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Petition of A B and C for Judicial Review (Court of Session) [2024] CSOH 88 (13 September 2024)
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[2024] CSOH 88
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 88
P1184/23
OPINION OF LORD LAKE
In the Petition
A, B and C
Petitioners
for
Judicial review of the Secretary of State for the Home Department's decisions that the
Petitioners' further submissions do not amount to a fresh claim
Petitioners: D James, Advocate; Drummond Miller LLP
Respondent: A McKinlay, Advocate; Office of the Advocate General
13 September 2024
[1]
The petitioners seek review of a decision of the Secretary of State for the Home
Department that further submissions made in support of the petitioners' applications to
remain in the United Kingdom do not amount to a fresh claim. The first and second
petitioners are the father and mother of the third petitioner. She was aged 5 at the time the
further submissions were made and is now aged 7.
[2]
In September 2018, the second petitioner claimed asylum on the basis of a fear of
forced female genital mutilation. The first and third petitioners were dependants on that
application. The application was refused and an appeal to the First-tier Tribunal was
unsuccessful. On 31 July 2020, the second petitioner submitted further representations to
2
the Secretary of State, claiming that they amounted to a fresh claim. On 28 July 2022, the
Secretary of State determined that these did not amount to a fresh claim. After having
sought to submit additional further representations on 11 August 2022 and having been told
she must make an application to regularise her stay, on 7 October 2022 the second petitioner
made such an application in respect of herself, the first petitioner and the third petitioner. In
the context of that application, she submitted the further representations she had previously
sought to submit. The further representations relevant to this application were that the third
petitioner had an out-patient appointment at an ophthalmology clinic, had been prescribed
emollients by her doctor for eczema and had started attendance at school. No issue arises in
the arguments before me as to the fact that the second petitioner was required to submit an
application in this way and the representations were made in that context. On 6 October
2023, the respondent refused the applications. There was a separate decision letter for each
petitioner, but they all had the same application reference. In the letters, the respondent
refused the application for leave to remain and concluded that the further submissions did
not amount to a fresh claim.
The applicable legal tests
[3]
The parties were agreed as to the tests that were to be applied by the respondent in
making a decision on the application. It was necessary first to decide whether the
application for leave should be granted. If it was not granted, it was necessary to decide
whether the submissions amounted to a fresh claim. In making this decision, it was first
necessary to consider whether the material had been considered before. If it had not, it was
necessary to go on and consider whether the material gave rise to a realistic chance that an
immigration judge would accept the individual's claim. These propositions were vouched
3
by reference to ABC (Afghanistan) v Secretary of State for the Home Department [2013] CSOH 32,
at [11]). In relation to the test of the realistic chance, I was referred to the decision of the
Inner House in SM v Secretary of State for the Home Department, [2022] CSIH 21 where it was
noted of the test that:
"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" (paragraph 25).
The petitioner submitted that the decision taker must apply anxious scrutiny when
answering the questions.
Submissions for the petitioner
[4]
In general, the petitioner submitted the issue of whether leave should be granted had
been conflated with the issue of whether the new material amounted to a fresh claim. It was
submitted that the two stages are distinct and that the test to be applied is different but, on
the basis of the contents of the letters, it was not apparent that there had been separate
consideration of the test for whether there was a fresh claim.
[5]
The arguments were slightly different in respect of each of the petitioners. In relation
to the second petitioner, it was noted that the decision letter said that there was no material
that had not been considered before. It was argued that this was irrational in that it had
been accepted that there was material that had not been considered before in relation to the
first and third petitioner and that the same information had been submitted in relation to
each person. In relation to the claim by the respondents that any error in this regard was not
material, it was submitted that in not having regard to the additional material the
respondent could not have approached the decision with the necessary anxious scrutiny and
that it was speculation to attempt to determine what the decision might have been had the
4
information been considered. By reference to R (Balajigari) v Secretary of State for the Home
Department [2019] 1 WLR 4647, it was noted that the test for immateriality was whether the
decision would "inevitably" have been the same (paragraph 134). It was submitted that in
the circumstances relating to the second petitioner, it was possible that another decision
might have been reached in relation to whether there were realistic prospects and therefore
whether this was a fresh claim and that was sufficient for the petitioner. It was not
necessary to demonstrate that there was in fact a realistic prospect.
[6]
Lastly in relation to the second petitioner, it was submitted that the respondent had
not addressed the relevant question; the decision letters did not consider whether the
material meant that there was a realistic chance of success before an immigration judge and
only had reasoning relating to the different and separate issue of whether leave should be
granted. It was said that the last sentence of the decision letter which makes some reference
to the issue of prospects before an immigration judge was a "token gesture" and that the
substance of the letter revealed that the issue that had been considered was only whether
leave should be granted and/or whether previous decisions should be overturned.
[7]
In relation to the third petitioner, it was said that although the decision correctly
recognised that there was material that had not previously been considered, it did not
properly evaluate the issue of whether the additional submissions amounted to a fresh
claim. It was submitted that that issue had been conflated with the issue of whether leave to
remain should be granted. It was submitted that the test of whether there was a reasonable
chance of success before an immigration judge was a lower test than that the test for whether
leave should be granted and that it had not been considered. It was emphasised that all the
petitioner need do is show that there was a reasonable chance and not that she would
succeed. The issue was not whether or not the claim was thought to be strong. It was
5
submitted that there was no reasoning in relation to the application of the correct test and
that the absence of reasoning was itself an error. To be lawful, the reasoning would have to
identify the correct question and then follow it to indicate how the result was achieved.
[8]
In relation to the first petitioner, it was submitted that the same conflation of the
issues was apparent and that it was not recognised that the test for a fresh claim was a lower
threshold than the test for whether leave should be granted. It was submitted that the only
reasoning in the letter concerned the issue of whether leave should be granted, that the issue
of whether the submissions amounted to a fresh claim was distinct and that there was no
reasoning to support the conclusion that there were no reasonable prospects before an
immigration judge. It was submitted also that the connection between the three decisions
was such that the claimed errors in relation to the second and third petitioners were relevant
also to the first petitioner.
[9]
In relation to all of the decision letters it was noted that the decision letters referred
to paragraph 353B of the Immigration Rules and it was submitted that this paragraph had
no application. The relevant test was in paragraph 353 and the correct test had not been
applied.
Submissions for respondent
[10]
The respondent accepts that there was new material submitted in relation to the
applications. It was submitted that despite this, the material related all to the third
petitioner, it was slight, the averments in the petition in this regard had no detail and,
having regard to these matters, it did not create a realistic prospect of success. It was said
that, in reality, there was one decision by a single decision-taker in response to the same
material but a separate letter for each applicant. It was said that the decisions in relation to
6
the first petitioner and, in particular, the third petitioner in relation to the additional
material indicate that the result in relation to the second petitioner would have been the
same and that no issue of speculation arises in reaching the same conclusion. The
respondent placed reliance on the statement within the letters that there was no fresh claim
on that basis it was said that there no conflation. It is apparent from the letters that the
decision-maker was aware that there were two separate tests and had given a decision on
each. It was submitted that to contend that the statements in the letters were "token" was an
illegitimate attempt to step into the mind of the decision-maker. It was plain that the test
has been identified and considered. It was inconceivable that the same decision-maker,
having stated the test in all three decisions and applied it in relation to the first and second
petitioner would have left it out of account for the third petitioner.
[11]
It was submitted that as all the decisions were given at the same time and the claims
had always been treated together, each had to be considered in the context of the other. It
therefore did not matter that in respect of the second petitioner it had been stated that all the
material had been considered previously. It was noted that submissions tending to bear on
Article 8 of the European Convention on Human Rights had been considered previously in
June 2022 and at that time they were considered not to amount to a fresh claim. It was
recognised that in relation to the materiality argument raised in relation to the second
petitioner, it would not be appropriate for the court to substitute its own view. Nonetheless,
as the petitioner has expressly said that there was no submission that there was material that
generated a realistic prospect, it would be open to refuse to grant the remedy sought on the
basis that it is academic.
[12]
It was noted that the first page of the letters which make up the decision each states
"your submissions do not amount to a fresh claim" and that this indicated that the relevant
7
issue had been considered and a decision reached in relation to it. It was submitted that the
new material all relates to the third petitioner the child. It was submitted that if this
material is considered in the context of the decision letter for the third petitioner, it is
apparent that it does not amount to a fresh claim. It was recognised that in relation to this
petitioner, it is clear from the letter that there was fresh material and it is apparent that it
was considered. If it was judged not to be relevant there, it was apparent that it could not be
relevant for the first and second petitioners as it had no relevance to them other than in so
far as it affected the claim in relation to the third petitioner. That being so, the same decision
followed in relation to the first and second petitioner.
[13]
In relation to the arguments that the tests were conflated, it was claimed that the
issue of realistic prospects of success inevitably involves consideration of the merits and it
was legitimate for the decision-maker to proceed as they had. Although it was a different
judgement call, it was the same factual material and there would be no benefit in repeating
what had been said in other letters. It was submitted that the petitioners had not been
prejudiced by the reasons given and that the basis for the decisions was readily
understandable.
[14]
It was submitted that although the decisions referred to in paragraph 353B, that itself
refers to a situation in which the decision-maker had determined whether submissions
amount to a fresh claim under paragraph 353. It was submitted that although the test was
not specifically referred to in that decision, the context is clear that the correct issue was
identified and considered in relation to the first and second petitioners.
8
Decision
[15]
Each of the three letters sent to the petitioners intimates the decision that the
individual does not quality for permission to stay in the United Kingdom and then states "In
addition, your further submissions do not amount to a fresh claim for the reasons given in
the `reasons for decision' section." In that section of the letter in respect of the first
petitioner, after concluding that permission to stay will not be granted, paragraph 25 states:
"25.
I have considered your further submissions together with previously
considered material and concluded that your further submissions, although rejected
for the reasons given above, would have no realistic prospect of success before an
immigration judge, so they do not amount to a fresh claim."
The same text is included in paragraph 19 of the decision in relation to the second petitioner.
It is not included in the decision letter in relation to the third petitioner.
[16]
As the additional material related to the third petitioner, the decision letter in respect
of her is the logical place to start. There was no dispute before me as to whether reasons
require to be given. Within the letter to the third petitioner, although there is reference to
issues of education and healthcare, including the ophthalmology appointment, in the
reasons for the decision to refuse leave to remain, there is no reasoning concerning whether
the further information amounts to a fresh claim - ie whether there was a realistic prospect
of success before an immigration judge. I have considered whether, in that situation, it is
sufficient that there is a clear statement that the submissions do not amount to a fresh claim
and/or whether what is said in the reasons section of the letters for the first and second
petitioner that there is no realistic prospect before an immigration judge can be read across
to this decision. The answer to this issue turns on consideration of what is required by way
of reasons.
[17]
In Wordie Property Co Limited v Secretary of State for Scotland, 1984 SLT 345, the
Lord President (Emslie) said that reasons must
9
"deal with the substantial questions in issue in an intelligible way. The decision
must, in short, leave the informed reader and the court in no real and substantial
doubt as to what the reasons for it were and what were the material considerations
which were taken into account in reaching it."
In South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, Lord Brown of
Eaton-under-Haywood stated:
"The reasons for a decision must be intelligible and they must be adequate. They
must enable the reader to understand why the matter was decided as it was and
what conclusions were reached on the `principal important controversial issues',
disclosing how any issue of law or fact was resolved. Reasons can be briefly stated,
the degree of particularity required depending entirely on the nature of the issues
falling for decision. The reasoning must not give rise to a substantial doubt as to
whether the decision-maker erred in law, for example by misunderstanding some
relevant policy or some other important matter or by failing to reach a rational
decision on relevant grounds. But such adverse inference will not readily be drawn.
The reasons need refer only to the main issues in the dispute, not to every material
consideration. ..." (paragraph 36)
It is clear form this that what required by way of reasons depends on the context in which
they are given. The decision there was a planning decision was in a completely different
sphere to the decisions before me. However, the issue at stake in the present decisions seem
to be at least as important and to justify at least the same level of reasons as a planning
decision.
[18]
The statement in the letters that the submissions do not amount to a fresh claim and
the statement in two of the sets of reasons that there is no realistic prospect of success before
an immigration judge are the conclusions reached on the key issues that were before the
respondent. I agree with the submission for the respondent that, despite the error in
referring to paragraph 353B of the Immigration Rules, the letters do indicate that the
decision-maker had in mind the correct test for a fresh claim. However, the tests for each of
the two issues differ with the test for leave to remain being more stringent. This means that
leave to remain may be refused but there could still be a reasonable prospect before an
immigration judge.
10
[19]
Although reasons are stated for the decision as to leave to remain, in relation to the
issue of whether it was a fresh claim, the letters do not indicate the basis on which that
decision was reached. As stated by Lord Brown in South Bucks Council, giving such an
indication of how the decision has been reached is one of the functions of reasons. Although
the decision on each issue and the relevant test to be applied are stated, they on the one
hand and the reasons for them on the other are distinct matters. In R v Birmingham City
Council, Ex p B [1999] ELR 305, Scott Baker J concluded that in giving reasons, it was not
enough merely to state that the test had been applied in making the decision. In my view
that is all that has been done here. Even the contents of the letters in respect of the first and
second petitioners shed no light on how the test was applied and therefore how the stated
conclusion was reached. Those letters identify the subsidiary conclusion that even with
additional material the submission would have no realistic prospect of success before an
immigration judge but do not state the basis for this conclusion. They therefore did not
perform the function of reasons identified in South Bucks Council. The reasons underlying
the decision might not be hard to divine, but it is not the function of the court to speculate or
guess as to what they were. To do this would mean that the purpose identified by Lord
Brown was not achieved.
[20]
of the Supreme Court, said that the Court should not impose an unreasonable burden on
decision-makers. I do not consider that giving some indication of why it was concluded that
even with the additional material there was no realistic prospect of success would have
required very much. It would not be an unreasonable burden. Requiring that there is an
indication of how the conclusion was reached is not dictating how the letters should be
written. It is merely requiring that they have basic content to perform their intended
11
function. As they stand, not only do the letters for the first and second petitioners not meet
the shortfall in the decision letter for the third petitioner, they do not provide adequate
reasons for the decisions they record. The result is that the decisions contained in each of
the letters fall to be reduced.
[21]
Although the above factors mean that the other issues are academic, I will express
my views on them briefly in case this matter is considered further. If there were reasons
stated in relation to the third petitioner's claim which were sufficient to indicate how the
decision had been reached that there were not reasonable prospects before an immigration
judge, I would have concluded that the error in the decision for the second petitioner to the
effect that there has been no material that had not been considered before would not vitiate
the decision. As is submitted for the respondent, it would be apparent from the decision
letter relating to the third petitioner that the new material had been considered and had
been found not to create reasonable prospects for her. That being the position, it would not
create a better prospect for the first or second petitioners, her parents. Accordingly,
although there was an error in the decision, it had had no practical effect and it would be
academic. There had been a single application leading to all three letters and the letter for
the third petitioner was available to the second petitioner. On the hypotheses that the
reasons given in relation to the third petitioner were adequate, the petitioners would have
the necessary information to verify that the material had been considered and that the
correct test had been identified even if they disagreed with the conclusion that was reached.
