Scottish Court of Session Decisions
You are here:
BAILII >>
Databases >>
Scottish Court of Session Decisions >>
RECLAIMING MOTION BY SM AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2022] ScotCS CSIH_21 (26 April 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_21.html
Cite as:
2022 GWD 16-241,
2022 SLT 1142,
[2022] CSIH 21,
[2022] ScotCS CSIH_21
[
New search]
[
Printable PDF version]
[
Help]
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 21
P66/20
Lady Paton
Lord Turnbull
Lord Doherty
OPINION OF THE COURT
delivered by LORD DOHERTY
in the reclaiming motion
by
SM
Petitioner and Reclaimer
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
in the petition for Judicial Review of a decision of the Secretary of State for the
Home Department dated 24 October 2019 refusing to treat the petitioner's further
submissions as a fresh claim
Petitioner and Reclaimer: Winter; Drummond Miller LLP (for DMO, Solicitors, Glasgow)
Respondent: Graham Middleton; Office of the Advocate General
26 April 2022
Introduction
[1]
The petitioner and reclaimer (appellant) is a Gambian national. He claimed asylum
in the UK on 16 April 2015. He claimed that he would be at risk of persecution if returned to
Gambia because he maintains he is bisexual. On 11 September 2015 the respondent refused
his claim and he appealed to the First-tier Tribunal ("the FtT"). On 12 April 2016 the FtT
2
dismissed the petitioner's appeal. It found his evidence was "vague and lacking in
credibility in relation to the account he gives of his previous and present relationships with
men." (Paragraph 20). The evidence included a brief letter from a man, AO, which stated
that he was in a sexual relationship with the petitioner. AO was not called as a witness.
The FtT found the evidence of the petitioner and of AO to be "contradictory as to the details
of their relationship". The FtT was not satisfied that the petitioner is bisexual.
[2]
The FtT refused permission to appeal to the Upper Tribunal ("the UT"), as did the
UT.
[3]
The petitioner made further submissions to the respondent on 7 February 2017.
Those submissions included very brief statements from the petitioner and from AO. The
letter from AO bore to confirm the existence of a sexual relationship between the petitioner
and AO. On 12 May 2017 the respondent refused to accept that the submissions gave rise to
a fresh claim. The petitioner did not challenge that decision.
[4]
On 9 February 2018 the petitioner made further submissions to the respondent. The
submissions included a brief letter from AO in which he claimed to be in a relationship with
the petitioner, and a brief letter from PB in which he claimed to have witnessed a loving
relationship between the petitioner and AO and to have attended gay nightclubs with them.
On 6 December 2018 the respondent refused to accept that the submissions were a fresh
claim. The petitioner did not challenge that decision.
[5]
On 22 August 2019 the petitioner made further submissions to the respondent. The
submissions included brief letters from AO and PB which were in similar terms to their
previous letters. The letter from AO was undated. In addition, there was a letter dated
4 June 2019 from LGBT Unity Glasgow, which is a peer support, social and campaigning
group for lesbian, gay, bisexual and transgender ("LGBT") people. The letter stated that
3
the petitioner had joined the group in May 2018, that he had signed the constitution, and
that he had been an active member since he joined. On 24 October 2019 the respondent's
decision-maker refused to accept that the submissions were a fresh claim. The petitioner
brought the present petition for judicial review to challenge that decision.
Paragraph 353 of the Immigration Rules
[6]
The respondent's consideration of new material that is said to ground a "fresh claim"
is governed by paragraph 353 of the Immigration Rules. On 24 October 2019 paragraph 353
provided:
"When a human rights or asylum claim has been refused or withdrawn or treated as
withdrawn under paragraph 333C of these Rules 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..."
[7]
In WM (Democratic Republic of Congo) v Secretary of State for the Home Department
task of the Secretary of State under paragraph 353:
"[6] He has to consider the new material together with the old and make two
judgements. First, whether the new material is significantly different from that
already submitted, on the basis of which the asylum claim has failed, that to be
judged under rule 353(i) according to whether the content of the material has already
been considered. If the material is not `significantly different' the Secretary of State
has to go no further. Second, if the material is significantly different, the Secretary of
State has to consider whether it, taken together with the material previously
considered, creates a realistic prospect of success in a further asylum claim. That
second judgement will involve not only judging the reliability of the new material,
but also judging the outcome of tribunal proceedings based on that material. To set
aside one point that was said to be a matter of some concern, the Secretary of State, in
assessing the reliability of new material, can of course have in mind both how the
material relates to other material already found by an adjudicator to be reliable, and
4
also have in mind, where that is relevantly probative, any finding as to the honesty
or reliability of the applicant that was made by the previous adjudicator. However,
he must also bear in mind that the latter may be of little relevance when, as is alleged
in both of the particular cases before us, the new material does not emanate from the
applicant himself, and thus cannot be said to be automatically suspect because it
comes from a tainted source.
[7] The rule 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.
Second, as [counsel] 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
[8]
We would put the matter slightly differently in one respect. In our view it is more
accurate to say that the first judgement which the Secretary of State has to make is whether
the content of the submissions has already been considered. If it has, then the first
requirement for submissions to be significantly different is not met and it is unnecessary
to consider the second requirement. The submissions will not be significantly different.
However, where the first requirement is met, that in itself does not make the submissions
significantly different. In terms of paragraph 353 the submissions are only significantly
different if both part (i) and part (ii) are satisfied (cf O v Secretary of State for the Home
[9]
His Lordship went on at paragraphs [10]-[11] to consider the task of the court:
"[10] ....Whilst, therefore, the decision remains that of the Secretary of State, and the
test is one of irrationality, a decision will be irrational if it is not taken on the basis of
anxious scrutiny. 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
5
adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will
be exposed to a real risk of persecution on return: see [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 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 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."
That statement of the law was affirmed by the Inner House in O v Secretary of State for the
Home Department, at paragraph [23], and in Dangol v Secretary of State for the Home
Department 2011 SC 560, at paragraph [7].
Asylum and Human Rights Policy Instruction, Further Submissions
[10]
Asylum and Human Rights Policy Instruction, Further Submissions (Version 9.0) ("the
policy instruction") was published by the respondent for Home Office staff on 19 February
2016. Section 1.3 states:
"1.3 Policy intention
The policy objective when dealing with further submissions is to maintain a firm
but fair and efficient immigration system that grants protection and/or leave to those
who need it, or qualify for it, but tackles abuse and protects public funds by quickly
rejecting unfounded or repeat claims. This is achieved by:
...
·
quickly considering whether the new evidence changes the original decision
to refuse, to ensure we grant protection and/or leave to remain to those who
qualify for it
·
dealing quickly with unfounded claims and using immigration detention to
ensure those who do not need protection and have no other right to be in the UK
leave voluntarily or have their removal enforced quickly (and in the meantime
cannot access financial support)."
6
The introduction to section 4 states:
"In all cases, where new information is provided it must be considered alongside
the previous material, taking all evidence available into account. However, where
further submissions simply repeat information that has already been considered,
caseworkers should refer to the previous refusal and appeal determination in
rejecting the claim - there is no need to provide detailed reasons again if the issues
have already been properly considered previously."
Section 4.2 provides:
"...
The second test: is there a realistic prospect of success?
If the material has not previously been considered, caseworkers must assess whether
the new material, taken together with material previously considered, creates a
realistic prospect of success. The question is whether the issues raised are at least
arguable and could lead an Immigration Judge to take a different view...
Consideration includes old and new material
Caseworkers must consider all the available evidence when deciding whether there
is a realistic prospect of success at appeal. Where further submissions are based
wholly or partly on new evidence, this must not be considered in isolation, but must
be considered in conjunction with the material previously submitted. The question is
whether, in light of all the evidence available, the new material could persuade an
Immigration Judge - in other words whether it is arguable notwithstanding
rejection..."
The decision letter
[11]
The decision letter of 24 October 2019 summarised the petitioner's immigration
history and his further submissions. It noted that the claim that the petitioner was bisexual
had previously been considered. It stated that, in accordance with Devaseelan
[2002] UKIAT 00702, it took the FtT's findings as the appropriate starting point. It noted that in the
petitioner's letter and PB's letter AO's name had been misspelled. The petitioner's, AO's
and PB's letters were very short and they lacked detail and content. The letter from LGBT
Unity did not mention AO let alone any relationship between the petitioner and AO, and it
did not state that the petitioner is bisexual. The decision letter continued (p 9):
7
"Careful consideration has been given 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 ... Therefore, it is concluded that your submissions have no
realistic prospect of success".
On p 11 the letter stated:
"Careful consideration in line with case law WM (DRC) v SSHD [2006] EWCA
Civ 1495 has been given 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 accordance with the published Home Office Asylum Policy Instruction on Further
Submissions, your asylum and human rights claim has been carefully reconsidered
on all the evidence available, including the new further submissions and the
previously considered material...
I have concluded that your submissions do not meet the requirements 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. That means that it is not accepted that should
this material be considered by an Immigration Judge, that this could result in a
decision to grant you asylum, Humanitarian Protection, limited leave to remain on
the basis of your family and/or private life, or Discretionary Leave for the reasons set
out above.
I have decided that the decision of 11 September 2016 [sic] upheld by the
Immigration Judge on 12 April 2016 should not be reversed."
Permission to proceed
[12]
On 26 January 2021, following an oral hearing, Lord Tyre refused to grant permission
for the petition to proceed. The petitioner sought review of that decision. On 17 February
2021, after a further oral hearing, Lord Clark granted permission to proceed on one ground
only, namely, whether the respondent's decision -maker had properly distinguished between
his own view as to whether there is a realistic prospect of success before an Immigration
Judge and the ultimate question of whether there is in fact such a realistic prospect before
8
such a Judge. That ground had not been advanced in the petition at the time it was
considered by Lord Tyre.
The Lord Ordinary's decision
[13]
On 14 April 2021 at a substantive hearing Lord Boyd of Duncansby refused the
petition. In his view it was clear on a fair reading of the decision letter that the decision -
maker had applied the correct test. The terms of the decision letter which were criticised
were nearly identical to those in Dangol. Moreover, Lord Boyd of Duncansby considered
that there was no reason to doubt that when applying the test the decision -maker had
followed section 4.2 of the policy instruction. In his view the case of JM4 v Secretary of State
for the Home Department [2019] NIQB 61 fell to be distinguished. JM4 had turned on
McCloskey J's (as he then was) interpretation of the decision letter as a whole. The operative
part of that decision letter had been materially different from the decision letter of
24 October 2019. Although McCloskey J had relied upon the same point which the
petitioner now advanced, it had been just one of a number of grounds the cumulative effect
of which led him to conclude that the decision could not stand. Lord Boyd of Duncansby
was not surprised by the conclusion which the decision -maker had reached in the present
case when applying the correct test. He observed that the material submitted with the
application was sparse. The statements were brief in the extreme and devoid of detail.
There was reference to a proposed marriage in the petitioner's statement but none in the
other statements. There was no detail of his involvement in LGBT Unity events.
9
Submissions
[14]
Counsel for the petitioner submitted that the decision-maker erred in law by failing
to recognise that the question was whether an Immigration Judge could take the view that
there is a realistic prospect of success, not whether the Judge would take such a view. The
decision-maker had failed to apply properly the policy instruction and the observations of
the court in MO v Secretary of State for the Home Department [2012] CSIH 20, Opinion of the
Court (delivered by Lord Mackay of Drumadoon) at paragraph [34]. Those observations
should be preferred to the approach taken in RR v Secretary of State for the Home
Department [2012] CSOH 67 at paragraphs [22]-[30] and in AA v Secretary of State for the Home
Department [2012] CSOH 76 at paragraphs [14]-[22]. The policy instruction had not been
an issue in RR or AA, or in the authorities which the court had relied upon in those cases
(Dangol (paragraph [16]), O v Secretary of State for the Home Department (paragraphs [25],
[26]), and R (MN) (Tanzania) v Secretary of State for the Home Department [2011] 1 WLR 3200
(paragraph [32])). Moreover, the use of the word "would" in those cases had not been put in
issue. All of those cases pre-dated JM4. At paragraph [19] of that case the court concluded
that it was clear from the terms of the decision letter that the decision-maker had not applied
the correct test. A statement in the JM4 decision letter which was criticised by McCloskey J
also appeared in the decision letter in the present case, viz, "I have decided that the decision
of [date] upheld by the Immigration Judge on [date] should not be reversed." The court in
JM4 had concluded that the terms of the decision letter disclosed an error of law, and the
court here should reach the same conclusion. The Lord Ordinary had erred in law in failing
to recognise that the FtT had erred in law.
[15]
Counsel for the respondent submitted that neither the Lord Ordinary nor the FtT had
erred in law. The reclaiming motion was based on mistaken interpretations of the policy
10
instruction and of the requirements of paragraph 353. The question was not whether an
Immigration Judge could take the view that there is a realistic prospect of success. It was
whether on the basis of the fresh material and the pre-existing material there was a realistic
prospect of an Immigration Judge finding in the applicant's favour. If on the basis of that
material the correct conclusion was that he could find in the applicant's favour, then there
would be a realistic prospect of success. The Lord Ordinary had been entitled to find that
that was not the position here. The decision-maker had applied paragraph 353 and the
policy instruction properly.
[16]
The terms of the decision letter were entirely consistent with the terms of the policy
instruction and with the authorities (Dangol, paragraph [16]; O v Secretary of State for the
Home Department, paragraphs [25], [26]; R (MN) (Tanzania) v Secretary of State for the Home
Department, paragraph [32]; RR, paragraphs [24]-[30]; AA, paragraphs [17]-[23]; and AN v
Secretary of State for the Home Department [2013] CSIH 111, paragraph [26]). The case of MO
was distinguishable.
[17]
The Lord Ordinary was correct to distinguish JM4. As he noted in paragraph 10(6)
of his Note, that case turned upon the whole terms of the relevant decision letter. At
paragraph [19] McCloskey J described it as displaying "no awareness" of the correct test, viz
whether the new submissions taken together with the previously considered material create
a realistic prospect that on appeal an Immigration Judge would find in favour of the
appellant. The Lord Ordinary had been right to conclude that the terms of the decision
letter here were materially different. In any case, in JM4 this ground had only been one of a
number of errors which led the court to conclude that the decision could not stand. The
position in the present case was more akin to that in Re Mahmud's Application for Judicial
11
Decision and reasons
[18]
In our opinion the reclaiming motion should be refused. We are able to state our
reasons relatively briefly.
[19]
In our view counsel for the petitioner misstated the law when he submitted that the
question posed in part (ii) of paragraph 353 is whether an Immigration Judge could take the
view that the appellant had a realistic prospect of success in an appeal based on the fresh
submissions and the previously considered material. Part (ii) does not pose any such
question. Rather, it asks whether the submissions and material create a realistic prospect
of success before an Immigration Judge.
[20]
The policy instruction advises that if the fresh submissions and the previously
considered material could result in an Immigration Judge finding in the applicant's favour
in an appeal, then they create a realistic prospect of success. It is entirely apt in such
circumstances to say that they would create a realistic prospect of success.
[21]
We are satisfied that the decision-maker construed and applied part (ii) of
paragraph 353 correctly, and that he followed the advice in the policy instruction. It was
open to him to find as he did, and the Lord Ordinary did not err in law in so holding.
[22]
We add the following observations on JM4 and MO.
[23]
The main difficulty in JM4 was that there was no satisfactory indication in the
decision letter that the decision-maker had properly applied his mind to whether there was
a realistic prospect of success before an Immigration Judge. He appeared simply to have
approached matters by reference to his own view of the merits of the new material. That is
not a criticism which the petitioner has made good in the present case.
12
[24]
It is, of course, true to say that in JM4 the court indicated that the decision-maker's
statement that the earlier decision of the Immigration Judge should not be reversed
suggested a misconception on his part as to his role. The same statement appears in the
decision letter in this case, and the same criticism is advanced. However, the important
difference is that in JM4 there was no indication in the decision letter that the
decision-maker had applied the correct test. The statement reinforced the concern that he
had not. Here, by contrast, we do not have the same concern because we are satisfied from
the terms of the decision letter as a whole that the decision -maker did address the correct
test (cf Mahmud, Friedman J at paragraph 49).
[25]
In MO the court observed at paragraph [34]:
"[34] Furthermore, during our own consideration of the decision letter of
26 September 2009 a further error on the part of the Secretary of State emerged.
In paragraph 19 of the decision letter, the writer states that `it is not accepted that
an Immigration Judge applying the rule of anxious scrutiny of the material and of
all the previously considered material, would (emphasis added) reach a finding that
there is a real risk of your client facing persecution or serious harm were he to be
returned to Iran'. The test that requires to be met is a lower one than that. It is
whether there is a realistic prospect that an Immigration Judge may find in favour
of the asylum seeker, not that he or she would so find..."
Counsel for the petitioner placed reliance on those observations in support of his submission
that the question posed by part (ii) of paragraph 353 is whether an Immigration Judge could
take the view that the appellant had a realistic prospect of success in an appeal based on the
fresh submissions and the previously considered material. We have explained already that
that construction of part (ii) is erroneous, and in our opinion paragraph [34] of MO does not
indicate otherwise. The quotation in the second sentence indicated that the decision -maker
had formulated matters incorrectly because he addressed the question whether an
Immigration Judge would find in the applicant's favour, rather than the question whether
the fresh submissions and the previously considered material created a realistic prospect of
13
success before an Immigration Judge. We agree with what the court said in the second and
third sentences of paragraph [34]. However, we consider that the next sentence could have
been better expressed. In our opinion it is more accurate to say:
"It is whether an Immigration Judge could find in favour of the asylum seeker, not
that he or she would so find. If he or she could, then there is a realistic prospect of
success."
It would be equally correct to say:
"It is whether an Immigration Judge may find in favour of the asylum seeker, not
that he or she would so find. If he or she may, then there is a realistic prospect of
success."
In our opinion both of those formulations are more consistent with the test in part (ii) of
paragraph 343 and with the policy instruction than the existing sentence.
Disposal
[26]
We shall refuse the reclaiming motion and adhere to the Lord Ordinary's
interlocutor of 14 April 2021.
