Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 71
P693/10	OPINION OF LADY CLARK OF CALTON In the Petition of Judicial Review in the cause D S Petitioner; against Secretary of State for the Home Department Respondent; _________

Petitioner: Forrest; McGill & Co

Respondents: Campbell; Solicitor to the Advocate General

5 May 2011

Introduction
[1] This is a case which came before me for a one day first hearing on
26 January 2011. I considered that the 10 pages of the petition gave me little assistance to focus the issues which were in dispute between the petitioner and the respondent. Counsel for the petitioner, at my request, produced his own outline written submission (16 of process). In response, an outline submission from the respondent (17 of process) was also produced.

[2] Some time in the first hearing was taken up with submissions about the current state of the law in relation to the correct test to be applied. The petitioner sought to argue that the correct test is set out in R (YH) v Secretary of State for the Home Department (2010) EWCA Civ 116 at paragraph 21.

[3] The submissions were not completed on the day allocated.

[4] A second day for the hearing was allocated for
10 March 2011. By that date, there had been a number of developments. In relation to the factual background, a chronology had been prepared on behalf of the respondent (19 of process). The chronology was accepted as accurate by counsel for the petitioner. He submitted that although the petitioner was correctly noted in the chronology as having an address at M W, Edinburgh, the petitioner was also living at the time at S T, Edinburgh. That chronology was of assistance in clarification of the history which had remained unclear at the end of the first day of hearing. There had also been some development in the case law. I was referred by counsel for the respondent to the recent decision of the Court of Appeal in M N (Tanzania) v Secretary of State for the Home Department (2011) EWCA Civ 193, in particular, paragraphs 2 to 3 and 13 to 16.

[5] As a result of these developments, counsel for the respondent produced a supplementary written outline submission (18 of process). He explained that this replaced the previous written submission (17 of process). The position of the petitioner had also altered. Counsel for the petitioner made a concession in law that the M N (Tanzania) case represented the applicable law "for the moment". He withdrew his earlier legal submissions in relation to "a more liberal approach" to the test to be applied based on R (YH) v Secretary of State for the Home Department.

Summary of the facts
[6] The petitioner was born on
20 April 1965 and is a national of Nepal. On or about 13 April 2003, the petitioner entered the UK and claimed asylum because he said he feared that he would be persecuted if he was returned to Nepal. His rights of appeal were exhausted on
18 December 2003. A fresh claim for asylum was made on
17 January 2005. Counsel for the petitioner submitted that the petitioner was unaware until May 2010 of the outcome of this claim. It appears that neither the petitioner nor his solicitors then instructed did anything to advise the respondent that the petitioner had acquired a new address. The petitioner made no attempt to find out the outcome of the claim made in January 2005 and in effect "disappeared". On
1 July 2009 new solicitors acting on behalf of the petitioner wrote to the respondent by letters dated
7 May 2010 and
10 June 2010. No satisfactory explanation was offered to me on behalf of the petitioner to explain the petitioner's conduct.

The basis of the claim in the petition
[7] The petition claims that the respondent erred in law in reaching the decisions dated 7 May 2010 and 18 October 2010 which rejected the submissions of the petitioner's solicitors that the further information provided amounted to a fresh claim for breach of the petitioner's rights under article 8 ECHR. The petition concluded that the decision should be reduced. The article 8 rights involved were restricted to the private life rights of the petitioner. There was no averment that any issues in relation to family life arose.

Submissions by counsel for the petitioner
[8] Counsel submitted that the petitioner had established a private life since he came to the UK in 2003 and in particular that there had been important developments since 2005. In relation to the private life of the petitioner, reference was made to a personal relationship which he had formed as evidenced in 6/7, 6/8 and 6/13. The petitioner was a member of a Temple as evidenced by 6/9 of process and involved in a course of study as evidenced by 6/10 of process. He had some involvement with the Nepal Scotland Association as an office bearer and generally within the organisation as evidenced by 6/11, 6/12, 6/14 and 6/16 of process. There was positive reference to his character and integrity and involvement in the community in 6/15 of process.

[9] Counsel submitted that rule 353 (ii) was engaged. He conceded that to succeed at judicial review, the petitioner must satisfy the Wednesbury test, albeit on the basis of anxious scrutiny as understood in WM (DRC) v Secretary of State for the Home Department (2006) EWCA Civ 1495.

[10] The grounds of error relied on by counsel for the petitioner are set out in paragraph 3 of his written note of submissions under reference to R (Razgar) v Secretary of State for the Home Department (2004) 2 AC 368 paragraph 17; Huang v Secretary of State for the Home Department (2007) 2 AC 167, paragraph 20 and EB (Kosovo) v Secretary of State for the Home Department (2008) INLR 516, paragraph 15.

Submissions by counsel for the respondent
[11] Counsel submitted that WM (DRC) v Secretary of State for the Home Department is the starting point for consideration of the correct approach to the rule 353 decisions. He prayed in aid M N (Tanzania) and the Inner House decision, O v Secretary of State for the Home Department 2010 SLT 1087.

[12] In relation to the issue of delay, raised by the petitioner, he submitted that this was not a case of systemic delay on the part of the respondent. Counsel submitted that examples of case law about systemic delay did not assist the petitioner. The correspondence between the petitioner's former agents and the respondent was dealt within a few months. As at
1 June 2005, the petitioner had failed to give the respondent an address where he could be contacted. The respondent duly notified the decision letter 6/2 of process dated
1 June 2005 to the petitioner's agents. The next contact on behalf of the petitioner with the respondent was
6 February 2009 when new agents sent their mandate (6/18 of process).

[13] Counsel for the respondent did not dispute that in considering the application of article 8 and proportionality, the appropriate case law was identified by the petitioner in R (Razgar) and Huang. Counsel submitted that it is plain from consideration of the decision letter
7 May 2010 (6/2 of process) and the supplementary letter
18 October 2010 (7/1 of process) that the respondent applied both rule 353 and the article 8 test correctly in accordance with the relevant principles.

Discussion
[14] In view of the concession in law made by counsel for the petitioner, I take as my starting point for the role of the court in deciding this petition, the well known dicta by Buxton LJ in WM (DRC) v Secretary of State for the Home Department (2006) EWCA Civ 1495 at paragraphs 8-11:

"the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds....Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly a Court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. ....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 inquiry; 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 evaluations 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 these questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision".

[15] Counsel for the petitioner did not maintain the submission that the respondent had applied the wrong test. Specific reference was made to the correct test in the decision letter at page 6 of 6/2 of process.

[16] Counsel for the petitioner sought to pray in aid delay in this case and the "ignorance" of the petitioner that he was not permitted to stay in the United Kingdom. I consider such a submission unstateable in the circumstances of this case. The respondent addressed the issue and in my opinion correctly rejected any finding in favour of the petitioner because of delay at page 6 of 6/2 of process. It seems plain that the petitioner's "ignorance" in this case was self induced.

[17] I carefully considered the new information put forward for consideration by the respondent in the context of this judicial review. From the letters relating to a personal relationship (6/7, 6/8 and 6/13 of process) the nature of the personal relationship is unclear. All that emerges from the correspondence is that the petitioner has been in some sort of relationship since 2008. I note that in 6/2 of process it is narrated that the petitioner has a wife and children in Nepal. That was not disputed by counsel for the petitioner. Membership of the Temple and the Nepal's Scotland Association indicates that the petitioner has some ties with the community but it is hard to describe them as particularly compelling. The information about the petitioner's course of study in 6/10 of process merely confirms that the petitioner has been involved in some unspecified course of study prior to May 2004 at Stephenson College. The letter 6/15 of process also confirms the petitioner's involvement in voluntary work including recent work.

[18] I consider that the decision letter of
7 May 2010 (6/2 of process) is somewhat difficult to follow. There is a much more detailed assessment of the documents referred to in paragraph 16 in the supplementary letter dated
18 October 2010 (7/1 of process). It was not disputed by counsel for the petitioner that I was entitled to have regard to the reasons given in the letters of 6/2 and 7/1 of process. The documents relied on by the petitioner are limited in scope. I find it difficult to understand the criticisms made by counsel for the petitioner. The supplementary letter considered in some details the facts put forward on behalf of the petitioner and reached a conclusion about the facts. In said supplementary letter there is also an assessment of the facts and a consideration of the facts with particular reference to justification under article 8(2).

[19] Lord Bingham of Cornhill in R (Razgar) at paragraph 17 stated:

"...The reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

[20] Counsel for the petitioner was particularly critical of the decision letter and the supplementary letter (6/2 and 7/1 of process) in relation to the approach taken by the decision-maker in respect of the "second Razger question". I have carefully considered the submission. I am satisfied that taking into account the terms of the supplementary letter (7/1 of process), the new information put forward in favour of the petitioner has been fully assessed. The conclusion at page 2 of paragraph 2 of 7/1 of process is that "it is accepted that the removal of the petitioner would interfere with his private life and "it is accepted that his removal would interfere with his private life in a sufficiently serious enough manner to engage article 8(1). The other Razgar questions including proportionality are also specifically addressed. I cannot identify any error on the part of the decision-maker in relation to the remaining three Razgar questions including proportionality. This is a case in which the balance plainly in my opinion does not lie in favour of the petitioner as the decision-maker concluded.

[21] I do not consider that this case comes anywhere near meeting the test for judicial review as set out in WM (DRC). This appears to me to be a very weak case with its weakness obscured by much verbiage in the petition.

[22] For these reasons I am satisfied that the test in WM (DRC) is not satisfied and that the decision to refuse to treat the representations on behalf of the petitioner as a fresh claim was neither unreasonable nor irrational. I therefore dismiss the petition. I reserve all question of expenses.