EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Mackay of Drumadoon Lord Emslie	[2012] CSIH 20 P115/10 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in the Petition of M O (Assisted Person) Petitioner and Respondent for Judicial Review of a decision of the Secretary of State for the Home Department dated 26 September 2009 _______

Petitioner: McGuire; Drummond Miller (for Livingstone Brown)

Respondent: MacGregor; C Mullin, OSAG

6 March 2012

Introduction

[1] This is a petition at the instance of M O ("the petitioner") seeking judicial review of a decision of the Secretary of State for the Home Department ("the Secretary of State") dated 26 September 2009. The decision challenged is one in which the Secretary of State refused to accept that further representations submitted on behalf the petitioner constituted a fresh claim for asylum on his part. The Secretary of State is the respondent to the petition and the reclaimer in this reclaiming motion against an interlocutor of the Lord Ordinary dated 21 December 2010, granting reduction of the decision dated 26 September 2009.

[2] The petitioner is a citizen of Iran. He left Iran on 18 June 2008 and travelled overland by various lorries. He arrived in the United Kingdom on 7 July 2008 and claimed asylum two days later at the Liverpool Asylum Screening Unit. He did so on the grounds that requiring him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Geneva Convention 1951 and under articles 2 and 3 of the European Convention on Human Rights. The petitioner attended an asylum interview on 20 October 2008. The petitioner's claim for asylum was refused by the Secretary of State on 28 October 2008.

[3] An appeal against the decision of the Secretary of State was heard by the Asylum and Immigration Tribunal in Glasgow on 9 December 2008. It was dismissed by the Immigration Judge on 11 December 2008 on asylum grounds, as well as on humanitarian and human rights grounds. During the hearing before the Immigration Judge, the appellant gave evidence that when he had lived in Iran he had been a member of the Worker - Communist Party of Iran ("WCPI"). In addition to distributing leaflets for the WCPI, he had, once or twice a month, attended meetings of the party. He claimed to have been taken into custody by the Intelligence Services and that whilst he had been in custody he had been tortured and beaten. In particular he claimed that his right arm had been torn by a sharp object. He offered to show the scarring on his right arm to the Immigration Judge.

[4] The Immigration Judge came to the conclusion that the evidence of the petitioner could not be relied upon. She took the view that "there were a number of inconsistencies and implausibilities in the core of his story". In the opinion of the Immigration Judge the overall effect of such inconsistencies and implausibilities had been to undermine the petitioner's credibility as a whole (para 26). The Immigration Judge, given the findings she had made on the petitioner's credibility, was not prepared to accept that any injuries the pursuer might have sustained had been caused by ill treatment or torture on account of his membership of the WCPI (para 34). She found that the petitioner had never been a member of WCPI and that he had never been detained or tortured by security agents in Iran.

Further representations

[5] On 10 September 2009 solicitors acting for the petitioner submitted further representations to the Secretary of State. The solicitors' letter dated 10 September 2009 was accompanied by copies of (a) a letter dated 13 August 2009 from Dr Iain G Brown, with an accompanying medical report; (b) a medical report dated 28 August 2009 prepared by Mr Neil Dignon MB ChB, MRCP, FCEM, Dip IMC, Consultant in Emergency Medicine at Glasgow Royal Infirmary; (c) a letter dated 19 February 2009 signed by Jalili Jalili, an official of the Worker-Communist Party of Iran - UK Organisation, to the effect that the petitioner had joined the party on 26 November 2008, and (d) seven photographs in which the petitioner is pictured demonstrating. The photographs were not annotated as to date or location.

[6] The further written representations were submitted on behalf the petitioner as constituting a fresh claim for asylum in terms of Rule 353 of the Immigration Rules. Rule 353 provides:-

"353. When a human rights of asylum claim has been refused and any appeal relating to that appeal 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)       had not already been considered; and

(ii)     taken together with the previously considered material created a realistic prospect of success, notwithstanding its rejection".

[7] The medical report from Dr Brown dated 13 August 2009 was in general terms. It summarised the petitioner's dealings with Dr Brown's practice and indicated that the petitioner's main problems had been emotional upset and distress, due to the refusal of his claim for asylum and problems with accommodation. The report records that during March 2009 the petitioner had presented with scars on his forearms, which he had claimed were as a result of his treatment in Iran. However, in his report Dr Brown did not express any views as to the possible cause of those scars.

[8] Dr Dignon's report dated 28 August 2009 contains the following passages:-

"2.2 This gentleman described the circumstances of his detention and subsequent treatment he received in a consistent and calm manner and made no attempt to exaggerate his physical signs or symptoms and he mentioned a number of physical complaints on questioning which he was quite adamant, bore no relations to his treatment in detention.

2.3 In keeping with the Istanbul Protocol, I believe the injury to his right dorsal forearm is Level C on the Istanbul Declaration (sic). Mr O gives a history of a wound caused by a bladed instrument which was surgically closed after a delay in seeking medical attention. The extensive scarring and markings, consistent with closure by sutures, would be entirely consistent with this description. However how exactly the injury was initially sustained is impossible to say.

2.4 Mr O's scar to the left side of his neck is consistent with a previous incised wound and again would be Level C on the Istanbul Protocol.

2.5 The scarring to his right shoulder is Level B on the Istanbul Protocol i.e. it is consistent with the description given, however there are many other possible causes. It is non specific. The deformity to Mr O's right ear, he says was sustained when his head was slammed in a door in detention. The deformity of the pinna is consistent with blunt trauma (similar to cauliflower ear seen in rugby players). It is Level B-C on the Istanbul Declaration. It is consistent with the description given however there are obviously many causes of blunt trauma."

[9] Paragraph 186 on the Istanbul Protocol provides:-

"The following discussion is not meant to be an exhaustive discussion of all forms of torture, but it is intended to describe in more detail the medical aspects of many of the more common forms of torture. For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution given by the patient. The following terms are generally used:

(a)   Not consistent: the lesion could not have been caused by the trauma described;

(b)   Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes;

(c)   Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes;

(d)   Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes;

(e)   Diagnostic of: this appearance could not have been caused in any way other than that described."

Decision letter of 26 September 2009

[10] By letter dated 26 September 2009, an official acting on behalf of the Secretary of State refused to accept that the medical evidence contained within the further representations, when considered with the evidence before the Asylum and Immigration Tribunal, created a realistic prospect of success for the petitioner. In particular it was not accepted "that an Immigration Judge applying the rule of anxious scrutiny of the material, and of all the previously considered material, would (emphasis added) reach a finding that there (was) a risk of (the petitioner) facing persecution or serious harm were he to be returned to Iran."

[11] The letter dated 26 September 2009 also rejected the petitioner's "Sur Place" claims that his membership of the WCPI in the United Kingdom and his demonstrating outside the Iranian Embassy in London, when considered with the evidence before the Asylum and Immigration Tribunal, created a realistic prospect of his establishing that he would face a real risk of persecution upon return to Iran. The Secretary of State was not prepared to accept that either the letter dated 19 February 2009 from the WCPI or the seven photographs created a realistic prospect of success for the petitioner. The letter dated 26 September 2009 concluded that the Secretary of State was not prepared to reverse the decision of 28 October 2008 to refuse the petitioner's claim for asylum and had determined that the further representations did not amount to a fresh claim.

First hearing of petition

[12] The petition came before the Lord Ordinary for a First Hearing. On 21 December 2010 she issued an interlocutor sustaining the first plea in law for the petitioner and reducing, as unreasonable et separatim irrational, the Secretary of State's decision of 26 September 2009 refusing to accept that the further representations on behalf of the petitioner constituted a fresh claim for asylum. The Secretary of State has reclaimed against the interlocutor of 21 December 2010.

Submission on behalf of the Secretary of State

[13] It was argued on behalf of the Secretary of State that the Lord Ordinary had erred in four respects. She had failed to identify and apply the correct legal test, when reviewing the terms of the decision of 26 September 2009. She had erred in law in respect of her treatment of the Immigration Judge's findings. She had erred in relation to her treatment of the contents of the medical report of Mr Dignon. She had erred in law in her treatment of the letter dated 19 February 2009 sent by the official of the WCPI.

[14] Council for the Secretary of State explained that before the Lord Ordinary there had been a measure of dispute between the parties as to the role of the court in cases involving the provisions of Rule 353 of the Immigration Rules. A large number of authorities had been cited to the Lord Ordinary. These authorities had included WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and FO v Secretary of the State for the Home Department [2010] CSIH 16; 2010 SLT 1087. Before the Lord Ordinary the petitioner had asserted that the court was entitled to review the fresh representations and form its own view on whether they created a realistic prospect of success. That approach had relied on cases such as I M v Secretary of State for the Home Department [2010] CSOH 103. The Secretary of State, on the other hand, had argued that whilst the court could assess the fresh representations and form its own view in appropriate cases, it was not necessary for the court to do so in all cases

[15] Counsel for the Secretary of State now accepted that the role of the court in petitions for judicial review involving fresh claims for asylum had been fully considered by the Inner House in FO v Secretary of State for the Home Department and Kishor Dangol v Secretary of State for the Home Department
[2011] CSIH 20; 2011 SC 560. As set out in paragraph [23] of the Opinion of the Court in the first of those two cases and reaffirmed in paragraph [7] of the Opinion of the Court in the second, the law was quite clear:-

"As far as the role of the court is concerned guidance is to be found in the judgment of Buxton LJ in WM (Democratic Republic of Congo), who having discussed the judgment of the court in Onibiyu, continued:

'[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, a 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 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.' "

[16] In such circumstances, we do not find it necessary to discuss further cases such as I M v The Secretary of State for the Home Department, supra, and the other decisions referred to therein. The test to be applied in a judicial review of a refusal to treat further submissions as constituting a fresh claim is the Wednesbury test, although it must also be considered whether the Secretary of State has exercised "anxious scrutiny" in the consideration of the fresh representations (MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ193, paras 25 and 26).

[17] Counsel for the Secretary of State also argued however that it was clear from the terms of the Lord Ordinary's opinion that she had failed to apply the jurisprudence in FO v Secretary of State for the Home Department and had thereby erred in law. Uncertainty arose on a reading of paragraph [13] of her opinion, where the Lord Ordinary had stated that she accepts that "analysing the court's task of judicial review in relation to Rule 353 may lead to difficulties if one tried to analyse the task in terms of classic Wednesbury grounds". However later in the same paragraph, the Lord Ordinary indicated that she had "to make a decision, applying anxious scrutiny, and come to a view as to whether a reasonable Secretary of State could have concluded that there was no reasonable prospect of an immigration judge, applying the rule of anxious scrutiny, thinking that the appellant would be exposed to a real risk of persecution on return having considered the submission and material".

[18] Counsel for the Secretary of State submitted that an analysis of subsequent passages in the Lord Ordinary's opinion clearly demonstrated that the jurisprudence in F O v Secretary of State for the Home Department had not been applied. The Lord Ordinary appeared to have placed herself in the role of the Secretary of State, as the primary decision maker (para [14]). She had analysed the findings of the Immigration Judge and had criticised the Secretary of State for relying on the findings of the Immigration Judge (paras [20] - [30]). She had reached her own assessment as to how an Immigration Judge might decide the matter in the light of the further representations, rather than addressing the rationality of the Secretary of State's decision.

[19] Turning to the second branch of his submissions, counsel for the Secretary of State criticised the manner in which the Lord Ordinary had analysed the Immigration Judge's findings. She had done so by considering in detail the whole of Dr Dignon's report. The Lord Ordinary had described Dr Dignon's report and opinion as relating to the core issue in the case, namely whether or not petitioner was, as he claims, imprisoned and tortured in Iran. She drew attention to the fact that Dr Dignon's report was not limited to expressing an opinion on the various injuries he had seen. He had also expressed the opinion that the petitioner was "an accurate historian who gave a clear and consistent account of his physical and psychological symptoms" and who had made no attempt to exaggerate his symptoms.

[20] Against that background the Lord Ordinary considered that she herself was entitled to look at the reasons given by the Immigration Judge in explaining his approach to the credibility of the petitioner. The Lord Ordinary had observed that this was an exercise which appeared not to have been carried out by the Secretary of State. The Lord Ordinary had then turned to the reasons given by the Immigration Judge and had criticised them in various respects (paras [22] - [30]). Counsel submitted that such an approach ignored the fact that the Immigration Judge had had the benefit of hearing oral evidence and was the sole judge of the facts. The decision of the Immigration Judge, sitting as a specialist tribunal, should have been respected by the Lord Ordinary unless it was quite clear that the Immigration Judge had misdirected herself in law: (AH ( Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678).

[21] It was argued that the Secretary of State had been entitled to consider and rely on the Immigration Judge's findings in reaching her decision. The Lord Ordinary, for her part, had erred in law by rejecting the Immigration Judge's conclusions on certain factual issues and substituting her own. It was important to remember that the present proceedings involved judicial review of the Secretary of State's decision. They did not constitute a "de novo" appeal. The Lord Ordinary had also erred by holding that the Secretary of State should have conducted an analysis of the Immigration Judge's reasoning in relation to the findings she had made. Such an assessment was only required if there had been a clear error in law in the Immigration Judge's decision. No such error was present.

[22] Thirdly, counsel for Secretary of State argued that when the Lord Ordinary considered the terms of Mr Dignon's medical report she had failed to apply the relevant jurisprudence. A medical report required to make clear findings if it was to be of any assistance (SA ( Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302; JBM v Secretary of State for the Home Department [2009] CSIH 57). The report by Mr Dignon had not reached clear findings. Whilst reference had been made in the body of his report to marks on the petitioner's body at levels B and C on the Istanbul Protocol, which suggested that certain marks were "highly consistent with torture", there were no clear findings in the report summary (which prefaces the report) to that effect. That absence was of critical importance.

[23] Before the Lord Ordinary the reclaimer had argued that the only clear conclusion that could be drawn from Mr Dignon's report was that he had considered the marks to be "consistent with torture". At the same time it had been conceded on behalf of the petitioner that a conclusion that marks on his body were "consistent with torture" would be insufficient for the petitioner to succeed before another fact finding tribunal. The Lord Ordinary had accordingly erred in holding that the medical report created anything more than a fanciful prospect of success for the petitioner. For that reason the medical report required to be considered "in the round" with the other relevant evidence (see JBM v Secretary of State for the Home Department, [2009] CSIH 57, para [8]).

[24] Finally, counsel for the reclaimer argued that the Lord Ordinary had erred in law in relation to the petitioner's "Sur Place" claims based on the letter from the WCPI dated 19 February 2009. The Lord Ordinary had construed the letter as supporting more than the petitioner's involvement with the WCPI following upon his arrival in the United Kingdom. She had held it capable of supporting a wider inference, namely that the petitioner had been involved in WCPI activities in Iran. The current country guidance case made it clear that membership of the WCPI in Iran did not by itself make an applicant for asylum a refugee (see CMT (Refugee - Communist Party) Iran CG [2002] UKIAT 06995, para 6).

Submission on behalf of the petitioner

[25] In response, counsel for the petitioner submitted that the Lord Ordinary's opinion did not disclose any material error on her part as to the role of the court, her consideration of the medical evidence, her references to the Immigration Judge's conclusions and to the Sur Place claim. As far as the role of the court was concerned, the relevant test was to be found in WM (DRC) as had been affirmed in FO and Dangol. It was more complex than mere "Wednesbury" reasonableness. The margin of appreciation enjoyed by the Secretary of State was reduced by the additional requirement of "anxious scrutiny". One interpretation of the term "anxious scrutiny" was that the Secretary of State's decision must show by her reasoning that every factor that might tell in favour of an applicant for asylum had been taken into account. In the event "anxious scrutiny" served to narrow the Secretary of State's scope to get the decision wrong. The traditional "Wednesbury" Test was therefore subject to modification.

[26] It was quite clear from paragraph [12] of the Lord Ordinary's opinion that she had identified the correct test. She had referred to WM (DRC), supra. The same could be said of her recognition of the requirement of anxious scrutiny (see paragraph [13]). On a fair reading of the Lord Ordinary's opinion it was clear that she had considered the Secretary of State's letter as a whole, rather than merely making up her own mind on individual issues that arose. It was also clear from paragraph [15] and succeeding paragraphs of her opinion that the Lord Ordinary had assessed the terms of the Secretary of State's letter with the view to determining whether the Secretary of State had been entitled to reach the conclusion that she did.

[27] Counsel for the petitioner argued that the Lord Ordinary had been perfectly entitled to look at the whole of Mr Dignon's report, not merely the summary at the beginning, in determining the relevance and significance of Mr Dignon's evidence. Furthermore, the cases of FO, supra, and JBM, supra, relied on by the Secretary of State, made it clear that the contents of a medical report should be looked at in the context of an appeal as a whole. In the body of Mr Dignon's report there had been clear expressions of his concluded opinion. For example, the scarring on the petitioner's right dorsal forearm and to the left lateral neck was highly consistent with torture (paras. 2.3 and 2.4) Having regard to her discussion of Mr Dignon's report [para 19], the Lord Ordinary had been correct to take the view that the Immigration Judge's conclusion could arguably be set aside in the light of the medical evidence of Dr Dignon, which was obviously new.

[28] Counsel for the petitioner argued that the Lord Ordinary had been under a duty to consider all the material before her, in coming to a view as to whether the further representations submitted on behalf of the petitioner could be considered as having a realistic prospect of success. The Lord Ordinary had not rejected the Immigration Judge's conclusions as to fact. What she had done had been to set out her reasoning as to why the Immigration Judge's conclusions on credibility might be capable of being set aside in the light of the fresh evidence that was now available [para 28]. It was one aspect of her duty to consider all the information before the Secretary of State, before coming to a view as to whether the further representations when taken with the material before the Immigration and Asylum Tribunal could constitute a claim for asylum with a realistic prospect of success.

[29] As far as the "Sur Place" claim was concerned, the Lord Ordinary had been entitled to draw the inference she did that the letter of 19 February 2009 was capable of supporting a wider inference than that the petitioner had only become involved in WPCI activities after his arrival in the United Kingdom.

Discussion

[30] In our opinion the Lord Ordinary correctly identified her role in these proceedings. That is clear from paras [12] and [13] of her opinion, in which she refers to the judgement of Buxton LJ in WM (DRC) v Secretary of State for the Home Department, from which we have quoted earlier. In these circumstances, we are satisfied that she applied the correct legal test. The Lord Ordinary's role was to determine the following matters. First, had the Secretary of State had asked herself the correct question? That question was whether there was a realistic prospect of an immigration judge, applying the role of anxious scrutiny, considering that the new representations, when taken with previously considered material, created a realistic prospect of the petitioner establishing that he faced persecution or serious harm were he to be returned to Iran. The second matter to be addressed was whether the Secretary of State had herself satisfied the requirement of anxious scrutiny. The Lord Ordinary was entitled to look at matters in the round. She also had to determine whether the Secretary of State had satisfied the requirement of anxious scrutiny.

[31] The Lord Ordinary chose to approach her task by examining the contents of the further representations and considering them against the terms of the Immigration Judge's determination and her reasons for rejecting the petitioner's evidence. She also analysed the terms of the Secretary of State's decision letter as part of her review as to whether the Secretary of State, applying anxious scrutiny, had given proper consideration to the impact of the further representations on the previously considered material. In particular she considered what impact the contents of the medical report of Dr Dignon, when read as a whole, might have on the issues of the credibility and reliability of the petitioner's account as to how he was treated in Iran before he sought asylum. In our opinion, on a fair reading of paras [16] - [30] and [32] - [33] of the Lord Ordinary's Opinion, it is clear that she carried out the analysis and comparison that she did because she considered the results of such analysis and comparison were relevant in two respects. In the first place she took the view that in order to assess the possible impact of Dr Dignon's evidence on the Immigration Judge's findings, it was necessary to consider the Immigration Judge's reasons for her findings as to the petitioner's credibility and reliability. Secondly in reviewing the Secretary of State's decision, it was appropriate to consider whether or not the author of the letter of 26 September 2009 had properly considered how the previously considered material and further representations might be viewed by a different Immigration Judge. We do not consider that the Lord Ordinary erred in law in approaching the Immigration Judge's findings as to the credibility and reliability of the petitioner in the way she did. She identified potentially weak reasoning on the part of the Immigration Judge in paras [24] - [26] and on the part of the Secretary of State in para [32]. In para [33] the Lord Ordinary reached the conclusion that the Secretary of State had failed to take proper account of the effect that Dr Dignon's report might have in relation to the credibility and reliability of the petitioner. In our opinion, that was a conclusion which the Lord Ordinary was entitled to reach. It is one with which we agree. Whether Dr Dignon uses the term "consistent" or the term "highly consistent", the contents of his report are capable of providing support to the petitioner's credibility. Accordingly in our opinion, before reaching the conclusion that Dr Dignon's evidence provided no support to the petitioner, it was appropriate for the Secretary of State to consider the cogency and weight of the Immigration Judge's reasoning when she dealt with the petitioner's credibility and reliability. In our opinion she failed properly to do so. For these reasons we do not consider the Lord Ordinary erred in her treatment of Dr Dignon's evidence in reaching the conclusions that she did.

[32] Turning briefly to the "Sur Place" claims, we rather doubt whether, on its own, the letter dated 19 February 2009 would constitute a factual basis for a fresh claim with realistic prospects of success. However, we agree with the Lord Ordinary that it is arguably capable of supporting an inference that the petitioner had been involved in activities against the Islamic Regime of Iran. As such it could form part of further representations constituting a fresh claim for asylum that met the test set out in Immigration Rule 353. We would add that counsel for the reclaimer indicated that were his argument respecting the new medical evidence not to succeed, he would not contend that the "Sur Place" matters constituted a separate, material error of law.

[33] In our opinion, therefore, it cannot be said that the Lord Ordinary erred in law in reviewing the decision letter dated 26 September 2009, in the manner that she did. In these circumstances we are not persuaded that the Lord Ordinary was not entitled to grant reduction of the decision of 26 September 2009.

[34] Furthermore, during our own consideration of the decision letter of 26 September 2009 a further error on the part of the Secretary of State emerged. In paragraph 19 of the decision letter, the writer states that "it is not accepted that an Immigration Judge applying the rule of anxious scrutiny of the material and of all the previously considered material, would (emphasis added) reach a finding that there is a real risk of your client facing persecution or serious harm were he to be returned to Iran". The test that requires to be met is a lower one than that. It is whether there is a realistic prospect that an Immigration Judge may find in favour of the asylum seeker, not that he or she would so find. That is a further reason why the reclaiming motion falls to be refused.