Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 128

 

P1386/15

OPINION OF LORD BECKETT

In the petition of

BB (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

Judicial Review of a decision dated 24 August 2015 by the Secretary of State for the Home Department refusing to treat the Petitioner’s further submissions as a fresh claim.

 

Petitioner:  Dewar; Drummond Miller LLP

Respondent:  Tariq; Office of the Solicitor to the Advocate General

6 September 2016

Introduction
[1]        In this petition for judicial review, the petitioner BB, a citizen of Libya, seeks reduction of a decision of the Secretary of State for the Home Department (SSHD) dated 24 August   2015.

 

The facts
[2]        The petitioner, a Libyan national born in 1988 in Misrata but who lived latterly in Tripoli, arrived in the UK on 12 May 2011 and unsuccessfully claimed asylum at Manchester Airport.  His appeal to the First-tier Tribunal (FTT) was refused in September 2011 and that decision was upheld by the Upper Tribunal (UT) in February 2012. Further submissions were rejected by the SSHD in June 2012 and June 2014.  Following a short period of detention and release on immigration bail in July 2014, the petitioner presented further submissions on 21 May 2015 referring to case law and enclosing a report by an academic about the conditions in Libya as they might affect the petitioner.  The SSHD’s decision of 24 August 2015 to reject the further submissions is the subject of this petition.

[3]        The basis of his further submissions was that because; first, he was formerly a Muslim and is now an agnostic; and secondly there is a general risk of indiscriminate violence in Libya the petitioner has a well-founded fear that he will be subject to treatment which would infringe his rights under articles 2 and 3 of the ECHR.  Included with those submissions was new material in the form of certain case reports and a report, dated 23 March 2015 by Dr Igor Cherstich an anthropologist with expertise relating to conditions in Libya, supporting the petitioner’s claim (no. 6/3 of process.)

 

The petition
[4] The petition narrates the terms of Immigration Rule 353 and refers to case-law including WM (DRC) v SSHD [2007] Imm AR 307, Dangol v SSHD 2011 SC 560, MN & KY v SSHD [2014] UKSC 30, R (YH) v SSHD [2010] EWCA Civ 116, AK (Sri Lanka) v SSHD [2010] 1 WLR 855.

[5]        The petitioner avers that the SSHD failed, or at least failed properly, to consider the content and import of the new material submitted (particularly Dr Cherstich’s report),  proceeded on the basis of earlier decisions and failed to apply anxious scrutiny.  In para 11 it is averred that at page 5 of the decision letter, the caseworker who had previously refused submissions had placed reliance on an Operational Guidance Note of May 2013 about conditions in Libya and this demonstrated that the decision of August 2015 was made without anxious scrutiny.  This line of argument was departed from by counsel who made a broader point about reliance on the country guidance case of AT & Others (Article 15c; risk categories) Libya (CG) [2014] UKUT 318 (IAC) which is discussed below as the petitioner’s third argument.

 

Report by Dr Igor Cherstich – no.6/3 of process
[6]        Dr Cherstich explains that he is an anthropologist and expert on Libya.  He asserts that he understands that his primary duty is to the court and not the instructing solicitor and that he is duty bound to give an objective and unbiased opinion based on his expert knowledge uninfluenced by the exigencies of the litigation.  He sets out his qualifications and experience at considerable length and it was not disputed that he was qualified to offer opinion evidence.

[7]        At page 4 he quotes statements issued by the organisation “Human Rights Watch” on 5 December 2014 to the effect that anyone forcibly returned to any part of Libya would be exposed to a real risk of serious harm and, in light of this, states:

“I believe that if B is to be returned to Libya he will risk (sic) harm from indiscriminate violence by the very fact of being there.”

 

[8]        By the time he comes to state his conclusions at pages 13 and 14 Dr Cherstich states, amongst others, that:

    “a)    B’s fear of persecution on account of his agnosticism is both genuine and

             well founded.

1. If B is to be returned to Libya he will be tortured, detained under un-human circumstances, and killed by the militias.
2. In the case of B relocation in another part of Libya is not an option.
3. B will not receive any protection from state entities…”

 

 

The decision letter of 24 August 2015 - no. 6/1 of process

[9]        The reasons for the decision relevant to this petition are found at pages 4-9.  The petitioner’s immigration history is narrated and there follows a summary of the basis of the latest claim and it is noted that in support of the submissions the petitioner had provided Dr Cherstich’s report and “various case law.”  The submissions previously considered are then summarised along with the decisions reached in relation to them.  Certain findings of the immigration judge on determining the petitioner’s appeal were noted, essentially that the petitioner’s presence in Libya, particularly if he moved to Benghazi, would not expose him to persecution or treatment contrary to article 3.

[10]      At the foot of page 4 and on page 5, parts of the reasoning of the case-worker who refused previous submissions on 6 June 2014 are quoted.  It is that case-worker who quoted from an Operational Guidance Note of May 2013 and the material quoted might be thought to be supportive of the petitioner’s claim.  However, that decision was then made on the basis of “relevant case law, qualification directive and Immigration Rule”and an assessment of the petitioner’s own position.

[11]      Thereafter at page 5 it is noted that part of the new claim relates to conversion “from Islam to Agnosticism” and it is then stated:

“In line with the guidance as noted in the case of Devaseelan, it is considered that the Tribunal’s findings as noted above are the starting point in the further adjudication of your claim to be at risk due to the volatile political climate.

 

It is considered that these issues have been previously fully considered. The new evidence that you have provided will be given anxious scrutiny below.”

 

[12]      At page 6, an examination commences of the submissions which have not previously been considered which are considered not to create a realistic prospect of success before an immigration judge. Dr Cherstich’s report and its conclusions along with the case law submitted are then referred to: AT & Others and DSG & Others (Afghan Sikhs: departure from CG Afghanistan [2013] UKUT 148 (IAC).  All of the evidence submitted is said to have been given anxious scrutiny.  The letter goes on to note and quote from a UN Security Council Report (dated 1 July 2015) on Libya and the conclusion is reached from this and the evidence submitted by the petitioner (ie Dr Cherstich’s report) that conditions in Libya remain unstable.

[13]      The petitioner’s claim that he will be at risk of ill treatment solely on account of his presence in Libya is evaluated.  The European Court of Justice case of Elgafaji v NL (Case C‑465/07) is examined and its conclusion noted as to the level of risk of indiscriminate violence arising from internal or international armed conflict which is required to qualify for protection under article 15(c) of Council Directive 2004/83/EC (the Qualification Directive.)  The country guidance case of AT & Others, is examined and its conclusion, that there is not such a high level of indiscriminate violence in Libya that an individual would face a real risk which threatens his life or person solely on account of his presence there, is noted. It is noted that this is the most up to date relevant country guidance and it is observed that:

“Furthermore whilst Dr Cherstich has based his opinion of your risk on return on recent media reports, these are not considered to be objective and it is not accepted that official Home Office guidance, as recorded within the case law, and COIS should be superseded by external media reports. Therefore it is not accepted that deviation from the country guidance case by application of DSG & Others would be appropriate.”

 

The conclusion is reached that:

 

“ …it is not accepted that you will be at risk “solely on account of your presence in Libya.”

 

[14]      There follows consideration of the petitioner’s contention that he would be at real risk of persecution on account of his religious belief, ie his conversion from Islam to agnosticism, in the light of Dr Cherstich’s report. RT (Zimbabwe) & Others v SSHD [2012] UKSC 38 at para 42 and its conclusion that:

“…Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution…”

 

is noted.

 

[15]      The letter continues:

 

“Attention has been paid to the information in the Country Expert Report provided. It is noted that Dr Cherstich has based his conclusion that you will be persecuted and possibly killed by militiamen via media reports.  However it is noted that these media reports relate to the ill treatment of Christians, those proselytising and those affiliated with Sufi Islam, and these do not relate to your individual circumstances as an Agnostic. You have provided no evidence to suggest that Agnostics, or those converting from Islam are specifically targeted or are at considerable risk of ill treatment from either the authorities or the militia.  Therefore this report holds (sic) little weight to your claim.”

 

A Country of Origin Information Report from December 2012 concerning religious freedom and a further Country of Origin Information Request “Libya-religion-ethnicity-agnostics (15 October 2012) are considered and the conclusion reached was that:

“… in light of the objective country information, the country guidance case law and the evidence submitted in support of your claim, it is not accepted that you will face a real risk of persecution due to your conversion from Islam to agnosticism.”

 

[16]      On page 9 there is an examination of the submission concerning the risk of persecution by virtue of being a failed asylum seeker which begins with a quote from Dr Cherstich’s report.  His contention that militiamen at checkpoints will interpret the petitioner’s time spent in the UK as an indication of association with the Qaddhafi regime, thus increasing the possibility of detention, torture and death is noted and met with the following response:

“However it is noted that these assertions have not been supported with any objective documentary evidence to substantiate them. Attention has therefore been paid to the country guidance case law of AT and Others in which it is noted…” 

 

and paras 11, 12 and 15 of the UT’s  headnote are quoted. The conclusion is reached that:

 

“… in consideration of the evidence submitted and the country guidance case law of AT and others it is not accepted that you will face a real risk of persecution upon your return to Libya, solely for being a returning failed asylum seeker who has resided in the UK.”

 

[17]      The final passage on page 9 includes the following:

 

“Careful consideration in line with case law WM(DRC) has been given as to whether  your submissions amount to a fresh claim  Although your submissions have been subjected to anxious scrutiny, it is not accepted that they would have a realistic prospect of success before an immigration judge in light of the reasons set out above, in particular:

 

• indiscriminate violence in Libya is not currently at such a level that a civilian would face a real risk of serious harm resulting in a breach of article 15 (c) solely by being present in the country.
• You have provided no new substantial evidence to suggest that you will face a real risk of persecution for your religious beliefs.
• You have provided no new substantial evidence to suggest that you will face a real risk of persecution due to your being a returning failed asylum seeker.”

 

The legal background
[18]      Parties were agreed as to the implications of Rule 353 as it has been interpreted by the courts in England and Scotland: WM(DRC), Dangol, R(YH Iraq), AK (Sri Lanka). New submissions, if rejected by the SSHD, will amount to a fresh claim if the newly submitted material is significantly different from material already considered, and when considered along with previously considered material, creates a realistic (meaning more than fanciful) prospect of success before an immigration judge. The SSHD, the immigration judge and the court must apply anxious scrutiny which requires that, in the very special human context of asylum and human rights cases, the reasoning of the decision maker must show that every factor which might tell in favour of an applicant has been properly taken into account.

 

Submissions for the petitioner
[19]      Counsel adopted the arguments in his written submissions and proceeded to amplify his contentions.  He examined Dr Cherstich’s report and the decision letter of 24 August 2015 and then presented three lines of argument. 

The first argument

[20]      With reference to Devaseelan v SSHD [2003] Imm AR 1, at para 39, counsel submitted that whilst the decision-maker was entitled to take the FTT’s findings as a starting point, it was wrong to treat them as binding and that, in effect, was what was done.  It could be seen that the decision-maker had treated the immigration judge’s original finding as decisive and was committed to rejecting any contrary material to which only superficial scrutiny was given. It was anxious scrutiny which was required.

[21]      It could not be said that there was anxious scrutiny of the claim because six significant aspects of Dr Cherstich’s report were not addressed in the reasons for refusal.  I set them out and explain my conclusions on them at paras [42] – [48] below.

The second argument

[22]      With reference to certain passages in the decision letter, counsel submitted that the decision-maker had erred. Counsel commended the approach of Lord Macfadyen in Nazir v SSHD 2002 SC 134, the implication of which was that evidence of the kind offered by Dr Cherstich could only be dismissed at this stage by the SSHD if no reasonable decision-maker could regard the material as credible and significant.  That was not a reasonable conclusion to reach in the present case.  Reference to the report not being based on objective sources must be viewed as an attack on credibility.  Given Dr Cherstich’s expertise and his plain understanding of his duties as a skilled witness, the report was capable of being regarded as credible.   On any view the information was significant; the report was capable of being accepted and incapable of being rejected at this stage. This was a further indication of an absence of anxious scrutiny.

The third argument

[23]      The decision-maker had erred in rigidly applying the out-of-date country guidance case of AT& Others. IS had become active in Libya since that guidance was issued and Dr Cherstich had provided more up to date information and his report should have been preferred to AT& Others.  The correct approach to adhering to or departing from a country guidance case was to be found in DSG & Others at paras 20 and 21.

 

Submissions for the Respondent
The first argument

[24]      Counsel for the respondent examined no. 6/1 of process in detail seeking to vouch his submission that, on close analysis, it could be seen that the new material, which essentially comprised some case-law and Dr Cherstich’s report, was identified and considered in a structured, careful and appropriate way.  Accordingly, there was no force in the argument that the SSHD had felt bound by the original findings and gave only superficial scrutiny to the new material.

The second argument

[25]      There was little if any difference between Lord Macfadyen’s observations in Nazir and what was said by the court of appeal in WM (DRC).  Counsel was content to test the material in Dr Cherstich’s report on Lord Macfadyen’s analysis.  The result was that there was no error of law, the report had been considered and a view was reached as to its significance in the light of its reasoning and how it fitted in with the country guidance in AT & Others.

The third argument

[26] Counsel submitted that the SSHD had properly held that there was no realistic prospect that an immigration judge would conclude on the basis of the country guidance that there was such a level of risk on return that a well-founded fear of persecution was demonstrated such that the petitioner was in need of international protection.  The SSHD had reached a view of the relative weight of Dr Cherstich’s conclusions and had noted the high threshold which must be met before a country guidance case can be departed from.  That threshold could not be reached on basis of the Dr Cherstich’s report.

 

Reasons and decision
Para 11 of the petition – wrongful application of an Operational Guidance Note

[27]      I was faced with the contradictory position of counsel for the petitioner both adopting his written submissions in which this contention featured centrally, and his recasting the point as his third argument and I deal with the recast argument below. However, I have considered para 11 of the petition, and the written submission, and I reject the argument advanced.  I consider that in the decision letter at page 5, it can be seen that the material complained of was supportive of the petitioner’s claim rather than destructive of it.  The decision of June 2014 was reached on a much broader basis as I have narrated in para [10] above.  All the writer of no. 6/1 of process was doing at that stage, was narrating the basis of previous decisions. I do not consider that what was written at page 5 demonstrates error by the SSHD.  Events moved on in July 2014 with the issuing of the determination in the country guidance case of AT & Others.  It was in the light of that guidance, evaluated alongside the material presented by the petitioner, that the decision of 24 August 2015 was made.

The second and third arguments

[28]      It is convenient to consider these arguments first as the case-law founded on provides a relevant background to all of the petitioner’s submissions.

[29]      It is important to recognise the parameters within which the decision-maker was bound to operate. At para 26 of the opinion in DSG & Others, a case in which country guidance could be departed from, the UT explained, following the opinion of the Court of Appeal in SG (Iraq) [2012] EWCA Civ 940, at para 47, that:

“…decision makers and tribunal judges are required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced, justifying their not doing so. To do otherwise will amount to an error of law.”

 

[30]      In DSG & Others a judge of the FTT had been entitled to depart from a country guidance case.  The circumstances were striking.  The country guidance case on which the SHHD placed reliance was from 2005 and a decision was being made in 2012.  The statistics relied upon in the CG case suggested that 20,000 Sikhs lived in Afghanistan and, on that basis, a number of attacks on Sikhs appeared to be random and not indicative of a general risk of persecution to the entire Sikh community.  Having heard evidence, a judge had found as a fact in a case from 2011 that there had been a dramatic reduction in the number of Sikhs in Afghanistan and that discrimination against Sikhs was extending to violence. Expert reports and other sources including a UNCHR report suggested that there were probably no more than 2000 Sikhs in Afghanistan.  This was viewed by the UKUT as being a highly significant change because the known number of attacks on Sikhs did not, against a population of that size, appear to be random and isolated. It was in those circumstances that the FTT judge had been entitled, in 2012, to depart from a CG case from 2005.

[31]      The most up to date country guidance case concerning Libya was that of AT & Others, dated 14 July 2014.  The determination was appropriately rigorous and thorough.  383 sources of country information were listed in an appendix and the court had multiple reports from three eminent experts who each gave oral evidence.

[32]      Whilst conditions can change over time, and it was suggested by Dr Cherstich that activity by IS had increased in Libya in the interim, the country guidance was nevertheless relatively recent when the decision was made on 24 August 2015.  The decision maker would have erred in law by departing from AT & Others unless there were very strong grounds supported by cogent evidence justifying such departure.

[33]      It was found in AT & Others that whilst many civilians had been killed or injured in revolutionary and post-revolutionary Libya, it was not established that there was such a high level of indiscriminate violence that substantial grounds existed for believing that a person would, solely by being present there, face a real risk which threatens his life or person (para 126 and headnote).  At para 11 of the headnote it was found that failed asylum seekers were not, for that reason alone, at real risk on return. At para 15 it was found that notwithstanding the prevalence of checkpoints manned by militias, it was possible to travel overland from Tripoli airport to other destinations without a real risk of persecution, serious harm or article 3 ill-treatment.  A claim to international protection was unlikely to succeed simply on the basis of a claimed risk of travel to any particular area of Libya and area specific evidence would be required to establish such a risk.  In para 20 it was found that the absence of tribal or family connections did not prevent a person from establishing himself in Tripoli or Benghazi if he faced local risk of harm elsewhere.  If it was suggested that there was some threat specific to a person in a new area, a fact specific inquiry would be essential, para 21.

[34]      This guidance constrained the decision-maker and forms the background against which the material in Dr Cherstich’s report fell to be considered.  Taking her own view as a starting point, the decision maker had to consider whether it was capable of justifying a departure from the country guidance of AT& Others on any of the bases explained in DSG & Others.

[35]      The petitioner founded particularly on the UT’s endorsement of certain Asylum Chamber Guidance Notes in para 21 of DSG & Others:

“21. In the Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 2, at paragraph 11, it is stated:

‘”If there is credible fresh evidence relevant to the issue that has not been considered in the country guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant.”

And at paragraph 12:

“Where country guidance has become outdated by reason of developments in the country in question, it is anticipated that a judge of the First-tier Tribunal will have such credible fresh evidence as envisaged in paragraph 11 above.” “

 

[36]      Acceptance of Dr Cherstich’s contentions that simply by being in Libya the petitioner would be tortured, detained and killed and exposed to a real risk of serious harm, and that by virtue of being a returned asylum seeker would be at real risk on return are in conflict with the conclusions reached in AT& Others.  Many of his sources pre-date the issuing of AT & Others.  He puts much weight on the announcement by Human Rights Watch dated 5 December 2014 that in its view anyone forcibly returned to Libya would be exposed to a real risk of serious harm, but offers no specification of what information led it to that conclusion. He does not specify where it is that ISIS is active and he does not suggest that it is active in Tripoli where the petitioner had lived.

[37]      The SSHD was not persuaded that there was any real prospect of a judge of the FTT being persuaded that Dr Cherstich’s report was cogent evidence so as to justify departure from the relevant conclusions in AT & Others.  That was a conclusion that she was entitled to reach and I have not been persuaded that she erred in reaching it.

[38]      Dr Cherstich’s contentions about the implications of agnosticism are in a different category because that issue was not considered in AT & Others.  However, the decision-maker noted that the material advanced in support of Dr Cherstich’s contentions was not concerned with the position of agnostics, rather it related to the ill-treatment of Christians, those proselytizing and those affiliated with Sufi Islam.  The decision-maker concluded that the petitioner had advanced no evidence to suggest that agnostics or those converting from Islam are specifically targeted or at considerable risk of ill-treatment from either the authorities or the militia.

[39]      Counsel for the petitioner did not dispute the SSHD’s contention that the onus lay on the petitioner to prove his claim. In the absence of any properly grounded information about the implications of agnosticism, I consider that the decision-maker was entitled to conclude that there was no realistic prospect of success before an immigration judge and I have not been persuaded that she erred in so concluding.

The first argument
[40]      I accept the respondent’s submission that the determination of the tribunal in Devaseelan makes it plain, at paras 37-39, that it is legitimate for the SSHD when presented with new material to take the findings already made in the petitioner’s case as a starting point.

[41]      It is clear from what is narrated at pages 4-9 of the decision letter that the nature of the claim and the materials advanced in support of it were identified and their relevance to the claim understood. 

[42]      Turning to the six specified “omissions”, counsel’s point (i), (opinion at pages 5 and 6 of Dr Cherstich’s report that the abandonment of Islam in favour of agnosticism is a very serious matter in Libya was not addressed), does not survive scrutiny of the decision letter. It was considered and evaluated at pages 7-9 as can be seen from the passages quoted at para [15] above.

[43]      Counsel’s point (ii) was to the effect that the petitioner losing the protection of family and tribe on account of his agnosticism ( page 6 of report) was not addressed.  It is not referred to in terms, but the import of the letter certainly was considered, and carefully.  On the DSG & Others approach, his assertion could not prevail over the findings in AT & Others that the absence of tribal or family connections would not prevent a person from establishing himself in Tripoli or Benghazi if he faced risk of harm elsewhere.

[44]      Counsel’s point (iii) was that the suggestion (page 7 of report) that abandonment of Islam may be difficult for a Libyan to admit to himself and may provide a reason for him not declaring his position at the outset of his claim for asylum was not addressed. On the face of it, this was a speculative suggestion and I do not regard a failure to note it in terms to demonstrate an absence of anxious scrutiny. In any event it relates to the issue of agnosticism which the SSHD addressed on the assumption that the petitioner was an agnostic convert from Islam.  The conclusion was reached that Dr Cherstich had not provided an evidential basis for his assertions about the implications of agnosticism (see para [15] above).  Other considerations were taken into account at page 8 of the decision letter before a conclusion was reached in the first para on page 9 (also quoted in para [15] above.)  

[45]      Counsel’s point (iv) was that Dr Cherstich’s information about the militias and that they impose their own understanding of justice, Shariya law and religious life (page 8 of report) was not addressed.  This observation is not materially different to a passage from the headnote of AT & Others quoted in the third paragraph of page 7 of the decision letter, where Dr Cherstich’s views about the behaviour of militia were considered.

[46]      Counsel’s point (v) was that Dr Cherstich’s conclusion (at page 10 of his report) that the petitioner could not avail himself of internal protection because of a pervasive state of lawlessness and because freedom of religion is no longer guaranteed was not addressed. Having reached her conclusion on agnosticism, and bearing in mind the terms of AT & Others, this issue essentially was addressed.  Ultimately the conclusion was reached in relation to Dr Cherstich’s suggestions that they were not sufficiently cogent to justify departure from the terms of a country guidance case.

[47]      Counsel’s point (vi) was that Dr Cherstich’s conclusion that relocation within Libya was impossible (page 11 of report) was not addressed.  On this last point, counsel explained that he was not seeking to raise an argument about internal relocation which exceeded the scope of the petition, he was simply seeking to illustrate his general point that relevant material from Dr Cherstich had not been considered.

[48]      I disagree that this was not addressed. It was not accepted that the petitioner had established a real risk of ill-treatment. In any event, regard was had to AT & Others in which it was concluded (in para 15 of the headnote which was quoted in terms on page 7 of the decision letter) that land travel was generally possible without giving rise to a risk of harm requiring international protection. It was not established in AT & Others that there was such a level of arbitrary or irrational conduct on the part of militias at checkpoints so as to put the ordinary traveller at real risk.

[49]      For these reasons I am not persuaded on the basis of any of counsel’s six points that there was an absence of anxious scrutiny or any other material error.    

 

Disposal
[50]      I shall therefore repel the plea in law for the petitioner and sustain the second plea in law for the respondent and refuse the petition.  I reserve in the meantime the question of expenses.