Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 112

 

P1122/15

OPINION OF LORD GLENNIE

In the Petition of

UAZ and AJB

Petitioners;

for

Judicial Review of decisions of the Secretary of State for the Home Department that the petitioners have not made fresh claims for asylum

 

Petitioners: Caskie; Drummond Miller LLP

Respondent: Webster; Solicitor to the Advocate General for Scotland

26 July 2016

Introduction

[1]        This is a petition for judicial review of the refusal by the Secretary of State for the Home Department to treat new submissions by the petitioners in their claims for asylum as a “fresh claims” in terms of Rule 353 of the Immigration Rules.  The consequence of that refusal, if it is allowed to stand, is that her rejection of the petitioners’ asylum applications does not amount to a decision capable of being appealed to the Immigration and Asylum Tribunal.

[2]        There are two petitioners, mother (AJB) and son (UAZ).  Although the son is 27 years old, he and his mother have always lived together.  Technically their cases fall to be considered separately, but in argument it was submitted on their behalf that if the judicial review challenge were to be successful in respect of one of them it ought as a matter of common sense to succeed for both.  It did not understand this to be disputed on behalf of the Secretary of State.  I shall therefore proceed on that basis.

 

Rule 353

[3]        The terms of Rule 353 are etched in the consciousness of all judges and practitioners involved with immigration and asylum cases.  But they bear repetition.  Rule 353 provides as follows:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of those Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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.  These submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.  These 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.”

 

The importance of the question whether the further submissions amount to a “fresh claim” is this: that if they do, the rejection of those further submissions amounts to a rejection of a fresh claim, triggering rights of appeal to the Immigration and Asylum Tribunal (“IAT”) under s 82 of the Nationality Immigration and Asylum Act 2002 as amended; but if they do not, the rejection of those further submissions is not a refusal of a fresh claim but simply a decision that no fresh claim has been made, a decision which, not being a decision to refuse an asylum, immigration or human rights claim, does not give rise to any right of appeal to the IAT under that or any other provision.  In that latter case, the disappointed applicant must seek his remedy, if he has one, in judicial review proceedings.  All of this is well-established: see in particular R (ZA (Nigeria)) v Secretary of State for the Home Department [2011] QB 722 at para 21 and R (Waqar) v Secretary of State for the Home Department [2015] UK UT 00169 (IAC) at paras 18-20.

[4]        There have been a large number of decisions on the interpretation and application of Rule 353.  I was referred to some of them.  It is well established that the Rule only imposes “a somewhat modest test” that the application has to meet before it falls to be regarded as a fresh claim.  A “realistic prospect of success”, as used in sub-para (ii) of the Rule, means only that the prospect of success must be more than fanciful.  Accordingly, the task of the Secretary of State in terms of Rule 353 is to consider whether there is a realistic prospect or possibility (so understood) that an Immigration Judge might decide in favour of an applicant’s asylum or human rights claim on considering the new material together with the material previously considered.

[5]        There did appear to be one small point of difference between counsel as to the application of the Rule.  In the course of his submissions, Mr Webster, who appeared for the Secretary of State, suggested that, on the question of whether the new submissions amounted to a fresh claim, the focus of the enquiry should not be on whether there was a realistic possibility that an Immigration Judge might decide in favour of the applicant but rather whether there was a realistic possibility that the Secretary of State, as the relevant decision maker, might decide in his favour.  I reject this suggestion.  To my mind it makes no sense.  The Secretary of State has, at this stage of the enquiry, already rejected the further submissions on their merits and has moved on to the stage of considering whether they amount to a fresh claim (an issue which has important consequences as explained above).  I consider that it would be perverse to construe the Rule in a way that meant that she then had to go on to consider, at this stage of the exercise, whether those same submissions, which she had already rejected, gave rise to a realistic (non-fanciful) prospect of her reaching a different view.  On a proper construction of the Rule, in determining whether the new submissions amount to a fresh claim, the Secretary of State is required to consider whether there is a realistic possibility of an Immigration Judge reaching a different view from that which she has reached, i.e. whether there is a realistic possibility of such a judge deciding in favour of the applicant’s claim.  That, as I understand it, was the construction adopted by the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337, [2006] EWCA Civ 1495, at para 11 where Buxton LJ identified the question for the Secretary of State as being whether there was a realistic prospect “of an adjudicator” (i.e. a tribunal judge) deciding in favour of the applicant: and see also R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at paras 15-16.  I note that this is the interpretation placed upon Rule 353 in the Home Office document “Asylum Policy Instruction, Further Submissions”, version 8.0, dated 13 March 2015 at para 4.2.3.

[6]        If an applicant is aggrieved about a decision of the Secretary of State under Rule 353 that his further submissions do not amount to a fresh claim, he may apply to a court for judicial review of that decision.  A helpful summary of the approach to be taken by the court in dealing with such cases is provided by Lord Bannatyne in ABC Ptr [2013] CSOH 32 at para [11].  It is by now well established that the test to be applied by the court in such a judicial review is the Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223): the court will only interfere with the Secretary of State’s decision if it is based upon a material error of law; if she has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account; if, where one is required, there is no proper basis in fact to support it; or if it is so unreasonable that no reasonable Secretary of State properly applying herself to the law and the facts could have reached it.  In Scotland the same approach was expounded by the Lord President (Emslie) in Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345 at 347-8.  It must be emphasised that the decision remains that of the Secretary of State and the court may not simply substitute its own decision for hers.  But in reaching her decision the Secretary of State must satisfy the requirement of “anxious scrutiny”.  This means that she must take into account in her review of the material every factor that could conceivably be regarded as favourable to the applicant, although it goes without saying that she is not required to show undue credulity to the applicant’s account.  In this regard, therefore, the court must ask (i) whether the Secretary of State has asked herself the correct question, namely whether there is a realistic prospect of the relevant adjudicator (the tribunal judge), applying the rule of anxious scrutiny, finding in favour of the applicant, and (ii) whether in addressing that question the Secretary of State has herself satisfied the requirement of anxious scrutiny both in respect of her evaluation of the evidence and the facts and in respect of the legal and other conclusions to be drawn from those facts: WM (DRC) v Secretary of State for the Home Department, supra, at para 11, and see R (YH) v Secretary of State for the Home Department, supra, at paras 22-24.

 

Background

[7]        The petitioners are citizens of Pakistan.  They are followers of the Ahmadi faith.  They claim that members of the Ahmadi faith are subject to discrimination and persecution in Pakistan. 

[8]        The petitioners have visited the United Kingdom lawfully on a number of occasions.  They first claimed asylum at the end of 2007.  They arrived in the United Kingdom on about 26 December 2007 (under visitor visas valid until April 2009) and claimed asylum two days later.  Those asylum claims were refused on 24 November 2009.  They appealed to the IAT.  Their appeals to the First-tier Tribunal (“FTT”) were dismissed on 11 February 2010.  Permission to appeal to the Upper Tribunal (“UT”) was refused on 12 March 2010 by the FTT and on 7 May 2010 by the UT.  Their appeal rights were exhausted on 10 May 2010.  Further submissions were submitted on their behalf on 6 June 2013 but these were rejected on 26 June 2013.

[9]        The petitioners commenced judicial review proceedings in England.  Permission to proceed in those judicial review proceedings was refused on paper on 17 July 2013 and subsequently, after an oral hearing, on 18 September 2013.  However, the petitioners intimated further submissions on the Secretary of State on 8 December 2013.  On or about 11 February 2014 the judicial review proceedings were brought to a close by means of a Consent Order which recorded an agreement by the Secretary of State to consider those new submissions. 

[10]      On 10 September 2014 yet further submissions were made to the Secretary of State on behalf of the petitioners.  Those further submissions were refused by decision letters dated 29 September 2015.  The petitioners were detained and served with notices of removal.

[11]      It is the decision letters of 29 September 2015 which are the subject of the present application for judicial review.  Although the decision letters go into considerable detail over the course of some 11 pages, the conclusion in the penultimate paragraph of each letter is that the further submissions of 10 September 2014 do not amount to a fresh claim within the terms of paragraph 353 of the Immigration Rules.

 

The Ahmadi faith – Country Guidance
[12]      It is convenient at this point to refer to what is said in Country Guidance cases about the position of Ahmadis in Pakistan.  I can do so by reference to the headnote of two relevant cases.  Whilst the headnotes only provide a summary of the relevant findings, they are sufficient in the present case to identify the relevant changes which have occurred over time.

[13]      The first such case is MJ and ZM (Ahmadis – risk) Pakistan CG [2008] UKAIT 00033.  That was decided in 2007 and provided the Country Guidance in effect at the dates in 2009/2010 when the petitioners’ initial claims for asylum were refused and their appeals dismissed.  It is sufficient to refer to paras 2-4 of the headnote.  These are in the following terms:

“2.       In Pakistan as a whole, whilst it is clear that from time to time local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries, and that a very small number of Ahmadis are arrested and charged with blasphemy or behaviour offensive to Muslims, the number of problems recorded is small and has declined since the Musharraf Government took power.  Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed.  The courts do grant bail and all appeals against blasphemy convictions in recent years have succeeded.

 

3.         There is very sparse evidence indeed of harm to Ahmadis from non-state agents (though rather more anecdotal evidence of difficulties for Christians).  The general risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.

 

4.         Where, exceptionally, the facts of a particular appellant's case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option … is a question of fact in each such appeal.”

 

[14]      New Country Guidance was given in the case of MN and others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC), after the decisions in 2009/2010 affecting the petitioners in this case.  That new guidance was expressly stated to replace the previous guidance quoted above.  I set out paras 2-10 of the headnote:

“2.(i)    The background to the risk faced by Ahmadis is legislation that restricts the way in which they are able openly to practise their faith. The legislation not only prohibits preaching and other forms of proselytising but also in practice restricts other elements of manifesting one’s religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytising. The prohibitions include openly referring to one’s place of worship as a mosque and to one’s religious leader as an Imam. In addition, Ahmadis are not permitted to refer to the call to prayer as azan nor to call themselves Muslims or refer to their faith as Islam. Sanctions include a fine and imprisonment and if blasphemy is found, there is a risk of the death penalty which to date has not been carried out although there is a risk of lengthy incarceration if the penalty is imposed.  There is clear evidence that this legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings) which can result in detentions whilst prosecutions are being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.

 

(ii)        It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.

 

3.(i)      If an Ahmadi is able to demonstrate that it is of particular importance to his religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, by engaging in behaviour described in paragraph 2(i) above, he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy. 

 

(ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above (“paragraph 2(i) behaviour”) to avoid a risk of prosecution.

 

4.         The need for protection applies equally to men and women. There is no basis for considering that Ahmadi women as a whole are at a particular or additional risk; the decision that they should not attend mosques in Pakistan was made by the Ahmadi Community following attacks on the mosques in Lahore in 2010. There is no evidence that women in particular were the target of those attacks.

 

5.         In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need to reach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive.  This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant.  Evidence likely to be relevant includes confirmation from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping.

 

6.         The next step (2) involves an enquiry into the claimant’s intentions or wishes as to his or her faith, if returned to Pakistan.  This is relevant because of the need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in paragraph 2(i) behaviour. The burden is on the claimant to demonstrate that any intention or wish to practise and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code (PPC) is genuinely held and of particular importance to the claimant to preserve his or her religious identity.  The decision maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant. If the claimant discharges this burden he is likely to be in need of protection.

 

7.         The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage n (sic) paragraph 2(i) behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation.

 

8.         Ahmadis who are not able to show that they practised their faith at all in Pakistan or that they did so on anything other than the restricted basis described in paragraph 2(ii) above are in general unlikely to be able to show that their genuine intentions or wishes are to practise and manifest their faith openly on return, as described in paragraph 2(i) above.

 

9.         A sur place claim by an Ahmadi based on post-arrival conversion or revival in belief and practice will require careful evidential analysis. This will probably include consideration of evidence of the head of the claimant’s local United Kingdom Ahmadi Community and from the UK headquarters, the latter particularly in cases where there has been a conversion. Any adverse findings in the claimant’s account as a whole may be relevant to the assessment of likely behaviour on return. 

 

10.       Whilst an Ahmadi who has been found to be not reasonably likely to engage or wish to engage in paragraph 2(i) behaviour is, in general, not at real risk on return to Pakistan, judicial fact-finders may in certain cases need to consider whether that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile.”

 

[15]      It can be seen from these quotations that there has been a considerable worsening of the position of Ahmadis in Pakistan since the petitioners’ claims were considered in 2009/2010.  It is right, of course, as Mr Webster pointed out, that the exposure of any particular individual to risk will depend upon a number of factors, including, as noted at para 6 of the headnote in MN, the individual’s intentions or wishes as to his or her faith if returned to Pakistan.  That is relevant to the question of whether they are likely to engage in the sort of behaviour described in para 2(i) of the headnote, and whether such behaviour is of particular importance to his or her religious identity.  The burden lies on the individual to demonstrate that the intention or wish to practice and manifest aspects of the Ahmadi faith openly is not only genuinely held but of particular importance to the individual in preserving his or her religious identity.  But the new Country Guidance recognises the increased risk to Ahmadis in Pakistan depending on the nature of their likely religious activities.

 

The original decisions in 2009/2010

[16]      I was not taken in detail to the terms of the decisions by the Secretary of State in 2009 or those of the FTT in 2010.  However, relevant extracts appear in the Secretary of State’s refusal letter of 29 September 2015.  It is apparent from these extracts that the Immigration Judge who dismissed the appeal did not believe that the petitioners were faced with persecution if they were returned to Pakistan.  There were, as I read the extracts quoted in the refusal letter of 29 September 2015, two strands to this.  First, there were a number of specific pieces of evidence adduced on behalf of the petitioners which the Immigration Judge did not accept.  He did not accept the evidence that UAZ was targeted when he was a young student at University; the threats were said to have increased because of the information entered about his religion on the enrolment form filled in by him when he enrolled in the University in 2003, but this did not tie in with the alleged persecution starting only in 2007.  There was an absence of evidence to corroborate the account of UAZ being pushed and injured whilst at the University.  It was not credibly explained why UAZ’s father (AJB’s husband) had not left Pakistan if he was also at risk because of his Ahmadi faith.  The Immigration Judge concluded this part of his decision in this way:

“…I find the evidence does not indicate that Ahmadis performing the activities that the appellants initially (prior to refusal of their claims) claimed to have been undertaking would be at risk of persecution in Pakistan.  MJ & ZM is a relatively recent country guidance case which holds that ‘the general risk on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.’  There was no independent, documentary evidence from the appellants’ mosque to support their claims regarding their activities.  There was no record of active preaching for any of the appellants.  Their claimed activities of teaching children in the mosque and filling in reports which involved going to a handful of houses and ticking items on a form, could not, in my view, give them ‘a particular profile in the Ahmadi faith’.  I have disbelieved the appellants’ account of persecution and there was no particular feature placing any of the appellants at risk.  I find that the activities which these appellants claim to undertaken (sic) are at a significantly low level.”

 

I recognise that this extract does not cover the whole reasoning of the Immigration Judge but it is sufficient to give the flavour of that reasoning on the points relevant here.

 

The new material submitted in September 2014
[17]      The petitioners in the present case rely on two matters which, they say, mean that their further submissions amount to a fresh claim.

[18]      The first is the significant change in the Country Guidance relating to the position of Ahmadis in Pakistan.  I have already summarised that change in paras [13]-[15] above.

[19]      The second is a batch of statements placed before the Secretary of State, consisting of a witness statement from UAZ (one of the petitioners), a witness statement from Abdul Ghaffar Abid, the President for Scotland of the Amadiyya Community, and a letter from Dr Shamim Ahmad, who describes himself as being In Charge of the Waqf-e-Nou Department International.

[20]      UAZ’s statement runs to 6 paragraphs.  I need not summarise it all.  Paras 5 and 6 are concerned with his religious activities.  In para 5 he says that he was actively involved in preaching the Ahmadi way of life in Pakistan, both collecting reports from members of the community and helping teach younger boys to read the Quran.  In para 6 he says that for the past 6 ½ years he has been preaching about the Ahmadi Community and its beliefs.  In 2008, he says, he began teaching young boys about how to pray, about Islam and about the history of the Ahmadi Community at the Ahmadiyya Muslim Association, also known as the Baitur Rehman Mosque, in Glasgow.  He was in charge of organising indoor and outdoor sports.  He would deliver leaflets in different parts of Glasgow with information about the Ahmadi Community.  He goes on to say that he actively preaches to people about the Ahmadi Community.  He has persuaded his neighbour to come along to the Ahmadiyya Muslim Association.  He attends community events and sets up a stall outside the Mosque providing information for people who are not Ahmadis or Muslims.  He attends Mosque two or three times a week and has been a regular there.  He always helps with events organised at the mosque.

[21]      The statement from Abdul Ghaffar Abid is shorter.  He explains that he is the President for Scotland of the Amadiyya Community, responsible for the entire administration of the Ahmadiyya Community.  He says that he has known UAZ for approximately 7 years.  He confirms that UAZ attended the mosque regularly.  He confirms that UAZ helps with stalls at the events held outside the mosque and elsewhere.  He says that there is no doubt in his mind that UAZ is a genuine Ahmadiyya Muslim.  He considers that he is dedicated to helping with all aspects of the work they do in the Ahmadi Community.  In his view the persecution of Ahmadis in Pakistan is not in decline but is on the rise.  He says that he is aware of the problems that UAZ has received.  Once any Ahmadiyya Muslim is exposed, then there is no going back for that person.

[22]      In his statement Dr Shamim Ahmad simply confirms that, based on their international records, UAZ is registered in the Tehrik Waqf-e-Nou scheme, the purpose of which is to dedicate the lives of children to serve Jamaat Ahmadiyya upon the completion of their academic career, serving the cause of religion and humanity.

 

The Secretary of State’s decisions – outline and criticisms

[23]      The decision letters are dated 29 September 2015.   They are detailed and run to 11 pages.  They narrate the history of the petitioners’ claims and the decision of the Immigration Judge in 2010.  They summarise the petitioners’ claims as previously presented and notes that the Immigration Judge did not accept the petitioners’ evidence as to their active involvement in the Ahmadi faith or their evidence about persecution when they were living in Pakistan – and made adverse credibility findings on these matters.  The letters list the new pieces of evidence sent by the petitioners and discuss the issues in the context of the latest Country Guidance.  After discussing a number of issues the Secretary of State concludes that she did not accept that the petitioners would be at risk if returned to Pakistan “in light of the Immigration Judge’s findings in your appeal determination and the evidence you have provided”.  She did not accept that they would be at real risk of persecution; “Therefore this aspect of the claim has no realistic prospect of success before an Immigration Judge applying anxious scrutiny.”  That conclusion was carried through to the decision letters where, in the penultimate paragraph, the Secretary of State concludes that “The new submissions taken together with the previously considered material do not create a realistic prospect of success.”  They did not amount to a fresh claim in terms of Rule 353.

[24]      Mr Caskie, who appeared for the petitioners, did not seek at this stage to suggest that the further material submitted on behalf of the petitioners allowed him to challenge the adverse credibility findings made by the Immigration Judge, though no doubt if the matter were to go before an Immigration Judge for a decision on a fresh claim he would reserve the right to re-argue all these matters.  For the purpose of this petition for judicial review he confined himself to two features of the decision letters which, in his submission, showed that the Secretary of State had not properly considered the new material and had not applied anxious scrutiny in her consideration of the claims. 

[25]      The first concern voiced by him was as to the reliance placed by the Secretary of State on the fact findings by the Immigration Judge as to the risk of persecution if the petitioners were returned to Pakistan, notwithstanding the change in Country Guidance.  Thus, at p6 of the decision letters the Secretary of State notes that the petitioners have made reference to the latest Country Guidance in MN and others (Ahmadis – country conditions – risk) Pakistan CG.  The letter then refers to other, later, Country Information and Guidance dated February 2015 pertaining to the position of Ahmadis in Pakistan – there was no criticism of this.  However, the Secretary of State then goes on to quote and rely on the findings by the Immigration Judge in his determination of the original claims.  In particular, the Immigration Judge took the view that the petitioners’ claimed activities of teaching children in the mosque and filling in reports could not give them “a particular profile in the Ahmadi faith”.  He found their activities to be at a significantly low level.  Those findings, he submitted, had to be viewed against the fact that he was applying the Country Guidance then in force, which suggested that there was in general a low risk of danger to Ahmadis who returned to Pakistan.  So at the time of that decision the petitioners would have had to show that they would have attracted attention.  The position was now recognised to be different.  In light of the new Country Guidance it was not sufficient simply to rely upon the findings of the Immigration Judge, which were directed to a different test.

[26]      The second concern was as to the way in which the Secretary of State had dealt with, or failed to deal with, evidence presented by the petitioners.  Thus, for example, the Secretary of State commented in the decision letters that the petitioners had not provided evidence from the UK Ahmadi Headquarters confirming their activities in the UK.  That is strictly correct, but the petitioners had produced evidence from the President for Scotland of the Amadiyya Community.  Nowhere in the decision letters is there any discussion of this evidence, apart from it being included (without the status of the individual as President for Scotland of the Amadiyya Community being noted) in a list of evidence submitted in support of the further submissions.  The Secretary of State appeared not to have given any or any proper consideration to this evidence.  It having been listed as part of the new evidence, it may simply have been overlooked.  That would suggest an absence of anxious scrutiny.  It was possible that she was saying that the evidence was inadequate/ insufficient because it was not from the UK Ahmadi Headquarters, as opposed to the equivalent in Scotland; but if that was her position it was over formalistic and again suggested a failure of anxious scrutiny in the assessment of the further submissions.

 

Discussion

[27]      The test I have to apply is a standard judicial review test.  It is not for this court to substitute its own view on the matter.  One question to be asked is whether the Secretary of State asked herself the right question, namely whether there was a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, finding in favour of the petitioners.  I do not doubt that she did ask the right question. 

[28]      But that is not the end of it.  The court must also ask whether, in addressing that question, the Secretary of State has herself satisfied the requirement of anxious scrutiny both in respect of her evaluation of the evidence and the facts and in respect of the legal and other conclusions to be drawn from those facts.  It appears to me that in this respect she has failed.  Having read the decision letters with great care I have come to the conclusion, despite Mr Webster’s careful submissions, that she has not shown by her letters that she has applied anxious scrutiny to her consideration of the petitioners’ claims.  I accept the points made by Mr Caskie, both as to use made of the previous decisions without proper recognition that the findings of the Immigration Judge in those decisions were focused on a different test emerging from different Country Guidance, and as to the failure properly to consider the new evidence, in particular the statement from the President for Scotland of the Amadiyya Community.

[29]      That is not to say, of course, that the Secretary of State was bound to find in favour of the petitioners’ claims for asylum or to conclude that the new material was of any particular weight in support of their claims.  But she was bound to consider it carefully, with anxious scrutiny, and for the reasons given above I am not satisfied that she did so.

[30]      That is enough for the petitioners to succeed in this application.  But I would go further and say that I find it impossible to accept in this case that, had she given the materials before her the required degree of anxious scrutiny, she could properly have concluded that there was no realistic prospect of an Immigration Judge upholding the petitioners’ claims.  The fact that the previous claims were rejected is, of course, a relevant consideration.  But, as already pointed out, there has been, since then, a marked and significant change in the Country Guidance dealing with the position of Ahmadis in Pakistan.  Instead of it being the case that there is a very low risk of persecution, the new Country Guidance makes it clear that it is now dangerous for an Ahmadi to practice and manifest his or her faith openly in Pakistan.  This gives rise to a question about whether it is of particular importance to an individual’s religious identity to practice and manifest his or her faith openly, but it is a different question from that asked by the Immigration Judge.  It has not been answered and, to my mind, there is no basis upon which the Secretary of State can properly say that such a claim could not possibly be successful.  I am satisfied that, had she applied anxious scrutiny to the further submissions, she would have recognised that they contained matters which had not previously been raised and that, even if she did not herself accept those further submissions on their merits, it was at least possible that an Immigration Judge might come to a different view.

 

Disposal

[31]      For these reasons I shall grant the prayer of the petition and reduce the decisions that the petitioners have not made fresh claims for asylum.

[32]      I shall reserve all questions of expenses.