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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 115
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P815/08
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OPINION OF LORD
BRODIE
in the Petition of
M G (Assisted
Person)
Petitioner
For
Judicial Review of
a decision of the Secretary of State for the Home Department dated 14 March 2008 to refuse to treat
the petitioner's representations as a fresh claim for asylum under Rule 353
of the Immigration Rules
________________
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Petitioners: Stobart; McGill & Co
Respondent: Lindsay; Office of the Solicitor to the Advocate
General
13 August 2008
Introduction
[1] The petitioner is M G.
She is married and the mother of a
child. She is designed in the petition
as currently detained in Dungavel Detention Centre. The respondent is the Secretary of State for
the Home Department. The petitioner
seeks judicial review of a decision of the respondent contained in letter dated
14 March 2008 (number 6/2 of process) refusing to treat submissions
made on her behalf in a letter from the petitioner's solicitors dated 13 March 2008
(number 6/1 of process) as a fresh claim for asylum. The petitioner's contention in her petition is
that the respondent's decision was made under error of law. The declarator sought in the petition however
goes somewhat beyond that in that the petitioner seeks to have it declared that
in reaching the decision the respondent acted unlawfully et separatim acted in a manner that is unreasonable and irrational et separatim in breach of section 6
of the Human Rights Act 1998.
[2] The
petitioner is a national of Algeria.
She arrived in the United
Kingdom on 10 September 2007. She immediately made an application for asylum
on the basis of her fear of persecution in Algeria
by Islamists associated with the Groupe
Islamique Arme, or GIA. The
application was refused. The Reasons for
Refusal letter is dated 30 October 2007.
The petitioner appealed the decision
that she was not entitled to asylum. The
appeal was heard before an immigration judge at Glasgow on 7 December 2007
and refused in terms of Determination and Reasons prepared on 12 December 2007
(number 7/2 of process) (the "Determination"). In the petition it is averred that the
petitioner's appeal was dismissed on 25 January 2008.
This would appear to be an error.
[3] The
petitioner made an application under section 103A of the Nationality,
Immigration and Asylum Act 2002 for reconsideration of the dismissal of
her appeal in terms of the Determination. This was refused by a senior immigration judge
in terms of a determination dated 7 January 2008.
The petitioner made a further application
for an order for reconsideration to the Court of Session. This application was refused by Lord Carloway
on 8 February 2008
for the reasons given in the Note, number 7/4 of process.
[4] On 13 March 2008 the
petitioner's solicitor wrote to the respondent asking for new evidence to be
taken into account and that the letter be treated as a fresh claim for asylum. The new evidence took the form of three
documents: a Terrorist Declaration, written in something resembling French,
bearing to be issued by Police Headquarters, Algiers, and recording a
complaint by a member of the petitioner's family of two visits by groups of
armed persons looking for the petitioner and her husband; a brief affidavit
written in French and signed by a number of the petitioner's friends and family
declaring that the petitioner and her husband "are threatened in Algeria
because of her position at the Ministry"; and a statement confirming a
complaint made by G N on 26 December 2007 in relation to the first of
the two visits by groups of armed persons, written in what I assume to be
Arabic and bearing the stamp of the Directorate of Algerian Police.
[5] In
response to the claim made by letter of 13 March 2008, an official of
the Borders and Immigration Agency, acting on behalf of the respondent, made a
decision, the terms of which were contained in a letter of 14 March 2008
(number 6/2 of process) sent to those acting for the petitioner. Reference was made in that letter to the three
documents which had been presented as new evidence and to Immigration Rule 353.
The letter included the following
paragraphs:
"Your client is said to be in
fear of returning to Algeria
and you have submitted further documentation in support of this claim. This includes a translated report by the Police
authorities in Algiers dated 11 March 2008 and an
alleged complaint made to the police in Algiers
by a relative of your client on 26 December 2007.
The submission of these documents must
be set against the findings made by the immigration judge who found your
client's credibility and claim to be wanting. Your attention is drawn to the case of Ahmed Tanveer [2002] Imm AR 318 ...In
asylum and human rights cases it is for an individual claimant to show that a
document on which he seeks to rely can be relied upon. However, even if the documents are accepted as
valid, they imply a reliance on legal processes which represent a framework for
legal protection. Taking all of your
client's evidence in the round, including her ability to not provide a truthful
account in her appeal, it is not considered that reliance should properly be
placed on these documents.
I reiterate that the decision
to refuse your client asylum on 30 October 2007
was upheld by an Immigration Judge who in making her determination did not find
your client to be credible. The
Immigration Judge found that there were a number of discrepancies in your
client's account, and stated at paragraph 56 of her determination: 'However, the Appellant has constructed a
story around an incident but that story which as Dr Mackay characterised
was an evolving one and a living one.' The immigration Judge went onto to dismiss
your client's claim on asylum and human rights grounds.
It remains the case that your
client has a viable internal flight option and can avail herself of the
sufficiency of protection which exists and is provided by the Algerian
authorities. It is evident that your
client is seeking to frustrate the removals process by repeating his [sic]
asylum claim. Taking all the above into
consideration, your representations are rejected and the decision to refuse the
earlier asylum claim on 30 October 2007
is maintained."
[6] The letter
then turned to a consideration as to whether the removal of the petitioner and
her family from the United Kingdom
would result in a breach of article 8 of the European Convention on Human
Rights before, in its pre-penultimate paragraph, paraphrasing paragraph 353
of the Immigration Rules and then continuing in its penultimate paragraph:
"We are not persuaded that the
submissions that you have made, taken together with previously considered
material, create a realistic prospect of success. Accordingly, we are not prepared to reverse
the decision of 30 October 2007.
Because we have declined to reverse the
decision on the earlier claim and have determined that your submissions do not
amount to a fresh claim, your client has no right of appeal against this
decision from within the United Kingdom."
[7] It is that
decision that the petitioner seeks to reduce by way of this application for
judicial review.
[8] At the
hearing before me the petitioner was represented by Miss Alice Stobart,
Advocate. The respondent was represented
by Mr Mark Lindsay, Advocate. Miss Stobart's motion was for
reduction of the decision. Mr Lindsay's motion was for dismissal of the
petition
Immigration Rule
353
[9] The Immigration Rules are
made by the respondent in accordance with sections 1 (4) and 3 (2)
of the Immigration Act 1971 for the guidance of those entrusted with the
administration of immigration control. One
such person is the official who made the decision intimated by letter dated 14 March 2008. Rule 353 is in the following terms:
"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) has 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."
Submissions
Submissions for the petitioner
[10] Miss Stobart
submitted, under reference to what appears in paragraphs [6], [7], [11]
and [24] of the judgement of Buxton LJ in the cases reported as WM
(DRC) v Secretary of State for
the Home Department [2007] Imm AR 337, that the respondent (through her
official) had applied the wrong tests in
coming to a view as to the reliability of the information contained in three
documents presented as new evidence in support of the submissions made on
behalf of the petitioner, and in determining whether the submissions amounted
to a fresh claim in terms of Rule 353. There was no proper basis for concluding that
the documents were other than genuine. What the respondent should have done but did
not do was to ask the question: if an independent immigration judge took the
view that the documents were genuine whether there was a realistic prospect of
the judge, applying the rule of anxious scrutiny, thinking that the petitioner
would be exposed to a real risk of prosecution on return to Algeria. The respondent had not, as she should have
done, evaluated the documents having regard to the fact that they appeared to
be stamped or sealed, emanated from Algeria,
and included an affidavit from the petitioner's friends and family, and
considered their contents. The
respondent should then have considered what appeared and might be inferred from
the contents of the documents together with what had been found by the
immigration judge in the petitioner's appeal, which included the fact that she
had been assaulted. It was not for the
respondent to make a judgement on the credibility of the new material, unless
it was possible to say that no person could reasonably accept it as believable:
R (on the application of TN) (Uganda) [2006] EWCA Civ 1807 at paragraph 10.
The consideration of whether submissions
amounted to a fresh claim was a decision of a different nature to that of an
appeal against refusal of asylum, it required a different mindset, only if the
respondent can exclude as a realistic possibility that an independent tribunal
(in the person of an immigration judge) might realistically come down in favour
of the applicant's asylum or human rights claim, can she deny the applicant the
opportunity of consideration of the material: AK (Afghanistan) v Secretary
of State for the Home Department [2007] EWCA Civ 535 at paragraphs 22
to 24 and 26. In making the decision
intimated by letter of 14 March 2008
the respondent had not followed that approach and the decision accordingly fell
to be reduced. As far as the
availability of effective protection from the petitioner's own state was
concerned that was an issue to be dealt with by the immigration judge when
considering the petitioner's fresh claim, on the basis of such material as was
then available. It was not clear from
the letter of 14 March 2008 what view had been taken about the
sufficiency of protection but it was not for the respondent, in circumstances
where, as here, anxious scrutiny had not been applied, to give any weight to
the contents of documents with a view to assessing the extent of the protection
that might be available to the petitioner.
For an example of a case where even the protection available from the
authorities of Western European states (the United
Kingdom and the Irish
Republic) had not been taken to be
sufficient, Miss Stobart referred to the decision of the Supreme Court of
Canada in Canada (Attorney-General) v Ward [1997] INLR 42.
Submissions for the
respondent
[11] Mr Lindsay
moved me to uphold the first plea-in-law for the respondent and to dismiss the
petition. In support of that motion he
began by reminding me, under reference to BS (Kosovo)
v Secretary of State for the Home Department
[2007] EWCA Civ 1310 and Miller
Petitioner [2007] CSOH 86, that the approach of the court on judicial
review is that the discretionary remedy of reduction will not be granted where
no useful object would be achieved thereby. Thus an error of law by a decision-maker will
not justify reduction of his decision if, in the absence of error, the same
decision was inevitable. In other words
if there was only one possible answer then it is irrelevant if the
decision-maker has come to that answer for the wrong reason. It was, however, Mr Lindsay's primary
submission that the respondent had made no error in refusing to treat the
petitioner's representations as a fresh claim. The respondent had concluded that reliance
should not be placed on the new documents but had considered the
representations on the basis that they were valid, viewed them as indicating
the existence of a framework for legal protection and pointed to the provision
of protection provided by the Algerian authorities as negating the petitioner's
asylum and human rights claims. Mr Lindsay
reminded me that a claim will only be available under the Refugee Convention or
article 3 of the European Convention on Human Rights where the claimant's
state fails to provide reasonable protection. Reasonable protection did not require an
absolute guarantee of safety. In the
present case the petitioner's claim had been refused by reason of , inter alia, the availability of state
protection. Submission of the additional
material had only, as Mr Lindsay put it, made it worse for the petitioner
in that it tended to support the view that state protection was available. At best for the petitioner there was nothing
in the new material to suggest that the Algerian authorities were unwilling or
unable to provide protection.
[12] Mr Lindsay
took me to the previous considerations of the petitioner's claim, first in the
respondent's letter of 30 October 2007
and then in the immigration judge's Determination. Taking the petitioner's claims at their
highest, the respondent, at paragraphs 27 onwards of the letter of 30 October 2007 and
particularly paragraphs 30 and 31, found there to be a sufficiency of
protection in Algeria
from, inter alia, the GIA. The immigration judge had considered the
issue, particularly at paragraphs 45 and 50 of her Determination. At paragraph 50 she finds the level of
protection afforded to the petitioner by the Algerian authorities to be
adequate under reference to the apposite paragraph in the decision of the
Asylum and Immigration Tribunal in IM
(Sufficiency of Protection) Malawi [2007] UKAIT 00071. There it is explained that reasonable steps to
prevent persecution by operating an effective legal system will generally, not
in necessarily in every case but generally, amount to the provision of adequate
protection. Mr Lindsay then
referred to R (Bagdanavicius) v Home Secretary [2005] 2 AC 668 at
678F in order to remind me that where it is said that a well-founded fear of
persecution emanates from non-state agents, the asylum seeker must establish
not merely the risk of severe ill-treatment but also that the home state was
unwilling or unable to provide a reasonable level of protection from it. In this case, he submitted, there was nothing
in the decision letter to suggest that the wrong test had been applied, but in
any event, even if it had, the decision of the respondent had been inevitable,
given the conclusion reached by the immigration judge on the sufficiency of
state protection in Algeria.
It was not fatal to the respondent's
decision that the decision letter of 14 March 2008
had used the expression "no reasonable prospect of success" without specifying
that what was relevant was a reasonable prospect that an immigration judge
would think that there was a risk of persecution or contravention of Article 3
rights. There was no question of the
respondent's decision being irrational in a Wednesbury
sense. He referred to R (Mustafa Taskin) v Secretary of State for the Home Department [2008] EWHC 256 (Admin), R (Erdogan) v Secretary of State
for the Home Department 8 February 2008, R (Bashir Jumha Aliabo-Julledah) v Secretary of State for the Home Department [2007] EWHC 2910 (Admin). Returning to the point with
which he had begun, again referring to Miller
Petitioner supra, at paragraphs [11] and [19], he concluded by
emphasising that there had been nothing before the respondent to indicate that
the Algerian authorities were unwilling or unable to provide reasonable
protection.
Discussion
[13] Miss Stobart, on behalf
of the petitioner, identifies two instances of what she characterises as error
of law on the part of the respondent in rejecting the representations made in
the letter of 13 March 2008.
Mr Lindsay disputes that either
instance amounts to an error but if it is it does not matter because nothing
was put before the respondent to displace the immigration judge's conclusion
that reasonable protection was available from the Algerian authorities. Miss Stobart's riposte to that last point is
that coming to a view on sufficiency of protection, if that is what the
respondent did, is for the immigration judge when considering the fresh claim,
not for the respondent when considering whether representations amount to a
fresh claim.
[14] There is no
dispute between Miss Stobart and Mr Lindsay as to what is the
applicable law. That is set out in
paragraph [11] of the judgement of Buxton LJ in WM (DRC) v Secretary of
State for the Home Department supra.
Subject to a pleading point, which I
will come to, the issue as to whether the respondent is to be taken to have
made an error in law depends on how the not entirely felicitously expressed
letter of 14 March 2008 is read.
[15] Referring
to the material sent as part of the submissions made by letter of 13 March 2008, the
respondent concluded that "it is not considered that reliance should properly
be placed on these documents." I do not
regard this component of the respondent's decision to be satisfactory. First of all I am uncertain as to precisely
what it means. As far as the two police
reports are concerned, the respondent may be saying that she doubts the
authenticity of what, ex facie, are
official documents or she may be questioning the accuracy of the information
provided to the police by the person who made the complaints which were the
subject of the two, on this alternative, genuine reports, or she may not be
committing herself to either of these possibilities but nevertheless is not
persuaded of their reliability. Whichever of these possibilities was in the
mind of the respondent I do not find sufficient supporting reasoning in the
letter. All that is offered is: "Taking
all of your client's evidence in the round, including her ability to not
provide a truthful account in her appeal..." The expression "her ability to not provide a
truthful account" is something of a curiosity but taking it to mean "inability
to provide a truthful account", it is difficult to see how that factor, if
accurate, provides a reason for doubting either the authenticity of a report or
the honesty of the informant on the basis of whose information the report was
compiled where the informant is someone other than the petitioner. Similarly, I fail to see how an adverse
assessment of the credibility of the petitioner provides a basis for doubting
the credibility of those who, on the face of it, signed the affidavit. This would be my view where the petitioner had
indeed been found not to be credible, which is how the respondent understood
matters. That is not quite how I would
understand the Immigration Judge's rather opaque sentence in paragraph 56
of her Determination: "...the Appellant has constructed a story around an
incident but that story which as Dr Mackay characterised was an evolving
one and a living one" but even if that sentence is to be understood as a
finding that the petitioner lied, or at least could not be believed, when
giving at least some parts of her account, I do not find that as a reason to
reject documents emanating from other sources and supporting her assertion that
she was a target for persecution, as being false. I agree with Miss Stobart that, as far as
appears from the letter of 14 March 2008,
there was no proper basis for concluding that the documents were other than
genuine. This, however, is where what I
have described as the pleading point emerges. I would regard this component in the
respondent's decision as defective for want of adequate reasons. That, as Mr Lindsay pointed out, is not a
ground pled in the petition. Miss Stobart
may have sought to get round this by suggesting that the respondent has not
followed the approach commended by Buxton LJ in WM (DRC) v Secretary of State for the Home Department supra at 340 (paragraph [6]) where he said this:
"To set aside one point that
was said to be a matter of some concern, the Secretary of State, in assessing
the reliability of new material, can of course have in mind both how the
material relates to other material already found by an [immigration judge] to
be reliable, and also have in mind, where that is relevantly probative, any
finding as to the honesty or reliability of the applicant by the previous
[immigration judge]. However, he must
also bear in mind that the latter may be of little relevance when, as is
alleged in both of the particular cases before us, the new material does not
emanate from the applicant himself, and thus cannot be automatically suspect
because it comes from a tainted source."
[16] I rather
doubt whether that, properly speaking, falls to be regarded as a rule of law. However, I would agree with Miss Stobart
that in the present case the respondent does seem to have fallen into the
potential error identified by Buxton LJ in the second of the two sentences
quoted above. Important as I consider it
to be that the points to be made in an application for judicial review are
clearly identified in the petition, in all the circumstances of the present
case I am prepared to accept Miss Stobart's submission that the
respondent's rejection of the new material as unreliable was in error. This does not appear to me to be a case such
was posited by Collins J in Rahimi
v Secretary of State for the Home
Department [2005] EWHC 2838 where it can be said that the information
in the material was intrinsically incredible or that, looking at the whole
case, it could not reasonably be believed.
Nor, as I have endeavoured to explain, is it a case where it can be said
that the documents are clearly not genuine in the sense of obviously not
emanating from their ex facie
authors. Accordingly, whether the
respondent falls to be regarded as having fallen into error of law, as having
failed to give proper reasons or as having acted irrationally, her decision
insofar as based on her conclusion that reliance should not be placed on the
documents is unsustainable. That,
however, is not an end to the matter. The decision letter includes the sentence: "However, even if the documents are accepted
as valid, they imply a reliance on legal processes which represent a framework
for legal protection." As I understood
him, Mr Lindsay pointed to that sentence as indicating that the respondent
had considered the submissions made on behalf of the petitioner on the
hypothesis that documents were genuine and information contained within them
accurate. Agreeing with him up to a
point, I also understood Miss Stobart to read the decision letter as
including a consideration of the submissions, albeit not by reference to the
correct test. That the respondent did in
fact consider the submissions on the hypothesis that the documents were genuine
and accurate may indeed be the proper conclusion, given the terms of the
penultimate paragraph of the decision letter, following as it does a paraphrase
of Rule 353. I am not be inclined
to differ with counsel on that. But if
that is so I am not persuaded that the respondent can be shown to have erred by
failing to apply the correct test as explained in WM (DRC) v Secretary of
State for the Home Department supra at
341 to 342 (paragraphs [11] and [12]). I
recognise the distinction, emphasised by Miss Stobart, between the
Secretary of State forming a favourable view on the merits of the claim, as
enhanced by the new material, and the Secretary of State forming a view as to
the realistic prospect that an immigration judge might form a favourable view
of the claim, having given the matter anxious scrutiny. I accept that the decision is stated
relatively briefly without the approach which has been followed having been
spelled out in the way one might anticipate in a judicial opinion. Nevertheless, I would regard it to be clear
that what the respondent had in view was realistic prospect of success before
an immigration judge. I see it as
difficult to interpret "realistic prospect" as other than a reference to a
hypothetical future decision by a different decision-maker. Agreeing with Mr Lindsay, I do not regard
the respondent's conclusion as Wednesbury
unreasonable, given the material before her.
[17] Mr Lindsay
founded upon the fact that there had been nothing in the new material to
displace the finding of sufficient state protection by the immigration judge. I understood him to take that as a point
available to him even if I was against his primary submission that the
respondent made no error in her decision. From my reading of the decision letter,
assuming that the respondent did indeed consider the submission on the basis
that the documents were genuine, which is how parties encouraged me to approach
the matter, it not clear to me that the respondent took the availability of
state protection to be a free-standing point. Rather, I see her as having rolled it up as
part of her assessment of "the submissions ...made". Be that as it may, I take it to be clear that
the respondent did consider the availability in Algeria of "a framework of
legal protection" as being relevant to her conclusion that the submissions made
on 13 March 2008, together with the previously considered material
did not create a realistic prospect of success. Agreeing with Mr Lindsay, I see it as
reason not to grant decree of reduction of a decision simply because of some
flaw in the decision-making process if the final decision was inevitable,
irrespective of the flaw. I take as
accurate the summary of the law as to risk of persecution or of article 3
ill-treatment contained in the judgement of Auld LJ in the decision of the
Court of Appeal in R (Bagdanavicius)
v Secretary of State for the Home
Department [2004] 1 WLR 1207, which follows Horvath v Secretary of State
for the Home Department [2001] 1 AC 489 and is cited and discussed in
the decision of the Asylum and Immigration Tribunal in IM (Sufficiency of protection) Malawi [2007] UKAIT 00071 at
paragraphs 17 to 19 and 36 to 45. It is for the claimant to show a well-founded
fear and a systemic insufficiency of state protection in the face of a threat
from non-state agents. Here the
immigration judge found there to be sufficient state protection in Algeria.
The respondent in considering the
submission made on behalf of the petitioner found nothing to displace that
finding in the new documents therefore, argued Mr Lindsay, she was entitled to
find there to be no prospect of success before another immigration judge and,
separately, this court should not reduce her decision because it can be
satisfied that even if it is to be considered to be flawed in some way, it was
inevitable, because a claim for asylum cannot succeed where the claimant fails
to establish insufficient state protection in the country of former residence
of the claimant.
[18] As I see it
the issue comes to be quite narrow: was the respondent on the submission of
what was said to be a fresh claim entitled to come to a view on the
availability of state protection in relation to the present case and, by reason
of that view, determine that the submissions taken together with the previously
considered material did not create a realistic prospect of success? I understood Miss Stobart to submit that
the answer should be no. It was her
position that the question of sufficiency of protection was to be dealt with by
the immigration judge who would look at the new documents, decide what they
meant and make a determination on the risk of persecution on the basis of all
the material then before him, always being mindful of the need to exercise
anxious scrutiny. I have no quarrel with
this summary of the task of the immigration judge once further submissions have
been determined to amount to a fresh claim, but the decision as to whether
further submissions amount to a fresh claim is for the Secretary of State, her
decision only being challengeable by way of judicial review on Wednesbury grounds: WM (DRC) v Secretary of
State for the Home Department supra at 341
(paragraph [9]). In order to make
that decision the Secretary of State has to consider the new material, together
with that which has previously been considered.
Among the issues to be had regard to in determining whether the
submissions create a reasonable prospect of success is the availability of
state protection. Here the respondent
clearly did consider this issue and did so on the hypothesis that the documents
relied on were "valid" which in context must mean at least genuine in the sense
of including documents emanating from the police in Algeria. That appears to me to be the only reasonable
meaning of: "However, even if the documents
are accepted as valid, they imply a reliance on legal processes which represent
a framework for legal protection" and, later in the decision letter: "It remains the case that your client ... can
avail herself of the sufficiency of protection which exists and is provided by
the Algerian authorities." Accepting
that sufficiency of state protection requires more than the existence of a
police force to which complaints can be made but which does not or cannot act
on them, as was explained by Auld LJ in Bagdanavicius,
I cannot regard the respondent's decision as Wednesbury unreasonable.
[19] I shall
dismiss the petition. I shall reserve all questions of expenses.
