Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 29

 P644/16

OPINION OF LADY WOLFFE

In the cause

EZ

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Forrest; Drummond Miller LLP

Respondent:  C Smith; Office of the Advocate General

17 February 2017

Introduction

[1]        In this application for judicial review the petitioner seeks reduction of the decision of the Secretary of State dated 25 April 2016 refusing to accept his submissions as constituting a fresh claim (“the Decision Letter”).  The bases of that fresh claim, which was the petitioner’s third fresh claim, were

1. his claim for political asylum based on certain political activities (namely, online postings to his Facebook page and his membership of and attendance at the meetings of the National Movement of Iranian Resistance (“NAMIR”), a body critical of the regime in Iran) (“the Asylum claim”); and
2. his claim for protection of family life under Article 8, based on his relationship with his partner, a UK national (“the Family Life claim”).

Immigration History

[2]        The petitioner is a national of Iran.  He entered the UK on 16 July 2007.  He claimed asylum in the UK, but his claim was rejected.  His appeal against this decision was also  rejected and his appeal rights were exhausted as at 12 October 2007.  He submitted a fresh claim but this was also rejected.

[3]        The petitioner submitted a further fresh claim to the Secretary of State on 5 March 2014 (“the second fresh claim”).  In brief, the matters then said to be new were (1) certain political activities on the part of the petitioner and (2) the relationship he had formed with his partner, who is a UK national.  The Secretary of State rejected the petitioner’s second fresh claim.  The petitioner raised judicial review proceedings in December 2015.  These proceedings were dismissed after the Secretary of State agreed to withdraw her decision and to consider the petitioner’s further claim (“the third fresh claim”).  It is the Secretary of State’s rejection of this claim that is the subject matter of this petition.

The Correspondence Leading to the November Decision of the Secretary of State

[4]        An unusual feature of this case is the fact that, shortly before the issue of the Decision Letter under challenge, the Secretary of State had written to the petitioner’s agents requesting further information by a stipulated date.  The petitioner’s agents sent further information (“the further information”), but failed to do so by that date.  The Secretary of State initially refused to consider the further information by reason of the fact that it had arrived late.  Meantime, she issued the Decision Letter.  (The foregoing is a simplified chronology, as one of the items of correspondence was misdated, and it was conceded that another had been sent in error.)  However, no issue is now taken about the fact that the Secretary of State did not have regard to the further information in reaching the decision communicated in the Decision Letter, and I do not trouble to set out the full detail of the correspondence.

[5]        After these proceedings were raised, however, the Secretary of State proceeded to consider this further information as, in effect, a further fresh claim (“the fourth fresh claim”).  She issued her decision on 21 November  2016 refusing this further claim (see No 7/1 of process) (“the November Decision”). 

Procedural History

[6]        The first substantive hearing in this case was due to have been heard in November 2016.  However, by reason of the receipt of the November Decision, that hearing was discharged to enable the petitioner to consider whether a challenge to the November Decision should be incorporated into these proceedings.

[7]        By letter dated 20 January 2017, the petitioner’s agents advised that they would not, in fact, challenge the November Decision.

[8]        As a consequence, and notwithstanding the foregoing, when matters called before me for a substantive hearing on 27 January 2017, the grounds of challenge were those that were to be advanced at the first hearing in November 2016, with one difference.  There was no longer any challenge to the Secretary of State’s refusal to consider the further information she had requested.  It was accepted that she had done so.  For the avoidance of doubt, it was confirmed that there was to be no challenge to the November Decision.

[9]        The potential significance of the November Decision  is the impact it might have had on the utility of these proceedings.  The most that the petitioner can hope to achieve by these proceedings is a reduction of the Decision Letter with the effect that the Secretary of State must reconsider the third fresh claim anew.  In practical terms, however, the Secretary of State may have already done this in the November Decision, but this is not challenged.  It appeared to be the petitioner’s position that the November Decision did not address the sur place activities.  Neither party referred to the terms of the November Decision.  I proceed on the hypothesis that this did not supersede the Decision Letter.  Accordingly, while the respondent’s counsel submitted a copy of the cases of King v East Ayrshire Council 1998 SC 182 and Ashiq v Secretary of State for the Home Department 2015 SC 602 after the hearing and while Mr Forrest did not make any reply to these cases when afforded a chance to do so, and which might have been relevant to the consideration of the utility of these proceedings, I determine the matter on the basis of the substantive arguments presented to me.  In any event, that seems both appropriate and the most expeditious way to determine these proceedings.  I would not wish to contribute to what is already a prolonged process, by resolving it on the basis of a procedural matter. 

Decision Letter

Refusal of Asylum Claim

[10]      The Decision Letter narrated the matters I have set out in paragraph [3], above, and it recorded (in 32 bullet points at pages 4 and 5) the materials submitted by the petitioner under cover of the letters dated 17 February 2012 and 5 March 2014 from his agents.  Mr Forrest referred to only four of these items: namely, witness statements from (i) the petitioner, (ii) his partner, (iii) an individual who spoke to the petitioner’s membership in NAMIR, and (iv) a collection of four individual Facebook postings.  See pages 4 and 5 of the Decision Letter.  Mr Forrest made brief reference to a few passages in these documents.  The Decision Letter described much of the new material as “generic” and as making no mention of the petitioner.  Mr Forrest does not challenge this characterisation.  The Decision Letter then recorded submissions that had previously been considered (at pages 5 to 6).  These included the conclusion of the Immigration Judge, who had refused the appeal proceedings referred to above, that the petitioner’s account was not a credible one and that his findings that the petitioner was not considered to be of interest to the Iranian authorities upon his return remained a valid finding.  Mr Forrest accepts this part of the Decision Letter. 

[11]      The Decision Letter then turned to consider the submissions not previously considered (at pages 6 to 8).  It did so under reference to the five factors in BA (Demonstrators in Britain- risk on return) Iran CG [2011] UKUT 36 (IAC) (10 February 2011) (“BA”).  After referring to the Country Guidance case of BA, the Decision Letter then turned to consider the five factors identified in BA in detail.  Only the first, concerning sur place activities, was put in issue in these proceedings.  The second paragraph of the Secretary of State’s consideration of the sur place activities narrated certain conclusions:

“There is no evidence to suggest that your active involvement in NAMIR would be brought to the attention of the Iranian authorities in Iran.  There is also no evidence to suggest that your blog is a regularly viewed blog, that it has gained any sort of publicity in the wider outset [sic, read as ‘outlet’] of the internet, that would lead to it have gained the attention of the Iranian authorities in the millions of blogs on the internet”

[12]      Mr Forrest indicated that he did not take issue with the conclusion in the first sentence.  He accepted that this was not a case involving participation at public demonstrations and that the Secretary of State’s conclusion about the petitioner simply attending meetings was correct.

The Challenges to the Decision Letter

[13]      The petitioner presented only a limited challenge to two of the determinations in the Decision Letter. 

Challenge in the petition

[14]      It should be noted that the oral submissions presented on behalf of the petitioner at the substantive hearing bore no relationship to the matters set out in the petition.  As identified in the petition, the part of the Decision Letter concerning the rejection of the Asylum claim was challenged on the basis that the Secretary of State had erred in law by failing to exercise scrutiny.  In particular, it was suggested that it was not clear whether she applied the correct test or whether she had gone beyond her own view of matters.  In relation to that part of the Decision Letter concerning the rejection of the petitioner’s Family Life claim, the only challenge was to the Secretary of State’s determination outwith the Immigration Rules.  It was suggested that the Secretary of State had “ignored the effect the petitioner appears to have had in [his partner’s] life, and how she would feel if he were not allowed to remain in the UK”.  No legal ground was particularly associated with this statement.  In the petition, under reference to Razgar v Secretary of State for the Home Department [2004] 2 AC 368, it was stated that “there is no sign in the [Decision] letter that proportionality has been addressed in any way”.

Challenge presented in oral submissions

[15]      However, in his principal oral submissions at the substantive hearing, Mr Forrest did not make any reference to the challenge set out in the petition to the Secretary of State’s rejection of the Asylum claim.  No reference was made to the cases lodged relating to this challenge (such as WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 and Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115, lodged on behalf of the petitioner, or the cases of Dangol v Secretary of State for the Home Department 2011 SC 560 or MS (India) v Secretary of State for the Home Department [2013] CSIH 52, lodged on behalf of the respondent.)  It was only in his reply, after Miss Smith had made her submissions, that Mr Forrest simply “adopted” the matters set out in the petition.

[16]      Similarly, in oral submission the argument presented in support of the challenge to the Secretary of State’s refusal of the Family Life claim did not reflect what was set out in the petition.  There was no reference to Razgar or to proportionality.  As I understood it, the argument in oral submission was that the reasoning in the passage of the Decision Letter concerning exceptional circumstances was said to be inadequate.

Submissions

The Petitioner’s Submissions

[17]      In respect of the petitioner’s challenge to the Secretary of State’s refusal of his Asylum claim, Mr Forrest focused on the second sentence of the passage in the Decision Letter I have quoted above, at paragraph [11], dealing with the petitioner’s political activities.  Initially Mr Forrest appeared to suggest that this conclusion was factually incorrect.  He accepted, however, that he could not point to any additional information that had been before the decision-taker inconsistent with this finding and he departed from this suggestion. 

[18]      Mr Forrest did maintain a challenge to the second sentence of the passage from the Decision Letter quoted above (at paragraph [11]), to this extent: he accepted it was factually correct, but it was nonetheless contended that it contained an error of law.  Otherwise, I note that there was no challenge to the Secretary of State’s consideration of the other four BA factors, and I do not set these out.  While Mr Forrest did not challenge any of the individual determinations of fact leading to the conclusion (mid-way down page 8 of the Decision Letter) that the petitioner had not established his Asylum claim, he nonetheless challenged that conclusion.   Mr Forrest did so in reliance on an observation at the end of paragraph [466] in the case of AB  & Others (internet activity state of evidenc) v the Secretary of State for the Home Office [2015] UKUT (IAC) 257 (“AB”).  That case had considered inter alia the risks of internet activity and the possible impact of this on returnees.  However, at paragraph 466, the Tribunal acknowledged the difficulties in establishing any clear understanding of the risks consequent on blogging activities in Iran.  This was because very few people seemed to be returned unwillingly and this made it difficult to predict with any degree of confidence what fate, if any, faced such returnees.  At the same paragraph in AB reference was also made to the fact that some monitoring activity outside of Iran was possible and did occur.  It nonetheless then stated: “It is not possible to determine what circumstances, if any, enhance or dilute the risk although a high degree of activity is not necessary to attract persecution”.  It was on the strength of the latter part of this observation (“…a high degree of activity is not necessary to attract persecution”), that Mr Forrest contended that the Secretary of State had erred in not taking this into account.  If it were the case that a high degree of activity was not necessary to attract persecution, so this argument ran, the Secretary of State could not exclude the possibility that a small amount of activity could attract persecution.  This, he argued, was an error in law.

[19]      In relation to the petitioner’s challenge to the Secretary of State’s refusal of  his Family Life claim outwith the Rules, Mr Forrest referred to the short passage dealing with this determination (at the foot of page 11 of the Decision Letter) and in which it was concluded that there were no exceptional circumstances.  There is no challenge to any of the findings the Secretary of State made in respect of the material offered as supporting the petitioner’s Family Life claim. Mr Forrest’s submission was that this passage was too short.  It did not deal with the fact that the petitioner had a partner who was a UK national. 

[20]      Mr Forrest also suggested that part of the impetus of these proceedings was that the petitioner wanted to get the case to “a fact-finder” rather than to have a decision on the papers, although he did not explain or expand that observation.

The Respondent’s Submissions

[21]      Miss Smith began by noting, quite fairly, that the oral submissions Mr Forrest had advanced bore no relation to the matters in the petition and which appeared not to be insisted in.  She endeavored to reply to the new arguments presented in submissions, and to do so without the need of an adjournment.

[22]      In relation to the Mr Forrest’s reliance on AB, she pointed out that this was not a country guidance case.  It was not binding on the court.  Moreover, the observation stated was not one of general principle.  It was up to the petitioner to place material before the Secretary of State to support the conclusion that his activities had brought him to prominence.  He had not done so.  The criticism of this passage of the Decision Letter was unfounded. 

[23]      In relation to the challenge outwith the Immigration Rules, Miss Smith’s position was that the starting point was that the Secretary of State had concluded that the petitioner was not in a genuine and subsisting relationship.  She referred to the fact that in a recent application for funding to the Home Office the petitioner had declared that he was single.  This was inconsistent with his contention, relating to the same time frame, that he was in a subsisting relationship with his partner.  It was for him to provide material to satisfy the Secretary of State that he was in a genuine and subsisting relationship.  He had failed to do so.  He did not challenge the finding of the Secretary of State on this point. 

[24]      Accordingly, the Secretary of State could not be criticised for not carrying out a proportionality exercise in respect of family life, when she had concluded that there was no relevant family life to engage Article 8.

[25]      Furthermore, even assuming that the petitioner could demonstrate that he was in a genuine and subsisting relationship, this was not enough to succeed in a claim outwith the Immigration Rules.  Exceptional circumstances were required.  Miss Smith referred to the provision (in section 117D of the Nationality, Immigration and Asylum Act 2002) that where any family life was formed when an applicant’s immigration status was precarious, the decision-taker and, separately, the court, was obliged to accord “ little weight” to that family life.  The relationship with a UK partner, even if accepted as genuine and subsisting, was therefore not enough for the purpose of the challenge to the Secretary of State’s decision outwith the Immigration Rules. 

Petitioner’s Further Submission

[26]      After Miss Smith concluded her reply, Mr Forrest responded briefly.  He “adopted” what he said in the petition in respect of the challenge to the refusal of the petitioner’s fresh claim in respect of his Asylum claim.  Mr Forrest did not, however, present any further submissions and he did not refer to any of the cases that had been lodged relative to the matters as set out in the petition. 

Discussion and Decision

[27]      In relation to the petitioner’s argument as presented in oral submissions, and Mr Forrest’s reliance on AB, I accept Miss Smith’s submissions.  This is not a country guidance case.  It is not binding on this court. 

[28]      Indeed, the single sentence Mr Forrest relied on from AB (at paragraph 466) does not, on a fair reading, support the contention Mr Forrest sought to advance on the basis of the latter part of this sentence.  To say that a great deal of activity is not necessary for someone to become prominent (which is the import of the last sentence in paragraph 466 of AB), is not the same as saying that all one need show is that the applicant carried on a little activity and the risk could not be excluded that he had become known to the authorities.  The latter contention does not follow from the former observation.  This also seems to me is to misapprehend where the onus lies.  The onus lies on the applicant to establish the basis of his Asylum claim. 

[29]      Turning to such material as there was in respect of the petitioner’s online activities, Mr Forrest accepted that most of the documentary materials were generic.  There were a few passages in the witness statements but these did no more than describe membership of, or an association with, a group.  Mr Forrest did not suggest that any of these were public activities or demonstrations, within the possible ambit of the discussion in AB.  The only material that could possibly be characterised as of a public nature were the four Facebook posts.  To the extent that Mr Forrest referred to these, they were in brief terms.  He did not refer to any other material that might explain how many people might have viewed these four postings, or which might have showed if these had been widely circulated.  Whether or not these four postings were contained in that part of the petitioner’s Facebook profile accessible to the world, as opposed to those whom he accepted as Facebook friends, was not even explored.

[30]      In short, the difficulties for Mr Forrest’s argument are two-fold.  The Secretary of State has made a conclusion of fact based on the material before her, to the effect that on the basis of the four Facebook postings, she was not persuaded that this has made the petitioner’s profile visible in any relevant way.  That is an unchallenged factual determination.  In any event, Mr Forrest did not seek to challenge this on any of the recognised grounds of review.  So far as I understood his argument, he sought to elide this difficulty by suggesting that this sentence contained a mixed question of fact and law.  I do not agree.  In any event, he did not seek to identify any of the conventional legal grounds of challenge to this sentence in the Decision Letter, whatever its characterisation.

[31]      The second difficulty for Mr Forrest is that the passage founded on from AB does not support his contention.  Miss Smith is correct that AB is neither a country guidance case nor binding on this court.  More to the point, the tribunal in AB was identifying the difficulties in making any recommendations as a generality as to how to approach the assessment of the risks of political activities carried on via the internet outside Iran. The import of BA was to counsel caution in drawing any conclusions in this area and, as such, is the reverse of a country guidance case.  The sentence quoted, in context, is no more than a cautionary statement that a lot of activity is not necessary to create the relevant level of visibility to the authorities in Iran.  However, that sentence is not support for a wholly different proposition, that only very little activity of such activity will suffice.  While Mr Forrest appeared to accept that these were distinct conclusions and that the first did not lead to the second, he did not follow through the logic of this.  He presented no other argument.

[32]      Turning to the matters set out in the petition, I heard no argument on the ground of challenge set out in the petition and for which permission had been granted.  I have considered matters as set out in the parties’ notes of argument.  I agree with the respondents’ argument that, in the relevant passages of the Decision Letter, the Secretary of State has set out the correct text for anxious scrutiny, and that she does not require to repeat it ad longum at every point when she is exercising anxious scrutiny.  I detect no error of the kind identified in the petition and as repeated in the petitioner’s note of argument.   The petitioner’s challenge to the only determination within the Rules that was subject to attack, in relation to his Asylum claim, fails.

[33]      Turning to the challenge to the Decision Letter in relation to exceptional circumstances, I accept Miss Smith’s contention that it is for the applicant to provide sufficient material for this to be invoked, eg such as demonstrating a particular dependency of aged relations or of young children within the family unit on the support an applicant provides.  Nothing like this was suggested.  Indeed, in my view, the petitioner’s argument was untenable.  Even on the hypothesis that the petitioner was in a genuine and subsisting relationship with a UK national, this was the only factor relied on by the petitioner.  However, the fact that an applicant’s partner is a UK national is expressly provided for in the Immigration Rules.  Those Rules nonetheless provide that this factor is to be accorded little weight, and they do so in the context of the consideration of the application of the exceptional circumstances test.  On no view, therefore, can that fact alone suffice to constitute exceptional circumstances.   No additional factor was advanced on behalf of the petitioner.  I detect no error in the Secretary of State’s consideration of the petitioner’s claim outwith the Rules.

[34]      The petitioner’s challenge to the Secretary of State’s refusal of his claim outwith the Rules is without merit.  It follows that the petitioner has failed on all of the grounds of challenge advanced, whether in oral submissions or in the petition, and his petition falls to be refused.  I shall put the matter out by order to confirm the terms of any interlocutor.  I reserve all question of expenses meantime.

Coda

[35]      As noted above, at the substantive hearing before me the argument presented under reference to AB was not reflected in the pleadings or in the note of argument for the petitioner.  It was an argument for which leave had not been sought at the outset, much less granted.  It would also appear that this wholly new argument was advanced without giving any prior notice to Counsel for the Secretary of State.  While a party’s arguments might continue to evolve, particularly as time passes, this manner of proceeding is unsatisfactory, as it has the potential to elide the provisions for leave which are a hallmark of the new judicial review procedure.  Consideration should, perhaps, be given to whether any future practice note governing judicial review procedure should address the appropriate mechanism to control the introduction of new and different grounds of challenge once proceedings have been raised.