AB, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3215 (Admin)

[2012] EWHC 3215 (Admin)Case No CO/11191/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 November 2012
Before
HIS HONOUR JUDGE SYCAMORE(Sitting as a Judge of the High Court)
Between
THE QUEENClaimanton the application ofClaimantABClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr M Westgate QC and Miss Bojana Asanovic (instructed by Wilson LLP) for ClaimantMr B Collins (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 9 October 2012
Judgment
[1]The claimant is a national of country A who arrived in the United Kingdom on 6August 2005. His claim for asylum, made on the day of his arrival, was rejected by the defendant on 8 September 2005. His appeal against that refusal was dismissed and was finally determined on a second stage reconsideration appeal in May 2007 by an Immigration Judge. The Judge produced a lengthy and detailed determination and reasons. He found the claimant not to be credible and made a number of findings relevant to the claimant’s credibility including the following: i. The “appellant’s claim to be in need of international protection, even to the lower standard of proof is not credible ……..” ii. The claimant’s claim that soldiers in country A attended a hotel to arrest him and, when they could not arrested his sister instead was “….. an embellishment to assist his claim to be in need of international protection.” iii. “…. the giving of false information and the production of false documents seriously undermined (the claimant’s) credibility.” iv. Inconsistent and evasive evidence as to how the claimant obtained a passport undermined his credibility.[2]Permission to appeal the decision of May 2007 was refused in July 2007. The claimant then failed to comply with his bail conditions. His details were circulated on the Police National Computer as an absconder. He was not encountered again until his arrest on the 21 January 2010 when he was found to be working in a factory under a false identity.[3]There was a succession of further representations to the defendant between July 2010 and October 2010, all of which were rejected by the defendant.[4]In these proceedings the claimant seeks to challenge the last decision of the defendant dated 26October 2010 to refuse to treat the claimant’s further submissions as amounting to a fresh claim pursuant to paragraph 353 of the Immigration Rules (HC395 as amended).[5]The claimant issued these proceedings for Judicial Review on 26 October 2010. His application for an injunction to restrain removal was refused on the same date by Mr Justice Cranston who held “given that this was a sur place claim, it should have been raised earlier. Even accepting that “C” is a member of Organisation 1, I am not persuaded that he is at real risk given the country guidance dating from 2007”. The claimant was returned to country A on 27 October 2010 and claims that he was tortured on return. He remains in country A in hiding.[6]Permission was granted by Mr Justice Holman on 20 July 2011 having initially been refused on the papers by Mrs Justice Dobbs on 16 May 2011. An anonymity order was made by Mr Justice Nicol on 16 December 2011. There was a directions hearing before Mr Justice Sales on 24 February 2012 at which it was ordered, inter alia, that the question of whether the defendant erred in law in failing to accept the claimant’s submissions of 25 October 2010 as a fresh claim was to be determined as a preliminary issue. The Judge also ordered that directions dealing with remedy and the human rights claim were to be dealt with at the conclusion of the hearing of the preliminary issue.[7]The hearing before me and this judgment deal solely with the preliminary issue.

THE FRAMEWORK

[8]Paragraph 353 provides:
“when a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333 c of these Rules 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 is 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. This paragraph does not apply to claims made overseas.”
This paragraph does not apply to claims made overseas.”[9]The defendant is required to examine further submissions from an applicant who has previously been refused asylum in the United Kingdom and determine whether they amount to a fresh claim. Such a determination is of significance, as acceptance of a subsequent application as a fresh claim generates a further right of appeal.[10]The leading case which deals with the task of the Secretary of State under paragraph 353 of the Immigration Rules is the decision of the Court of Appeal WM (DRC) v the Secretary of State for the Home Department [2006] EWCA Civ 1495 in which Buxton LJ said:
“There was broad agreement under the Secretary of State’s task under Rule 53 he has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under Rule 353 (i) according to whether the content of the material has already been considered. If the material is not “significantly different” the Secretary of State has to go no further. Second, if the material is significantly different the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment will not only involve judging the reliability of the new material, but alsojudging the outcome of tribunal proceedings based on that material.”
[11]Thus, the Secretary of State must decide whether the new material is significantly different from that already considered. If the new material is not “significantly different” then that is the end of the matter, because the material is not new and cannot constitute a fresh claim. It is only if the new material is significantly different that the Secretary of State is required to consider whether when taken with the material previously considered, the whole material creates a realistic prospect of success in a further asylum claim. If the answer is in the affirmative then it is a fresh claim under paragraph 353 of the Immigration Rules. Consideration by all the decision makers must be informed by the application of anxious scrutiny to the material.[12]The Court of Appeal in WM went on to set out the approach to be adopted when considering the challenge by way of judicial review and held that a decision would be irrational if the Secretary of State had asked the wrong question or had not applied anxious scrutiny:
“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, treat 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.”
[13]In R v the Secretary of State for the Home Department, ex Parte Onibiyo [1996] QB 768 Sir Thomas Bingham M.R. said:
“The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is significantly different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.”
Thus, the material must be “new” in the sense that it could not reasonably have been produced in the earlier claim.

BACKGROUND

[14]In considering the defendant’s decision of 26th October 2010 it is necessary to review the background history: 06.08.2005 The claimant arrived in the UK and claimed asylum. 08.09.2005 Asylum claim refused. 23.09.2005 Claimant lodged appeal. 01.11.2005 Claimant’s appeal dismissed. 19.12.2006 First stage reconsideration granted. 05.2007 An Immigration Judge dismissed the second stage reconsideration appeal (see paragraph 1 above). 07.2007 Permission to appeal refused. 12.11.2007 Claimant’s details circulated on Police National Computer as an absconder following his failure to comply with immigration bail conditions. 21.01.2010 Claimant encountered at a factory in the course of an enforcement visit. He had used an alias together with a false driving licence in the name of the alias to gain employment. He was arrested. 29.01.2010 Claimant convicted and sentenced to six months imprisonment for possession of a false instrument. 29.04.2010 Claimant transferred to Oakington Immigration Centre and removal directions were later set for 24 July 2010. 21.07.2010 Further submissions received from the claimant’s solicitor. 23.07.2010 Defendant rejected the claimant’s submissions determining that they did not amount to a fresh claim. 24.07.2010 Letter from claimant to defendant. 28.07.2010 Letter from claimant to defendant. 03.08.2010 Further representations served by the claimant’s then solicitors. 04.08.2010 Defendant refused further submissions. 08.08.2010 Removal directions set for 13 August 2010. 10.08.2010 Claimant’s then solicitors served further representations. 12.08.2010 Claimant issued a claim for judicial review. 13.08.2010 Removal directions cancelled. 02.09.2010 Defendant considered and rejected the claimant’s further submissions of 10 August 2010. 14.09.2010 Mr Justice Nicol refused permission for the claimant’s judicial review on the papers indicating that he considered it to be totally without merit. 21.10.2010 Removal directions set for 27 October 2010. 25.10.2010 The claimant’s new solicitors served further submissions which included, for the first time, an assertion that the claimant had become a member of Organisation 1 whilst in the United Kingdom in February 2008 and that he would be at risk on return to country A. 26.10.2010 In a detailed response the defendant considered and rejected the claimant’s further submissions. 26.10.2010 The claimant issued these proceedings for judicial review. 26.10.2010 The claimant’s application for an injunction to restrain removal was refused (see paragraph 5 above). 27.10.2010 The claimant was returned to country A.[15]It was accepted by the parties that there was no reference in any of the earlier correspondence or in the first judicial review application to the claimant’s alleged membership of Organisation 1.[16]It was apparent that the trial bundle before me did not contain the two letters from the claimant to the defendant (24 July 2010 and 28 July 2010). As the claimant’s letter of 24 July 2010 was specifically referred to by the defendant in the decision letter of 26 October 2010 I asked for enquiries to be made. During the course of the hearing the two letters in question were located by the defendant’s solicitors and produced later during the day. Whilst it is clear that the defendant had the letter of 24 July 2010 before her when making the decision it could not be said with certainty that the letter of 28July 2010 was before her. It was accepted by the parties that in his letter of 24 July 2010 the claimant made no reference to his alleged membership of Organisation 1, nor was any reference made to it in the further submission submitted on the claimant’s behalf by his solicitors on the 10 August 2010 on the basis of which the defendant rejected the second fresh claim.[17]In my judgment the essential question for consideration on this application is whether the defendant, giving the claim anxious scrutiny as required by WM, was entitled to find that this claimant had no realistic prospect of persuading an Immigration Judge that he had, since February 2008, been an active member of Organisation 1 and that he would come to the notice of the country A authorities by reason of political activity since February 2008. I remind myself that the decision can only be challenged on a Wednesbury basis.[18]It is important to consider the decision letter in the context of the circumstances which existed at the time of the decision and the receipt of the further submissions. As Holman J observed when granting permission “…. the application had all the hallmarks of an opportunistic last ditch application after earlier applications and indeed a claim for judicial review during the summer and earlier autumn 2010 had already failed …”.[19]Holman J also observed that the claimant could have raised his membership of Organisation 1 at any time during the proceeding 2½ years. In the hearing before me, as also occurred on the application for permission, counsel on the claimant’s behalf sought to analyse and be critical of the minutiae of the decision letter of 26 October 2010. I agree with the sentiments expressed by Holman J that in circumstances in which the claimant had delayed until the last minute, removal directions had been set on 21 October 2010 for 27 October 2010 and the claimant’s solicitors had served further submissions on 25 October 2010, to which the defendant responded the following day, it is not open to the claimant to pick over the minutiae of the decision letter, rather the letter has to be looked at in the round against the background of the speed at which the matter had to be considered and the decision letter issued.[20]As the claimant’s counsel reminded me in his skeleton argument the representations made on the claimant’s behalf on 25 October 2010 included an assertion that he was not aware that his Organisation 1 membership had not been raised when the fresh claim application was made in July 2010. What the claimant’s solicitors said on his behalf in their letter of 25 October 2010 to the defendant was as follows:
“…. the applicant instructs us that he had informed his previous solicitors of this information when they were assisting him with a fresh claim application in July 2010, but that this information was not relaid (sic) when the fresh claim representations were drafted and submitted to the Home Office. The applicant states that he did not see the representations drafted by his previous representatives prior to their submission to the Home Office so that he was not aware that the information regarding his involvement with (Organisation 1) had not been relied upon….”
[21]What is now clear from the claimant’s own letter to the defendant of 28 July 2010 (this information was not available to Holman J) is that the claimant was aware of the content of the representations submitted on his behalf on 21 July 2010 by his then solicitors. He said:
“…. the previous fresh claim my solicitor sent to you on 21 July 2010 was not making (sic) in accordance with my instructions and I don’t believe the facts that were stated in that application are correct or enough ….”
[22]The claimant in the same letter then proceeds to explain what evidence his solicitor failed to submit but again makes no reference to membership of Organisation 1.[23]Similarly the letter of 24 July 2010 from the claimant to the defendant was not available to Holman J when he granted permission. The letter was clearly before the defendant when she made her decision of 26 October 2010. Significantly in that letter the claimant set out specifically what his grounds for a fresh claim were. He identified three separate grounds but specifically made no mention of membership of Organisation 1 when there was an opportunity available to him to do so. At that time the claimant was clearly advancing his own case without the assistance of solicitors and the language used by him suggests that he was clearly aware of the issues which were relevant.[24]The claimant in his further submissions of 24 October 2010 relied on a report prepared by E1. The report was accompanied by letters from the President of Organisation 1 in the UK of 19 October 2010 and 25 October 2010 and the claimant’s Organisation 1 membership card. In essence E1 opined in his report that the country A security forces would be likely to arrest, torture and even kill persons forcibly removed to country A who were suspected to have been overseas activists of Organisation 1. As I have observed the claimant’s solicitor’s representations of 25 October 2010 stated that the claimant had instructed his former solicitors of his Organisation 1 membership and that he was not aware that this information had not been put to the defendant.

THE DECISION LETTER

[25]Notwithstanding the pressures of time, the letter of the 26 October 2010 did deal with the detail of the claimant’s submissions and explained in some detail the basis upon which the defendant concluded as she did: a) The defendant recognised that the claim now turned on the claimant’s alleged membership of Organisation 1 and considered the evidence from E1, and letters from the President of Organisation 1 in the UK and the membership card from Organisation 1. b) The defendant made it clear that she doubted the claimant’s credibility. She relied in particular upon: i. The decision of the Immigration Judge of May 2007 who found the claimant not to be credible. ii. The claimant’s failure to mention his membership of Organisation 1 since February 2008, notwithstanding that he had been legally represented and that further representations had been made on 21 July 2010 and 3 August 2010 on his behalf. On 24 July 2010 he made further representations in person as to which see paragraph 23 above. iii. The defendant made it clear that she had considered the report from E1 and the letter from Organisation 1 of 25 October 2010 and a membership card. The defendant observed that E1 had not been made aware of the history of dishonesty on the part of the claimant and also observed that, in commenting on the Organisation 1 documents, E1 went no further than stating that the relevant documents were “likely to be genuine”. In his report E1 explained that he expressed that opinion because the content, style and format or the documents were identical to those of other such documents that he had examined in the past. In addition it seemed that E1 had not seen the appeal decision of May 2007, which contained the many adverse credibility findings made against the claimant nor the defendant’s letter of 23July 2010, in which the defendant challenged the authenticity of documents submitted with the claimant’s further representations of 21 July 2010, nor was he informed of the claimant’s conviction for the offence of using a false instrument. The defendant in considering the representations determined that the claimant had demonstrated a propensity to deceive and cast doubt as to whether the documents from Organisation 1 were genuine. iv. Notwithstanding that conclusion the defendant went on to consider the position in the event that the documents were genuine and that the claimant had been a member of Organisation 1 since February 2008. In so doing the defendant, relying on Country Guidance Case 1, concluded that there was nothing in the documentation to suggest that the claimant’s activities had given him a sufficient profile to bring him to the attention of the authorities in country A. v. The defendant also considered the claimant’s submissions in respect of High Court Case 1 which also involved a claimant who was an active member of Organisation 1 and expressed the view that High Court Case 1 was made on its own particular facts and was not binding on all applications from claimed members of Organisation 1.[26]In considering the requirements of Rule 353 the defendant found that whilst the claimant had raised new points those new points would not have created a realistic prospect of success before an Immigration Judge and as such the arguments failed to satisfy the test for a fresh claim.

DISCUSSION

[27]As I have already observed notwithstanding the pressures of time the defendant dealt with the new claim in detail and in my judgment correctly directed herself in considering the requirements of Rule 353.[28]The background was on any view striking and the decision she reached was one which was plainly open to her.[29]The claimant’s history of dishonesty was lengthy; he had been dishonest in his attempts to stay in the United Kingdom; he had been convicted of an offence of dishonesty and a number of findings had been made against him by an Immigration Judge in May 2007 relevant to his credibility. Those findings were of particular significance in the context of the exercise which the defendant was required to carry out.[30]The claimant did not raise his membership of Organisation 1 until the point at which he was about to be removed. The defendant was entitled to observe that the claimant had had numerous opportunities over a period of two years and eight months to bring his claimed membership to the attention of the defendant and the decision letter deals fully with those opportunities. In particular the defendant was entitled to place significant weight on the claimant’s own letter of 24 July 2010.[31]The defendant was also entitled to attach weight to the fact that E1 did not appear to have been made aware of the history of dishonesty. The defendant was entitled to take this into account in determining the weight to be attached to the documents produced by the claimant on 25 October 2010 in support of his claim.[32]In casting doubt on the genuineness of the Organisation 1 documentation the defendant’s reasoning was thus essentially three fold: a) The inordinate delay raising his Organisation 1 membership made it incredible that the membership was genuine. b) The defendant was entitled to take into account the claimant’s history of dishonesty. c) The fact that E1 had not been made aware of the history of dishonesty.[33]In considering the position as it would have been in the event that it was accepted that the claimant was a member of Organisation 1 in my judgement the defendant correctly took into account Country Guidance 1 and High Court Case 1 in concluding that the claimant’s alleged activities did not have a sufficient profile to bring him to the attention of the authorities in country A.[34]In granting permission Holman J observed that the defendant’s assertion in the letter of 26 October 2012 that:
“Even if we accept that the documents from Organisation 1 are genuine … there is nothing in the letters to suggest … that his activities have come or will come to the attention of the authorities on his return.” did not sit easily with the assertion in the letters from the President of Organisation 1 in the UK of 19 October 2010 which said: “[the claimant] being a member of Organisation 1 UK … he is reasonably very likely exposed to suffer persecution if he was sent back…” and 25 October 2010 which said: “we know of several of our activists who have been sent back to … and who have disappeared or been tortured or killed. It is for this reason that we believe [the claimant] may face torture and probably killing if he was sent back to …”
[35]It is now clear that there is nothing to suggest that the letter of 19 October 2010 was submitted to the defendant. There is no reference to it in the letter from the claimant’s solicitors to the defendant of 25 October 2010 nor is it referred to in the defendant’s decision letter of 26 October 2010. Both of those letters do make specific reference to the letter of 25 October 2010 from the President which said, in addition to the words referred to by Holman J:
“.… [the claimant] is an active member of our political organisation here in the United Kingdom .… [the claimant] has attended all the events and meetings organised by our political organisation since his enrolment on 11 February 2008 as a member of [Organisation 1] and he is involved in the mobilisation and contributed to recruit the new member of the organisation in this country in general and among the United Kingdom based .… citizens in particular.”
[36]Relying on Country Guidance 1 the defendant concluded that the profile was insufficient. The Tribunal in Country Guidance 1 in terms said that mere membership or affiliation to a political party was not of itself significant nor was the fact of being a failed asylum seeker sufficient. What was necessary was political activity sufficient to draw the asylum seeker to the attention of the authorities. Those who are mere failed asylum seekers and those with no opposition profile beyond low - level membership are not at risk.[37]The defendant in dealing with High Court Case 1 expressed the view that the decision was made on its particular facts and that the claimant’s case was not similar. It can be seen, for example, that the claimant in High Court Case 1 was described as being responsible for recruiting members whereas this claimant’s activity is described as contributing to recruitment.[38]Thus in my judgement the defendant was further entitled to find that, even if the documents were genuine and the claimant had been a member since February 2008, there was nothing to suggest that his profile was sufficient to bring him to the attention of the authorities in country A.[39]In those circumstances, having applied anxious scrutiny, I am satisfied that the decision reached by the defendant, against the background which I have described, to the effect that an appeal to an Immigration Judge would have no realistic prospect of success was one that was clearly open to her.[40]On the preliminary issue I rule that the Secretary of State did not err in failing to treat the representations of 25 October 2010 as a fresh claim.

Cited in 1 later judgment