Ouerghi, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1562 (Admin)

Case No CO/03233/2009

[2010] EWHC 1562 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday 10 May 2010

The Strand

London

WC2A 2LL

B e f o r e:

HIS HONOUR JUDGE MILWYN JARMAN QC

(Sitting as a Deputy High Court Judge)

The Queen on the application of

MUSTAPHA OUERGHI

Claimant

- v -

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant

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Telephone No: 020 7404 1400; Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

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Miss Christa Fielden (instructed by Fadiga & Co, London SW17 7SD) appeared on behalf of the Claimant

Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

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J U D G M E N T

Between

Ouerghi, R (on the application of)Claimant

Secretary of State for the Home DepartmentDefendant

THE DEPUTY JUDGE:

[1]The issue in this case is whether the Secretary of State for the Home Department is entitled to conclude that further evidence provided by the claimant since the exhaustion of his appeal rights in 2008 does not give rise to a fresh asylum or human rights claim with a real prospect of success. The decision of the immigration judge was promulgated in October 2008. In that decision the claimant's claims on asylum grounds, humanitarian protection grounds and human rights grounds were all dismissed.

[2]The claimant does not seek to go behind the findings made by the immigration judge on the information before him but says in essence that there is new information available from Amnesty International, from human rights lawyers and activists, and an expert on the issues of asylum in Tunisia in particular. It is said on his behalf that if a new claim were heard by another immigration judge with this information there is a realistic prospect that the outcome may be different.

[3]There is no dispute between the parties before me as to the test to be applied. For some time the guidance given in relation to the test was that encapsulated by the Court of Appeal in WM (Democratic Republic of Congo) v Secretary of State for the Home Department

[2006] EWCA Civ 1495

. The issue has very recently been re-visited by the Court of Appeal in The Queen on the application of YH v Secretary of State for the Home Department

[2010] EWCA Civ 116

. That case concerned how the Secretary of State or the courts should respond to a repeat claim for asylum or human rights protection. Carnwath LJ referred to that issue and how the cases have been concerned with two apparently similar tests. The first test was that set out in rule 353 of the Immigration Rules which provides as follows:

"When a human rights or asylum 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."

[4]The other test arises from the Nationality, Immigration and Asylum Act 2002, which introduced a scheme which has been described as more elaborate. Those provisions and their relationship to rule 353 were examined by the Supreme Court in BA (Nigeria) v Secretary of State for the Home Department

[2009] UKSC 7

. At paragraph 32 Lord Hope said:

"There is obviously a balance to be struck. The immigration appeal system must not be burdened with worthless repeat claims. On the other hand, procedures that are put in place to address this problem must respect the United Kingdom's international obligations." 5. "

Whatever the theoretical difference between the two legal tests, I agree with Laws LJ that it is so narrow that 'its practical significance is invisible' (AK(Sri Lanka) supra para 34, which I take to mean that it can for practical purposes be ignored. I propose to proceed on that basis." Both counsel before me accept that I should proceed on the same basis.

[5]I deal briefly with the background. The claimant was born in 1961 in Tunisia. He is a Muslim. He left that country in 1993 or 1994 and went to Austria. Thereafter, he returned briefly to Tunisia without any problem. By the end of 1994 or early 1995 he made his way to Bosnia. In 1995 he obtained citizenship in Bosnia and Herzegovenia. Accordingly, it is not in dispute that he now had dual nationality. It is further agreed that he obtained the latter citizenship by giving false information, namely that he had fought in the Bosnian war in 1992. It appears that in 1994 members of the Seventh Muslim Brigade or the El Mujahed of the Army of Bosnia and Herzegovenia were given citizenship at the time when the Federation and Ministry of Internal Affairs was led by certain persons.

[6]In 1996 the claimant married and there are children of that marriage. His wife and his children are each nationals of Bosnia and Herzegovenia. Initially he attended a mosque in Bosnia which was also attended by members of a political organisation known as "Al Hadna". That is an organisation which is banned in Tunisia. The claimant did not become a member of that organisation, but was sympathetic to its cause and provided funds to it as well as distributing leaflets on its behalf.

[7]In 2000 the claimant's Bosnian citizenship was withdrawn. Eventually it was reinstated and a new passport was issued to him in 2005. In 2006, according to his evidence before the tribunal, he had a request from an organisation in Bosnia known as the State Commission for Revision of Decisions on Naturalisation of Foreign Citizens. The request was for him to provide papers to the Commission, and he did so.

[8]In 2007 he left Bosnia and arrived in the United Kingdom with his wife and children. He claimed asylum. The history since then can be summarised as follows. After that claim was made the claimant underwent a screening interview and an asylum interview, but the claim was refused in November 2007. He appealed and the Asylum and Immigration Tribunal refused his appeal in a decision which was promulgated in January 2008. After a reconsideration hearing in May 2008, a second stage reconsideration was ordered and was heard in October 2008. Again his claims were refused. On 1 December 2008 his appeal rights became exhausted.

[9]On 30 March 2009 the defendant served removal directions for 2 April 2009. On 2 April 2009 this application for judicial review was issued. An injunction preventing his removal was obtained. Permission to pursue the claim for judicial review was initially refused on the papers, but in May 2009, after such refusal, renewal grounds and further submissions were served on behalf of the claimant in July 2009. After time was given to the defendant to consider these new submissions, the defendant responded to them in October 2009. On 12 October 2009, after an oral permission hearing, permission was granted.

[10]It is necessary for me to deal in some detail with the determination and reasons of the immigration judge given in October 2008. The judge set out the background and the claimant's claim. Included in that summary was the claim that another party came to power after the withdrawal of the claimant's citizenship. He said that he managed to obtain a new birth certificate and then to apply for a Bosnian passport, which was done in 2005. The judge recorded that it was the claimant's belief that if his Bosnian citizenship was revoked, then he would be returned to Tunisia. At some time in June or July 2006, the claimant said that he had attended a Bosnian office with all his papers in relation to his citizenship. He now fears being returned to Bosnia and Herzegovenia because he believes that the authorities there would remove him to Tunisia where he would face persecution and ill-treatment.

[11]In his findings

the judge said:

"18. The notice of immigration decision indicates that the appellant is to be removed to either Bosnia or Tunisia. During his submissions [on behalf of the Secretary of State it was] made clear that it was the respondent's case that the appellant was a Bosnian national and therefore could be returned to that country and that there was no risk of him being removed to Tunisia from Bosnia. The appellant lived in Bosnia for at least twelve years until he came to the United Kingdom in September 2007. Indeed, the appellant obtained Bosnian citizenship in 1995. However, it is the appellant's claim that he had paid money to obtain the passport by claiming that he had fought in the Bosnian war in 1992. It is further claimed by the appellant that in 2000 his citizenship had been withdrawn. It is true that the Bosnian authorities had set up a commission in order to review the status of citizens who required citizenship between 6 April 1992 and 1 January 2006, as referred to in the country information report. The said report makes it clear that of about a thousand people whose citizenship had been reviewed approximately 420 had their citizenship revoked. 19. In the appellant's case, it is claimed that his citizenship had been withdrawn temporarily. However, subsequently it is claimed that the appellant managed to obtain a Bosnian passport in 2005. Furthermore, in 2006 the appellant claims that he attended a Bosnian office with all his papers in relation to his citizenship. If it were to be accepted that the appellant's Bosnian citizenship had been withdrawn then I do find that if the authorities had had any concern about the appellant they would not have issued him with a further Bosnian passport in 2005. 20. In support of his claim the appellant has submitted a newspaper article which appears to name the appellant as one of numerous individuals whose citizenship had been revoked. I make three points in respect of the newspaper article. Firstly, if the Bosnian authorities had made a decision to revoke the appellant's citizenship then I find it incredible that the appellant does not have any other official documentation to confirm the same. It is reasonable to assume that if a newspaper had names of individuals whose citizenship had been revoked that the individuals concerned would also have been informed of the Bosnian authorities' decision. Secondly, the article is dated 22 November 2001, at a time when the appellant was in Bosnia. Therefore, if his citizenship had been revoked then I find it incredible that the appellant still managed to stay in Bosnia until September 2007 without any problems. Thirdly, there is no suggestion that during the six year period the Bosnian authorities made any attempt to remove the appellant to Tunisia. As such, I do find that the newspaper article does not assist the appellant's case and I attach no weight to it. The appellant has simply put the newspaper article in evidence in order to enhance his claim but it has, in effect, damaged his claim and credibility. 21. It is the appellant's claim that he was a friend of a Mr Badreddine Ferchichi who had been removed from Bosnia to Tunisia. However, it is apparent from the Amnesty International Report for 2007 that Mr Ferchichi was removed to Tunisia after his asylum application had been rejected. As such, Mr Ferchichi was removed by the Bosnian authorities to Tunisia as a failed asylum seeker. That is quite different from the appellant's circumstances. It is not the appellant's claim that he ever claimed asylum in Bosnia and indeed he actually obtained citizenship. Therefore, the facts and circumstances of Mr Ferchichi's claim can be distinguished from the appellant's claim."

The judge went on to find that there was no evidence to suggest that while the claimant was in Austria he experienced any difficulties from the Tunisian authorities. Furthermore, when he was moved to Bosnia, he has not had any problems. The judge found that there was nothing to suggest that the claimant's Bosnian citizenship would be withdrawn or that he would be removed to Tunisia. Indeed, he observed that the claimant's wife and four children are Bosnian nationals. There was no evidence to suggest that the Bosnian authorities would have any adverse interest in the claimant. It was on those grounds that his claims were refused.

[12]Miss Fielden, who has appeared on behalf of the claimant before me, has made it clear that she does not seek to go behind the findings of the judge insofar as the credibility of the claimant is concerned. In essence her case is that there is further material which raises a prospect of being successful before a new immigration judge on two main bases: first, that there is a reasonable prospect of persuading such a judge that the Bosnian authorities would strip the claimant of citizenship and remove him to Tunisia; second, if expelled to Tunisia, there is a real chance that he will be detained for questioning and at risk of harm during that questioning. Miss Fielden made it clear that the claimant would not seek to persuade a new immigration judge that he has any links with terrorists, but that he would be detained whilst that issue was dealt with by the Tunisian authorities and risk severe ill-treatment.

[13]In submitting that there is further material which gives rise to that realistic prospect, Miss Fielden pointed to a number of documents which are now available. The first is a letter from Luiza Toscane, dated 31 March 2009, which has been translated from the original French into English. Miss Toscane is an activist in the field of human rights in Tunisia, and the right of asylum in France. She has also been a regular co-ordinator for many years with organisations such as Amnesty International. In her letter she says that she does not see why the Bosnian authorities would make an exception in the case of the claimant after having attempted or removed a number of people, some of whom had acquired a Bosnian citizenship to countries less democratic, where they will risk imprisonment and torture. The law relating to the review of nationality has been approved to be implemented. It targets specifically Arab Muslims who are present in the country and is now in its second phase. Miss Toscane goes on to say that the Bosnian authorities do not have any regard to the family consequences of their decisions. She mentions a number of cases, including that of Mr Ferchichi, all of whom have been removed while their Bosnian wives and children remained in Bosnia. If the claimant were removed to Tunisia his family would be separated from him. She goes on to observe that the claimant is of Tunisian origin and that he has spent many years in Bosnia where he has acquired its citizenship. That is a fact of which the Tunisian authorities are fully aware. The reason the authorities are so aware is that the name of the claimant appeared in Bosnian official sources which listed all Muslim Arabs who have acquired Bosnian citizenship. That list is available on the internet. I have seen copies of such lists dated 2006 and 2007 dealing with members of the Seventh Muslim Brigade. Miss Toscane then goes on to deal with a number of cases. She says that all Tunisians who have live in Bosnia were arrested on arrival in Tunisia, whether it was a voluntary return or enforced removal. She concludes that the claimant runs a serious risk if he were to be removed to Tunisia, not only because of his sympathy with the Islamic movement but also because of the time he spent in Bosnia. She says that all Tunisians who have been removed to the best of her knowledge have been arrested and subject to torture.

[14]Next, Miss Fielden relies upon documents from Amnesty International which post-date the hearing before the immigration judge. The first is a letter dated 1 April 2009 from Mr Dillane who is part of the refugee programme in Amnesty International UK. The letter is addressed to the claimant's solicitor. Mr Dillane records that Amnesty International has had sight of documentation relating to the claimant's asylum application and the determination of the tribunal. He states that Amnesty International considers that, based on the assessment of this case and the country information on the human rights situations in both Bosnia Herzegovenia and Tunisia, the claimant may be at real risk of refoulement from Bosnia Herzegovenia to Tunisia. Should that happen, then there is a concern at the risk of harm he could potentially suffer on arrival in Tunisia. It is stated that Amnesty International has publicly expressed concern at the activities of the Bosnian and Herzegovenian State Commission for the Revision of Decisions on Naturalisation of Foreign Citizens. It has called on the Bosnian Government to ensure that any person at risk of deportation or removal is protected against returns to countries where they would be at risk of serious human rights abuses. Despite that, it is said that Amnesty International is aware of the practice of the Bosnian Government forcibly to remove individuals to Tunisia resulting in grave human rights concerns. He says that Amnesty International has closely monitored the human rights situation in Tunisia for many years and has documented human rights violations perpetrated against returnees, which include arbitrary arrest and detention, torture and other ill-treatment, and prolonged periods of incommunicado detention.

[15]Those concerns are set out in greater detail in a letter dated 11 May 2009 to the claimant's solicitors. That report is also signed by Mr Dillane. He refers to the State Commission mentioned in his letter and says that that Commission can propose to the Bosnian-Herzegovenian council of ministers to withdraw citizenship of, amongst others, those who are deemed to have obtained it not in accordance with the relevant regulations or on the basis of false information in those cases where the individuals affected would not be rendered stateless.

[16]Miss Fielden submits that the claimant is such a person. Having Tunisian nationality, he would not be rendered stateless by removal from Bosnia Herzegovenia and he has obtained citizenship of that country on the basis of false information. Accordingly, in that report Mr Dillane goes on to reiterate that there was a real risk of the claimant having his citizenship in Bosnia Herzegovenia revoked if this has not already occurred. Following that, he would be at real risk of removal to Tunisia where, on arrival, he would be regarded with suspicion, given his history, namely his previous residence in Bosnia Herzegovenia, the time spent in the United Kingdom and the fact he has been forcibly removed to Tunisia. The report goes on to say that Amnesty International has documented grave human rights abuses in Tunisia, as set out in that report. It says that the authorities have relentlessly continued to use security concerns as a pretext for the impression of Islamists and political dissent in general and arrests of other less influential and less known Islamist groups continue to take place throughout the 1990s in the persistent attempts to pre-empt the formation of what they call terrorist cells inside Tunisia. The authorities have carried out arbitrary arrests and detention, used torture and other ill-treatment, and have tried, convicted and sentenced people using unfair proceedings. Many of those who have been forcibly returned, however, have suffered human rights violations, including arbitrary arrest and detention, torture and other ill-treatment. It is not clear, says Mr Dillane, how many Tunisian nationals suspected of involvement in terrorism-related activities or terrorist links by the Tunisian or other foreign government authorities have been returned to Tunisia in recent years. He goes on to indicate that what is clear is that those known to have been returned against their will by foreign governments, including that of Bosnia Herzegovenia, is that they have suffered a wide range of human rights violations, including prolonged incommunicado detention, torture and other ill-treatment. Most of the detainees who were forcibly returned have been arrested upon arrival in Tunisia. They have been held in prolonged incommunicado detention lasting weeks or months in which the detention is not acknowledged or the fate of, or whereabouts of the detainee is concealed -- a situation which amounts to enforced disappearance. Such detainees later told their families and lawyers that they were subjected to torture and ill-treatment, but none of those allegations is known to have been investigated by the Tunisian authorities. Mr Dillane goes on to deal with a number of cases, including that of Mr Ferchichi. He concludes by saying that anyone returned to Tunisia in such a manner is at real risk of investigation to determine their past activities and profile. Given the actions of the Tunisian authorities in detaining individuals incommunicado for long periods of time, there is a real risk that the claimant would be so detained upon his arrival in Tunisia. Mr Dillane concludes:

"Serious human rights abuses are commonplace in such a context."

[17]Two further documents from Amnesty International are included in the bundle of papers before me. The first is a public statement dated 6 June 2006, which refers to the State Commission to which I have already referred. The public statement says that that Commission began its work in March 2006, and that may result in the transfer of persons to countries where they would be at risk of grave human rights violations. According to the law and amendments to the law on citizenship of Bosnia and Herzegovenia which came into force in November 2005, the Commission is tasked with reviewing the status of citizens who acquired Bosnian-Herzegovenian citizenship between 6 April 1992 and 1 January 2006.

[18]The claimant places particular emphasis on that evidence. He submits that the Commission, if it began its work in March 2006, as indicated in that public statement, would have recommenced its work after the claimant in this case was issued with a passport in 2005.

[19]Next there is a letter from Mr Kolic Kadrija, a lawyer in Sarajevo. Again that letter has been translated into English. Mr Kadrija in his statement says that his office has provided legal advice to over 30 individuals of Afro-Asian origin who obtained the citizenship of Bosnia Herzegovenia following the same procedure, with the same legal basis as the claimant in this case. Profiles of all the citizens of Arab origin that Mr Kadrija represents are the same or similar. They have all been either working with humanitarian organisations or were members of the Bosnian Herzegovenian army during the recent war. Mr Kadrija goes on:

"None of these individuals, represented by my office, were ever convicted of a criminal offence, nor were they charged with a criminal or legal accusation relating to the matters where I was their legal representative."

He ends by saying: 21. "My own opinion and experience from my solicitor's practice is that there is absolutely not a single reason to believe Bosnian Herzegovenian institutions, nor Bosnian Herzegovenian authorities; that [the claimant] is not going to be subjected to the same torture and institutional persecution in Bosnia Herzegovenia and to the danger of deportation to Tunisia, if he was returned to Bosnia Herzegovenia, and if his residence in the UK is denied. 22. I corroborate my opinion with appeals and claims that I have submitted against Bosnia Herzegovenia before relevant courts. From their judgments you can see that Bosnia Herzegovenia authorities are making decisions which directly contravene European Convention on Human Rights ...." He attaches appeals in a number of cases. One such case records that there were violations of human rights.

[20]Finally, Miss Fielden refers to an "Expert Witness Report" of Professor Seddon, dated 27 June 2009. Professor Seddon has qualified with a PhD in social anthropology from the London School of Economics and Political Science. His doctoral research was concerned with economic and political change in northeast Morocco, where he learned Arabic. He subsequently extended the scope of his work to include social and political issues of a number of countries, including Tunisia. He has taught African and Middle Eastern sociology and politics for 35 years, latterly in the University of East Anglia, where he held the Chair in sociology and politics. He has undertaken research on North African politics and he says that he is widely recognised as an expert on North African affairs and has previously prepared reports on behalf of those representing asylum seekers from a number of North African countries. He has had regular briefings from a wide range of sources, including national and international human rights organisations on Tunisia, and he maintains a close familiarity with the situation in Tunisia where he has visited frequently over the last 35 years and has worked as a consultant. In the context of his wider interests in the Middle East, he has undertaken considerable research on the rise of militant Islam and its significance for understanding contemporary security issues. He is fully aware of his duties and obligations towards the court as an expert witness. He has read the Expert's Role in the Best Practice Guide to Asylum and Human Rights Appeals. In a very detailed report he goes on to deal specifically with the claimant's case. He says that if returned to Bosnia the claimant would be at serious risk of being identified as having obtained citizenship there on the basis of false documentation and the way would be open to extradition and forcible return to Tunisia. There he is at risk of being returned. He makes reference to the case of Mr Ferchichi. If returned to Tunisia, it is likely that information provided by the Bosnian authorities would indicate that the claimant had secured his citizenship there on the basis of having fought with the mujaheddin. He would therefore be at much at risk as Mr Ferchichi. In addition, he would be identified as someone who had failed to do as requested by the Tunisian authorities and act as an informer on Al Nahda activities. That might suggest to the authorities that he was in fact an Al Nahda sympathiser and supporter. It is highly likely that if, on return as a failed political asylum seeker, the claimant is considered as someone who fought with the mujaheddin in Bosnia and who did not comply with the requirements of the Tunisian authorities that he act as an informer, he would be at risk because the Tunisian authorities are now again very concerned about the threat of Islamic fundamentalism. There is objective evidence to support the argument that detainees forcibly returned from abroad have been arrested on arrival in Tunisia, held in prolonged incommunicado detention lasting weeks or months in which the detention is not acknowledged or the fate or whereabouts of the detainee is concealed. That is a situation that amounts to enforced disappearance. He refers to the Amnesty International report. He says that there is objective evidence that the Bosnian authorities have in recent years deported individuals living in Bosnia with some claims to citizenship who are found not to be bona fide Bosnian citizens. The vast majority of those were individuals of Arab origin holding dual citizenship. He refers to the letter from the claimant's solicitors to the UK Border Agency dated 1 April 2009, where in December 2007 reference was made to the deportation of the first of 600 nationalised citizens from Islamic countries. He goes on to deal with a number of cases before concluding that there was substantial objective evidence available to indicate that persons of Middle Eastern of North African origin, whose Bosnian citizenship was acquired under false pretences, and in the light of claims to have fought in the war between 1992 and 1995 are being seriously investigated and significant numbers are being stripped of their citizenship and deported to their countries of origin. Professor Seddon says that the claimant appears to be clearly a Tunisian national, despite his arguably questionable Bosnian citizenship, in which case returning him to Bosnia would be inappropriate. He would also, however, be concerned about the risks on return were he to be sent directly back to Tunisia for the same reasons as he fears deportation to Tunisia from Bosnia. If he were deported, he would face the dilemma of either taking with him a Bosnian wife and children, who would find adjustment very difficult, or leaving them behind.

He ends by saying:

[21]It is in that context, therefore, that Miss Fielden submits that there is a real prospect that a claim submitted to a new immigration judge would have the prospect of success. She submits that it is not clear from paragraphs 18 and 19 of the decision of the immigration judge in October 2008 that the work of the State Commission, having commenced as indicated in the reports to which I have referred in March 2006, was clearly at the forefront of the judge's mind. On this point Mr Thomann submits that on his reading of paragraphs 18 and 19 it is clear that the judge had well in mind the chronology in relation to the loss of the passport, the return of it in 2005, and the request for the claimant to take his documents in 2006. It is not clear to me that the judge was presented with evidence that the request for papers came from the State Commission in 2006. All that the judge refers to is a request from a Bosnian office for papers in relation to the claimant's citizenship. Mr Thomann submits that it is of no significance whether that request came from the State Commission or from any other state authority.

[22]Although I accept Mr Thomann's submission to some extent, I am left with the real concern that the evidence in relation to the working of the State Commission as from March 2006 (that is after the return of the claimant's passport to him in 2005) was not fully or clearly explored.

[23]Miss Fielden accepts that the profile of the claimant in this case does not find great similarity with that, for example, of Mr Ferchichi. The claimant was not a member of any Islamic terrorist group. The difference here is that he claimed to be. Miss Fielden submits, however, that there is a real risk that if he is returned to Tunisia the authorities will detain him because of that claim and question him about it. The human rights abuses set forward by Amnesty International and Professor Seddon and others might well take place during such detention. On the other hand, Mr Thomann submits that the evidence goes only to persons of "high profile". There is no clear evidence in any of the so-called new material that suggests that someone of the claimant's profile (that is someone who may have sympathised with a prohibited organisation but whose activities did not go further than that) would be of interest to the Tunisian authorities. Alternatively, submits Mr Thomann, it would be fairly clear if the claimant were removed from Bosnia on the basis of withdrawal of his citizenship because he had obtained that citizenship on false information, that his claim to have been a fighter in the army in 1992 was false. Even if the Tunisian authorities did detain him, that position would become clear fairly quickly.

[24]Miss Fielden accepts that the claimant does not come within the profile of many of the persons referred to in the reports, letters and evidence through which she has taken me. She submits, however, that there is sufficient to find that there is a real prospect that an immigration judge on the information now available might find that the claimant risks being detained whilst that situation is investigated and risks ill-treatment in the meantime. It is somewhat surprising that this might occur in 2010, that is four years after the claimant's papers were last requested on behalf of the State Commission. Miss Fielden submits that it is unclear exactly how long such a commission takes to investigate these matters.

[25]Mr Thomann has made detailed submissions on each of the so-called pieces of evidence. He emphasises that no post-2008 events are relied upon. He submits that there is no new evidence which was not before the immigration judge in respect of risk of withdrawal of citizenship in Bosnia Herzegovenia. He says that at no stage has there been any attempt to remove the claimant as Bosnia and Herzegovenia is a signatory to the Council of Europe permitting a right of petition to the European Court of Human Rights. Any deportation or removal would be challengeable under Article 3 or indeed on Article 8 grounds. There is no evidence to suggest that the citizenship has been withdrawn to date. The statements of Mr Kadrija, who seems to be of the view that it has been withdrawn, simply confirms the dubious nature of that evidence. There are a number of inconsistencies and a number of incorrect dates.

[26]Miss Fielden accepts that there is no evidence upon which a reasonable conclusion can be drawn that the citizenship has been withdrawn to date, but she relies upon the evidence as to the activities of the commission and its work since March 2006, which was not clearly before the immigration judge. I accept that submission. It seems to me that there is a realistic prospect that if that evidence were before a new immigration judge the conclusion might well be that the claimant is at risk upon being removed to Bosnia of refoulement to Tunisia.

[27]However, that does not seem to me to be sufficient for the claimant to succeed. It must also be shown that there is a realistic prospect of successfully persuading a new immigration judge of the sort of detention and ill-treatment to which Miss Fielden points. I accept many of the points made by Mr Thomann as to the inconsistencies of the so-called new evidence, the fact that much of it is directed towards high profile cases, and that part of the new information which is directed at persons such as the claimant who are of a lesser profile are largely unparticularised and undocumented. Nevertheless, I take the view that there is sufficient information to suggest that there is a realistic prospect that an immigration judge dealing with this matter afresh may come to a different conclusion. I remind myself that it is not for me to decide whether or not that will happen. The threshold is what has been described as a modest one. I have been persuaded by Miss Fielden that the claimant (albeit just) surmounts that threshold and that this is a case where there is a realistic prospect that a new immigration judge dealing with the information I have set out in some detail might come to a different conclusion. MISS FIELDEN: My Lord, I am grateful. My Lord, may I ask for a detailed legal assessment of the claimant's costs, and I am duty bound to ask for costs. I should tell your Lordship that when the matter was at the first stage of the permission hearing before Keith J, that hearing was adjourned and Keith J suggested that the claimant bears the costs of that hearing because some material was submitted late, but what I should say about that is that there was a witness statement filed by my instructing solicitors to this effect. The hearing before Keith J was on 12 July and my learned friend believed -- well, he was not told anything different -- that the new material was served on him something like the day before or very recently. In the witness statement my instructing solicitor explained that it was sent by Recorder Delivery and that someone signed for it at Treasury Solicitors five days earlier. I do not know whether they established that through the track and trace system. If you send something by Recorded Delivery you -- THE DEPUTY JUDGE: I am sorry to stop you, Miss Fielden, but where are we going with all this? What are you asking me to do? MISS FIELDEN: I do not know whether my learned friend still seeks costs for that hearing. THE DEPUTY JUDGE: Well, shall we find out? Do you, Mr Thomann? MR THOMANN: I wonder if I could have maybe a minute to make a call?31. (The court adjourned for a short time) MISS FIELDEN: My Lord, as I understand it, the defendant is asking for the costs of that hearing. The hearing was on 12 July and Keith J was told that the defendant's solicitors received the new material on 10 July, which was two days earlier. It was on that basis that he made that order. Then it turned out that in actual fact the new material had been signed for by a Mr Parminter of the Treasury Solicitors on 8 July. I suppose the question becomes: would five days have been long enough for the defendant to look at this new material? THE DEPUTY JUDGE: Well, four days really. MISS FIELDEN: It depends what time it came on that day -- four-and-a-half days. If it was not long enough, then I daresay the claimant is guilty of producing the adjournment. If it was long enough, then the adjournment occurred under a misapprehension. THE DEPUTY JUDGE: There has been no appeal from that order, has there? MR THOMANN: Actually that order was set aside by His Honour Judge Bidder. THE DEPUTY JUDGE: Yes, I see. MISS FIELDEN: My Lord, I am so sorry, I had completely forgotten about that. I have no recollection of that happening. THE DEPUTY JUDGE: Do not worry. MISS FIELDEN: No recollection at all. I am grateful to my learned friend. THE DEPUTY JUDGE: All right. Can someone remind me, please, the 8th July was what day of the week? MISS FIELDEN: The 8th was a Wednesday. THE DEPUTY JUDGE: That would make the 12th a Sunday, would it not? That cannot be right. MR THOMANN: The actual hearing was on the 13th. THE DEPUTY JUDGE: I see. Right. MISS FIELDEN: I am sorry, I thought it was on the 12th. I wrote it down wrong on the back sheet. THE DEPUTY JUDGE: It was on the 13th. MISS FIELDEN: So the hearing was on the 13th. THE DEPUTY JUDGE: So now it appears that the Treasury Solicitors had the papers some time on the Wednesday and the hearing was on the Monday. MISS FIELDEN: Yes, the hearing was on the Monday. But apart from the costs for that day, can I also please ask for a detailed assessment of the rest of the costs in any event? And I am duty bound to ask for costs against the defendant. THE DEPUTY JUDGE: And you want a public funding certificate? MISS FIELDEN: Please, my Lord. THE DEPUTY JUDGE: All right. Thank you. Yes, Mr Thomann? MR THOMANN: I cannot resist the order for costs in principle. THE DEPUTY JUDGE: On the detailed assessment? MR THOMANN: On the detailed assessment. THE DEPUTY JUDGE: And the public certificate? MR THOMANN: Yes. THE DEPUTY JUDGE: So it is only the costs of the 13th. MR THOMANN: Of 13 July. Can I simply say that even if it was served on the 10th rather than served on the 13th, it was still too late in the day to avoid -- MISS FIELDEN: No, it was served on the 8th. MR THOMANN: On the 8th, I am corrected. THE DEPUTY JUDGE: Yes. MR THOMANN: Even if it was served on the 8th, it was still too late for the Secretary of State to have the chance to consider it and the adjournment was still caused, I say, by the claimant. THE DEPUTY JUDGE: We do not know what time on the Wednesday, do we? MR THOMANN: Before 1pm. MISS FIELDEN: Maybe it was sent Special Delivery because the Post Office always guarantees delivery -- if you send something by Special Delivery, it guarantees delivery in the morning. THE DEPUTY JUDGE: Just so I can be clear, the new information was what exactly? MR THOMANN: The new information was the documentation starting at page 167, raising the new point as regards a link to the Seventh Muslim Army Brigade being in the public domain. THE DEPUTY JUDGE: Yes, very well. Miss Fielden, do you wish to reply to that? MISS FIELDEN: I am not aware of any further facts that would assist your Lordship. The facts of which I have informed your Lordship are in a witness statement -- MR THOMANN: Which I am happy to accept. MISS FIELDEN: -- from my instructing solicitor. Maybe it was as a result of that witness statement, I do not know. THE DEPUTY JUDGE: All right, thank you. On that issue I take the view that two days earlier service is not going to make a great deal of difference. It was really a case of having evidence about the Seventh Muslim Brigade and the extent to which that would have been in the public domain. It seems to me that two working days was insufficient for the defendant to deal with that particular issue. So it seems to me that the original order of Keith J should stand. MR THOMANN: I wonder if those costs could then be offset from the order for costs? THE DEPUTY JUDGE: Any objection? MISS FIELDEN: I have never come across that before, but that sounds sensible. THE DEPUTY JUDGE: Yes, it does, so I will order that. Those costs to be offset. Would you provide the associate with a draft order? MR THOMANN: Yes, my Lord. THE DEPUTY JUDGE: Thank you very much. Anything else? MISS FIELDEN: My Lord, nothing I can think of.

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