Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 4
P853/11	OPINION OF LORD BRODIE in the Petition of W.K.A. (A.P.) Petitioner; For Judicial Review of a decision of the Secretary of State for the Home Department dated 19 May 2011 to refuse to treat submissions dated 4 May 2011 as a fresh claim for asylum in terms of Immigration Rule 353 ­­­­­­­­­­­­­­­­­________________

Petitioner: Devlin; Allan McDougall Solicitors

Respondent: Webster; Office of the Solicitor to the Advocate General

17 January 2012

Introduction

[1] The petitioner is a national of Iran. He is of Kurdish ethnicity. His date of birth is 20 February 1982. He is resident in Glasgow. The respondent is the Secretary of State for the Home Department.

[2] It is the petitioner's position that he left Iran on or about 5 August 2006. On 7 September 2006 the petitioner claimed asylum as a refugee on the basis of his participation in a Kurdish political party, Komala, while living in Iran. By letter dated 1 December 2006, the respondent rejected the petitioner's asylum claim and claim for humanitarian protection. The respondent accepted that the petitioner had shown support for Komala at a low level but did not otherwise find the petitioner's claims to be credible. The petitioner appealed. By determination promulgated on 15 June 2007 the petitioner's appeal was dismissed. The Immigration Judge noted that the respondent accepted that the petitioner was a low level member of Komala. The Immigration Judge did not find other aspects of the petitioner's account to be credible.

[3] Reconsideration was sought of the Immigration Judge's decision but was refused by decisions dated 4 July and 13 November 2007.

[4] The petitioner avers that during the course of 2009 he left the United Kingdom, travelled through France and entered Norway. He claimed asylum there but the Norwegian authorities declined to determine his asylum claim as he had previously claimed asylum in a European Union member state. Accordingly, on 22 September 2010 the petitioner was returned to the United Kingdom. The petitioner further avers that he was interviewed on behalf of the respondent on his return to the United Kingdom and documents were submitted by him to the respondent. His account during his interviews and the documents submitted were treated as further submissions in terms of Immigration Rule 353. By letter dated 20 March 2011 the respondent rejected these submissions and refused to treat them as a fresh claim for asylum.

[5] By letter dated 11 April 2011 with enclosures including photographs, further submissions were made on behalf of the petitioner. The essential contentions in these submissions were that: the petitioner had participated in demonstrations outside the Iranian Embassy in Oslo; he had participated in demonstrations frequently; he had a prominent position in the demonstrations, including displaying a large banner; it was likely such demonstrations were filmed by Embassy staff; he would accordingly be at real risk of harm were he to return to Iran; and as it was his intention to continue his political activities in the event of return to Iran it was likely that he would come to the attention of the authorities and suffer harm accordingly. By letter dated 27 April 2011 these submissions were rejected by the respondent and not treated as a fresh claim.

[6] By letter dated 4 May 2011 with enclosures, further submissions were made on behalf of the petitioner. In paragraph 13 of the petition the petitioner avers that the central terms of these submissions in so far as they were new were that:

"(a) Reference was made to a 'Live Leak' video (this was the same video on You Tube listed fourth in the earlier representations albeit on a different website).

(b) An internet article from 'Press TV' entitled 'Iran Slams Embassy Attack in Norway' was enclosed. Reference was made to the Iranian Foreign Minister complaining to the Norwegian Foreign Ministry about permitting 'Islamic Republic enemies to launch a violent protest'. It was said that the 'aggression' took place after the execution was announced on 9 May 2010 in Iran of persons with links to 'the terrorist group known as PJAK', the Iranian offshoot of the Kurdistan Workers' Party."

By letter dated 19 May 2011 those submissions were rejected and were not treated as a fresh claim. The petitioner now seeks judicial review of that decision.

[7] The petition called before me for a First Hearing on 8 December 2011. Mr Devlin appeared on behalf of the petitioner. Mr Webster appeared on behalf of the respondent. Mr Devlin's motion on behalf of the petitioner was to sustain the plea-in-law in the petition which was that the respondent's decision (of 19 May 2011) being vitiated by material errors of law et separatim being irrational, the decision letter ought to be reduced. Mr Webster's motion, when he came to make it at a continued First Hearing on 14 December 2011, was to sustain the third plea-in-law for the respondent, that being that the respondent not having erred in law nor acted irrationally, the orders sought in the petition should be refused.

Applicable Law

Immigration Rule 353 is in the following terms:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 33C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submission 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 previously considered material created a realistic prospect of success notwithstanding its rejection."

What the Rule requires has been explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 at 340 in terms which were adopted and affirmed by the Inner House in O v Secretary of State for the Home Department [2010] SLT 1087 and D v Secretary of State for the Home Department [2011] SLT 645. Buxton LJ said this:

"[6] There was broad agreement as to the Secretary of State's task under Rule 353. He has to consider the new material together with the old and make two judgements. 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 with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material".

Having thus identified the task of the Secretary of State, Buxton LJ then considered the task of the court in the event of an application for judicial review of the Secretary of State's decision. He said this:

"[10] ...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, the court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] 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 evaluation of the facts and in respect of the legal conclusion 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 these questions is in the affirmative it will have to grant application for review of the Secretary of State's decision".

Submissions of parties

Petitioner

[8] Mr Devlin began by explaining that in his submission the respondent had erred in law in four respects when deciding, by letter dated 19 May 2011, not to treat the submissions made on behalf of the petitioner on 4 May 2011 as a fresh claim for asylum in terms of Immigration Rule 353: (1) in finding that the additional material put forward on 4 May 2011 was not significantly different from what had previously been considered by the respondent; (2) in having regard to the irrelevant consideration that there was no explanation as to why the Press TV article had not been submitted earlier; (3) in failing to have regard to the relevant circumstance that the petitioner regularly participated in demonstrations against the Iranian government; and (4) in misapplying the guidance set out in the Country Guidance case BA (Demonstrators in Britain - Risk on Return) Iran CJ [2011] UKUT 36.

[9] Mr Devlin reviewed the Immigration Judge's determination of 15 June 2007, the further submissions on behalf of the petitioner made by letter of 11 April 2011, the respondent's decision letter of 27 April 2011 rejecting these further submissions, the further submissions made on behalf of the petitioner by letter of 4 May 2011 and the decision letter of 19 May 2011 which was subject to the application for judicial review. He then drew attention to the relevant authorities: WM (DRC) v Secretary of State for the Home Department (supra), D v Secretary of State for the Home Department (supra), R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 (where a "realistic prospect of success" is equated with a more than fanciful prospect), R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 (where there is consideration of the requirement for "anxious scrutiny") and R v Ministry of Defence (ex p) [1996] QB 517 ( where the need for close scrutiny when a fundamental human right is concerned is identified). Mr Devlin submitted that, notwithstanding some recent criticism, the concept of anxious scrutiny retained a content of meaning. Everything that was in favour of someone seeking asylum had to be taken into account and in reviewing decisions in relation to asylum claims it was inappropriate to take a benevolent view which overlooked minor flaws in the decision making process on the basis that they were only minor. The concept related to the intensity of the scrutiny appropriate to such claims and the need to be astute in detecting errors of law.

[10] What Mr Devlin said had been the respondent's first error was to dismiss the additional material sent with the letter of 4 May 2011 as "not significantly different to [the articles] previously considered". That the additional material was not significantly different did not mean that it was irrelevant nor that it had no weight. The additional material added to the accumulation of evidence pointing to the risk that the petitioner would face if he had to return to Iran. It provided corroboration of the material previously submitted. Provision of an additional video clip addressed the point taken against the petitioner in the previous decision letter of 27 April 2011 that You Tube was not considered necessarily to be a reliable source. In taking the view that the additional material was not significantly different the respondent had not demonstrated the anxious scrutiny required where what was in issue was the risk of the petitioner being persecuted on return.

[11] Mr Devlin submitted that the respondent had made a further error in law by taking into account the irrelevant circumstance that the petitioner provided no reasonable explanation as to why the internet article dated 7 August 2010 had not been submitted earlier. It all came back to the question of anxious scrutiny. The stage at which material is put forward is not entirely irrelevant, but there was no indication in the decision letter of 19 May 2011 as to what relevance was being attributed to lateness in this case. Reference was made to R (BN) v Secretary of State for the Home Department [2011] EWHC 2367 and Haile v Immigration Appeal Tribunal [2002] Imm AR 170.

[12] Moving to what he submitted was a third error of law, Mr Devlin said that the respondent had erred in failing to have regard to all relevant considerations in that she had stated, at paragraph 15 of the decision letter of 19 May 2011, that the petitioner had not provided any information to indicate that he regularly participates in demonstrations against the Iranian regime. That was to ignore the repeated references in the solicitor's letters of 11 April and 4 May 2011 to the petitioner's frequent and regular participation in demonstrations. Reference was made to the decision of the Immigration Appeal Tribunal in Kasolo v Secretary of State for the Home Department, Immigration Appeal Tribunal, 1 April 1996, Appeal Number 13190.

[13] Mr Devlin finally submitted that the respondent had erred in law by misapplying what she should have taken from BA (Demonstrators in Britain - risk on return) (Iran CJ) supra. BA was a Country Guidance case directed at risk on return to Iran by persons who had shown their hostility to the Iranian regime by conduct carried out in Britain (otherwise sur place activity). The relevant conduct by the petitioner had taken place in Norway but there was no reason why the same principles should not be applied in his case as had been laid down in BA. As appeared from paragraphs 63 to 67 in BA, threats have been made by high officials to dissident Iranians abroad and institutional measures have been taken to prosecute such Iranians. In BA a variety of factors are identified which bear on the risk to those returning to Iran whom the authorities there may regard as dissidents. The respondent had failed to have regard to these various factors. When considering the evidence which had been submitted of the petitioner's participation in demonstrations, the respondent had observed, at paragraph 15 of the decision letter of 19 May 2011, that there was nothing to suggest that the petitioner was leading or addressing a crowd. As appeared from BA it was not only those leading or addressing demonstrations who were at risk. The respondent had given no consideration to the particular political profile of the petitioner. She had given no consideration to the fact that the petitioner had been absent from Iran for about 6 years. There was nothing in the decision letter to indicate that she had had regard to the similarities as between the petitioner's case and facts in BA. Had she done so she would have seen that there were facts in the petitioner's case which were analogous to the facts in BA. Had the respondent been exercising anxious scrutiny she would have identified that there were features in the petitioner's case which, when viewed in the light of the guidance provided by BA, indicated that the petitioner had at least a realistic prospect of success in demonstrating the requisite risk of persecution before an Immigration Judge.

[14] It was Mr Devlin's position that on the basis of all or any of these errors on the part of the respondent, the decision letter of 19 May 2011 should be reduced.

Respondent

[15] Mr Webster, on behalf of the respondent, responded to Mr Devlin's first point of criticism by submitting that, not having challenged the decision letter of 27 April 2011 by way of judicial review, the petitioner had to be taken to have accepted the respondent's decision contained therein as reasonable in the light of what as that date had been considered. Thus, what appeared in the decision letter of 27 April 2011 could be taken as a touchstone of what the respondent was entitled to decide. The expression used in paragraph 14 of the decision letter of 19 May 2011 is "significantly different" but it was clearly not being used there as a term of art. What was being said by the respondent was that the additional material was not really different from what had previously been considered. The respondent had previously considered the facts relating to the petitioner's participation in demonstrations in Norway, as appeared from paragraphs 17 to 20 of the decision letter of 27 April 2011. Paragraph 14 of the decision letter of 19 May 2011 indicated that what had been added in the submission of 4 May 2011 provided little weight and, in Mr Webster's submission, in that it was no more than corroboration of a previously accepted fact it should be regarded as adding no material weight whatsoever. This was not a case where the additional material undermined what had previously been found by the Immigration Judge. Rather, the additional material was no more than a repetition of what had previously been put forward.

[16] As far as the petitioner's second ground of criticism, that the respondent had stated that no reasonable explanation had been put forward for material not having been submitted earlier, as a statement of fact it was accurate but, more importantly, nothing turned on it. Lateness in providing material could be relevant to the question of credibility but here that was not the issue. Lateness in putting forward the internet article had not been material to the respondent's decision.

[17] Turning to what Mr Devlin had characterised as the respondent's third error of law, Mr Webster did not accept that the respondent had failed to have regard to the petitioner's assertion that he had regularly participated in demonstrations against the Iranian regime. It was a question of the proper construction of the decision letter of 19 May 2011. The sentence focused on by Mr Devlin had been: "Moreover, your client has not provided any information to indicate that he regularly participates in anti-regime demonstrations." When that sentence is considered in the context of the whole letter, it cannot mean a complete absence of evidence. It was not disputed that a statement made by or on behalf of the petitioner is evidence. What the sentence accurately stated is that the petitioner had failed to put forward material pointing to the regularity of his participation in demonstrations beyond the mere assertion of the fact by or on behalf of the petitioner himself.

[18] Turning to Mr Devlin's fourth alleged error of law, it was Mr Webster's submission that when regard is had to the guidance provided by BA, the respondent was entitled to come to the view that the petitioner's activities were not such that they would have brought him to the attention of the Iranian authorities and that an Immigration Judge would come to the same conclusion. That this court might come to a different view does not of itself render the respondent's view irrational. This court is entitled to have regard to the fact that the petitioner did not challenge the decision letter of 27 April 2011 as irrational. In the absence of such challenge the decision letter of 27 April 2011 was available as a touchstone for rationality. That being so, it could not be said that the respondent was not entitled to decide as she did in the letter of 19 May 2011.

Discussion

[19] It is the decision letter of 19 May 2011 and only the decision letter of 19 May 2011 that is the subject of this application for judicial review. While Mr Devlin was correct to observe that an application to reduce the decision letter of 27 April 2011 and only the letter of 27 April 2011 would have had no purpose, that cannot be said of an application to reduce both the decision letter of 27 April 2011 and the decision letter of 19 May 2011. In the result, whether or not it is correct to say, as Mr Webster submitted, that the petitioner must be taken to have accepted the decision contained in the decision letter of 27 April 2011 as being reasonable, that decision is unchallenged. It was by reference to it (and all previous material) that the petitioner had to satisfy the respondent that the further submission of 4 May 2011 was a fresh claim in terms of Immigration Rule 353 and as the respondent decided that it was not a fresh claim it is that decision, expressed in the decision letter of 19 May 2011, which the petitioner must impugn. Mr Devlin sought to do so by pointing to what he submits were four errors of law made by the respondent in her consideration of the submission of 4 May 2011. In doing so he relies on the low threshold constituted by "a realistic prospect of success", as that expression is used in Immigration Rule 353: see R (AK (Sri Lanka)) v Secretary of State for the Home Department supra and the generally acknowledged requirement that any decision maker faced with a claim for asylum must submit the claim to "anxious scrutiny".

[20] At paragraph 29 of Lord Stewart's opinion in SKM v Secretary of State for then Home Department [2010] CSOH 172 there is this arresting sentence:

"'Anxious scrutiny' is a forensic cliché struggling to attain the rank and dignity of a term of art."

The sceptical tenor of that sentence gets support from observations by Carnwath LJ in R (YH) (Iraq) v Secretary of State for the Home Department supra at para 24 and in R (AS (Sri Lanka)) v Secretary of State for the Home Department [2009] EWHC 1763 (Admin) at para 39. Carnwath LJ would regard the words as descriptive not of a legal principle but a state of mind and expresses difficulty with seeing them as part of any legal test. While they do have something of the quality of a pious incantation, as Carnwath LJ recognises, they provide a necessary reminder of what he describes as "the very special human context" in which asylum cases arise. Any claim for asylum necessarily involves the proposition put forward by the claimant that if he is returned to his country of origin his liberty and his life will be at risk. That many such claims are unfounded does not detract from that and it is something to which every decision maker, whether Immigration Officer, Immigration Judge, or member of a court exercising the jurisdiction of judicial review must be alive. Every factor which might tell in favour of an applicant must be properly taken into account and decision makers' decisions should demonstrate by their reasoning that they have done so: R (YH (Iraq)) v Secretary of State for the Home Department supra at para 24. I would take Mr Devlin to be correct when he said, under reference to R v Ministry of Defence ex p Smith supra at 538, that the court at the stage of reviewing the decision making process in an asylum claim will not be inclined to overlook even quite minor flaws in that process, provided of course that they are indeed flaws and that they might have had an effect on the result.

[21] With that preamble, I now turn to consider the four respects in which the respondent is said by Mr Devlin to have erred in law in rejecting the further submission of 4 May 2011 and deciding that it did not amount to a fresh claim.

[22] As to the first point of criticism, the expression "not significantly different" where it appears in the penultimate sentence of paragraph 14 of the decision letter of 19 May 2011, was not well chosen in that "significantly different" has a particular meaning in the context of Immigration Rule 353. However, on a fair reading of the decision letter clearly what was meant was "not materially different". The video clip and the Press TV internet article showed and referred to a demonstration in which the petitioner claimed to have been involved in Norway. As appears from his solicitors' letter of 11 April 2011, the petitioner had previously referred to his involvement in demonstrations against the Iranian regime while he was in Norway and drawn attention to the fact that the Iranian authorities had indicated that they intended to proceed against dissident Iranians abroad. Presentation of the additional material was therefore no more than a reiteration of what had previously been put to the respondent and it was entirely accurate for her to state that the additional material was not materially different from what had previously been considered. I took Mr Devlin to accept that. His point was that in apparently dismissing this additional material, the respondent did not allow for its corroborative effect. On this I am with Mr Webster. The respondent was not taking issue with the petitioner's assertions that he had demonstrated against the Iranian regime while he was in Norway and that the regime takes notice of such demonstrations in identifying those it regards as dissidents and who may be subject to repression should they return to Iran. While the actual documents (or at least the Press TV article) may not have previously been considered by the respondent their content had been. The respondent was therefore entitled to come to the view that the additional material adding nothing of significance to the previously considered material and accordingly did not create a realistic prospect of success.

[23] As to Mr Devlin's second point, it may be that the observation at paragraph 14 of the decision letter of 19 May 2011 that the petitioner had provided no reasonable explanation as to why he could not have provided the internet article earlier was irrelevant. However, as Mr Webster submitted, nothing whatsoever turned on that. The respondent had regard to the material. There is no indication in the decision letter that it was given any less weight than it would have been given had it been put forward earlier. This criticism provides no basis for impugning the respondent's decision.

[24] As far as Mr Devlin's third point of criticism is concerned, again I agree with Mr Webster's reading of the decision letter. As appears from BA (Demonstrators in Britain -risk on return) (Iran CJ) supra, in determining what risk a particular applicant faces, regard must be had to the level of his involvement in street demonstrations. In measuring the degree of involvement, one factor is the frequency with which a particular applicant has involved himself. I take the reference in paragraph 15 of the decision letter to the regularity of participation to be intended as a reference to frequency. Mr Devlin's complaint was that the statement that the petitioner had not provided "any information" to indicate that he regularly participates in demonstrations was inaccurate. That information had been provided by way of his solicitors' letter. That is indeed the case but on a fair reading of the decision letter when the respondent refers to "information" it is clear that what is intended is something other than the simple assertion made by or on behalf of the petitioner. I cannot accept that the respondent had failed to understand that it was the petitioner's position that he had frequently demonstrated against the Iranian regime.

[25] BA (Demonstrators in Britain -risk on return) (Iran CJ) (supra) is a Country Guidance case decided by the Upper Tribunal (Immigration and Asylum Chamber), and as such it is intended to provide a factual matrix within which decisions arising from claims for asylum in analogous circumstances fall to be made. Although its terms are specific to sur place activity in the United Kingdom, there is no reason why it should not also be applicable to sur place activity in any other Western European country. That is accepted by the respondent and the case is referred to at paragraph 15 of the decision letter of 19 May 2011.

[26] That there may be a real risk of persecution of persons identified as dissidents returning to Iran from abroad appears from paragraph 63 of the determination in BA:

"In the last year, since the disputed election of June 2009, repression has intensified. Protestors have been detained and in some cases, tortured. There has been a crackdown on dissent. Detainees have been systematically denied access to outside contact and legal assistance. There have been show trials, in some cases leading to severe sentences. That repression inside Iran has been coupled with express threats made by high officials to dissident Iranians abroad. Institutional measures to prosecute such Iranians have been taken."

In the following paragraphs the Upper Tribunal discusses the factors relevant to making a judgment about the risk on return for a particular Iranian, having regard to his sur place activities. The factors are placed under four heads: (1) the type of sur place activity involved; (2) the risk that a person will be identified as engaging in it; (3) the factors triggering inquiry on return of the person and; (4) in the absence of a universal check on all entering the country, the factors that would lead to identification at the airport on return or after entry.

[27] Mr Devlin submitted that the respondent had misapplied the guidance which should have been taken from BA and in particular she had failed to have regard to: (1) the fact that the petitioner could not be expected to lie about his sur place activities were he to return to Iran; (2) that he had been active in a demonstration in Norway by carrying a banner; (3) the demonstration had attracted media attention; (4) the petitioner might be differentiated from other demonstrators by reason of his established political profile as a supporter of Komala; (5) the petitioner had left Iran illegally and; (6) the similarity of the facts of the petitioner's case with the facts in BA. I take a different view. It is true that there are some similarities as between the circumstances of the petitioner and those of the appellant in BA. Both participated in demonstrations against the Iranian regime while they were in Europe and both appeared in video clips of the demonstrations which were uploaded on to You Tube. However there are also points of difference. The appellant in BA was shown on the video shouting particularly inflammatory slogans. His face was clearly recognisable in a photograph illustrating an article on the demonstrations in a dissident magazine. The respondent was therefore entitled to conclude, as she states in paragraph 17 of the decision letter of 19 May 2011, that the petitioner's case could be differentiated from BA. Moreover, it is to be borne in mind that what is made subject to judicial review in this application is the decision letter of 19 May 2011. As the respondent states at paragraph 15, the case of BA was considered in the respondent's previous decision letter (erroneously referred to as the "letter dated 27/07/2011"). At paragraph 66 of its determination in BA the Upper Tribunal explained that not all dissidents who have participated in sur place activity will be at risk on return to Iran. The infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media does not face a real risk of identification and consequent ill treatment. As was recognised by the respondent at paragraph 15 of the decision letter of 27 April 2011, quoting paragraph 3 of the determination in BA, it is therefore important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed. In my opinion it is clear from paragraphs 15 to 21 of the decision letter of 27 April 2011 that the respondent understood and applied the guidance available from BA to the circumstances of the petitioner's case and that when considering the further submissions of 4 May 2011, the respondent was entitled to have regard to that fact. The statement in paragraph 15 of the decision letter of 19 May 2011 that the case of BA had previously been fully considered appears to me to be accurate. The respondent was accordingly entitled, in my opinion, to come to the conclusion that the additional material submitted with the further submissions of 4 May 2011 did not give rise to a realistic prospect of success before another Immigration Judge.

Decision

[28] I shall accordingly repel the petitioner's sole plea-in-law and uphold the respondent's third plea-in-law, as Mr Webster invited me to do. I shall reserve all questions of expenses.