Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 37

P1000/15

OPINION OF JUDGE J BECKETT QC

In the Petition of

IK (AP)

Petitioner;

for

Judicial Review of a decision of the Secretary of State dated 1 May 2015 to refuse to accept representations on behalf of the petitioner as a fresh claim for asylum

Petitioner:  Forrest;  Drummond Miller LLP

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

4 March 16

Introduction
[1]        In this petition for judicial review, the petitioner (IK), a citizen of Iran, seeks reduction of a decision of the Secretary of State for the Home Department dated 1 May  2015 to refuse to accept representations on his behalf as a fresh claim for asylum.   

The facts of the case
[2]        The petitioner, born in 1981, arrived in the United Kingdom on 21 December  and claimed asylum on 22 December 2011.  He claimed that he had been a member of the Yarsin Democratic Movement (YDM) which protested against the Iranian authorities such that he feared persecution if returned to Iran.  His application was refused on 20 March 2012 and his appeal was dismissed on 30 May 2012.  His appeal rights were exhausted on 13 September 2012.  He sought to make a fresh claim for asylum on the basis of further submissions on 17 October 2014 which the respondent rejected for reasons given in a letter of 1 May 2015, no. 6/1 of process. 

[3]        The further submissions are summarised by the respondent in the decision letter as being: a claim of fear of return to Iran due to the petitioner’s political opinion given that he is said to be an active member of the Green Wave Voice (GWV);  that return will breach his rights under articles 2 and 3 of the European Convention on Human Rights;  and it is suggested that the claim should be considered in the light of the case of BA(Demonstrators in Britain-risk on return) Iran CG [2011] UKUT 36 IAC

The petition

[4]        It is averred that the petitioner, since arriving in the UK, has become a prominent member of the GWV movement and has participated in a number of UK based demonstrations against the regime in Iran and that he has been filmed doing so by the Iranian authorities.  He further avers that he has received threats from sources whom he believes are the Iranian authorities who are able closely to monitor the activities of anti-government protestors in the UK. 

[5]        The petition seeks reduction of the respondent’s decision that the submissions made on his behalf of the petitioner did not amount to a fresh claim for asylum in terms of para 353 of the Immigration Rules (HC395).   

The decision letter of 1 May 2015, no 6/1 of process
[6]        A list of the materials which accompanied the petitioner’s application of 17 October 2014 is set out at page 4 of the decision letter.  At page 5 a summary of the submissions previously considered is set out by quoting from the appeal determination of an Immigration Judge promulgated on 30 May 2012. 

“I find that the Appellant has failed to establish his claim even to the low standard required of him for reasons which I will explain.  Specifically, I find that he was not involved in assisting PJAK; was not a member of YDM; was not an active follower of the Yarsan religion; his home was not raided by the Iranian authorities; the Iranian authorities have no specific interest in him.

I have considered the matters put forward by the Appellant in support of his claim for asylum and conclude that the appellant’s account lacks credibility given the cumulative effect of my findings in fact and credibility… Accordingly, I do not find that he has established a well-founded fear of persecution for any Convention reason or at all.  I do not find that he has shown that he is eligible for Refugee Protection(Asylum).”

[7]        Immediately thereafter, at page 5, it is stated,

“Below is a consideration of the protection based submissions that have not previously been considered but which taken together with the previously considered material, are not considered to create a realistic prospect of success before an Immigration Judge.”

In the next paragraph it is narrated that,

“Anxious scrutiny has been given to your claims.”

Thereafter the respondent sets out an assessment of why the newly presented materials and submissions are considered to have no realistic prospect of success.

[8]        In the third para in this section of the letter, it is stated:

“You claim that you are the Glasgow coordinator for the Green Wave Voice in the UK, and that the Green Wave Voice was set up to follow the same aims as the Green Movement in Iran.  You have provided various pieces of evidence to illustrate your involvement in the Green Wave Voice in the UK.  It is not considered that the Green Wave Voice is a significant enough group within the Green Movement for the Iranian authorities to have any interest in the members of the group.  You have provided a number of online articles relating to the Green Wave Voice in the UK.  The Green Wave Voice does not appear on the first few pages of results on internet search engines when searching ‘Green Movement Iran UK group’ and related terms.  The Green Wave Voice only has online presence when searching for this group specifically, and therefore, it is unlikely that the Iranian Government would be particularly interested in the group.”

[9]        The letter goes on to narrate that according to the petitioner there has been speculation amongst demonstrators that undercover agents for the Iranian Government were filming one event.  There is reference to a witness statement in which the petitioner said that he believed that threatening messages received by him emanated from the Iranian Government because of reports which suggests that Facebook has been used as a tool by the government to, “monitor online activities of rights campaigners and intellectuals they suspect of engaging in what Iran sees as antistate activities.”  However, it is noted that the petitioner produced no evidence to support his belief as to who had sent the messages to him.  It was acknowledged that the US State Department considers that Iranian organisations monitor internet activity on social networking sites, but it was suggested that the petitioner lacks a sufficiently high profile for his activities to be of interest to such organisations.

[10]      The letter goes on to note that the petitioner has provided a number of photographs of him attending demonstrations which have been published online, but it is observed that there is no evidence that his name is attached or linked to the photos;  that an internet search using the petitioner’s name and relevant search terms does not provide any results relating to the GWV or the green movement on the first page and that the Iranian Government would not readily be able to access his Facebook page.  It is concluded that the petitioner has little online presence and that it would be unlikely that the Iranian Government would be aware that he is a member of the GWV or able to find that out without extensive research of his name.  It goes on to narrate:

“It [is] unlikely that the authorities would complete extensive research of your name, or your activities, as there would be no aspects of your return which would be likely to trigger enquiry.  There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain.”

[11]      Country guidance is then quoted, para 66 of BA, before the following conclusion is reached:

“You have claimed that you play the role of a ‘major organiser’ in the Green Wave Voice groups, and that you have attended a number of demonstrations.  However, as discussed previously, it is not considered that the Green Wave Voice is particularly significant within the Green Movement, and other political oppositions to the Iranian Government.  Therefore, it is not considered that there is a real risk of identification, and therefore not a real risk of consequent ill-treatment, on return.”

[12]      Reference is then made to SS (Iran) [2008] EWCA Civ 310 and conclusions reached by a judge in that case before it is stated:

“In consideration of this, it is concluded that you have not proved that your presence and activities are known to the Iranian Government, or that they would be able to discover this, on your return.  It is unlikely that the authorities would have any specific interest or knowledge of your political opinion, or involvement in demonstrations, and therefore it is concluded that your further submissions have no realistic prospect of success.”

[13]      The letter concludes on page 9 where the penultimate paragraph contains the following:

“I have concluded that your submissions do not meet the Requirement of Paragraph 353 of the Immigration Rules and do not amount to a fresh claim.  The new submissions taken together with the previously considered material do not create a realistic prospect of success.  This means that it is not accepted that should this material be considered by an Immigration Judge, that this would result  in a decision to grant you asylum, Humanitarian Protection, limited leave to remain on the basis of your family and private life or Discretionary Leave for the reasons set out above.”

The legal background
[14]      Para 353 of the Immigration Rules states: 

“When a human rights or asylum claim has been refused 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.   The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.   The 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.

This paragraph does not apply to claims made overseas.”

[15]      With reference to KD v Secretary of State for the Home Department 2011 SC 560, parties acknowledged that the proper approach to Rule 353 was that set out in WM (DRC) v Secretary of State for the Home Department (2007) Imm AR 307.  Mr Forrest drew my attention to the following passages in the opinion of the Court of Appeal given by Buxton LJ, the first of which is para 7 referring to Immigration Rule 353:

“7.  The paragraph only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim.  First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that.  Secondly, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return.  Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution.  If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v Secretary of State for the Home Department; Nedilow Santis v Secretary of State for the Home Department; Norman v Secretary of State for the Home Department; Re Musisi [1987] AC 514 , at 531F.

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

11.  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: see para [7] above.  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 inquiry; 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.  Secondly, 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 requirement 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.”

With reference to R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 at para 34, parties were in agreement that realistic prospect of success meant only “more than a fanciful prospect of success.”

Submissions for the petitioner

[16]      Mr Forrest contended that the respondent had erred in two respects.  First, that her reasoning does not disclose that she viewed matters from the perspective of what an Immigration Judge would do and she had decided for herself that the claim will fail. 

[17]      Secondly, she had reached a decision which no reasonable decision maker could have arrived at.  Mr Forrest accepted that the respondent had considered relevant country guidance in BA.  He also accepted that if the petitioner fell within the category of persons described in para 66 of the judgment in that case, then the claim would necessarily fail.  However, the respondent had to consider the combined effect of the new material.  The petitioner asserts that he is a member of a different organization, GWV, and that he is more than just occasionally involved, he plays a leading role as Glasgow coordinator and he had been threatened.  She was not entitled to disregard the appellant’s evidence that he had been threatened, that was a matter properly to be assessed by an Immigration Judge.  If she had viewed matters correctly and viewed the material together with the previous claim, the respondent could not reasonably have refused to treat the submissions as a fresh claim.  The respondent’s decision of 1 May 2015 should accordingly be reduced.

[18]      Initially counsel argued that in the passage of the letter quoted at para [11] above the respondent had stated that she disbelieved the appellant without having heard his evidence, but that suggestion was departed from and it was then suggested that if she was proceeding on an acceptance of the petitioner’s new information, her conclusion was premature and it was not a judgment for her to make.  It was properly for an Immigration Judge to assess the effect of the totality of the evidence presented and it should be borne in mind that the test was a low one, the prospects of success only had to be realistic which meant more than fanciful. 

Submissions for the respondent

[19]      Mr Komorowski sought to refute what counsel had submitted in his first point, by observing that there were repeated statements to the contrary in the decision letter. 

[20]      The decision maker had not rejected the petitioner’s claims about his activities in the UK, she had simply considered that they would not put him at risk which was an inference drawn from his account in the light of the country guidance.  The petitioner had produced no evidence that the Iranian authorities would become aware of the activities in which he participated.  Even if they did, Mr Komorowski questioned what basis there was for concluding that the images could be matched to the petitioner. 

[21]      Mr Komorowski relied on what was said in parts of the headnote of BA and also para 66.  He submitted, without contradiction, that it is the practice of the judges of the Upper Tribunal to prepare their own headnote and it should be viewed as part of the decision.  Given the terms of the country guidance, the respondent had been entitled to conclude  that there was no real prospect of the authorities becoming aware of the petitioner’s activities and being able to link his face to his name and that an Immigration Judge would so conclude.

Decision

[22]      In the country guidance case, BA, the determination of the Upper Tribunal was given by Mr Justice Cranston.  The headnote contains the following:

“1.       Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here,  regard must be had to the level of involvement of the individual here as well as any political activity which the  individual might have been involved in Iran before  seeking asylum in Britain.

…

3.       It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him.  It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.   

4        The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:

(i) Nature of sur place activity

• Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?
• Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime>
• Extent of participation – has the person attended one or two demonstrations or is he a regular participant?
• Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?

   

  (ii) Identification risk

• Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?
• Regime’s capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?

   

  (iii) Factors triggering inquiry/action on return

• Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?
• Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?

   

  (iv) Consequences of identification

• Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime?

   

  (v) Identification risk on return

• Matching identification to person – if a person is identified is that information systematically stored and used; are border posts geared to the task?”

[23]      Para 66 of the opinion states:

“66.     As regards identification of risk back in Iran, it would appear that the ability of the Iranian regime to identify all returnees who have attended demonstrations, particularly given the number of those who do, on return, remains limited by the lack of facial recognition technology and the  haphazard nature of the checks at the airport.   The expert frankly admitted that it was extremely difficult to estimate the risk to identified participants in protests against the Iranian government.   Mr Basharat Ali’s careful submission was not that all of those returning, or returned from the United Kingdom, would be subject to mistreatment.  We conclude therefore that for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of consequent ill-treatment, on return.”

BA was the country guidance case which the petitioner invited the respondent to consider.

[24]      Whilst much of the discussion in the relevant section of the decision letter offers the respondent’s assessment of the extent of the evidence put forward by the petitioner, and the weight to be attached to it, I bear in mind that the court in WM(DRC), at para 11, recognised that the respondent would be entitled in considering a proposed fresh claim under para 353 of the Immigration Rules to treat her own consideration as a starting point.  The section of the letter dealing with the newly submitted material identifies the correct test near the outset of the consideration of its potential to give rise to a fresh claim.  The letter concludes with the observations which I have quoted at para [13] above, confirming that it had been considered how an Immigration Judge would view the matter.

[25]      The analysis of the material advanced by the petitioner is primarily carried out in the light of the country guidance to which he invited the respondent’s attention.  The respondent noted the limits of the evidence and where the material strayed into speculation.  Where inference was invited, she examined the evidential basis proposed for it.  Any Immigration Judge would be expected to consider the country guidance and to apply it to the facts as they were considered to be.  I apprehend that what the respondent explains in her letter is that, on the hypothesis that the evidence (as opposed to speculation) offered by the petitioner is accepted, there was no realistic prospect of success before an Immigration Judge in light of the country guidance. 
[26]      Accordingly, even on the modest test which parties agreed fell to be applied, I am not persuaded that the decision reached by the Secretary of State was one which she could not reasonably have reached or that she erred in law in reaching it. 

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