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HJ (F/E) AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT [2022] ScotCS CSOH_69 (27 September 2022)
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[2022] ScotCS CSOH_69,
[2022] CSOH 69,
2022 GWD 31-456,
2022 SLT 1173
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 69
P157/22
OPINION OF LORD RICHARDSON
In the cause
HJ (F/E)
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Caskie; Drummond Miller, instructed by McGlashan MacKay
Respondent: Massaro; Office of the Advocate General
27 September 2022
Introduction
[1]
The petitioner is a citizen of Cameroon. He arrived in the UK on 10 January 2012 and
claimed asylum. The petitioner entered the UK using a passport in the name IN. It also
appeared that he had previously, on 28 September 2011, applied for a visa in this name at
UK High Commission in Yaoundé. This application had involved the giving of fingerprints.
[2]
The petitioner's claim for asylum was refused by the First-tier Tribunal on
13 October 2013. An important element of the petitioner's claim to the First-tier Tribunal
was that he had been attacked and taken hostage by the Cameroon authorities in September
2011 and was thereafter detained and tortured by them (see paragraphs [6] to [8] of the
2
decision). The decision of the First Tier Tribunal, in rejecting the petitioner's claims,
included findings that significant parts of the petitioner's evidence to the tribunal were
inconsistent and lacking in credibility (see paragraphs [35] and [37]).
[3]
The petitioner appealed the decision of the First-tier Tribunal. The petitioner's
appeal was refused on 10 December 2013 and his appeal rights were exhausted on
21 February 2014. Thereafter, the petitioner lodged further submissions on three occasions.
However, by 25 February 2020, all of these submissions had been refused and the petitioner
had exhausted all rights of appeal.
[4]
On 22 September 2021, the petitioner again lodged further submissions. These
further submissions were the subject of the present proceedings. An issue arose as to
whether these further submissions amounted to a "fresh claim". This issue is governed by
Rule 353 of the Immigration Rules which provides as follows:
"When a human rights or protection 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."
[5]
The petitioner's further submissions included a claim that, from October 2020, he had
become an active member of the Southern Cameroon National Council (the "SCNC") (UK)
and he sought asylum on that basis.
[6]
By decision dated 24 November 2021, the respondent both rejected the petitioner's
further submissions and found that they did not amount to a fresh claim. The respondent
summarised her decision as follows:
3
"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 reasonable prospect of success before an
Immigration Judge in light of the reasons set out above, in particular:
You have not established that you have a significant political profile that
would bring you to the adverse attention of the Cameroon Authorities.
You have not provided new evidence that verifies that you were detained as
a suspected member of any political group whilst living in Cameroon.
You have used several aliases and you not provided [sic] credible or original
supporting evidence that substantiates and verifies your true identity."
Petitioner's submissions
[7]
Mr Caskie submitted on behalf of the petitioner that the critical question in the
present case was that contained in the final paragraph of Rule 353: namely whether the
further submissions advanced on behalf of the petitioner, when taken together with the
material previously considered, gave rise to the petitioner having a realistic prospect of
success in an appeal before the First-tier Tribunal. This was because the respondent
accepted the further submissions did contain new material, concerning the appellant's
involvement with the SCNC (UK), which had not been previously considered and which
was significantly different from that which had previously been submitted.
[8]
It was also apparent that there was no disagreement as to the correct approach to be
taken by the Court to this question. In this regard, Mr Caskie accepted that the respondent
was correct to point to the approach set out in the opinion of The Extra Division as given by
Lord Doherty in SM v The Secretary of State for the Home Department [2022] CSIH 21 at
paragraphs [6] to [9]. In particular, Lord Doherty quoted from the judgment of Lord Justice
Buxton in WM (Democratic Republic of Congo) v Secretary of State for the Home Department
4
"[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 adju dicator,
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 th e 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."
[9]
Mr Caskie also drew my attention to what Lord Justice Buxton said about the test of
the applicant being exposed to a real risk of persecution on return at paragraph [7]:
"[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
This passage was also quoted, with approval, in SM (above).
[10]
Against this background, it was submitted that the respondent had not considered
the correct question focussing on whether, in the opinion of the respondent, the petitioner's
appeal would succeed as opposed to considering the different and lower test of whether
there was a realistic prospect of the appeal succeeding.
[11]
It was submitted further on behalf of the petitioner that the respondent had erred in
in carrying out its assessment. In this regard, reference was made to the judgment of Lord
5
Justice Sedley in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360
at paragraph [18]. There, consideration was given to the correct approach to be
taken when assessing the risk to asylum seekers arising from political activity sur place. In
particular, in that case, the issues were: first, whether the AIT had materially erred in law by
relying on the absence of objective evidence that the Eritrean authorities had the ability or
desire to monitor the activities of expatriates throughout the UK; and, second, whether
concluding that, even if photographs were taken of demonstrators, it was unlikely that the
Eritrean authorities would be able to identify the appellant and/or place his name on a list of
people of interest to the authorities. Lord Justice Sedley addressed these issues as follows:
"18 As has been seen (§7 above), the tribunal, while accepting that the appellant's
political activity in this country was genuine, were not prepared to accept in the
absence of positive evidence that the Eritrean authorities had `the means and the
inclination' to monitor such activities as a demonstration outside their embassy, or
that they would be able to identify the appellant from photographs of the
demonstration. In my judgment, and without disrespect to what is a specialist
tribunal, this is a finding which risks losing contact with reality. Where, as here, the
tribunal has objective evidence which `paints a bleak picture of the suppression of
political opponents' by a named government, it requires little or no evidence or
speculation to arrive at a strong possibility -- and perhaps more -- that its foreign
legations not only film or photograph their nationals who demonstrate in public
against the regime but have informers among expatriate oppositionist organisations
who can name the people who are filmed or photographed. Similarly it does not
require affirmative evidence to establish a probability that the intelligence services of
such states monitor the internet for information about oppositionist groups. The real
question in most cases will be what follows for the individual claimant. If, for
example, any information reaching the embassy is likely to be that the claimant
identified in a photograph is a hanger-on with no real commitment to the
oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the
Directive."
[12]
My attention was also drawn to Lord Justice Sedley's consideration in YB of the
approach to be taken where it is considered that the sur place political activity on the part of
the asylum seeker is opportunistic and has been undertaken precisely in order to create the
6
basis for an asylum application. Lord Justice Sedley deals with the issue at paragraph [13] of
his judgment.
"13 A relevant difference is thus recognised between activities in this country which,
while not necessary, are legitimately pursued by a political dissident against his or
her own government and may expose him or her to a risk of ill-treatment on return,
and activities which are pursued with the motive not of expressing dissent but of
creating or aggravating such a risk. But the difference, while relevant, is not critical,
because all three formulations recognise that opportunistic activity sur place is not an
automatic bar to asylum. The difficulty is in knowing when the bar can eventually
finding that the claimant's activity in the UK has been entirely opportunistic is that
`his credibility is likely to be low' is, with respect, to beg the question: credibility
about what? He has ex hypothesis already been believed about his activity and
(probably) disbelieved about his motive. Whether his consequent fear of persecution
or ill-treatment is well-founded is then an objective question. And if it is well-
founded, then to disbelieve him when he says it is a fear he now entertains may
verge on the perverse."
[13]
Mr Caskie maintained that when the respondent's decision on the facts of the
petitioner's case were considered in light of YB, it was apparent that the respondent had
erred.
[14]
In relation to the petitioner's involvement with the SCNC, Mr Caskie noted that a
membership card in the name of HJ which included a photograph of the petitioner was
included in the petitioner's further submissions. Mr Caskie also pointed to an affidavit
which had been provided as part of the petitioner's further submissions. This affidavit had
been prepared by Mr Robert Tamanji who was the Chairman of the SCNC (UK) branch.
Mr Tamanji spoke to the petitioner's membership of the SCNC (UK) since October 2020 and
his participation in four online meetings (which took place during the course of the Covid
Pandemic). The petitioner's online activities were also vouched by a number of screenshots.
The petitioner had in May 2021 also attended a demonstration against the Cameroon
Government in at Marlborough House, London (photographs of this event were produced).
Mr Tamanji noted further both that the petitioner is part of the SCNC (UK) team in the
7
Glasgow area where he acts as liaison officer and had been involved in activities there.
Mr Tamanji noted further that the petitioner has written an article on the Southern
Cameroons which was published online. Mr Caskie also drew attention to the fact that
Mr Tamanji had concerns that the Cameroon authorities were spying on the SCNC.
Mr Tamanji had reported to the police a particular incident of this which had occurred at a
demonstration outside the Cameroon High Commission in London in February 2017. In
relation to Mr Tamanji, I noted from the decision that the respondent did not and does not
seek to challenge his evidence.
[15]
Mr Caskie submitted further that based on the respondent's Country Policy and
Information Note: Cameroon: North-West/South-West crisis (Version 2.0 December 2020), a
similarly "bleak picture" (using the words of Lord Justice Sedley in YB) could be painted in
respect of Cameroon as for Eritrea. The Note contains both information about the country in
question (contained in Chapters 3 to 10) as well as an assessment of that information
(contained in Chapters 1 and 2). The Note had been prepared for the use of the respondent's
decision makers.
[16]
The assessment section explains, among other things, that since 2016 there has been
discontent in Cameroon on the part of Anglophone people living in Southern Cameroon.
The Note records that sources indicate that the Government of Cameroon is generally
intolerant of opposition and had continued to arrest and detain those who are or it perceives
to be Anglophone separatists (paragraph 2.4.5). This intolerance extends to diaspora
groups. The Note sets out the respondent's policy as to how such cases are to be assessed:
"2.4.7 The available information, when considered in the round, does not indicate the
government has an adverse interest in all returning Anglophones. However, it may
have an interest in those it perceives to support or to be linked to secessionist
activities...
8
2.4.8 Based on a review of the sources consulted, persons who are Anglophones and
have been, or are perceived to have been, involved in activities opposed to the
government, including advocating greater autonomy or secession for Anglophone
areas, are likely to be of adverse interest to the state. Whether a person is at risk of
persecution will depend on their profile and activities. Factors to take into account
include:
· the nature, aims and methods of the group they support or are lin ked to
· the role, nature and profile of their activities for the organisation they
represent or are linked to
· whether it has a presence in Cameroon as well as outside of the country and
any evidence that it is monitored by the government
· if they are not part of a particular group their role and activities in opposing
the government, such as organising demonstrations or publicly criticising
the government via conventional or social media, both in country and also
in the country of seeking asylum
· whether they have come to the attention of the authorities previously, and if
so, the nature of this interest.
2.4.9 Each case must be considered on its facts with the onus on the person to
demonstrate that they would be at real risk from the state"
[17]
Mr Caskie also drew my attention to that part of the Note which contains
information as to the treatment by the government of returnees to Cameroon. This section
included reference to an Immigration and Refugee Board of Canada request response
published on 24 August 2018. This, in turn, quoted a range of sources. The information
included the following (at paragraph 10.3.5):
"...According to NDH-Cameroun, Anglophone Cameroonians who live abroad and
have a link with the crisis will be [translation] `tracked down and arrested, wherever
they are,' as `officially' stated by the Ministry of Administration (ministère de
l'Administration)...The [ICG] researcher said that `[a]nyone in the diaspora who is
vocal against the authorities faces death or torture and imprisonment if they go to
Cameroon'...
`The researcher indicated that Anglophone Cameroonians returning to Yaoundé or
Douala are `not safe,' as they "might be taken from the airport to prison to an
unknown destination'... According to the same source, Anglophone deportees,
9
including failed asylum seekers, `can be imprisoned and fined, unless [they] brib[e]
[their] way out"
[18]
Turning back to the respondent's decision, Mr Caskie advanced three principal
criticisms of the respondent's decision.
[19]
First, Mr Caskie renewed his submission that, in making the decision, the respondent
had erred in not addressing the correct question. The respondent had focussed on whether,
in the opinion of the respondent, the petitioner's appeal would succeed as opposed to
considering the different and lower test of whether there was a realistic prospect of the
appeal succeeding. Or, in the alternative, Mr Caskie submitted that the respondent had
conflated the two questions.
[20]
Second, Mr Caskie submitted that the respondent had erred in its approach by failing
to take account of the considerations outlined by Lord Justice Sedley in YB (above) when
assessing the risk to an individual in situations where there is objective evidence which
paints a "bleak picture" of the suppression of political opponents.
[21]
Mr Caskie acknowledged that, as the respondent had highlighted in its decision, the
petitioner appeared at various points during his time in the UK to have used a number of
different names. The petitioner's position was that his name was actually HJ albeit that he
had not produced any original identification documents to prove this. Nonetheless, all of
his involvement with the SCNC had been under that name. However, as noted above, he
originally entered the UK using a passport which bore the name IN. Furthermore, at the
time of his initial hearing before the First-tier Tribunal, the petitioner had claimed that his
name was IJ. Mr Caskie noted that the respondent sought to found in its decision on, among
other things, the fact that it could not be accepted that the petitioner would be identified as a
member of the SCNC. Mr Caskie submitted that, in this regard, the respondent's approach
10
demonstrated the same flaws as had been highlighted by Lord Justice Sedley in YB. The
respondent's decision ignored the fact that there was objective evidence not least in the
respondent's Country Policy and Information Note which painted the "bleak picture"
referred to by Lord Justice Sedley. Furthermore, the photographs of the petitioner togeth er
with other information which related to him, which were readily available on the internet
enabled evidence of the petitioner's political activities to be connected to the petitioner
himself.
[22]
The third criticism advanced by the petitioner of the respon dent's decision was that
the respondent had erred by simply applying the approach set out in paragraphs 2.4.7 to
2.4.9 of the respondent's Country Policy and Information Note. The respondent had not, as
they should have done, considered whether there was a realistic prospect of an adjudicator,
applying the rule of anxious scrutiny, would reach a different view when considering the
information contained in the respondent's Note to that encapsulated in the respondent's
policy as set out at paragraphs 2.4.7 to 2.4.9.
[23]
For these reasons, Mr Caskie urged me to sustain the petitioner's plea in law and to
reduce the respondent's decision dated 24 November 2021.
Respondent's submissions
[24]
Mr Massaro submitted that I should dismiss the petition.
[25]
As a starting point, Mr Massaro placed emphasis on the fact that the petitioner's
application for asylum had twice been considered by the First-tier Tribunal and twice been
refused. This background established a baseline which was that the fact that the petitioner
was from Cameroon and a member of the Anglophone community did not, in itself, prevent
his return to Cameroon.
11
[26]
From this starting point, Mr Massaro confirmed that, so far as the law was
concerned, there was no dispute between the parties. He took no issue with the authorities
referred to by Mr Caskie and agreed that the correct approach in respect of `fresh claim'
judicial reviews was set out in SM (above).
[27]
Turning to the respondent's decision, he accepted that the reference in the
petitioner's further submissions to the activity which he had undertaken since October 2020
was "significantly different" for the purposes of Rule 353.
[28]
Mr Massaro also drew attention to the fact that the respondent placed emphasis on
the fact that the petitioner had only joined the SCNC (UK) following the failure of his
asylum claims. The respondent inferred that the petitioner had only taken this step in an
attempt to bolster his claim for asylum. Mr Massaro accepted that the petitioner's motive for
joining the SCNC (UK), whatever it was, did not prevent this activity from founding a claim
for asylum provided that the petitioner could demonstrate that he had either a well-founded
fear of being persecuted or a real risk of suffering serious harm (YB (above) at [10] to [15]).
However, Mr Massaro submitted that the petitioner's motive in joining the SCNC (UK) was
relevant to the respondent's decision because it went to the issue of the petitioner's
credibility.
[29]
In this regard, it was apparent to me from the respondent's decision that some
significance had plainly been attached to the issue of the petitioner's credibility. This was
perhaps as a consequence of the treatment of the petitioner's initial claim for asylum [see
paragraph 2 above]. When Mr Massaro was pressed to explain, in light of Lord Justice
Sedley's observations in YB (at [13] quoted at paragraph [12] above), what the significance of
the petitioner's credibility was to the issues arising from the petitioner's sur place political
12
activity, Mr Massaro conceded that it was only of limited significance given that the
petitioner's activity was evidenced from independent sources.
[30]
Mr Massaro submitted further that, in its decision, the respondent had, as it was
entitled to do, applied the approach set out in its Country Policy and Information Note: in
particular at paragraphs 2.4.7 to 2.4.9. The application of this approach was encapsulated in
the statement in the decision that the petitioner had not established that he had a significant
political profile which would bring him to the adverse attention of the Cameroon
Authorities. Mr Massaro contended that, in approaching the issue in this way, the
respondent was addressing the point focussed in paragraph 2.4.8 of the Note, namely:
whether the person in question was "likely to be" of adverse interest to the state.
[31]
Responding to the petitioner's submissions, Mr Massaro submitted that it was not
open to the petitioner to criticise the respondent for reaching a decision as to whether there
was a reasonable prospect that the petitioner would succeed before an Immigration Judge
on the basis of the approach set out at paragraphs 2.4.7 to 2.4.9 of the respondent's Note. In
this regard, Mr Massaro highlighted the fact that no criticism had been made of the
respondent's approach set out at paragraphs 2.4.7 to 2.4.9 in the further submissions which
were made by the petitioner and he made reference to YH v Secretary of State for the Home
[32]
Mr Massaro accepted that within the respondent's decision there was no
consideration of the SCNC itself, or the SCNC (UK), or either body's aims or methods. In
this regard, it was noted that the SCNC was referred to in the Note. He referred to
paragraph 4.8.3, where it was recorded that there were a number of Cameroonian
organisations in the UK including the SCNC. The SCNC described themselves as a `group
advocating for self-determination aiming at obtaining independence for the former British
13
Southern Cameroons. It is a non-violent and a non-political group of activists with its
motto; `The Force of the Argument not the Argument of Force".
Petitioner's reply
[33]
In a short reply, Mr Caskie renewed his submissions and drew my attention to the
fact that the respondent's Note contains a second reference to the SCNC, at paragraph 5.6.3,
in the following terms:
"BAMF Federal Office for Migration and Refugees (Germany): Briefing Notes 2
September 2019, 2 September 2019 reported that:
`A military court in the capital Yaoundé sentenced ten members of the opposition to
life imprisonment on 20 August 2019. Among them was the leader of the separatist
group SCNC, Sisiku Ayuk Tabe. According to media reports the court found them
guilty of rebellion, terrorism and separatist pursuits. The charges were motivated by
opposition-organized protests against the controversial re-election of President Paul
Biya in October 2018.'"
Decision
[34]
The issue which I require to decide is whether the respondent, in its decision dated
24 November 2021, has erred in concluding that the petitioner's further submissions, taken
together with the material previously submitted, did not create a realistic prospect of success
for the petitioner before an Immigration Judge.
[35]
In my opinion, in reaching her decision, the respondent has erred in two material
respects and the petition should succeed. In light of the submissions I heard, I am able to
state my reasons relatively briefly.
[36]
First, I consider that the respondent has erred in its assessment of the risk of the
persecution of the petitioner by failing to take account of the considerations identified by
Lord Justice Sedley in YB. When the content of the respondent's Country Policy and
14
Information Note is considered, along with the unchallenged evidence of Mr Tamanji, it
appears to me that an Immigration Judge could conclude that the "bleak picture" described
by Lord Justice Sedley existed in the petitioner's case and, therefore, that, even without
evidence, there might be a basis for inferring at least a strong possibility that the Cameroon
government would be able to identify the petitioner from photographs taken of him at a
demonstration or from other information available about him on the internet. The
respondent's decision omits any consideration of this. I consider that this error by the
respondent in omitting a relevant factor from consideration is material because it affects the
respondent's treatment of all of the available evidence of the petitioner's sur place activity.
[37]
Second, I consider that the respondent had erred in failing to apply the policy set out
in the Country Policy and Information Note: in particular at paragraphs 2.4.7 to 2.4.9.
Contrary to what is set out there, the respondent's decision contains no analysis of the SCNC
or its UK branch, or the extent to which it advocates greater autonomy or secession for
Anglophone areas. There is also no consideration of its nature, aims or methods. The
decision also fails to consider the SCNC's presence in Cameroon and the extent to which it is
monitored by the Cameroon government. Given the apparent significance of these factors
with in the respondent's policy, I also consider this error by the respondent in failing to
consider a relevant factor to be material.
[38]
I consider that whether these errors are considered in isolation or cumulatively, they
demonstrate a want of anxious scrutiny by the respondent.
[39]
As to the other arguments advanced by the petitioner, first, I do not consider that,
properly construed, it can be said that the respondent has addressed the wrong question.
The respondent is seeking to address the correct question namely, whether, when the
petitioner's further submissions are considered along with the material previously
15
submitted, he had a reasonable prospect of success before an Immigration Judge albeit, for
the reasons I set out above, she has erred materially in so doing.
[40]
Second, as to the petitioner's argument concerning the approach to be adopted by the
respondent to the policy set out in the Country Policy and Information Note when
considering the petitioner's prospects of success before the Immigration Judge, this simply
does not arise because, as I have explained above, I do not consider that the respondent in
fact applied her own policy in reaching the decision.
Order
[41]
Accordingly, in these circumstances, I will sustain the petitioner's plea in law and
reduce the respondent's decision dated 24 November 2021. I will reserve all questions of
expenses in the meantime.
