Nadar, R (on the application of) v Secretary of State for the Home Office [2010] EWHC 1811 (Admin)

Case No CO/1940/2008[2010] EWHC 1811 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 29 June 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE KENNETH PARKER
Between
THE QUEEN ON THE APPLICATION OF NADARClaimantv
Between
SECRETARY OF STATE FOR THE HOME OFFICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Z Malik (instructed by MLC) appeared for ClaimantMr E Lewis (instructed by TSOL) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE KENNETH PARKER: This is a claim for judicial review against the decision of the Secretary of State ("the defendant") not to treat the further submissions made by the claimant as giving rise to a fresh asylum claim. Very briefly, the facts of the matter are as follows. The claimant arrived in the United Kingdom on 17 May 2002 and applied for asylum on 5 June 2002. It was not until 24 May 2004, that is nearly two years later, that the defendant refused the claimant's application. It is noteworthy that in the reasons for refusal, the following is stated at paragraph 26 of the decision letter:
"You [namely the claimant] have stated that if you are returned to Afghanistan your family life will be disrupted. All your representations have been carefully considered, but your only family in the United Kingdom is a brother and his wife. Your mother and father and siblings are still in Afghanistan. The concerns that you have raised about your family life being disrupted are not sufficiently serious as to engage Article 8."
[2]The claimant appealed against that refusal on asylum and human rights grounds; Articles 2, 3, 4, 5, 6, 7 and 14, to the Asylum and Immigration Tribunal. The adjudicator refused the appeal by decision promulgated on 16 December 2004. It is again noteworthy that on the appeal, the appellant was represented on that occasion by Mr Khan of counsel, a different representation; Mr Malik has appeared before this me this morning. It is clear that in the argument advanced before the adjudicator, the emphasis was on Article 3, and not upon Article 8. So the position was obviously that the claimant had been advised, and he accepted the advice, that at that time there was no realistic prospect of any successful appeal against the conclusion reached in paragraph 26 of the decision letter to which I have referred.[3]On 7 October 2004, therefore, the claimant's appeal rights were exhausted. Further submissions were made on 3 January 2008, and in the course of those submissions which were focused on a very different issue altogether that I will refer to in a moment, the claimant said as follows:
"Since my arrival to United Kingdom, which was 17 May 2002, I have established a private life in this country. I have submitted an application for asylum, but unfortunately this claim was unsuccessful, as was the subsequent appeal. During the last five to six years, I have rooted myself in this country and consider it to be my only home. I have a legitimate expectation of being granted leave to remain in the United Kingdom on the basis that my human rights are worthy of protection ... "
[4]The Secretary of State rejected those further submissions in a decision letter of 4 February 2008. In that letter, the Secretary of State referred to paragraph 353 of the immigration rules, that is so well known that I do not need to recite it, and then the Secretary of State continued as follows:
"No new points have been raised in your client's submissions, which were considered when the earlier claim was determined. They were dealt with in the letter giving reasons for refusal dated 24 May 2004, and in the appeal determination of 16 September 2004. Your client's submissions are not significantly different from the material that has previously been considered. Your client's asylum claim has been reconsidered on all the evidence available, including the further submissions, but it has been decided that the decision of 24 May 2004, upheld by an immigration judge on 16 September 2004 should not be reversed. Because it has been decided not to reverse the decision on the earlier claim, and it has been determined that your client's submissions do not amount to a fresh claim, you have no further right of appeal."
In other words, the Secretary of State was saying that in this case, the first condition in paragraph 353 of the immigration rules had not been satisfied, because on no view could it be said that the claimant was advancing any new points and that will, of course, include any new points in relation to the putative Article 8 claim.[5]It is against that decision that this application for judicial review was brought. The statement of grounds originally filed by the claimant in support of his claim appeared to be saying principally that the defendant had unlawfully denied the claimant the benefit of the policy that applied to unsuccessful Afghan asylum seekers at the time the claimant applied for asylum on 5 June 2002. In short, the claimant was saying that had the defendant expeditiously dealt with the claim for asylum and rejected it within a reasonable period, the claimant would have benefited from that policy. He would have been an unsuccessful Afghan asylum seeker at a time when such persons were granted exceptional leave to remain in the United Kingdom for a limited period; a leave that could then be converted at a later date into another form of leave to stay in the United Kingdom. That appeared to be a superficially, at least, attractive argument. However, that was the argument that was pursued specifically in three cases that reached the Court of Appeal, the cases of the Crown H, Q and S vs the Secretary of State for the Home Department, but the Court of Appeal on 25 February 2009 dismissed the appeals (2009 EWCA, Civil 334) on the footing that that argument did not have sufficient force.[6]The claimant was then obviously in a difficult position, because the principal ground put forward in the original grounds had fallen away. Very fairly, Mr Malik accepted that to be the position in his skeleton argument to this court, and in his oral submissions to the court.[7]Before the Court of Appeal had given its decision in those important cases, this application came before Wyn Williams J on the papers, and he did grant permission on 23 May 2008. In his observations in granting permission, he said:
"This case is arguable, but it should be kept under review by both claimant and defendant, as cases ahead of it with similar points are decided. I am also concerned about whether there was anxious scrutiny of the further representations."
[8]In my judgment, Mr Justice Wyn Williams was there focused again primarily on the not unattractive argument that there was unfairness in refusing to apply a policy to persons who, had they been treated expeditiously, would have benefited like others from that policy. It is correct, as Mr Malik has pointed out, that in the final sentence he does raise what he calls concerns about anxious scrutiny.[9]However, in the event, as I said, the principal ground has fallen away, and the focus now is entirely on the question of whether the Secretary of State correctly applied rule 533 of the immigration rules, in saying that there was no fresh claim in relation specifically to the submissions raised about the application of Article 8. Mr Malik contends that firstly a fresh submission had been made in relation to Article 8, and the Secretary of State did not ask himself the right question; namely, whether there was any realistic prospect of success of such a claim. All that the Secretary of State did was to say that no fresh information in relation to Article 8 had been raised.[10]Mr Lewis, on behalf of the Secretary of State, takes a preliminary point that on a close examination of the original grounds, it is, at the lowest, difficult to discern any claim in relation to what I might call the Article 8 point that now features prominently and indeed exclusively in the claimant's case. Therefore, the technical position is that leave to amend the original grounds would be necessary, explicitly to raise this particular point, and if that were to be done, and that course has not been followed, the court should not grant permission in relation to such a fresh ground, both because of the considerable delay that has occurred between the original grounds, and any such late amendment, and secondly because there is no merit in the argument.[11]I see considerable force in Mr Lewis' submission as to the procedural position. For the reasons that I have explained, the focus of the attack was very different indeed, and if one looks at the original grounds, it is indeed difficult, if not impossible, to discern the precise point upon which the claimant now seeks to rely.[12]However, even if I were to grant leave for the original claim to be amended in a way that would make explicit the new point, I would nonetheless refuse permission in relation to it. Even if it had been explicitly included in the original claim and permission of Wyn Williams J had been given for it, I would nonetheless reject the argument.[13]It seems to me that the position is plainly as follows; that at the time of the original claim for asylum, the claimant made a bare assertion in 2004 that he had established a private life in the United Kingdom. That was not particularised. The Secretary of State made enquiries and was not satisfied for the reasons that are given in paragraph 26 of the original decision letter, that the claimant had indeed established any private life. That point was not pursued in the appeal to the AIT. All that happened between that period and February 2008 was that the claimant had been for an even longer period in the United Kingdom. However, in his representations of February 2008, he did no more, in my judgment, than repeat his original assertion that he had established a private life in the United Kingdom, without giving any more particulars than he had given in 2004. It therefore seems to me that no rational Secretary of State could possibly have proceeded on the basis that any new facts and matters bearing upon the Article 8 claim had been raised in the February representations. Those representations were simply a repetition of what had been put forward in the asylum claim in 2004, and had been rejected and had not been pursued on appeal. Therefore, the Secretary of State was not only entitled in the decision letter of 4 February 2008 to proceed on the footing that there were no fresh matters that could found a new claim, but indeed any other conclusion on the material before me would indeed have been irrational. Therefore, there was no necessity at all in this case for the Secretary of State to consider a second hypothetical question; namely, that if that putatively new material were to go before the tribunal on a fresh claim, whether it stood any realistic prospect of success. That point simply did not arise.[14]Therefore, it seems to me that the decision letter of 4 February 2008 does comply with rule 353 of the immigration rules. The Secretary of State has given sufficient scrutiny to the circumstances of this case, and has reached, as I said, the only rational decision, taking account of the material before him. The upshot is that whatever concerns Wyn Williams J may have had about anxious scrutiny, I am satisfied on a thorough consideration of this matter that the Secretary of State has indeed applied anxious scrutiny to the circumstances that were before him. For those reasons, I dismiss this application for judicial review.[15]MR LEWIS: My Lord, I am grateful. In the light of my Lord's conclusions, the Secretary of State does make an application for costs. It has been a substantive hearing in form at least, so, my Lord, I would propose that there would be a detailed assessment if those costs can't be agreed.

MR JUSTICE KENNETH PARKER: Yes.

[17]MR MALIK: My Lord, I cannot realistically defend this.[18]MR JUSTICE KENNETH PARKER: No. There will be a detailed assessment if you can't agree. Thank you very much for your helpful submissions.