and Immigration Litigation Team in Glasgow, referring to “current” judicial review proceedings in the Court of Session (i.e. the application which is before me), saying that they wished to make “the following further fresh submissions for your consideration”.  The letter continues: “We enclose the email exchanges between ourselves and Ms Kay Foulkes as evidence that she is willing both to be interviewed by the Home Office or give evidence in Court regarding the Report she provided in support of our client.”  The solicitors advised the addressee that the judicial review proceedings had been sisted until 9 June 2014 to allow the official to respond. 

[10]      A response on behalf of the SSHD was sent to the petitioner’s solicitors on or about 9 June 2014, rejecting the petitioner’s “representations of 9 April 2014.”  I say more about that response later in this opinion.

The first hearing

[11]      When the matter came before the court for a hearing on 5 November 2014, in seeking to argue that the SSHD erred in declining to accept that the petitioner had made a fresh claim for asylum, counsel relied only on the letter by Ms Foulkes as introducing material which was significantly different from that which had been previously considered.  That is understandable, because the petitioner does not seek to challenge the decision letter of 10 December 2013.  Instead, the challenge is taken to the letter of 9 June 2014, which deals only with Ms Foulkes’ offer to be interviewed or attend court.

Decision and reasons

[12]      Rule 353 comes into play when an asylum claim has failed.  According to its terms, when further submissions are made to the SSHD on behalf of an asylum seeker, they must first be considered with a view to determining whether or not leave to remain in the United Kingdom should be granted for asylum or human rights reasons.  That construction is consistent with the terms of the Home Office Further Submissions Policy Instruction which was furnished to the court by parties during the course of the hearing.  At section 1, paragraph 1.3, under the heading “Policy Intention behind further submissions”, the reader is informed that the policy objective when dealing with further submissions is to “consider additional evidence” quickly and appropriately and “grant leave to those that merit it”.  The same policy instruction provides, at section 4, paragraph 4.1 that, in deciding whether or not to grant leave, “caseworkers must consider whether the new evidence submitted taken together with the old material (including any appeal determination, previous statements, interviews etc) and any other change of circumstances, for example more recent country information or case law, should result in a grant of leave.”  (Original emphasis)  If the further submissions are ”rejected”, i.e. the new material (no doubt considered together with the old, although that is not explicit) is not considered sufficient to justify a grant of leave, the decision maker must move on to determine whether it amounts to a fresh claim.

[13]      With the terms of paragraph 4.1 in mind, it is clear that the solicitors’ letter of 9 April 2014 contains no new evidence, grounds or arguments going to the merits of the petitioner’s claim.  As is noted in paragraph [9] of this opinion, the letter does no more than communicate to the SSHD that Ms Foulkes is prepared to be interviewed and give evidence in court.  The emails referred in the letter to bear to have been printed out on 16 December 2013.  In the solicitor’s email to Ms Foulkes she is told: 

“Counsel needs you to confirm that you are prepared to be interviewed by the Home Office to vouch for Mr A’s sexuality and, if necessary, give evidence on his behalf at court.  I should be grateful if you would provide this confirmation as soon as possible as his removal is set for 17/12/2013 and I am hoping to have the Petition in court for JR purposes by Monday.” 

What the “fresh submissions” amounted to, therefore, was an indication to the SSHD that Ms Foulkes was prepared to be interviewed and to be a witness in these proceedings.  There was clearly no possibility that, on the basis of these further submissions, leave to remain might be granted at that stage.  Put another way, the submissions were bound to be rejected.  That is because they contained nothing of substance that supported the petitioner’s claim.  All that was being offered was the possibility of the presentation of Ms Foulkes’ evidence, which had already been placed before the SSHD, in a different medium – interview by the Home Office and, if necessary, evidence in court.

[14]      The author of the decision letter of 9 June 2014 does not, in terms, reject the further submissions, but it is clear that he did so, because he expressly dealt with the fresh claim issue, which only arises in the event that the further submissions are rejected.

[15]      Moving on, therefore, to the question whether the petitioner has made a fresh claim, it is important to understand, first, what is meant by that phrase.  Section 18(3) of the Nationality, Immigration and Asylum act 2002 provides that a claim for asylum is a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and its Protocol, or article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950.  As has been noticed, Rule 353 comes into play when an asylum claim has failed.  Looking only at the words of the phrase itself, therefore, a fresh claim would appear to refer to a claim which is different from the failed claim.  That construction is confirmed by the terms of Rule 353.  Further 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 had not already been considered and, “taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”  In my view, the only sensible meaning of “previously considered material”, in its context, is the combination of the evidence, grounds and arguments advanced in support of the failed claim.  The phrase “further submissions” falls to be similarly construed, because the further submissions are to be taken together with the previously considered material.  Since the solicitors’ letter of 9 April 2014 contains no evidence, grounds or arguments going to the merits of the petitioner’s claim it does not, therefore, constitute submissions, the content of which had not already been considered.  As has been said, it does no more than communicate a willingness by Ms Foulkes to give the evidence which had already been considered in a different form. 

[16]      Whilst not conducting the same analysis as has been carried out in this opinion, the author of the decision letter concludes that the solicitors’ letter does not contain a submission which had not previously been taken into account.  He goes on to explore the possibility that Ms Foulkes has more to say than the terms of the letter of 8 January 2013, but observes that, if that were the case, it is unclear why she has not said what additional evidence she has to give in a further letter or statement.  He points out, correctly, that the purpose of paragraph 353 is to assess what evidence has been given, not speculate about what might be said if a further hearing is allowed.

[17]      In order to constitute a fresh claim, “the new material [must be both] significantly different from that already submitted, on the basis of which the asylum claim has failed” and, taken together with the previously considered material, creates a realistic prospect of success, notwithstanding its rejection.  If it is not significantly different “the Secretary of State has to go no further.”  (See WM (Democratic Republic of Congo) v SSHD [2006] EWCA Civ 1495;  [2007] Imm AR 337;  [2007] INLR 126, Buxton LJ, paragraph 6.)  Whilst it is unnecessary, therefore, to consider the realistic prospects test in this case, it was the subject of argument and I shall deal with it.

[18]      As is recorded in paragraph [6] of this opinion, in their letter of 14 May 2013, the petitioner’s solicitors refer to the test laid down in HJ (Iran).  The FTT judge considered that test in his decision of 30 March 2012, setting out in full Lord Rodger’s guidance at paragraph 82.  As is recorded in paragraph [1] of this opinion, the tribunal was not satisfied that the petitioner is gay.  The judge observed that it was unnecessary to consider the remaining guidelines but did so for the sake of completeness.  Addressing the issue of whether the petitioner would live discreetly as a gay in Nigeria mainly for some reason (such as by choice or because of social pressures) other than in order to avoid persecution, he found that (if gay) the petitioner would live discreetly as a gay in Nigeria wholly or mainly for reasons other than to avoid persecution.  He made that finding because:  “in any event, by his own evidence, the Appellant chose to keep secret (his claim) that he is gay, even from his own family members and from the Pentecostal church which he says he regularly attended.”  That evidence is recorded in the decision, at paragraph 122, in the following terms:

“He claims the following.  He lived discreetly as a gay from age 18 (i.e. 12 years to date).  He had lived with his brother after age 18 for some time, but his brother did not know he was gay until neighbours told him of the OA incident when he visited the [petitioner’s] apartment after the [petitioner] had fled.  [According to the petitioner, while in his apartment he had made sexual advances to another man, OA.  That person repelled the petitioner’s advances and ran screaming from the apartment.]  He kept his homosexuality secret from his family and his Pentecostal church members.  He would not have left Nigeria if the (claimed) OA incident had not occurred.  Those factors show that he was content to live discreetly in Nigeria.  He did not claim that he would do otherwise in Nigeria.  So the circumstances show that he would in fact live discreetly as a gay in Nigeria if returned there…”

The judge found, therefore, that the petitioner lived discreetly because of social pressures and concluded that, if he is truly gay, the petitioner will continue to behave discreetly for social pressure reasons.  (Paragraph 127)  For those reasons “and from the evidence in the round” he found that he did not have reasonable cause to believe the petitioner’s claim that he has a well-founded fear of persecution by the Nigerian authorities, or any persons in Nigeria, whether by reason of his sexual orientation or otherwise.

[19]      In the letter of 14 May 2013, the petitioner’s solicitors refer to the evidence which is enclosed with it and submit that, if it had been available to the FTT, “the judge may well have made a different finding in relation to our client’s sexuality.”  Nothing is said about the judge’s finding on the subject of a well-founded fear of persecution i.e. that, if gay, the petitioner will live discreetly because of social pressures and will, therefore, not be persecuted.  Nonetheless, in the decision letter of 10 December 2013, the writer quotes from paragraph 122 of the FTT determination and concludes that “it is not considered, when applying the rules of anxious scrutiny, that there is a realistic prospect of success of an Immigration Judge finding that your client is it real risk of persecution or faces any breaches of his human rights upon return to Nigeria.”  (Paragraph 61)

[20]      Nowhere in the amended petition is mention made of the foregoing findings concerning a well-founded fear of persecution.  The letter from Kay Foulkes is referred to in statement 11 but is relied on only in respect of her view that the petitioner is gay.  Statement 15 is concerned with what a new immigration judge would be entitled to do.  That includes regarding the treatment of gay men in Nigeria as persecutory and accepting that the petitioner wished not to live a closeted life.  In his answers to the petition, the respondent avers that the petitioner put no evidence before the SSHD from a source other than the petitioner to suggest that if he were homosexual he would behave discreetly in Nigeria for reasons other than social pressures.

[21]      When asked what material in Kay Foulkes’ letter might persuade an immigration judge hearing oral evidence from her that, if he were to return to Nigeria, the petitioner would live discreetly because of a fear of persecution by the authorities, rather than because of social pressures, his counsel referred me to these passages in her letter on page 2:  “3.  [The petitioner] is likely to live discreetly were he to return to Nigeria; 4.  But it is clear from [the petitioner’s] evidence that a material reason behind why he would choose to live his life this way [is] due to his fear of persecution by the authorities and the general population in Nigeria.”  Counsel’s response is unstatable.  The passage referred to is no more than Ms Foulkes’ assessment of the petitioner’s evidence.  It is not itself evidence, and it is not admissible in evidence.  It would be the function of the immigration judge to assess the petitioner’s evidence.  There is no realistic prospect that, on the basis of Ms Foulkes’ views, an immigration judge would hold that a material reason for the petitioner living discreetly on his return to Nigeria would be a fear of the persecution which would follow if he were to live openly as a gay man. 

[22]      For the foregoing reasons, the SSHD did not err in law in deciding that the petitioner’s further submissions did not constitute a fresh claim, nor was her decision unreasonable.  The petition will be dismissed.  I shall reserve all questions of expenses