A v Secretary of State for the Home Department [2008] EWCA Civ 261

Case No C4/2007/1813[2008] EWCA Civ 261
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE HOLMAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 4 th March 2008
Before
LORD JUSTICE WALLERLORD JUSTICE TUCKEYLORD JUSTICE SEDLEY
Between
AAppellantTHE SECRETARY OF STATERespondentFOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms F Webber (instructed by TRP Solicitors) appeared for Appellant.Ms S Chan (instructed by Treasury Solicitors) appeared for Respondent.
Judgment
[1]This case has taken an unusual, one might even say remarkable, course. But it is one which, I hope, is to the credit of our system of justice and which has enabled matters that were dragging on to be disposed of with some rapidity. This seems to me to have been in everybody’s interests. This morning I sat as a member of the three-judge Court of Appeal to hear an appeal against the refusal by Holman J of an injunction directed to bringing the appellant and his family back to this country. It became apparent, in circumstances I shall describe in a little more detail in a moment, that this really was a consequential issue dependent upon a matter that stood adjourned in the Administrative Court and that needed resolution because, depending on how it was resolved, there might or might not be anything left in the injunction which was sought. In consequence the court adjourned this morning, and I have sat this afternoon as a judge of the Administrative Court to decide the substantive judicial review issue. This means that there has been no pre-emption of any rights of appeal that might arise.[2]The claimant with his wife and child arrived in the United Kingdom from Iran in August 2005 with a valid five-month visit visa. By December of the same year he had claimed asylum on the ground that, as a convert from Islam to Christianity, he now faced persecution or worse in Iran. The claim was rejected by the Home Office, an appeal to the AIT was dismissed and the High Court refused to order a reconsideration. In June 2007 removal directions were set for the 16th of that month. They were not implemented because first a Member of Parliament and then the Bishop of Worcester came in as advocates for non-removal and there was then a history of obstruction of removal by non-cooperation. But on 9 July 2007 removal directions were reissued for 1700 hours the following day. On the following day, 10 July, new solicitors, TRP, were instructed and at once asked the Home Office for more time in which to lodge a fresh claim. This included some 38 pages of new material suggesting that the claimant was now part of a militantly evangelical anti-Islamic sect which would place him at clear risk were he to be returned.[3]Simultaneously judicial review proceedings were issued seeking deferral of removal while the new representations were considered. The Home Office, attempting perhaps too hard to do the right thing, agreed at 1630 hours to defer removal if the sealed judicial review application form was served upon them. I have to say, although this is not going to fall for decision, that it seems highly unlikely that even at that time this could have been accomplished. In the event the form was not received by the Home Office until 1638 hours. It at once instructed its operational limb to get the family off the plane but it was of course too late. The plane’s doors were closed prior to pushback. By 1747 hours, when the plane eventually took off, the Home Office had considered and rejected the fresh application; but an order was obtained that evening from Stanley Burnton J that the Home Office was to instruct the Tehran embassy, so far as could safely be done, to maintain contact with the claimant. The next day, 11 July, the claim was amended to seek, pending substantive determination, an order that the Secretary of State use her best endeavours to return the claimant and his family to the United Kingdom.[4]On 13 July Holman J refused to make such an order. It was against this refusal that Latham LJ in December 2007 granted permission to bring the appeal which came before the Court of Appeal this morning. Meanwhile on 6 September 2007 Silber J, in an oral hearing in the Administrative Court, made an order which is, if I may say so, not well drawn and has to be interpreted by reference to other documents. Its effect, however, is that permission to apply for judicial review was refused on the first two grounds that were being advanced (that is to say that the claimant had been entitled to 72 hours’ notice of removal and that it had been anyway unlawful to remove him before determining whether he had a fresh claim) and the remaining issues were adjourned to await further information about air traffic movements and arrangements on 10 July.[5]While the first of the remaining issues was the alleged unlawfulness of removal following service of the judicial review claim form, the final one was that the Home Office had erred in law in refusing to treat the further representations as a fresh claim within rule 353, to which I shall come. It was only to the first of these two issues that the further information sought by Silber J related. The second, as it seemed to the Court of Appeal this morning, was capable of independent and prompt decision, and it was accepted that if it went against the claimant it would be an end of the issues in the case. If it went in his favour then of course much else would fall for decision and his claim would remain alive. On 19 February 2008 Mitting J, on the adjourned application for permission to apply for judicial review, gave permission on the issues left alive by Silber J but stayed any further steps pending the appeal which came on this morning. For the reasons that I have given, the appeal against Holman J’s order was adjourned at the end of this morning so that I could sit this afternoon and deal with the judicial review application, at least in its principal manifestation, and see where that left the situation.[6]It should be recorded, although nothing is going to turn on this, that following his removal with his family to Iran the claimant’s solicitor has been in telephone contact with him. It has been indicated to her on the one hand that he is in hiding, and on another hand that he has been tried on a unspecified charge and is at liberty while awaiting judgment. What matters, however, is whether the Home Office was justified in deciding as it did that the material which was submitted to it in an endeavour to procure a stay of removal, indeed withdrawal of the removal directions, did not amount to a fresh claim. A fresh claim is dealt with in this way in rule 353 of the Immigration Rules:
“When a human rights or asylum claim has been refused and every 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: (a) had not already been considered; and (b) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”
This paragraph does not apply to claims made overseas.”[7]In WM (DRC) v SSHD [2006] EWCA Civ 1495 this court gave what is recognised as definitive guidance on how the Secretary of State must approach decision making under rule 353. In paragraph 10 the court said that although the test to be applied by the court to the Secretary of State’s decision is one of irrationality:
“…a decision will be irrational if it is not taken on the basis of anxious scrutiny.”
It followed that the following matters must be addressed:
“11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return… The Secretary of State of course can, and no doubt logically should, preach 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.”
[8]It is in that light therefore that I turn to what has happened in the present case. The starting point for my present purpose is the decision of the immigration judge’s, Salmon, upon the unsuccessful appeal against the initial refusal of the claimant’s claim for asylum. That decision recounts and in large part accepts that the claimant had become interested in Christianity while in Iran. He had come to this country both to visit a member of his family and with the intention of joining a Christian church here. In the meantime he had suffered a vicious punishment of 130 lashes together with a fine for manifesting disrespect to Islam, probably, if the claimant was right, because he had been denounced to the authorities by a distant relative with whom he had fallen out.[9]Much of the evidence in the claimant’s favour came from his new co-religionists. In particular the clergyman closest to him, Reverend Andy Kelso, gave evidence. What emerged, perhaps surprisingly, is that the church that the claimant has joined and into which his child has now been baptised is the Church of England. The clergyman concerned appears to be a member of that church. The particular church into which he was received, however, which happens to be near his sister-in-law’s home, seems to be the seat of a militantly evangelical sect and one which, in a situation I will come to in a moment, seems to be something of an embarrassment to the Bishop of Worcester. In particular it publicises on its website some -- I do not think it is an exaggeration to say -- virulently anti-Islamic views. It is an evangelical sect, which therefore believes in proselytising.[10]The Immigration Judge noted the in-country evidence, including the country guidance case FS and Ors v SSHD [2004] UKIAT 00303 which contained this proposition:
“For the ordinary convert who is neither a leader… nor a proselytiser or evangelist, the actual degree of risk of persecution or treatment for preaching article 3 is not sufficient to warrant the protection of either Convention. The reality is … Christianity can be practised, if necessary, cautiously at times, by Church attendance, association with Christians and Bible study.”
[11]Without going through the whole of the determination, which is on the record, I quote simply paragraph 52 of it:
“Mr Kelso [that is, the clergyman] was satisfied that [the claimant] and his wife were both genuine in their wishes to be baptised into the Christian church. He had a limited number of meetings with [the claimant] and only one with his wife. He accepts that he has no previous experience of Iranians in this country converting to Christianity or indeed of any Muslims converting. [the claimant] may have an interest in Christianity but by his own account when he arrived in this country he intended to return to Iran at the end of his visit. There is no explanation as to why his interest in Christianity should have developed so quickly that he felt obliged to be baptised around the time he was making an application for asylum. It appears that he was able to conceal his interest in Christianity from his brother-in-law in this country. It is not credible that the authorities in Iran should be persuaded by [the relative] to take punitive action against [the claimant] because of his alleged Christianity when even by his own account it existed at such low profile. I take note of the guidance of the case of FS. [The claimant] said that if he returns to Iran he would continue to practise Christianity as he had done before. His conduct did not even involve church attendance. The background evidence does not indicate the authorities would have any interest in the claimant for his beliefs.”
[12]The letter was the starting point of the necessary consideration of whether there was now before the Home Office a fresh claim. As Miss Webber rightly points out, the obligation was to aggregate what had so far been established with what it was now sought to establish and to see how it met the test set out in rule 353, applying the form of scrutiny which this court laid down in WM. The letter covering the fresh claim, dated 10 July, from TRP solicitors said:
“The fresh claim is based on: (a) the evangelising nature and anti-Islamic teachings of the church in which the family was baptised and which they regard as their home church namely Christchurch Matchborough; and (b) the availability of information regarding the family’s association with the church and the church’s anti-Islamic teachings available on the church’s website which regularly appear to be accessed by, ‘visitors’ abroad. We would argue that these factors create serious additional risk factors in this family and the case must therefore be looked at again.”
[13]Now putting the case in that way is, of course, putting the wrong foot forward. There is little doubt when one looks at material that has been downloaded and copied from the website of Christchurch, Matchborough, that it is pretty ferocious in its denunciation of Islam. But that is of no consequence at all in relation to an asylum claim unless and until it is established that the claimant for asylum is associated with it in such a way as to bring down upon himself a real risk that the authorities in the Islamic state to which it is proposed to return him will persecute him in consequence. So the first question is not the nature of the Christchurch, Matchborough, theology and ideology but the nature of the family’s association with it. It is perfectly true that that sect has itself made use of this family in order to publicise their desire not to be returned. It has not, on any material shown to me, however, made it appear that this family espouses the teachings in their full and somewhat florid form. The only evidence before the Immigration Judge and thereafter before the Home Office is that this is a family which has become associated with the Church of England and which for reasons of geographical convenience began to worship at a particular church in which an evangelical sect of the kind I have described is also based. I say nothing about the use made of them beyond the fact that it appears from the material that was shown to the Home Office to be a use in which they were passive rather than active.[14]Shortly before the submission of the letter advancing an allegedly fresh claim the Bishop of Worcester had, as I have said, written to the Minister of State to ask for reconsideration. The Minister of State had responded negatively but reserving the fact that there was not yet anything purporting to be a fresh claim and that what would matter would be the nature of the new material. When the new material came, under cover of the letter I have quoted from, it included not only the bishop’s letter but the following material which I take seriatim from Mrs Webber’s submissions to me on the claimant’s behalf. There is the material publicising the family’s plight under the letterhead of the church, which I have already mentioned. There is a URL link indicated, in a copied e-mail, to the church’s website, upon which it is feared or anticipated there will be hits from Islamic states identifying them as a source of anti-Islamic teaching. When I asked Mrs Webber whether more was not needed than this she submitted that it was not necessary to show more than a link between the claimant and his family on the one hand and this sect on the other. It is not necessary, she submits, to show that he either has been or will be actively evangelising. I am afraid I do not agree with that. It seems to me that more than such a link is most certainly required. There has got to be material upon which it is at least rationally possible for a fact finder to conclude that there is a real possibility that activity will take place on return which will carry a real risk of persecution. I mention the suggestion, which I have no difficulty in accepting, that the Iranian authorities probably monitor anti-Islamic websites; but for the reasons I have given that in itself is not enough. Nor is it, in my judgment, of any relevance that there were two documents suggesting that the Netherlands is more liberal than this country about giving refuge to asylum seekers from Islamic countries who have had what are described as “problems with the authorities” because of their conversion to Christianity. We are concerned with the Geneva Convention, and of course more recently with the Directive, and with the requirements that they set out. Amnesty International, which of course monitors Iran, has reported in 2007 that life is certainly not easy for members of religious minorities. They were “detained or harassed on account of their faith” and:
“Several evangelical Christians, mostly converts from Islam were detained, apparently in connection with their religious activities.”
But the report suggests no more than that. It does not suggest either punishment or other forms of persecution.[15]The refusal letter which came in response to the fresh claim application is dated the same day -- 10 July 2007 -- but was delivered or received the following day. It was written however, as I understand it, some time after the plane had pushed back at Heathrow when it proved too late to remove the family from it. The letter concludes:
“The documents submitted add nothing new to your client’s asylum claim. Accordingly we can see no grounds for accepting your representations which are rejected.”
It then cites paragraph 353 of the Immigration Rules and continues:
“The points raised in your submissions have already been considered and taken together with the material which was considered in the letter giving reasons for the refusal of asylum and the appeal determination of 10 May 2006 they would not have created a realistic prospect of success. Consequently your submissions do not constitute a fresh claim.”
[16]Mrs Webber criticises the run-up to those conclusions in the letter of refusal. She suggests that the dismissal of the evidence from the Netherlands ignores the fact that her client, like those referred to in relation to the Netherlands, had more reasons than his religious convictions for anticipating problems, namely that he had been previously punished in a cruel fashion for showing disrespect to Islam. I do not read that passage from the letter as relating to this issue. It seems to me that it relates to problems other than his own religious conversion, which, incipient as it was when he left Iran, proved unproblematical. In any event it really does not matter how the Netherlands chooses, if it does, to liberalise its practice. It is of no legal relevance to what the Immigration Rules and the Geneva Convention require of the courts and administration in this country.[17]Mrs Webber’s other criticism of the letter is in relation to its mention of the Amnesty International report to which I have already referred. The letter goes on:
“However it is noted that the immigration judge considered that there was no evidence to show that your client would publicise his conversion on his return to Iran by attempting to convert other Muslims.”
Mrs Webber said that may have been then but this is now, and now he is a proselytiser with an evangelical sect. I am afraid I do not accept that the evidence went anything like so far, and I cannot accept the criticism of the Home Office for not having treated the recent evidence as showing more than it did.[18]Lastly Mrs Webber criticises the decision letter for omitting the matters on which she relies, namely the ideology and theology of this particular sect of the church and the publicising on its website of this family’s situation. For the reasons that I have already given these do not seem to me to be omissions in reality. They amount to no more than an endeavour to associate two things which the evidence does not show to be associated.[19]So I turn back to WM (DRC) and ask has the Secretary of State considered whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return? That is a question which I am as well-placed to answer as the Secretary of State was, and my answer to it is unequivocally there is no such realistic prospect. It appears to me that, aggregating the further material with the material that existed at the conclusion of the Immigration Judge’s determination of the appeal, the risks manifested now are no greater than they were then.[20]The second question is whether the Secretary of State has satisfied the requirement of anxious scrutiny, again a question which I can best answer by asking myself does anxious scrutiny heighten what otherwise might have been only a lurking concern when one considers the totality of the evidence now placed before the Secretary of State? Again, it seems to me that it does not. Anxious scrutiny is a difficult concept. It is intended, I think, to stress that the court has to be vigilant, but it does not mean fanciful or speculative scrutiny. It seems to me that one has to speculate in order to go the distance Miss Webber would wish the court to go.[21]In consequence it appears to me that this was in truth not a fresh claim. The Secretary of State was not only entitled but right so to conclude. That being so it was, as I understand it, accepted by Mrs Webber this morning that the first limb of the judicial review for which Mitting J has granted permission could not avail the applicant, and that the judicial review application would fall to be dismissed. Unless Mrs Webber indicates to me that I have misunderstood and that there is something else in the case, I propose, on the grounds I have given, to dismiss the application for judicial review.

Order

Application refused.