Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 123

P197/16

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

SV

Petitioner;

for

Judicial Review of decisions by the Secretary of State for the Home Department dated 27th November 2015 refusing to accept submissions that further information amounts to a fresh claim for asylum. 

Petitioner:  Devlin;  Drummond Miller LLP

Respondents:  Pugh;  Office of the Advocate General

23 August 2016

[1]        The petitioner is a Sri Lankan national.  He came to this country in or around 19 January 2008.  He claimed asylum but it was rejected.  His appeal was refused by an immigration judge by decision dated 7 October 2010. 

[2]        The petitioner has made a fresh claim for asylum.  That was submitted to the Secretary of State by letter dated 4 November 2014.  By letter dated 3 August 2015 the respondent rejected the fresh claim.  The petitioner seeks to judicially review that decision. 

Background
[3]        The petitioner’s original asylum claim was based on what he said were his activities with the LTTE “Tamil Tigers” and the “Karuna Group” between about 2005 and 2007.  The immigration judge did not believe him.  At paragraph 24 of the decision letter the judge found that the appellant was not plausible and did not find him to be a credible witness.  The judge concluded “I find that the appellant has not established that he or his family were subjected to the problems he claims by the Sri Lankan authorities, the Karuna Group or the LTTE”. 

[4]        The fresh claim produced what was said to be new evidence in relation to the previous claim and evidence related to his activities in the United Kingdom since he arrived in this country.  The petition seeks to attack the Secretary of State’s decision in respect of both of these aspects of her decision.  However, before me, Mr Devlin limited his attack on the Secretary of State’s decision in respect of his sur place activities. 

[5]        The material which relates to the sur place activities consists of statements by NT and UK, a set of 13 photographs and two letters from Ms S and Ms T, the petitioner’s sisters who still live in Sri Lanka. 

[6]        The import of this information is that the petitioner has been involved in demonstrations against the Sri Lankan government and that this activity has put him at risk were he to return to Sri Lanka. 

The law
[7]        The approach to a judicial review of a decision of the Secretary of State in respect of a fresh claim is set out in the case of WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 between paragraphs 6 and 11 per Buxton LJ.  In essence the question is not whether the Secretary of State herself thinks that the new claim is a good one or should succeed but whether there is a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, determining that the applicant will be exposed to a real risk of persecution on return.  While the Secretary of State, can and no doubt logically should, treat her own view of the merits as a starting point for that enquiry it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up her own mind.  In addressing that question, both in respect of the evaluation of the facts and legal conclusions to be drawn from the facts, the Secretary of State must satisfy the requirement of anxious scrutiny.  If the court cannot be satisfied that the Secretary of State has asked the right question or that she has satisfied the requirement of anxious scrutiny then it must reduce the Secretary of State’s decision.  Both Mr Devlin and Mr Pugh agreed that the question is not whether the court considers there is a realistic prospect of success in an appeal to the First‑tier Tribunal but whether the Secretary of State was unreasonable in reaching the view that there was not a realistic prospect of success;  SA v The Advocate General for Scotland [2015] CSOH 180 at paragraph 6. 

Country guidance case
[8]        GJ (post‑civil war:  returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) relates to the risk to Tamil’s returning to Sri Lanka.  The following paragraphs from the headnote are relevant: 

(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention of otherwise, are:  

(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single sate because they are, or are perceived to have a significant role in relation to post‑conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. 

…

(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government. 

(8) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora.  The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war.  In post‑conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.” 

Evidence supporting the claim of sur place activity
[9]        The witness statements referred to above are from Sri Lankan Tamils who have been granted refugee status because of their involvement with the LTTE.  Both witnesses purport to know the petitioner.  Both speak to his presence at demonstrations against the Sri Lankan government on a number of occasions.  One of the witnesses speaks to that being between 2008 and 2009 and other unspecified occasions.  The other witness speaks to his being involved in such demonstrations between 2008 and 2014.  Such demonstrations include those in Buchanan Street, Glasgow and at the Scottish Parliament, a demonstration in London in 2010 and a demonstration during the Commonwealth Games on 23 July 2014.  One of the witnesses says that he has been told by the petitioner that he is scared of going back to Sri Lanka as his life is at risk if he does.  There are also a series of 13 photographs which purport to show the petitioner attending one such demonstration.  The person who is said to be the petitioner is seen in some of the photographs holding a placard.  The Secretary of State appears in her decision letter to have accepted that the photographs are of the petitioner, although Mr Pugh said that he could not say whether they did indeed show the petitioner.  The demonstrations were in support of a Tamil homeland and called for enquiries into allegations of human rights abuses by the Sri Lankan authorities. 

[10]      Both of the letters referred to appear to come from the petitioner’s sisters in Sri Lanka.  One of them says that their older sister was “unable to tolerate the torture” and that she had left her home village and now lives in another named village.  However since their move she said that the torture continued and their older sister had sent the younger brother and her two sons to a foreign country.  She then says “They torture us by asking where you are.  So nowadays we generally do not venture outside to go anywhere”.  The letter from the second sister says that they do not reside in their house in M because some unknown people often visit our house in M and they threaten me and ask where the petitioner is.  She goes on: 

“So we have taken a house in [A] and we are staying there right now.  However the menace does not stop there.  If I do not tell them where you are they have threatened to kill our younger brother so I have sent our younger brother to a foreign country”. 

Both these letters were sent in July 2013. 

[11]      In the letter submitting the fresh claim dated 4 November 2014 the petitioner’s solicitors said that: 

“We refer to Mr [V’s] statement on the evidence of a visit to his sister’s home by the Sri Lankan authorities.  They showed her a laptop upon which there was a photograph of [Mr V] engaging in protests.  Clearly [Mr V] has been identified through the means which the Upper Tribunal have accepted are used by the Sri Lankan government and as such is at risk on return.” 

Mr Pugh in his submissions said that there was no evidence to support that statement.  I was not shown Mr V’s statement and it does not appear from the face of the decision letter that it was before the Secretary of State.  Mr Devlin’s submission on this was that the solicitors would only have made such a statement on their professional responsibility and that they must be aware of evidence to support it. 

The decision letter
[12]      In respect of the statement by NT, after quoting from the statement, the Secretary of State said that it was noted that NT had not provided any corroborative evidence or photographs to substantiate her claims.  The photographs that had been supplied did not show her, (NT).  The Secretary of State then adds: 

“As there is no supporting evidence provided to substantiate her claim it is not accepted that it adds significant weight to your claim that Ms [T] had seen or accompanied you to political demonstrations for a five year period from 2008 to 2013.  In respect of the statement by [UK] again it is noted that he had provided no corroborative evidence or photographs to substantiate his claim.  As there was no supporting evidence provided to substantiate his statement it was not accepted that it added significant weight to the petitioner’s claim that [UK] had seen or accompanied him to political demonstrations for a five year period, from 2008 to 2013.” 

[13]      In respect of the photographs the Secretary of State notes that the dates of the demonstration have not been specified but most relate to the memorial event dated 18 May (year unspecified).  It is then said that within the photographs the petitioner is not doing anything specific that would draw attention to him more than to any other person in the photograph.  He is not actively demonstrating in the photographs nor is he shown publicly speaking or evangelising.  Furthermore, it was noted that the petitioner had not provided any evidence to show that the photographs had been seen by the Sri Lankan authorities or explained how this would draw any adverse interest in him by the authorities.  It is then said that he had not provided a personal statement explaining how he became involved in these political groups, how he was introduced to them, and how he funded his attendance at the demonstrations in London and Edinburgh that he claims to have attended.  The Secretary of State concludes:  “In fact you have not provided any new evidence to substantiate and verify your claim that you are an active and influential member with any protest group in the UK”. 

[14]      Turning to the letters the Secretary of State notes that there was no evidence that the threats had been reported to the police authorities and the letter on its own did not provide proof or verification that these threats have taken place.  There was no identification of who was making the threats or that it was a result of the petitioner’s involvement with any political group.  There is also criticism of the lengthy delay between July 2013 and 4 November 2014 in submitting these letters to the Secretary of State. 

Decision
[15]      In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 Laws LJ said at paragraph 34 that a realistic prospect of success means only more than a fanciful prospect of success.  Accordingly, the threshold that the petitioner has to meet is not a high bar. 

[16]      The respondent was entitled to take as her starting point the adverse finding of credibility against the petitioner.  The Secretary of State is also entitled to form her own view as to the reliability of the evidence submitted to her in support of a fresh claim.  However, in my opinion there are errors in the way in which the Secretary of State has dealt with the petitioner’s claim.  In the first place in relation to the statements it appears that the Secretary of State is requiring corroboration before these will be considered.  Two criticisms may be levelled at that approach.  The first is that there is of course no requirement for corroboration.  The second is that even if there was such a requirement the Secretary of State has not considered whether each witness could corroborate the other.  In relation to the photographs if it is accepted that the petitioner was present then it seems to me that that in itself is a factor which has to be taken into account.  On its own it would clearly not be sufficient.  The Upper Tribunal in GJ says (at paragraph 336) that they did not consider that attendance at demonstrations in the diaspora alone was sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka.  At paragraph 351 they said: 

“Attendance at one or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka.  That will be a question of fact in each case depending on any diaspora activities carried out by such an individual.” 

Accordingly, it is an issue of fact in each case as to whether or not the attendance at demonstrations is sufficient to create a real risk or a reasonable degree of likelihood that the person will attract adverse attention on return to Sri Lanka. 

[17]      The petitioner offers, as evidence of risk, the letters which are dated July 2013.  In my opinion it would be wrong to ignore them on the basis that they had not been immediately submitted by the petitioner to the respondent upon their receipt.  Mr Pugh is correct that I have not seen any evidence to substantiate the claim in the solicitor’s letter that one of the sisters had been shown a photograph on a laptop of the petitioner participating in a demonstration in the UK.  However, for present purposes I think that I can accept Mr Devlin’s submission that responsible solicitors would not have made such an allegation within the body of a letter submitting the fresh claim were they not in possession of evidence to support it.  Accordingly I shall proceed on the basis that such evidence exists.  

[18]      Mr Pugh submitted that the letters could not be said to relate to the petitioner’s activities in the United Kingdom but could be seen as relating to the petitioner’s activities in Sri Lanka before he left.  In my opinion there are three problems with this submission.  The first is that these letters, taken at their face value, are written some five years after the petitioner left Sri Lanka.  While of course it is true that the authorities may have been looking for him for five years or more it seems to me to be more likely to have been written as a result of more recent activity.  Secondly, that submission ignores the paragraph in the solicitor’s letter of 4 November 2014 relating to what the sister was shown on the photograph.  Thirdly, the submission is at odds with the respondent’s own position, based on the findings of the immigration judge in 2010, that the petitioner had not been involved with the LTTE or the Karuna Group in Sri Lanka.  For these reasons it seems to me that there was evidence before the Secretary of State from which the inference could be drawn (a) that the petitioner had been involved in sur place activities in the United Kingdom and (b) that as a result of these activities he was at risk on return to Sri Lanka.  If taken together at face value in my opinion there was evidence from which the Secretary of State could conclude that there is a realistic prospect of success before an immigration judge. 

[19]      Insofar as the Secretary of State’s consideration of the matters is concerned I am not satisfied that the Secretary of State has fulfilled the requirement of anxious scrutiny.  In particular, in my opinion, in requiring corroboration of the statements that had been submitted to her she fell into error.  I also consider that she has been too ready to dismiss the letters from the petitioner’s sister on the basis that the threats had not been reported to the police and did not provide proof that the threats had taken place.  It seems to me to be unrealistic to expect that such threats, if made, would be reported to the police.  The letters themselves are offered as proof that threats were made to the family.  Accordingly, I conclude that the Secretary of State acted unreasonably in concluding that there was no realistic prospect of success in an appeal to the First‑tier Tribunal.  I shall reduce the decision of 27 November 2015.  I reserve the question of expenses.