Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 39

P764/14

OPINION OF LORD McEWAN

In the Petition of

A M R

Petitioner;

for Judicial Review of a decision dated 7 July 2014 by
the Secretary of State for the Home Department

Petitioner:  Devlin; Drummond Miller LLP

Respondent:  Gill; Office of the Advocate General

17 April 2015

[1]        This is an action for judicial review of a decision of the respondent to be found in letters which are numbers 6/1 and 6/9 of process.  I heard a detailed argument and in the course of that I was referred to, either at length or in passing, a number of cases from the bundles submitted to me.  In approximate date order these were:-

- WM (DRC) v Secretary of State [2006] EWCA Civ 1495

- AB (Jamaica) v Secretary of State [2007] EWCA Civ 1302

- VW and MO Uganda [2008] UKAIT 21

- Dangol v Secretary of State [2011] CSIH 20

- R v Secretary of State 2011 SLT 970

- MS v Secretary of State [2013] CSIH 52

- ABC [2013] CSOH 32

- MM (Lebanon) [2014] EWCA Civ 985

- Chikwamba [2008] 1 WLR 1420, and

- Razgar [2004] 2 AC 368 were also mentioned. 

[2]        There were a number of matters said not to be in issue and which were either conceded or not seriously disputed.  Credibility was not in issue (number 6/1, paragraph 27).  There could be no dispute about precariousness, nor about private life or Rule 353.  There was now no dispute about detention. 

[3]        I can summarise the immigration history briefly.  The petitioner entered on a student visa in April 2011 (valid until January 2013).  He applied for asylum in March 2012 and his visa was curtailed.  The asylum claim was refused in April 2012 and an appeal was dismissed in July 2012.  Permission to appeal to the First-tier Tribunal was refused (July) and also refused to the Upper Tribunal (October).  He was then appeal rights exhausted and in November was detained.

[4]        I pause at this point to observe that these matters are fully set out in number 6/2 of process (the decision of Immigration Judge Handley) and numbers 7/1, the First-tier Tribunal, and 7/2, the Upper Tribunal.  From the documents I can summarise the relevant matters briefly.  The claim for asylum was based on the murder of his brother and sister-in-law in Pakistan.  His quest for justice had led to threats to himself and others even though the probable murderer had escaped to the USA.  The issues were sufficiency of protection and relocation.  Detailed evidence on these matters was considered and it was also highlighted that coming to the UK on a temporary basis did not give him the right to expect article 8 rights to be created (paragraph 34 of 6/2).  Judge Gibb in the First-tier Tribunal found no error of law and that too was the view of Judge Latter in the Upper Tribunal.

[5]        The petitioner then lodged further submissions in November 2012 and was released from detention.  These were refused in August 2013.  He failed to report and in September he was detained when trying to get to Northern Ireland.  The same month he lodged further submissions which were refused.  He sought judicial review then in January 2014 he made further submissions which were refused in March.  Finally in April he made the present submissions which were refused resulting in the matter coming before me. 

[6]        I agree with the observation made in 6/1 that he deceived the authorities by entering as a student when he intended to claim asylum and that he can be criticised about the attempt to go to Ireland.  What the history also shows is that the present submission is at least the fifth repeat submission and that the point in issue has been through the Tribunal System.  Papers relating to those earlier submissions are in the bundle 6/3 to 6/8.  I have examined these.  They show that twice the position of SK, when his fiancée and later his wife, has been considered by the respondent and the argument rejected in September 2013 and March 2014.  This then is the third time the issue of SK has been raised. 

[7]        The argument for the petitioner was to this effect.  Mr Devlin asked me to sustain his first plea in law and repel pleas 1, 3 and 4 for the respondent.  In summary, he made three main points viz firstly, the respondent had erred in law in failing to consider the risk of harm in requiring relocation.  This had not taken account of insurmountable obstacles.  The fear of risk is always subjective and had not been assessed.  The fact that there was protection does not remove the risk, and here the real risk was of brutal murder.  It was not reasonable to expect the wife to go back.  She was a British national and family life here mattered.  Secondly, there had been a failure to consider whether it was reasonable for the wife to relocate internally in Pakistan.  Not enough had been said as to where “elsewhere” she could go.  It was not only a question of insurmountable obstacles.  The whole matter had become unduly harsh.  Counsel referred me to AB (Jamaica), and VW and MO Uganda.  When article 8 was involved a wider inquiry was needed.  Thirdly, the personal circumstances of the wife could not be equated to those of the petitioner.  She had been a UK citizen since her birth and had no family in Pakistan.  That materially altered any question of internal relocation.  He referred me to R Petitioner.  On proper reconsideration there was a realistic prospect of success. 

[8]        In his reply Mr Gill argued as follows.  The matter was in narrow focus.  The respondent had asked herself the correct question, and with a mind to the right tests had given anxious scrutiny and arrived at a result which could not be said to be Wednesbury unreasonable.  The decision was comprehensive and could not simply be attacked at the margins.  Nothing had been left out of account.  The petitioner had to pass all the tests in Razgar.  This was not a fresh claim.  It was a review of the Minister and so matters not before her had to be ignored.  Counsel referred to R Petitioner, Dangol and ABC. 

[9]        Counsel continued by saying that when article 8 had to be considered the Scottish position was governed by MS (paragraphs 23 to 28) where a full Razgar was done. It was true that “reasonableness” of internal relocation was not expressly mentioned; but that was not fatal.  It is only a question of “labelling” and there can be more than one formulation.  He referred to VW and MO at paragraphs 14 and 36 onwards to 44.  In the letter the full details and insurmountable obstacles were considered.  The correct test was applied; nothing was left out of account, accordingly there was the necessary anxious scrutiny (see ABC paragraph 11). 

[10]      Mr Gill then took me to the decision letter (number 6/1) especially paragraphs 36 to 41.  There was no evidence that the wife could not relocate and be protected.  Where there was no real risk of harm to her it could not be irrational not to take account of what was unreal.  In relation to relocation it was clear that a serious test had been applied.  In any event it was not focused in the new submission and so could not be an error not to consider it.  (Counsel contrasted the medical report in R.)  The basis of assessment could not be wrong under reference to Razgar.  That is why there is no realistic prospect of an adjudicator now taking a different view. 

[11]      Let me turn now to look at the cases starting with WM (DRC).  These were “fresh claim” asylum cases.  The case from the Congo concerned a reluctant and unwilling political assassin and the one from Afghanistan a man whose father had been murdered by the Taliban.  Both feared persecution.  The Court of Appeal discussed what was meant by a “realistic prospect of success” in terms of paragraph 353.  The decision maker must consider whether there is a realistic possibility that an immigration judge might decide in favour of the claim on considering both the new and the previous material.  It is not for the Minister herself to think the new claim is a good one and her own view is a mere starting point.  Nor is it for the court to answer the question whether there is a realistic prospect of success in an appeal before an immigration judge, but whether the Minister was unreasonable in reaching the view that there was not.  The hurdle to surmount is a low one and the inquiry must be directed at the particular applicant with anxious scrutiny.  In the two instant cases a failure to consider matters of fact allowed the court to conclude that there had not been anxious scrutiny.  I have to observe that in the case before me the respondent set out and followed the guidance in WM (paragraphs 15 to 23). 

[12]      In AB (Jamaica) the matter was governed by the policy in force at the time and article 8.  The problem was the way the Minister and the Tribunal dealt with the spouse of the applicant who was a UK citizen and settled here.  The Court of Appeal described his treatment as “cavalier” (paragraph 20) and were very critical of the attitude of the respondent at the end of the hearing.  The court decided the matter itself without putting the evidence at large again.  Paragraphs 18 and 19 show the care that must be given to relocation and internal flight.  The importance is that the spouse is in substance though not in form, a party to the proceedings.  In the present case relocation and internal flight apply to the petitioner’s spouse.  The point made is that not enough has been said in 6/1 at paragraph 37.  That has to depend on the evidence produced on her behalf.  It is minimal in the extreme. 

[13]      VW and MO Uganda confirmed again the five stage approach in Razgar to be the law.  The appellants were a mother and her very young daughter born in the UK.  The father was British. The case showed a number of features.  The appellant was not found credible.  There was Home Office delay.  Had the correct test been applied to the removal which would disrupt both them and the father of the child?  Had too much emphasis been put on embarking on a relationship when the immigration status was precarious?  There was much discussion on whether “insurmountable obstacles” to going to live in the country of origin was a “test” or only a factor in assessing proportionality.  Looking at the European jurisprudence there was no adherence to a strict formula or technical wording.  The words “insurmountable obstacles”, “not reasonable”, “undue hardship”, “seriousness of… difficulties…” all appear in the cases.  Whatever label is used what must be shown is something more than mere hardship, difficulty or obstacle.  AB (Jamaica) was distinguished as being wholly different on its facts.  The refusal of leave to remain in the present case was upheld.  I refer again below to this topic.

[14]      The Scottish case of Dangol again concerned rule 353.  The Nepalese reclaimer had been in Scotland for a number of years and had built up a private life.  He had made a number of repeat claims for asylum and several “further representations”.  All having been refused the present ones were again said to be a “fresh claim”.  It stressed his strong connection with Scottish life.  The Inner House followed what was said to be the test in WM and that would normally result in the matter being remitted to the original decision-maker.  Having considered the relevant letter the court concluded that proper regard was paid to all factors and the requirement of anxious scrutiny was met (paragraph 11).  Also (paragraphs 13 to 15) the correct questions were posed and answered. 

[15]      Next is the decision of Lord Hodge in R v Secretary of State.  Like the present, it was a “fresh submissions” case where severe mental illness was the issue, as well as relocation.  It was refused by the Minister as a fresh submission, and the flaw revealed in that was a failure to consider the interests of the petitioner’s family in the relocation as well as the emergence of severe symptoms of mental illness.  For present purposes the importance of the case is the need to consider the interests of family (here a spouse).  The standard for assessment of a realistic prospect of success is a modest one, meaning only more than a fanciful prospect. 

[16]      The Outer House case of ABC (Lord Bannatyne) concerned a petitioner who claimed he was at risk of being murdered if he was sent back to Afghanistan.  The facts revealed a serious credibility issue and also breaches of immigration controls.  The importance of the case is in paragraph 11 where the Lord Ordinary sets out what are the proper tests when new claims are put forward.  The formula used is what was set out in WM (DRC) referred to elsewhere by me in this opinion.  Both parties agreed that that was the correct formula to apply in the present case.  In the case before him, Lord Bannatyne (paragraphs 51 and 53) found that the Minister had given the necessary anxious scrutiny to the case and had not left out of account any material factor which could conceivably be regarded as favourable to the petitioner. 

[17]      I should say a word about Chikwamba.  It was only mentioned in passing by Mr Devlin.  He said it was not in point.  I agree with him.  The facts were wholly different.  There was a normal marriage, a child was involved and the case really concerned the policy on entry clearance.  That is not this case.

[18]      Lastly is Razgar.  This case was only mentioned to confirm the tests set out by Lord Bingham in his speech, and that they remain the law.  That is not in dispute.  The case itself produced a divided court on the mental health issue.  There are two lengthy and strong dissents on the facts.  I will return again to it later for another purpose. 

[19]      A case only mentioned in passing was MM (Lebanon).  That was put before me by Mr Gill for a very limited purpose, which was this.  It seems that a gloss in England is being put on Nagre [2013] EWCH 720 which is not before me and is not in point for present purposes.  See in particular paragraphs 126 to 130. 

[20]      There is one final matter I want to deal with arising from the cases and in particular one cited (VM and MO) and one in the bundle which I looked at, though it was not canvassed, which I call Hama (R (YH) v Secretary of State [2010] 4 All ER 448).  They deal with article 8 and “fresh claims” but the point to be made here concerns what was described by counsel as “labelling” in relation to tests that have to be applied and the forms of words to be used.  In Hama it was held that there really was no difference between saying “no realistic prospect of success” and “clearly unfounded”.  The case itself was extraordinary involving the illegal sale of a historical artefact (a mummy) and the case at first proceeding on the wrong footing.  In VW and MO it was made clear that in the jurisprudence various formulae are used almost interchangeably viz “insurmountable obstacles”; “reasonableness” and “seriousness”.  Whatever wording is used there need be no strict adherence to any formula provided there is a proper conduct of the balancing exercise between the right to private and family life and the right of the State to control the exit and entry of foreign nationals.  Whatever test is expressed any obstacles or difficulties must go beyond matters of choice or inconvenience.  Mere hardship, difficulty or obstacle will not suffice. 

[21]      Paragraph 353 of the relevant rules provides:

 “…where a human rights or asylum claim has been refused… under… these Rules and any appeal… 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…”

[22]      The letter which is said to amount to a fresh claim (no 6/9 of process) is effectively one page.  There are papers attached which include photographs, press cuttings, a report (hearsay) from a Dr Sanaghan dated 2 April 2014, a hearsay report from Glasgow Women’s’ Aid of 3 April 2014, a statement by the petitioner’s wife dated 3 April, a BBC news report of the murders of the petitioner’s brother and his wife in Pakistan, a police report made by the petitioner’s father in Pakistan about the murders dated 11 September 2013, and phone records (inspecific).

[23]      The letter itself makes the following points, viz the appellant is at high risk of being murdered if he returns to Pakistan; his wife is a British citizen who went against her parents’ wishes by marrying the petitioner and both she and the petitioner could be subject to an honour killing.  Threats have been made (not specified when).  It is clear the threat is to both of them. 

[24]      I note there is no mention of any applications to, or involvement of, the British High Commission in Pakistan. 

[25]      I turn to look at no 6/1 (Mr Penman’s letter) which is the letter under attack.  The immigration history I have dealt with elsewhere and is paragraphs 4 to 12 of the letter.  Importantly the respondent has also written that “…lack of reference to a specific piece of evidence should not be taken to mean that it has not been read and considered…”  Earlier the respondent has set out the terms of paragraph 353 of the Rules which is the basis of the claim.  I have set these in short form out elsewhere.  Certain authorities, the Rules and exceptions are set out (no objection was or could be taken to this).  Between paragraphs 37 to 42 the case under the Rules is looked at and rejected.  The issues involving the petitioner’s wife are clearly considered.  Language, finances and her ability to understand the culture are all mentioned.  The issue of “honour killing” of a woman is expressly mentioned (paragraph 36) and at paragraph 37 the following appears viz “…No evidence has been submitted to suggest that your client’s wife would not be able to access the same protection as your client, or be able to relocate alongside him…”  The petitioner’s “private life” considerations are then looked (paragraphs 43 to 51) against the background that he has only been 3 years in the UK.  Consideration is then given to granting leave outside the Rules.  The marriage is accepted as genuine although ruled as precarious (paragraph 61), there is no family, there are no health issues.  The test of “proportionality” is then addressed (paragraph 56 onwards), Razgar is dealt with and other cases and finally any exceptional circumstances. 

[26]      Comparing what is written by Mr Penman with the petition and the statement of issues, the following points arise.  In the statement of issues mention again is made of protection and relocation but this time with the petitioner being in Pakistan with his new wife.  There is no mention of any threat to her or any evidential basis for one.  In my view, this is just a reiteration of the same point which has already been the subject of detailed analysis.  There is mention of a hypothetical approach to the British High Commission to obtain a travel visa.  There is no mention of this in 6/9 at all and so it was never before the respondent.  This last matter appears also in the petition (articles 11, 12 and possibly 13) and is said to have been left out of account by the Minister thus showing a failure to take account of a relevant matter.  It seems to be suggested that if he went to seek a visa somehow this would make him more identifiable to those who wish him harm.  In my opinion the criticism over this is misconceived.  It is nowhere said how this would raise his profile and the matter is both hypothetical and inspecific.  I cannot criticise the respondent for not dealing with it or for any failure to anticipate it.  This is quite unlike what happened in R where the issue of mental illness had always been present, as well as R’s family. 

[27]      Let me now state, against the concessions made and what is not seriously in dispute, what is the only issue before me.  It might be helpful when stating what it is, to take note of what it is not.  Looking solely to the position of the petitioner as an individual it is not about whether he can have sufficient protection in Pakistan and also can relocate notwithstanding the risk of his being murdered.  There have already been a number of decisions about that which are adequately reasoned and have a proper basis in the evidence led, including Country Guidance.  I have earlier set out where these decisions are to be found.

[28]      As now presented to me, the only new or different matter is the complication introduced by his relationship with the woman, SK, whom he has now married.  The argument ranged over her own separate personal difficulties, her British citizenship, the murderous threat to her, her return with her husband to Pakistan, protection and relocation for her and a discrete point about an application to the British High Commission making for more difficulties and danger by drawing attention to the parties while in Pakistan.  There is also a question over whether some or all of this was ever put to the Minister or is in any way evidence based.  This is what any “fresh claim” is about as well as whether it was considered according to the understood law as reflected in the cases.

[29]      I want to add a final word about Razgar and its importance here.  The decision letter correctly sets out the tests (paragraph 58).  The first test is answered in the negative (paragraph 59).  The second test is also answered in the negative (paragraph 65).  Test 5 is answered by concluding that removal would not be disproportionate.  It is true that tests 3 and 4 are not specifically mentioned but I see that as no criticism.  The letter has clearly addressed relevant European jurisprudence and the whole tenor of it shows that the decision has been taken in “implementation of a firm and orderly immigration policy (which) is an important function of government in a modern democratic state” (Lord Bingham, page 389/90, paragraph 19).  As his Lordship said, it is hard to imagine a decision taker answering question 4 other than in the affirmative.  The conclusion that removal is proportionate becomes then almost inevitable for the reasons again given by Lord Bingham in paragraph 20 at the end.  I agree with counsel for the respondent that this effectively means there is no realistic prospect of success before another immigration judge even on the modest test applicable.  Given the care which has been devoted to the whole matter it cannot be said that any relevant matter has been left out of account.  No mistake has been made by the respondent in her approach to the evidence before her both of old and in 6/9.  Every factor which could tell in favour of the application has received anxious scrutiny.  The respondent was, in my opinion, entitled to conclude that there was no realistic prospect that another immigration judge would take a different view. 

[30]      In the result I will sustain the respondent’s first, third and fourth pleas in law; find it unnecessary to deal with her second plea in law; and repel the petitioner’s first plea in law.  I will refuse the prayer of the petition and meantime reserve all questions of expenses.