Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 71

P1131/14

OPINION OF SHERIFF P A ARTHURSON, QC

(Sitting as a Temporary Judge)

In Petition of

YASIN SALAMA IBRAHIM

Petitioner;

for

Judicial Review of a decision of the Secretary of State for the Home Department

Petitioner:  Lindsay QC, Winter;  Drummond Miller LLP

Respondent:  McKendrick;  Office of the Advocate General

9 June 2015

Background

[1]        The petitioner is a national of Sudan.   He arrived in the United Kingdom on 29 March 2007, claiming asylum on that date.   On 29 October 2010 his claim for asylum was refused.   On 7 March 2011 his appeal in respect of that refusal was dismissed.   He became appeal rights exhausted on 22 March 2011.   Further submissions were made on behalf of the petitioner in terms of Immigration Rule 353 on 18 April 2013 on the basis of his sur place political activity within the United Kingdom.   On 10 May 2013 the respondent refused to treat the petitioner’s further submissions as a fresh claim.   On 12 July 2013 further submissions were made on behalf of the petitioner in terms of Rule 353.   A second refusal letter was issued on behalf of the respondent in respect of the said claim on 7 August 2013.   A pre-action protocol letter was intimated to the respondent on 20 January 2014 by the petitioner’s solicitors.   The respondent responded by letter dated 17 March 2014, adhering to the second refusal letter.   In this petition the petitioner accordingly seeks reduction of the second decision letter dated 7 August 2013 and the respondent’s response to the pre-action protocol letter dated 17 March 2014.

Submissions for the petitioner

[2]        Senior counsel for the petitioner, in advancing his primary challenge to the second refusal letter of 7 August 2013, submitted that had the respondent’s decision-maker properly applied Immigration Rule 353, the respondent would have accepted the further submissions tendered on behalf of the petitioner as a fresh claim for asylum.   He observed at the outset of his developed submission that the correctly applicable law was accurately set out in accessible short-compass in RUS v Secretary of State for the Home Department [2015] CSOH 19 at paragraph 2.   On the basis that counsel for the respondent agreed this to be the position, it is perhaps convenient to set out that paragraph in full at this stage:

“[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.’”

[3]        Senior counsel, before parting from RUS, supra, noted that the further submissions tendered on behalf of the petitioner in the present petition contained documents from third parties which were easily verifiable, and he accordingly founded upon the dicta of the temporary judge in RUS, supra, at paragraph 13 and of the Court of Appeal in PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011 per Fulford LJ at paragraph 30.   Senior counsel contended that when documents from third parties tendered in further submissions could be placed at the heart of an applicant’s request for protection and further, where there was a simple process of enquiry which could be undertaken on behalf of the respondent to verify such documents, there was incumbent upon the respondent an obligation to take the required steps of enquiry, which obligation had not in this case been obtempered.

[4]        Senior counsel proceeded to submit further that while the respondent’s decision-maker had identified the correct test in terms of Rule 353, that test had been wrongly applied in the challenged decision letter.   He accepted that in refusing the petitioner’s initial asylum claim some years previously, the immigration judge had made adverse credibility findings in respect of the petitioner, but emphasised that the further submissions in issue in this case were presented on the basis of a sur place asylum claim, related to events not within Sudan but entirely within the United Kingdom.   The new material lodged in terms of the further submissions raised, senior counsel accepted, questions requiring answers, but these questions could be resolved by relatively simple processes at the hands of the respondent, such as the confirmation of telephone numbers and the carrying out of “Google” searches.   In any event, senior counsel argued, there was here more than a fanciful prospect of success.   He contended that prior adverse credibility findings made by an earlier immigration judge did not automatically require to be read across to new material contained in further submissions if that material emanated from third parties, as indeed was the case in this application;  and, further, where that new material lay at the heart of the application for protection and was easily verifiable, it was incumbent upon the respondent to carry out basic verification checks.

[5]        Senior counsel then proceeded to address the further submissions tendered on behalf of the petitioner in some detail, in the light of the pertinent country guidance cases relative to Sudan.   At the core of these further submissions was the petitioner’s claim to be a refugee sur place due to events arising in the United Kingdom.   A re-assessment of his refugee status was accordingly required.   The new claim was based on new grounds and was, senior counsel submitted, very distinct from what had gone before and had been considered by the original immigration judge.   While that prior material was relevant, considerably less weight should be attached to it in the light of the distinct nature of the new claim.   The statement of the petitioner enclosed in the further submissions set out an explanation from the petitioner directly which addressed his omission to mention the matter of his membership of the Sudanese Justice and Equality Movement (JEM) in the course of his original asylum appeal.   The submissions further contained a statement, photocopy passport and correspondence from a senior office bearer in JEM in respect of the petitioner’s membership of that organisation and participation in demonstrations within the United Kingdom.   Finally, the submissions contained a supplementary expert report from Mr Peter Verney, which set out certain conclusions in respect of the petitioner’s probable origin and risk arising to him on return to Sudan as a failed asylum seeker due to his JEM membership.   Senior counsel referred to two relevant country guidance cases as helpful contextual material for the court, namely AY (Political parties - SCP - risk) Sudan CG [2008] UKAIT 00050 and HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062.   It was of note that one of the experts referred to in AY was the same Mr Verney relied upon in the petitioner’s further submissions.   Under reference to paragraphs 46 to 52 of AY, senior counsel submitted, correctly in my view, first that it could not be said that there was no risk for a failed asylum seeker in the situation of the petitioner on return to Sudan, having been engaged in demonstrations within the United Kingdom;  and second, that it could not be said determinatively that there was automatically a risk to such a person.   It was clear that a fact-sensitive analysis would require to be undertaken by a future immigration judge.   As observed in AY at paragraph 51:

“Whether any individual political activist is at risk will necessarily depend upon his individual circumstances set within the context of the situation as a whole.”

It was further notable that the Tribunal in AY was able, on the evidence before it, to state at paragraph 50 that:

“The fact that an activist is involved in low or mid level political activities does not necessarily mean that he will not be at risk of persecution.”

Senior Counsel also pointed out that in HMGO, the Tribunal had noted at paragraph 309(8) that:

“persons whose conduct marks them out as oppositionist or anti-government activists remain a current risk category”.

The Tribunal had in the same paragraph further observed, however, that:

“Not all sur place activities conducted by a Sudanese citizen, whilst in the United Kingdom, will give rise to a real risk on return”.

[6]        Developing this chapter of his submission, senior counsel argued that no reasonable Secretary of State in applying the Immigration Rule 353 test to the new material in the context of these country guidance cases could have concluded that that new material could not have constituted a fresh claim for asylum.   Taking into account every potentially supportive factor in favour of the petitioner in the application of anxious scrutiny, the new material, including the explanation tendered in his statement therein by the petitioner, could and should properly be so viewed.   The country guidance cases contained no bright lines in respect of levels of risk within the wider category of those involved in political activities sur place in the United Kingdom.   In these circumstances, senior counsel submitted that the modest realistic prospect of success test contained within Rule 353 had been duly met by the petitioner.

[7]        Senior counsel proceeded to address the letters from the respondent’s decision-maker dated 10 May 2013 and 7 August 2013, observing, again correctly in my view, that the active decision in force was the latter letter from August 2013 but that nevertheless the reasoning contained within the letter of 10 May 2013, having been expressly incorporated into the 7 August 2013 letter in terms of paragraph 14 thereof, required properly to be considered by parties and in due course the court.   It was of note that the decision-maker in the letter of 10 May 2013 at paragraph 21 had deemed that the petitioner’s involvement with JEM would not place him at real risk of persecution.   That could not be an accurate statement of the position in terms of the country guidance authorities, senior counsel submitted.   Further, from that same paragraph it appeared that the decision-maker, founding on the original decision of the immigration judge, was not ex facie prepared to accept the petitioner’s membership of JEM.   The same decision-maker in the letter of 7 August 2013 at paragraph 15 had stated that the petitioner had not explained why he had omitted to address the issue of his membership of JEM before the immigration judge.   The conclusion in paragraph 20 of that letter demonstrated a clear error of law on the part of the decision-maker, senior counsel contended, advancing the proposition that in this letter, read together with the letter of 10 May 2013, the respondent’s decision-maker had misunderstood or failed to take into account the explanation tendered by the petitioner in his statement accompanying the further submissions in respect of the issue of his JEM membership, supported as that statement was by corroborating material proferred from Mr Verney and the JEM office bearer.   It was simply erroneous to dismiss the expert view of Mr Verney and the material emanating from JEM on the basis of earlier prior adverse credibility findings.   Considering the further submissions in their totality, senior counsel submitted in conclusion that there was more than a fanciful prospect of success for the petitioner before a further immigration judge of the petitioner establishing the content thereof.   While questions necessarily arose in light of the new material which required to be addressed by the petitioner, that was, senior counsel argued, properly the function of a further hearing before a second adjudicator.   In any event, that further hearing was the appropriate forum for the conduct of the fact-sensitive analysis of risk required in the light of the country guidance cases.   Senior counsel accordingly invited the court to sustain the first plea-in-law in the petition and to reduce the decision dated 7 August 2013 and associated letter of 17 March 2014.

Submissions for the respondent

[8]        Counsel for the respondent accepted at the outset of his submission that in the event that the challenged decision letter of 7 August 2013 fell to be reduced, the associated decision letter of 17 March 2014 should also be reduced by the court.   Counsel emphasised that the decision letter of 10 May 2013 was not the subject of any averments in the adjusted petition seeking reduction, and that accordingly that decision letter was a lawful decision which remained extant:  PRC v Secretary of State for the Home Department [2013] CSOH 128 per Lord Bannatyne at paragraph 34.   It was therefore appropriate, counsel contended, to analyse the challenge to the letter of 7 August 2013 as being at all times premised on the lawfulness of the earlier decision letter.   Counsel submitted that the decision-maker for the respondent had indeed in the challenged decision letter of 7 August 2013 analysed the further submissions on the basis of the petitioner’s presumed membership of JEM.   All of the material tendered in the further submissions, apart from the petitioner’s statement containing his explanation about his omissions in respect of the issue of JEM membership before the immigration judge, had been considered in the decision letter of 10 May 2013, which was lawful and unchallenged.   The respondent’s decision-maker had asked himself the correct question and in addressing that question satisfied the requirement of anxious scrutiny, counsel submitted.

[9]        The credibility findings adverse to the petitioner which had been made by the immigration judge remained significant, counsel contended.   They applied to the same petitioner.   They could be given particular weight in respect of the extent of the petitioner’s membership of and involvement with JEM.   In the statement of the petitioner annexed to the further submissions, the petitioner at paragraph 6 thereof was unable to say that the Sudanese authorities were aware of his membership of JEM.   Further, in paragraph 8 of that statement, the petitioner had raised matters pertaining to his original asylum claim which had been trenchantly rejected by the original immigration judge.   Looking at the new material founded upon by the petitioner as a whole, counsel for the respondent submitted that there had been an inadequate grappling with the key concerns arising in the new asylum request, which counsel identified helpfully as:  (i) why the petitioner’s involvement with JEM had placed him within the category of those at risk on return to Sudan;  and (ii) why would the Sudanese authorities identify the petitioner as a person within that category on return.   The country guidance cases disclosed, first, that an applicant would require to show that their conduct marked them out as an oppositionist or anti-government activist to be placed within a current risk category:  HGMO, supra, at paragraph 309(8);  and, second, that an ordinary member of an opposition party would have an uphill task in establishing a claim for asylum in the absence of an ability to show that he or she had been engaged in specific activities likely to bring him or her to the attention of the authorities:  AY, supra, at headnote paragraph 3.

[10]      Turning to the letters of 10 May and 7 August 2013, counsel for the respondent noted that in terms of paragraphs 9 and 10 of the 10 May 2013 letter, the Secretary of State had applied the correct test.   Counsel further argued that there had been no submission advanced by the petitioner to the effect that the respondent’s decision-maker had in this letter identified the wrong test or applied the correct test incorrectly.   The decision-maker had correctly placed the issue of Sudanese knowledge in issue in paragraph 18.   The author had further noted that no explanation had been provided in respect of any reason why no letter of support from JEM was offered to the petitioner in support of his original asylum claim.   In paragraph 21 the decision-maker had clearly offered a consideration of matters on an alternative hypothesis, namely one of active involvement with JEM, and had, under proper reference to AY, supra, deemed that his involvement would not place him at real risk of persecution.   In any event, the author had determined in paragraph 23 that there was no reasonable likelihood that the petitioner would come to the adverse attention of the authorities on return.   Standing counsel’s approach to the unchallenged status of the letter of 10 May 2013, he contended that the conclusions reached in paragraphs 41 and 42 of that letter required to stand, notwithstanding the challenge to the 7 August 2013 letter advanced within the petition.   Counsel accordingly invited the court to approach consideration of the 7 August 2013 letter on the basis that the decision of 10 May 2013 was lawful and extant.   The 10 May 2013 letter was not the subject of challenge, and in any event within that letter anxious scrutiny had been applied along with the correct test.   Within the decision letter of 7 August 2013, at paragraphs 9 and 10, the law had been set out by the decision-maker correctly.   It was further clear from paragraph 15 that the petitioner’s statement was being considered therein, and the finding that counsel inferred from that paragraph to the effect that the explanation contained within that statement was not a reasonable one was plainly not an irrational finding.   On the basis that no evidence had been submitted that the petitioner was known to the authorities in Sudan or that his membership of JEM would come to the attention of these authorities, as set out in paragraph 18, the correct conclusion had been reached in paragraphs 20 to 22 that the further submissions did not create a realistic prospect of success, either individually or taken collectively with all other previously considered material.   Counsel for the respondent accordingly moved the court to refuse the petition.

Discussion and decision

[11]      At the outset, as I have indicated supra, I consider it appropriate to view the decision letter of 7 August 2013 as the determinative letter in this case.   The substantive decision contained in that letter is in my view informed by and should be read together with the reasoning contained within the respondent’s earlier letter of 10 May 2013.   I deduce that to be the intention of the author of the decision letters from the plain terms of paragraph 14 of the 7 August 2013 letter, which goes so far as to attach the 10 May 2013 letter for ease of reference.   I read these documents accordingly together and consider the reasoning contained in both to be properly at large before this court.   That said, I further conclude that counsel for the respondent has correctly identified the issues of fact which rightly exercised the decision-maker in these letters as, first, knowledge on the part of the Sudanese authorities enabling them to identify the petitioner on his return as a political activist, and, second, whether or not the petitioner’s activities in connection with his membership of JEM within the UK on a sur place basis would place him within a cohort of those at risk of persecution on any return to Sudan.

[12]      I read the fresh submissions seeking protection advanced by the petitioner as generating an entirely new chapter within the asylum claim, namely one for sur place refugee status arising from political activities within the United Kingdom and requiring accordingly a reassessment by a second adjudicator.   On that view, I consider that the author of the decision letters of 10 May 2013 and 7 August 2013 attached excessive weight to the adverse credibility findings made by the original immigration judge.   It is clear that the author has carried out an exercise in reading across these adverse findings from one distinct chapter to another distinct chapter of the asylum claim.   That in itself is an irrational approach in my opinion.   The context of a proper risk analysis is set out in the country guidance cases referred to, supra.   It appears to this court that the approach desiderated in these authorities to the undertaking of a proper risk assessment requires to be fact-sensitive and case-specific, focussed accordingly upon the individual applicant and carried out in the light of the new material available by a second adjudicator.   The tenor of AY and HGMO, supra, is that there cannot be said to be no risk to a person such as the petitioner.   The separate but related question of identification by the authorities of the petitioner must again be a fact-specific exercise.   It is notable that Mr Verney, in his supplementary report at paragraph 30 within the further submissions, clearly asserts a potential risk to the petitioner in the event of a return to Sudan as a failed asylum seeker.   The statement of the JEM office bearer confirming the petitioner’s attendance at demonstrations at cities within the United Kingdom states the position even more bluntly in the penultimate paragraph thereof in the context of risk to members of JEM:  “This is why any JEM member on return to Sudan will be interrogated, persecuted and killed as he cannot pass the airport as a failed asylum seeker without questioning.”

[13]      Against that background I cannot accept counsel for the respondent’s general submission which was in terms that the decision letters passed the rationality test required of them, applying the modest test desiderated in terms of Immigration Rule 353.   I have come to the view, accordingly, that no reasonable decision-maker on behalf of the respondent could have concluded that the further submissions tendered on behalf of the petitioner could not constitute a fresh claim for asylum on the basis that, taken together with all previously considered material in its totality, it could not be said that there was no realistic prospect of success before a second adjudicator.   The claim set out in the further submissions thus amounts to a new claim for refugee status sur place and contains material which does not originate exclusively from the petitioner but is supported by a senior official of JEM and by Mr Verney, whose expert evidence attracted weight and approval in AY, supra.   The adverse credibility findings of the original immigration judge founded upon significantly by the respondent’s decision-maker could in these circumstances never amount to a complete answer to the material contained in the further submissions.

[14]      Further, ex facie the terms of the letter of 10 May 2013, at paragraph 21, the respondent’s decision-maker goes too far, under reference to AY, supra, in stating that the author considers that the petitioner’s involvement with JEM would not place him at real risk of persecution.   That is, in my opinion, an erroneous construction of the applicable country guidance available.   Against that background the concluding determination within the decision letter of 7 August 2013 at paragraphs 41 and 42 demonstrates an error of law insofar as this court has concluded that it cannot be said that there is no more than a fanciful prospect of success for the petitioner before a further immigration judge of, first, establishing active membership of JEM within the United Kingdom over a period of years, and, second, establishing accordingly a real risk of persecution on return to Sudan.   It is clear that the fact-sensitive analysis of risk to the petitioner which requires to be undertaken in the light of the country guidance cases is one best carried out before a second adjudicator.   It is perhaps worth observing in this regard that while it is well established in the generality that every factor which might tell in favour of an applicant requires properly to be taken into account by decision-makers in the exercise of anxious scrutiny, given the special human context in which cases involving asylum are brought, it is nevertheless the position in this case that the relevant country guidance jurisprudence requires a highly particularised assessment of risk depending upon the individual circumstances of each asylum applicant, in this case of course, the petitioner.

Disposal

[15]      For all of these reasons I hold that had the respondent’s decision-maker properly applied the relevant test in terms of Immigration Rule 353, the respondent would have accepted the further submissions tendered for the petitioner as constituting a fresh claim for asylum.   I will therefore sustain the first plea-in-law for the petitioner, repel the pleas-in-law for the respondent and pronounce an order reducing the decisions of the respondent dated 7 August 2013 and 17 March 2014.   I reserve meantime all questions of expenses.