Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 124

P70/16

OPINION OF LORD CLARKE

In the petition

GURNAM SINGH (AP)

Petitioner;

for

Judicial Review of a decision of the Secretary of State for the Home Department to refuse to treat the Petitioner’s further submissions as a fresh asylum and human rights claim

Respondent:

Petitioner:  Devlin;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

23 August 2016

[1]        The petitioner seeks reduction of a decision of the respondent dated 21 October 2015, whereby she refused to treat further submissions made on his behalf as a fresh asylum and human rights claim. 

[2]        The petitioner is a national of India.  He was born on 3 February 1952.  He entered the United Kingdom on 29 May 1998 with leave to enter as a visitor.  In or about July 1999 he claimed asylum.  He took no steps to pursue this application.  He was detained by the Immigration Service and served with illegal entry papers on 19 August 2002.  He thereupon made a fresh asylum claim.  By letter dated 4 October 2002, 6/3 of process, the respondent refused the petitioner’s application.  The petitioner’s claim was said to be based on his fear of returning to India due to his alleged political activities and in particular due to his alleged membership of the illegal Khalistan Commando Force.  The respondent found his claim to be incredible.  The petitioner appealed that decision.  His appeal was heard by the Chief Adjudicator.  The Chief Adjudicator, in turn, found the petitioner’s claim to be incredible.  In his determination dated 10 February 2003, the Chief Adjudicator at paragraph 19 stated: 

“Overall I do not find the appellant credible.  I have grave doubts that he was ever a member of the Khalistan Commando Force but if he was it was at a very low level indeed.  I do not accept there is a reasonable likelihood that the appellant will be arrested still less persecuted on any return to India.  Returned asylum seekers are, the CIPU report shows, subject to questioning briefly unless the arrivee is wanted by the Indian Security Services.  I do not accept that is the case with this appellant.  Accordingly I reject the asylum claim.”

[3]        The petitioner’s appeal rights were exhausted on 26 July 2003.  He, thereafter, was listed as an absconder, on three occasions having failed to comply with reporting requirements.  Some 12 years after his appeal rights had been exhausted, there were made, on his behalf, by letter dated 23 September 2015, 6/1 of process, representations which the respondent was asked to consider as a fresh claim for asylum and in respect of human rights.  The representations were accompanied by a number of documents.  At the first hearing of the petition before me, the most significant of these documents, for the purposes of the submissions made on behalf of the petitioner, was what is described as an Expert Country Report dated 8 January 2015, the author of which was Mr Shantanu Mohan Puri.  It was the nature and content of that report that should have, it was submitted on behalf of the petitioner, led the respondent to treat the new submissions as a fresh claim for asylum. 

[4]        The respondent in her decision, in relation to the petitioner’s fresh submission claim, dated 21 October 2015, 6/2 of process, at page 4, stated that: 

“It is found that your core ‘protection-based’ submission, as noted above, has not changed since it was summarised by the Immigration Judge (in the decision promulgated on 10/02/2003…)”

At page 5 the respondent continued: 

“Your further submissions maintain that you are still at risk, in the Punjab, as Sikh separatists face persecution from the Indian authorities, as a result of their political opinion.  You have set out (via your solicitor) the over-arching position, on the issues experienced, by Sikh Separatists, from the Indian authorities.  This is noted and consideration has been given to the Expert Report provided by Shantanu Mohan Puri (dated 08/01/2015).”

The respondent went on to say that the starting point was taken to be the Chief Adjudicator’s findings and his conclusion in his determination of 10 February 2003 to which reference was made.  The respondent then continued: 

“Whilst the Home Office would not doubt the capability of the author of the Expert Report, it is noted that the individual is not in a position to address the actual events concerning you personally.  This is why the findings of the Immigration Judge are factored in, as the latter cast grave doubts on your story and your credibility.  Indeed, in the report of Shantanu Mohan Puri, little direct reference is made to you until the latter part.  It is stated that:  ‘Mr Gurnam Singh supported the work of the “Khalistan Party”, used to post letters on behalf of the Khalistan Commando Force (KCF), worked as an informer, regularly attended various meetings and rallies of KCF and distributed leaflets.’  It needs to be borne in mind, though, that the Expert Report is predicated on what its author has been told, by you, in your statement(s).” 

[5]        The law to be applied in determining an application like the present which seeks to challenge the decision of the respondent, rejecting a claim as being a fresh claim, is well established and can be found set out in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 in the judgment of Buxton LJ at paragraphs 6–11 and in R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 in the judgment of Carnwath LJ at paragraphs 15 and 22.  At paragraphs 10-11 of his judgment Buxton LJ stated: 

“… a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. 

First, has the Secretary of State asked himself the correct question?  The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return…  The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry;  but 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 his own mind. 

Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirements of anxious scrutiny?  If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”

In R (YH) at paragraph 24 Carnwath LJ referred to the expression “anxious scrutiny” and said: 

“As I suggested in the AS (Sri Lanka) case (at [39]), the expression in itself is uninformative.  Read literally, the words are descriptive not of a legal principle but of a state of mind:  indeed, one which might be thought an ‘axiomatic’ part of any judicial process, whether or not involving asylum or human rights.  However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, 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, 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.”

[6]        Before me counsel for the petitioner, at the outset of the submissions, said that the present petition for reduction of the respondents’ decision was based on a short point namely that, having regard to the Expert Report referred to above, and what was contained in it, it could be seen that the respondent had not exercised “anxious scrutiny” in considering whether or not the material placed before her amounted to a fresh claim.  Put another way, the submission was that there were inadequate reasons given for the respondents’ refusal to see the material as demonstrating that the claim had a reasonable prospect of success before another Immigration Judge. 

[7]        The report in question which forms part of 6/1 is headed: 

“Expert Country Report of Shantanu Mohan Puri, advocate at the High Court for Judicature for the states of Punjab and Haryana at Chandigarh, India on the treatment, by the Indian authorities, of the people who were involved with Khalistani activities in India and its impact on the applicant Gurnam Singh were he returned to India”.

The writer of the report, from his curriculum vitae, which he incorporated in the report, is apparently well qualified in Indian law.  In the report he sets out an apparently lucid exposition, supported by various references to various documents, as to the position of persons in India involved in Khalistani activities.  At paragraph 6 of the report Mr Puri states: 

“The facts of the case, as I understand them (which is based on the email sent by Mr Rashpal Singh) are that the Applicant, Gurnam Singh is a 62 year old Sikh from Village Khusropur, District Kapurthala, Punjab in India who fled from India due to his involvement with the Khalistan Party.”  (emphasis added)

At page 11 paragraph 8 of the report it is stated: 

“Since Mr Singh is a resident of a rural area in Punjab and was born in 1952, thus, the above stated statistical data and information has already indicated the level of education prevailing at that point of time.  Moreover, if the above mentioned statistics and studies along with the practical instances are considered, Mr Singh’s chance of being uneducated and illiterate becomes highly probable.”

At page 20 paragraph 8 under reference to material he has cited, Mr Puri states: 

“All these instances given herein above make it abundantly clear that Sikhs who are supporters of Khalistan continue to face Human Rights violations.”

He then goes on, however, to take, as fact, what he has been told of the petitioner’s alleged association with and activities in the KCF and continues: 

“Therefore, he also faces the risk of being prosecuted and may face similar torture and harassment at the hands of the authorities.”

Elsewhere in his report, see for example at page 22, Mr Puri obviously takes, pro veritate, statements about the petitioner’s involvement in the activities of the Khalistan.  Counsel for the petitioner readily accepted that, in so doing, Mr Puri had acted beyond his competence.  He was instructed to give, not a determination of the factual position relating to the petitioner, which he was clearly not in any position to do, but an expert opinion.  As counsel for the petitioner understandably conceded, Mr Puri could not assist with regard to the credibility, or otherwise, of the petitioner. 

[8]        In the decision letter at page 5 the respondent, as indicated above, while not in any way impugning the authorship of the Expert Report pointed out, correctly, that as regards what it had to say about the factual position pertaining to the petitioner, this was predicated simply on what Mr Puri had been told.  The respondent then continued: 

“The Home Office has, as noted, given the report deference, but has looked at your submissions (including previous findings) as a whole when considering if a grant of leave is appropriate.  It also relies on Operational Guidance Note, India, May 2013;  in particular, paragraph 3.9 on ‘Sikh Separatism’.  The said document reached the following conclusions: 

‘3.9.12 The present situation in Punjab is generally regarded as peaceful;  and the militant Khalistan movement weakened considerably.  The Sikh community maintains its own unique identity and is socially assimilated in Cosmopolitan areas… In India, minor political parties Khalsa Raj party and Shiromani Akali Dal (Amritsar) seek to establish Khalistan through non-violent means.

3.9.13 The human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said that there is a general risk of ill-treatment on return solely on the basis of believing in the establishment of Khalistan. Only those actively engaged in, or supporting, militant activity are likely to be of adverse interest to the authorities.’

It is found that you are not an individual in whom the authorities will have any interest.  Careful consideration has therefore been given to whether your submissions amount to a fresh claim.  Although they have been subjected to anxious scrutiny, it is not accepted that they would have a realistic prospect of success, before an Immigration Judge, in the light of the reasons set out above.  In particular, your claim has been previously found to lack credibility, and there is no evidence to demonstrate that you are at risk of ill-treatment, or persecution, on your return to India.” 

It should be noted that the Operational Guidance Note referred to, and relied upon by the respondent, was itself a document referred to in the petitioner’s representations in support of his fresh claim.

[9]        As counsel for the respondent submitted, at the heart of the petitioner’s case, lay the question of his credibility.  It had been accepted on behalf of the petitioner that the Chief Adjudicator had an ample basis for concluding that the petitioner’s version of events was incredible.  The petitioner was totally disbelieved by the Chief Adjudicator.  The respondent was perfectly justified, it was submitted, in reaching the conclusion that no question mark had been raised over that conclusion by reason of the fresh representations made and the documents lodged on behalf of the petitioner, in particular the report of Mr Puri, on which counsel for the petitioner principally now relied. 

[10]      The question of whether or not the petitioner was illiterate, which had been referred to in the report was not a matter which was in contention.  Mr Puri’s view of the position of the petitioner in that respect was immaterial in the context of the case as a whole.  The respondent had clearly exercised anxious scrutiny in this case but ultimately was well justified in reaching the view that there was no realistic prospect of another Immigration Judge taking the view that the petitioner’s claim should succeed. 

[11]      I am entirely satisfied that this petition is without merit, having considered the respondents’ original letter of refusal, 6/3 of process, and the Chief Adjudicator’s decision letter 6/4 of process, I consider that it is abundantly clear, as was accepted by counsel for the petitioner that both of these decision makers had a very full and compelling basis for arriving at the conclusion that the petitioner’s claim for asylum was incredible.  That was the issue in the case.  Nothing in the further material submitted to the respondent and, in particular, Mr Puri’s report, could be seen to begin to assist the petitioner in overcoming those clear findings as to credibility.  Mr Puri’s report was undermined by his having stepped out of his role as an objective expert and stating, as fact, matters of which he had no personal knowledge.  Once those statements are set aside there is nothing in the report which assists the petitioner with regard to his own credibility.  The clearly expressed decision letter of the respondent, 6/2 of process, does not reveal any error on her part in applying the relevant law in relation to the treatment of fresh submissions. 

[12]      For the foregoing reasons I will sustain the respondents’ fourth plea in law and dismiss the petition.