Butt, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1256 (Admin)

Case No CO/7231/2006[2008] EWHC 1256 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 23rd May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF FRAZ ZAFAR BUTTClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared on his own behalf, through an interpreterMiss K Olley (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: This is a judicial review claim, pursuant to limited permission granted by Wilkie J on the papers on 13th November 2006.[2]The claimant is a citizen of Pakistan, born 18th July 1985. He arrived or claimed to have arrived in the United Kingdom on 8th November 2005. He claimed asylum on 10th November 2005. His asylum claim was refused on 22nd November 2005.[3]The claimant appealed to an immigration judge who, by a determination promulgated on 1st December 2005, rejected his appeal. The grounds upon which the claimant appealed were in brief that he was a proselytising Ahmadi and so would be at risk from the activities of non-state agents in Pakistan, against which activities the Pakistan state was unable or unwilling adequately to protect him.[4]The immigration judge found as a matter of fact in paragraph 17 of his determination that the claimant did not preach as alleged or at all, and that his claim was not credible. He concluded that he was not in need of international protection when he came to the United Kingdom, and would not be if returned to Pakistan.[5]By a letter dated 11th April 2006 the claimant's solicitors made further representations to the Secretary of State, intending that they should be treated as a fresh claim under paragraph 353 of the Immigration Rules. The representations included copies of documents, principally a first information report, which, according to a witness statement signed by the claimant, had been supplied to him by his father on 3rd April 2004. He claims that the documents are plainly bogus, in the sense that they purport to record an accusation or complaint against him of activities in Pakistan at a time when he was undoubtedly in the United Kingdom. Consequently, he submitted the documents demonstrated that non-state agents were still actively interested in him and that the Pakistani state would not afford adequate protection to him were he to be returned.[6]The Secretary of State dealt with the representations by letter dated 28th August 2006 and refused to treat the representations as giving rise to a fresh claim under paragraph 353. In relation to the first information report, the Secretary of State observed:
"Your client has not provided an explanation, as to how he obtained the First Information Report and application to the Station House Officer. The First Information Report and application to the Station House Officer are copies not originals. It is therefore concluded that given the ease with which such evidence can be fabricated, the documents provided cannot be considered credible evidence which would undermine the above findings of the Immigration Judge and have been disregarded."
[7]One of the grounds of claim in the judicial review proceedings was that that statement was factually erroneous. In paragraph 5 of the submissions attached to the grounds of claim, the claimant recited that paragraph and in paragraph 6 submitted:
"... that the Defendant's consideration of the material is flawed since: a. The Defendant has ignored the Claimant's explanation as to how he obtained the documents ... b. The Defendant has failed to consider the Claimant's explanation as to why he has copies of the original documentation."
That must contain an error and should read "as to why he has not got copies of the original documentation".[8]It was that error which caused Wilkie J to give permission for judicial review. But he limited the permission to the grounds set out in the paragraphs of the submissions to which I have referred.[9]When Wilkie J gave permission the Secretary of State had in fact already issued a further decision letter dated 28th September 2006, in which while not expressly withdrawing the suggestion that the claimant had not explained how he came by the documents, nevertheless did not reiterate that error. In paragraph 16 of the new decision letter, the Secretary of State referred to objective material to the effect that documents such as first information reports were readily obtainable and were frequently bogus.[10]The Secretary of State went on, correctly, to remind herself of the approach which would be taken by a tribunal to such documents, set out in Tanveer Ahmed v Secretary of State [2002] UKIAT 00439. The approach adopted ever since Tanveer Ahmed by the Asylum and Immigration Tribunal and its predecessor has been to treat such documents with reserve, because of the ease with which they can be fabricated, and to consider them in the context of the totality of the evidence presented for and against an appeal.[11]Applying that approach, the Secretary of State was entitled to determine that the addition of the documents to the grounds already considered would not create a realistic prospect of a successful appeal before an immigration judge. In consequence, the Secretary of State was entitled to conclude that the representations, including those documents, did not give rise to a fresh claim for the purposes of paragraph 353, which required a further hearing before an immigration judge.[12]For those reasons, this claim for judicial review is dismissed.[13]MISS OLLEY: My Lord, I am grateful. I am not instructed to apply for costs.

MR JUSTICE MITTING: Thank you.

[15]Thank you very much.

Cited in 1 later judgment