Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 38
P924/12	OPINION OF LORD MATTHEWS in the Petition A.D. Petitioner; For Judicial Review of a decision by the Secretary of State for the Home Department dated 8 June 2012 to refuse the petitioner's representations as constituting a fresh claim ________________

Petitioner: Byrne; Drummond Miller LLP

Respondent: McIlvride; Solicitor to the Office of the Advocate General for Scotland

5 March 2013

Introduction

[1] The petitioner was born on 10 June 1978 and is a citizen of the Ivory Coast. She arrived in the UK on 23 January 2007. It appears that she claimed asylum on 22 May 2007. The thrust of her claim was that if she was returned to the Ivory Coast she would be forced to undergo female circumcision and to marry an older man who was already married with three wives. She claimed to have been held prisoner in order to force her to go through with the marriage and procedure but managed to escape. Her initial application was refused in a decision taken on 22 June 2007. Her subsequent appeal to the Asylum and Immigration Tribunal was dismissed in a written determination of 8 September 2007. That determination, of Immigration Judge Robb, sets out the full details of her claim. She applied for reconsideration of the decision, which was refused on 15 October 2007. No further appeal right was exercised and her appeal rights were exhausted on 2 November 2007. Further representations were made, the submissions being that the material contained therein should be accepted as a fresh claim. These representations were refused, the latest refusal being on 20 June 2011.

[2] The main focus of the submissions which were refused on 20 June 2011 was an article from a newspaper entitled "Le Mandat". If taken at face value the article supported the petitioner's claim. Although I have not been given full details of the reasons for refusal it would appear, on reading the paperwork which has been provided, that amongst other things the respondent had certain suspicions about the article since it was produced by the petitioner and was therefore tainted by the adverse credibility findings made about the petitioner by Immigration Judge Robb.

[3] Those acting for the petitioner considered whether or not to petition for judicial review of the decision of 20 June 2011 but in the result decided to present a further submission containing additional material which had not previously been considered. Those representations were accompanied by a letter dated 24 April 2012. The refusal letter of 20 June 2011 had questioned the genuineness of the article in Le Mandat, indicating that there were no statements provided to confirm how the petitioner obtained the article.

[4] The further material consisted of a statement of the petitioner dated 20 April 2012, an affidavit of a lady called MAB dated 7 March 2012, an email from a gentleman called JB and certain other material concerning the online purchase of the article. In addition the determination of Immigration Judge Robb was submitted, although the respondent had doubtless considered that already. There was also submitted a copy of the article both in its original form and along with a purported translation. Again it would seem apparent that these documents had been submitted earlier.

[5] By letter of 8 June 2012 the respondent rejected the petitioner's application for international protection and refused to treat the latest submissions as a fresh claim. It is that decision which is the subject of this judicial review.

The law

[6] It is clear that whether or not further submissions amount to a fresh claim is governed by paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) which states:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333C of these Rules 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) had not already been considered; and

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

[7] There was no controversy as to the role of the court. While there had been a line of authority to the effect that a judge could make up his or her own mind on the question it is clear now that the matter has to be determined in the manner set out by Buxton LJ in WM (DRC) v SSHD [2006] EWCA Civ 1495 (see Dangol v SSHD [2011] CSIH 20, which affirmed the case of FO, petitioner [2010] CSIH 16.)

At paragraphs 10 and 11 of WM (DRC), Buxton LJ said the following:

"[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 was 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 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 of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

[8] In paragraph 9 of Dangol Lord Bonomy discussed the question of anxious scrutiny and, under reference to what was said by Carnwath LJ in R (YH Iraq) v SSHD [2010] EWCA Civ 116, where the phrase was analysed, said:

"Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence."

[9] Under reference to the case of TR (Sri Lanka) [2008] EWCA Civ 1549 Mr Byrne submitted that the intensity of the court's review was greater and the "margin of appreciation" for a Secretary of State was lesser in this type of judicial review case than in others. As Keene LJ said at paragraph 6 in TR:

"...The intensity of the court's review must, however, reflect the dire consequences for an applicant that may result if the conclusion reached by the Secretary of State were wrong."

[10] Mr Byrne submitted that the test which the petitioner had to satisfy was a modest one. The meaning of "realistic prospect of success" was discussed in AK (Sri Lanka) [2009] EWCA Civ 447 at paragraph 34 as follows:

"A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is case with no more than a fanciful prospect of success. "Realistic prospect of success" means only more than a fanciful such prospect."

In WM (DRC) at paragraph 7 the test was described as "somewhat modest".

[11] In AH (AP) v SSHD [2010] CSOH 7 at paragraph 32 Lord Malcolm said the following:

"...I should answer the question in the negative only if it is clear that the petitioner's case is bound to fail..."

The same judge in the case of MAS v SSHD [2011] CSOH 95 at paragraph 8 said that:

"The relevant case law has repeatedly emphasised that this is a low test, akin to assessing whether there is a more than fanciful prospect of success".

[12] Mr Byrne submitted that the threshold was so low to reflect the grave issues involved. It served as a protection to ensure that petitioners' basic human rights were secured where the question was one of what amounted to possible torture.

Mr McIlvride for the respondent did not demur from the basic statement of the law set out by Mr Byrne and it is, I think, well established.

Submissions for the petitioner

[13] Mr Byrne invited me to uphold the plea-in-law and reduce the decision. The plea-in-law is not very happily framed but no issue arises from that. Mr Byrne reminded me of the background which I have already outlined. The petitioner came from the Ivory Coast claiming that she was threatened with a forced marriage and female genital mutilation. Her claim was rejected on credibility grounds and she subsequently came by an article in a newspaper via a friend. She submitted it but the respondent had concerns about it because it emanated from her and was viewed with scepticism in view of the earlier findings about her credibility. Only the first three pages of the article could be viewed online and her account was on page 8. The affidavit of Ms M indicated that she bought a copy. It was clear that the article originally submitted did in fact appear in the newspaper. That meant that the article was independently vouched in terms of the affidavit and it was supportive of the petitioner's claim. It pointed towards a genuine fear of serious mistreatment in the form of forced female circumcision and forced polygamous marriage.

[14] In the original determination Immigration Judge Robb at paragraph 48 had said that her account had a degree of consistency. That account was what was broadly narrated in the article.

[15] Paragraph 48 is in the following terms:

"Her account of her troubles in Ivory Coast has a degree of consistency in that the base reason for her problems has been solid and the overall sequence of events did not alter in that she fled, stayed different places, was captured and then escaped. The most material inconsistency was the alteration of where she was held after capture. Her lack of knowledge about the attainment of her boyfriend in karate was flawed. Her apparent relaxed state in feeling safe enough to go out to market sat ill with her claim that when she fled she did not have enough time to properly think through what she was doing."

[16] Be that as it may, Mr Byrne referred to the case of DEFK Petitioner [2011] CSOH 20, a decision of mine where the issue of a newspaper article was discussed. From paragraphs 61 to 66 I considered a number of difficulties which stood in the way of the petitioner. There was no evidence as to the genuineness of the article. There was no vouching as to its authenticity. The explanation as to how it came into the hands of the petitioner was scant. The petitioner chose not to submit it as soon as possible. The article did not support the petitioner's account of his detention and his escape although it tended to corroborate another aspect of his account. In short it fell foul of the tests set in the cases of R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, Asif Naseer v Secretary of State [2006] EWHC 1671 and Tanveer Ahmed v Secretary of State [2002] UKIAT 00439.

[17] Mr Byrne submitted that none of these criticisms could be levelled at the petitioner in the instant case. The article was independently vouched, where it came from could not be clearer through the affidavit and it came to light some time after the petitioner's claim was rejected. It had not been held by her as some form of trump card. She had in the first instance handed in the first three pages herself but the article was tainted by the adverse credibility findings made about her. However, in terms of WM (DRC) there was no taint where the questioned document did not emanate from the petitioner. As Buxton LJ said at paragraph 6 in WM:

"...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 adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. 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 said to be automatically suspect because it comes from a tainted source."

[18] Mr Byrne submitted that if any of his grounds of challenge was meritorious then his decision had to be reduced. It would be inappropriate for the court to address the materialities of errors of law because that would be to return to the erroneous approach set out in IM (AP) v Secretary of State for the Home Department [2010] CSOH 103.

[19] I understood Mr Byrne to concede, however, that that must be a question of degree.

[20] Mr Byrne then turned to look in more detail at his four grounds of challenge, each of which suggested that the requirement of anxious scrutiny was not met. Paragraphs 29 to 32 of the decision letter of 8 June 2012 read as follows:

"Furthermore it is noted that Immigration Judge Robb who considered your client's appeal found that she was prepared to produce fabricated documents for her own ends. Immigration Judge Robb stated:

'The letter from the Ivorian Ministry I give no weight. I accept the submission that this is not a genuine letter...I regard it as something obtained by the appellant to bolster her claim' (para 50)

30. Moreover, a Country of Origin Service Information request dated 23/07/2007 records the following:

"Corruption is perceived as widespread. Ivory Coast ranks 152^nd out of 158 countries in Transparency International's Corruption Perceptions Index for 2005".

31. It goes on to cite a US State Department report of 2006 which notes:

'Most newspapers were politicized and sometimes resorted to fabricated stories.'

32. In light of the background evidence about the fabricated stories in newspapers in the Ivory Coast and the fact your client's evidence was previously found not to be credible (including providing documents the reliability of which was questioned by Immigration Judge Robb) the lack of information regarding who informed the reporter of the alleged details in the newspaper article, it is not accepted that there is a realistic prospect of an Immigration Judge placing any weight on it establishing a current risk from your client's father's family."

[21] Mr Byrne submitted that the respondent had taken the view that because newspaper articles were fabricated in the Ivory Coast there was no more than a fanciful prospect of an immigration judge placing weight on the submitted article. That conclusion was misconceived because the evidential basis or source of the conclusion was erroneously and partially relied upon. The respondent cited only part of a sentence in the US State Department report. The part quoted gave the clear impression that newspapers resorted to fabricated stories without qualification. In fact the source limited the scope in which fabrication occurred to the context of the defaming of political enemies. There was no basis arising from the material to justify the view that there was generalised resort to fabrication or a trend to do so in cases of overseas asylum claims. The sentence referred to formed part of a wider paragraph which specifically concerned domestic political and press freedom. The respondent's failure to refer herself and the reader to the full sentence and its qualifications and context demonstrated a serious lack of anxious scrutiny and an erroneous construction of evidence, misconstrued to the petitioner's detriment. Had the respondent not relied on that sentence erroneously she might not have found any basis to conclude that newspapers resorted to fabricated stories in general. It would not do to suggest, as the respondent did, that if the above error was made it was not material. Materiality was not the test and risked falling into an assessment of the merits. In any event the materiality of the error was clear. It led the respondent to form the view that the article emanated from a milieu where newspaper articles in general were fabricated and plainly it had a bearing on the decision. If this ground were made out it was sufficient to dispose of the petition in the petitioner's favour.

[22] Mr Byrne then submitted that the Secretary of State had failed to ask the right question namely whether or not the document was "apparently credible". He submitted that the respondent had failed to recognise or apply the proper test. The document could not be said to be intrinsically incredible. The Secretary of State had wrongly attributed negative credibility to a document which clearly did not emanate from the petitioner herself but from a third party who had acquired the back issue of the paper from the newspaper's online service. Mr Byrne referred to paragraph 6 of WM (DRC) which I have already quoted and went on to refer to paragraph 24 where Buxton LJ said the following:

"...I am not prepared to say that he has not given the material anxious scrutiny, and he did not make the mistake of thinking that the evidence was undermined by the previous finding of a lack of credibility on WM's part..."

[23] Mr Byrne submitted that the respondent at paragraph 32 placed direct reliance upon the petitioner's prior lack of credibility when assessing a document which did not emanate from her. That was an error of law. Unless the journalist was corrupt the document passed the credibility assessment. The petitioner's mother had not given evidence before any tribunal. If she was the source of the material it was difficult for the Secretary of State to say that she was lying. Reference was made to the case of Abul Hassan v Secretary of State for the Home Department 2004 SCLR 524. At paragraph 36 Lord Bracadale, dealing with fresh material, made the following comments:

"It is clear from the passages in the judgments in Onibiyo and Boybeyi quoted above, that, in order to pass the test of credibility at the stage of consideration of whether representations amount to a fresh application, all that is required is apparent credibility. The respondent does not appear to have addressed the question of apparent credibility at all. He appears to have formed a view about credibility more appropriate to the second stage of the decision-making process. Furthermore, no explanation is given by the respondent as to why he has reached the conclusion that the representations lack credibility. There is nothing in the documents themselves that point to a lack of credibility. The conclusion appears to have been arrived at by a comparison with the conclusion arrived at by the adjudicator in the earlier application. In my opinion this approach is not consistent with the approach to credibility required by the authorities at the first stage."

[24] Mr Byrne submitted that the question was whether there was a colourable case or not? Was it possible that the material had an objective basis? This was a very low test. Mr Byrne drew my attention to paragraph 10 of the case of TN (Uganda) v Secretary of State for the Home Department [2006] EWCA Civ 1807 where Lord Justice Maurice Kay said the following:

"...It is important to remember the level at which I have to consider this case. I am not called upon to decide the ultimate credibility of the new material. As Collins J said in Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin) if that information is intrinsically incredible, or if when one looks at the whole of the case it is possible to say that no person could reasonably believe it, then of course it must be rejected. However, that is not this case. The Secretary of State's ultimate submission before Hodge J was in the form of scepticism about the new material but did not go so far as to characterise it as intrinsically incredible."

He went on at paragraph 11 to say the following:

"If it is on its face credible, even though it may ultimately not find favour, then it seems to me that it is at least arguable that the challenge to the decision of the Secretary of State has some prospect of success..."

[25] Mr Byrne submitted that while there might be scepticism about the article, unless it was intrinsically incredible, it should be tested in a further hearing.

[26] The third ground of challenge in argument was to the effect that the Secretary of State had missed the point of the petitioner's purchase of the online article. It appeared on page 8 of the newspaper and only the first three pages were available to peruse free of charge on the website. The petitioner had to arrange to have the paper purchased to identify whether the article was genuinely in the newspaper. In paragraphs 21 and 22 of the decision letter the respondent accepted that Ms M, who provided that affidavit, and JB had purchased a copy of the article. Paragraph 23 however goes on as follows:

"However, on accessing the Abidjan website, it is noted that only 3 pages of the newspaper dated 09/07/10 in which the article was published could be viewed. Page 8 in which the article was published could not be viewed on the website."

Paragraph 28 is as follows:

"The reporter does not provide any information of where he obtained the information for this article. It is noted there are a few inconsistencies with the article. Firstly it states your client's mother is worried about the disappearance of her daughter and has been knocking on doors. However, later in the article it states your client fled the country with the help of her mother, who in turn has now allegedly been banished from her family and threatened by the family who claim her daughter in marriage. It is unclear why your client's mother would be reported as being worried about the disappearance of her daughter, if she helped her daughter flee the country in 2007. Furthermore, no explanation has been provided as to why this article was published 3 1/2 years after your client left the country. No details of who reported this alleged incident or who provided your client's photograph to the newspaper reporter has been provided. It is also noted the article is now over two years old and no information or evidence has been provided to suggest any recent articles have been published. As noted in paragraph 23 above, on accessing the aforementioned newspaper on the Abidjan website, the article regarding your client's disappearance cannot be viewed."

Mr Byrne submitted that there was a strong indication that the respondent had not understood the position. The petitioner had set out the trail leading to the provision of the full paper. The criticism made by the respondent was inadequate and made little sense. It suggested that the respondent had failed to engage with the petitioner's claim and the new material meaning that the requirement of anxious scrutiny had not been met.

[27] Mr Byrne's fourth attack was to the effect that the respondent wrongly relied upon Immigration Judge Robb's reliance on the country guidance case of DI (IFA -FGM) Ivory Coast CG [2002] UKIAT 04437.

[28] On assessing what an immigration judge would do the Secretary of State should proceed upon the basis that the judge would follow a relevant country guidance case. It was an error of law not to do so. Immigration Judge Robb had referred to the case of DI, which was the relevant country guidance case at the time when he made his determination but Mr Byrne submitted that an immigration judge now would follow the case of MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC). Immigration Judge Robb had correctly applied DI insofar as it held that there was a sufficiency of protection for victims of female genital mutilation. That country guidance case was now conspicuously out of date and had been replaced and superseded by MD.

[29] Paragraphs 274 to 276 of MD run as follows:

"274. We have already set out the problems faced by women in the Ivory Coast. It is as well to recall that in Fornah, Lord Bingham when considering the definition of a particular social group in the case of women in Sierra Leone, chose the broadest classification on the clear evidence that women shared a common characteristic because they were forced into a position of social inferiority compared with men. If FGM afforded a means by which a woman was accepted into Sierra Leonean culture, it did so on the basis of institutionalised inferiority as paragraph 31 of his opinion makes clear:

'FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not.'

275. This inferiority is seen in many other ways and we have probably only referred to some of them. Hence the prevalence of domestic violence, discrimination in levels of education between men and women, the discriminatory treatment of women in the legal system as it affects women guilty of adultery compared with men and the pervasive influence of traditional practices which perpetuate the stereotypical image of women as socially inferior are all examples of the methods by which women are discriminated against. To this might also be added the informal resistance to the employment of women in some areas of the job market. We may have fallen short of agreeing with Ms Monekosso that these techniques are coercive in the sense that they are backed by sanctions or punishments but they remain a pervasive influence.

276. Whilst the prevalence of these attitudes varies from area to area, the fact that such attitudes survive is evidence of the State's reluctance or inability to stamp them out. It seems to us unlikely that the arm of the state operates with consistent force throughout the country. Indeed, it cannot do so if the law provides for the criminalisation of a particular form of conduct and yet the incidence of the practice suggest in some areas it is almost universal. Once again, however, we would caution about making generalisations about the sufficiency of protection."

[30] Mr Byrne submitted that the respondent's reliance upon the immigration judge's reliance on DI was erroneous in law. The Secretary of State erred in law by identifying that sufficiency of protection was dispositive of the claim because that relied on the old case. The immigration judge, having rejected the claim on the basis of credibility and sufficiency of protection, did not (and did not require to) address the reasonableness of internal relocation. The decision letter itself raised that question. Internal relocation was dealt with in MD at paragraphs 277 to 281 where the following was stated:

"277. If a person who has been found to be a refugee in her home area seeks to relocate to another part of the Ivory Coast, the normal destination will be Abidjan but it may also be one of several urban centres. Abidjan will be able to offer opportunities for a returning refugee by way of accommodation, work and a variety of ethnic cultures. A single woman will be confronted with the difficulties attendant upon her status but she will not be at risk of persecution or serious harm for that reason alone. As a matter of common sense, the difficulties will be greater for a single woman with a child but we are satisfied Abidjan is able to provide an environment where those without a network of male or family support are able to lead a relatively normal life without the risk of destitution or being forced, through want, into beggary or prostitution. Nevertheless, such cases will require consideration on a case-by-case basis, paying particular attention to the support mechanisms that are likely to exist in a mixed urban area without significant evidence of fierce racial or ethnic divides.

278. There is a wide variation in attitudes towards women in different parts of the Ivory Coast. In particular there is a strong contrast between traditional rural communities, particularly in the North or Central regions when compared with Abidjan, a relatively cosmopolitan city of mixed ethnicity along with other urban cities.

279. This attitude impacts upon the risk faced by women of FGM, forced marriage, domestic violence, the effects of adultery and discrimination.

280. If in a particular area, a woman faces one of those risks, the state is unlikely to offer a sufficiency of protection in that area, in which case internal relocation may be possible without undue hardship.

281. We have said that there is a big variation from place to place and that a decision-maker must look at, on a case by case basis, the specific community from which the appellant comes to make an assessment of risk in the home area."

[31] Mr Byrne submitted that if the petitioner was internally relocating she could not be expected to go to her home area where her family resided. She would have to go to an urban centre. Whether that was reasonable would depend on a number of factors which included but were not limited to her being near mute, suffering from diabetes, being a victim of an attack and being a lone woman and the judge would have to weigh up those factors and assess them against those identified at paragraphs 277 to 281 of MD. If the petitioner was found to be credible there was a more than fanciful prospect of an immigration judge finding credible her claim that her persecutors were motivated to find her and that might cause the judge to conclude that she would be at risk throughout the Ivory Coast if that were the will of her persecutors. Mr Byrne referred to the case of KP, MRK [2012] CSIH 70. In that case there was an evidential basis upon which was open to the First-tier Tribunal to infer that the first applicant would be at risk of being tracked down by her husband at places in Pakistan outwith the home area. Mr Byrne submitted that there was a more than fanciful prospect of an immigration judge believing the evidence which suggested that the petitioner was in an analogous position. The matter would come down to weight and that was for the tribunal. Reference was made to the Opinion of Lord Jones in the case of AD [2012] CSOH 140 where at paragraph 29 he said the following:

"...But it will not normally be legitimate, in my opinion, to hold that a submission taken together with the previously considered material, creates no realistic prospect of success on the basis of an evaluation by the SSHD of the relative weight to be placed on the evidence. Such evaluation falls within the province of the immigration judge."

Mr Byrne submitted lastly that while the respondent might point to inconsistencies in the article, such that the petitioner's mother was looking for her yet had helped her escape, that was a matter for the tribunal. The article was written through the prism of a journalist and it was a matter for the tribunal to weigh up.

Submissions for the respondent

[32] Mr McIlvride accepted that the court's task was one of review and the test was Wednesbury unreasonableness. He accepted that it might be the case that the range of reasonable responses was narrower because of the potential consequences. Ultimately, however, the petitioner was only entitled to reduction if the decision was irrational, bearing in mind the requirement of anxious scrutiny and there was none in the decision letter or the conclusion reached.

[33] Mr McIlvride referred me to the case of YH and in particular to paragraphs 43 and 46 thereof. This was in support of his submission that there were circumstances where the findings of an immigration judge as to the credibility of an applicant showed that one should start from a position of extreme scepticism. In assessing what difference new documents might make one had to consider them in the context of the evidence as a whole. Against that background Mr McIlvride referred in detail to the original determination of Immigration Judge Robb. In particular he referred to paragraphs 3, which gave an outline of the claim, and 49 to 54. Those are in the following terms:

"3. The appellant maintains that if she is returned to Ivory Coast she will be forced to undergo Female Circumcision (FGM) and to marry an older man who is already married with three wives. She claims to have been held prisoner at the behest of her father's cousin, the prospective husband and the village headman in order to force her to go through with this marriage and procedure but managed to escape eventually arriving in the UK on 23/01/07 and claiming asylum on 22/05/07.

...

49. The account of event (sic) in the UK having reviewed the evidence I find wholly lacking in any credibility. She is not telling the truth about her time in the UK.

50. The letter from the Ivorian Ministry I give no weight. I accept the submission that this is not a genuine letter. I do not believe that a government ministry would urge for one of their people to be taken in by another country. I regard it as something obtained by the appellant to bolster her claim.

51. In bringing these different aspects of her total evidence together I am mindful of Chiver and that I can find parts of her claim established and others not established. I bear in mind that I must consider whether although an element is not accepted the core of her claim still stands.

52. On carrying out that exercise I am persuaded that notwithstanding the low level of proof required to establish her claim the gross falsity of her account of her time in the UK and the false presentation of a letter purportedly from the Ivorian government overwhelms any potentially credible elements in her, also flawed, account of her troubles in the Ivory Coast. I find in the round that the appellant is not a credible witness.

53. I find that the appellant was not threatened with marriage to a man in her home village in Ivory Coast. I find that the appellant was not threatened with forced circumcision. I reject that she has had to flee to different addresses in Ivory Coast. I reject that she was held prisoner at either of her father's cousin's home or at the home of her prospective husband. I reject that she fears such events if she is now returned to Ivory Coast.

54. I reject in its entirety her account of her time in the UK before she claimed asylum. I accept she entered the UK on 23/01/07. It is not established what she did in the period from 23/01/07 until 22/05/07 but it is not what she claims."

Mr McIlvride submitted that those were as comprehensively adverse findings as one could expect to see and formed the background against which the respondent had to consider the newspaper.

[34] The copy article bore the date July 2010. It was produced for the first time on 6 June 2011. 7/1 of process was a statement taken by the petitioner's solicitors from the petitioner on 17 May 2011. Paragraphs 6 and 7 on page 2 read as follows:

"When I first arrived in the UK, I had no contact with anyone from home. During one of my early appointments with the hospital, I met a woman called Nancy who was interpreting for me. She is also originally from the Ivory Coast. She introduced me to an Ivory Coast Womens' group. It is a social group based in Glasgow. They all meet up once per month.

7. One of the members of the group, who is called Charlotte, has Indefinite Leave to remain in the UK. She had returned to the Ivory Coast to see some family. Whilst there, she was reading the national newspaper "Le Mandat", and noticed an article with my name in it. She mentioned this to me the next time we met at one of the meetings. This was in July 2010. I was desperate to see what the article said. She had not thought to bring it back with her. I searched the internet and saw the article online. After Charlotte I saw this, (sic) I knew I had to contact someone at home to try and get a paper copy for me."

[35] The petitioner appeared to be saying that Charlotte, who knew her, had not brought the paper back but the petitioner wanted to see it immediately, which was presumed to be July or August 2010 and the petitioner was able to see it online.

[36] Mr McIlvride then referred to a number of paragraphs in the decision letter dated 8 June 2012. It was clear from paragraph 7 that there had been three previous claims after the petitioner had become appeals rights exhausted and before the current claim. These were refused in letters dated 31/09/2009, 17/03/10 and 20/06/11. The consideration of the new material commenced in paragraph 9. The test for a fresh claim was set out in the succeeding paragraphs down to paragraph 13.

[37] Thereafter Mr McIlvride drew my attention to paragraphs 14 to 32.

[38] I need not quote these paragraphs verbatim. The gist of them was as follows.

[39] The respondent pointed out that the immigration judge disbelieved the petitioner's account and considered that the starting point for any consideration of further submissions should be the findings of fact made by the immigration judge. Reference was made to YH. It was said that it was for an applicant to show that the documents he relied upon were ones upon which reliance or weight could be placed. Documents should be considered in the context of the case of a whole as laid out in the principles of Tanveer Ahmed [2002] UKIAT 00439. Documents should not be viewed in isolation. Reference was also made to paragraph 6 of WM (DRC) which I have quoted above.

[40] Thereafter the respondent quoted the adverse credibility findings made by Immigration Judge Robb which I have already mentioned. The affidavit of MAB is noted, as is the information about the online purchase. It is noted that there is no date on the registration notification from Abidjan.net.shopping addressed to the petitioner. The billing address for the petitioner is in Baltimore, USA. It is said not to be clear why that should be so. While Ms M states that the petitioner is very honest and reliable it is said not to be clear whether she was privy to all the information and evidence presented to the immigration judge. It is accepted that Ms M was able to purchase the article from the Abidjan website. It is also accepted that Mr B purchased a copy of the article after being requested to do so by the petitioner. I have already quoted paragraph 23.

[41] The letter goes on to say that certain concerns set out in the decision letter of 20/06/11 regarding Charlotte have not been addressed. It is stated that this friend, despite some experience of the UK immigration system, chose not to return to the UK with the article but rather to tell the petitioner about it at the next meeting of their support group. Thereafter the petitioner was able, having failed to contact her family in the previous three years, to re-establish contact with someone in her home village and have her secure and dispatch a copy of the paper to her. All these events were completed in a five day period between the publication date of 9 July 2010 and the date of dispatch of the newspaper to the petitioner which was 13 July 2010. Thereafter the gist of the article is reported. It is said that the petitioner has been reported missing since 2007 and her mother, having knocked on many doors, does not know what to do. It reports that the petitioner received death threats because she refused her suitor, a man of mature years. It also reports that the petitioner fled the country thanks to the help of her mother, who is banished from her family, and that the petitioner decided to take refuge in Europe where she wishes to continue her studies.

[42] Paragraphs 28 to 32 I have already quoted.

[43] Mr McIlvride said that it was accepted that there was a document which could be bought on the internet and which was in the terms claimed by the petitioner. The petitioner's statement made no reference to having to buy any other pages. She said she could view the article online. There were clear internal contradictions in the version of events that appeared in the article, particularly in relation to the petitioner's mother's alleged lack of knowledge of her whereabouts while it was said she had helped her leave the country. The immigration judge had found that the petitioner was prepared to produce fabricated documents and the decision maker had properly had regard to that fact. Mr McIlvride accepted that the quote from the US State Department report was not full. However, the fact that the integrity of newspapers in the Ivory Coast was open to question was something to which an immigration judge could have regard in assessing what weight to give the article. Furthermore, there was nothing before the respondent to tell her who the publisher of the newspaper was or what the standing was of either the newspaper or the journalist. Apart from that there was no indication who gave the information to the journalist who repeated it in the article, albeit there was reference to some family members. All one could take from the terms of the article was that a journalist had repeated in the paper something he had been told by family members of the petitioner. If this was a reputable paper one could expect that there would be some checking done but what weight could an immigration judge place on the article given the various factors which were all considered by the decision maker? Given the adverse credibility findings, including the finding that the petitioner was found to have produced a forged document, could it be said that there was a realistic prospect that, if the only other factor in the claim was this article, the petitioner would be held to have proved her claim? The only answer was no. The document did not give any realistic prospect of an immigration judge finding in her favour. The whole claim had to be considered in the round according to the authorities.

[44] Mr McIlvride submitted that if I was with him so far then that was an end of the matter. The other criticisms only arose if there was a risk of persecution on return. That was considered in the decision letter from paragraphs 33 onwards. In those paragraphs the respondent refers to a statement from the petitioner dated 20/04/12 in which she reiterates her fear on return to the Ivory Coast, stating that she cannot live safely in Abidjan and that there is nowhere to which she could relate. She stated that her father's family were known throughout the Ivory Coast. Paragraph 34 repeated what was said in paragraph 53 of Immigration Judge Robb's determination. Paragraph 35 is as follows:

"Furthermore Immigration Judge Robb also considered the case of DI (IFA - FGM) Ivory Coast CG [2002] UKAIT 04437 which found that internal relocation was in general a viable option and stated:

'...I am satisfied in my view that the risk for women such as this appellant, even if she had established the facts of her case, which she has not done, is no greater in 2002 when DI was determined. I come to the same conclusion as the Immigration Appeal Tribunal.' (paragraph 59)"

[45] The respondent thereafter refers to the petitioner's claim that she would have no one to support her, that she would have problems in trying to relocate internally due to her health issues, that she would not be able to get insulin anywhere outwith Abidjan and that she would need a fridge to keep her insulin but, since most of the country did not have electricity, it would be extremely dangerous to her health if she was returned to the Ivory Coast. The letter narrates that the petitioner says she would find it difficult to support herself. She says she would be unable to find employment as she is virtually mute and it is noted that the agent's letter of 25/04/12 stated that the petitioner left school at a young age and had no qualifications. Reference is made to a statement of the petitioner dated 23/07/07 wherein she said that due to having had some education she was to look after her proposed husband's financial affairs and property matters. The letter says that this would indicate that she had been educated to a higher level than was asserted on her behalf. It is also clear, says the letter, that the petitioner had support from family in the Ivory Coast. She claimed her brother in law paid for her journey to the UK and her statement of 17/05/11 indicated that in October 2010 a friend got her UK address from her sister. She appeared therefore to be in touch with her sister in the Ivory Coast. It was said that she spoke to her mother in January 2011. It was not clear why her family would be unwilling or unable to provide her with assistance on return to the Ivory Coast. Furthermore, she had been offered the opportunity to return to the Ivory Coast voluntarily with the support of an Assisted Voluntary Return package, which would help in finding accommodation and either obtaining employment or setting up a business. It was not accepted that even if she was at risk in her home area she would be at risk if she were to relocate in the Ivory Coast.

[46] It was pointed out that her health issues, the availability of treatment and medication in the Ivory Coast and the relevant case law were considered in a letter dated 17/03/10 in which it was considered that the petitioner's health problems would not meet the high threshold set out in the case of N. Furthermore her health issues were considered at her appeal hearing where she presented a medical report. That appears in paragraphs 44 and 45 of the immigration judge's determination. (However, all that is indicated there is that she has four healed scars, is uncircumcised and has Type 1 diabetes).

[47] The letter goes on to indicate that in connection with the petitioner's claim that she was unable to get insulin anywhere outwith Abidjan there is a report dated 20/04/12 in an article on the West Africa Democracy Radio website that the Ivorian Government had launched a micro-hospitals project throughout the Ivory Coast to counter the problem. Although medical provision and treatment might not be to the standard of that received in the UK, there were medical facilities available in the Ivory Coast and the petitioner had a family network of support.

[48] In relation to the alleged error of law under reference to the cases of DI and MD Mr McIlvride submitted that DI was still on the website of Country Guidance cases. DI and MD were not entirely consistent with each other but MD did not say it superseded DI. MD did not underline the Secretary of State's assessment of how an immigration judge would have to consider these issues. Mr McIlvride referred me to paragraph 32 of the decision letter, which I have already quoted, and then invited me to look at the facts of MD, which are at paragraphs 31 and 32 of the determination, as follows:

"31. When the appellant was 15 years old, and her sister was aged 9, their mother died. Four months later, in or about August 2003 the appellant's father and his two children returned to the village of Daloa from Abidjan. Immediately after the formal period of mourning had ended, the appellant was forcibly circumcised. The appellant suffered great pain and felt betrayed by her father who had instigated the procedure and who could have prevented it. Five months later, once again apparently following customary practice, the appellant was force to marry an elderly man from the village. She was the third of his wives and the youngest. She was mistreated and abused but refused to have sexual relations with him.

32. In December 2004 she met a man called B. According to her interview, B had lived in Abidjan but had come to Daloa to see his people. She formed a relationship with him and became pregnant by him. Her husband did not find out about the relationship. When her pregnancy became apparent in June 2005, she fled the village fearing both her father because of the shame her conduct would bring on the family and her husband by reason of her "adultery". In her interview, the appellant spoke of a cousin who had been beaten to death when it was believed she had brought dishonour to the family. The appellant found refuge in Abidjan at the home of one of her former teachers. Although B had by then returned to Abidjan, she had received no news of him and did not know of his current whereabouts."

Mr McIlvride then referred to paragraphs 302 to 305 of MD which relate to Abidjan and which are in the following terms:

"302. Abidjan is the principal city in the Ivory Coast (although not its capital) and some estimates suggest it has a population of about 3 million people. The appellant described the area in which she and her family lived as a mixed community in which there were many ethnic groups. To her knowledge, most districts comprise mixed communities and in Dioula people live alongside other ethnic groups. The family compound was in a predominantly Dioula area but the various clans were otherwise evenly spread.

303. She describes how conditions were different in Abidjan for a young Muslim woman. She could dress as she wanted. She did not wear a headscarf. This was not because she was a child but, as she expressed it, because Abidjan is "modern". She was allowed a considerable degree of personal freedom. She was not required to be accompanied when walking outside her father's compound and the only restrictions on her movements were the normal limitations placed by any parent that she should return home before midnight.

304. The appellant, however, said that she would not be safe there whilst her father lived there and that it would not be easy to find a place to live. She spoke of how, on return to the airport or if she attempted to rent property, the information would filter back to her father.

305. We do not consider there is a real likelihood of the appellant's father who is a lorry-driver operating between Abidjan and Odienne ascertaining the appellant's whereabouts were she to return to the Ivory Coast. The information of passengers returning to the country is not accessible to him and he is not described as a man of influence. The appellant suggests the information will filter back to him but this suggests an almost parochial system of information exchange that lies uneasily with the population of a large modern city. We are not satisfied the appellant's father has the means or the ability to ascertain the fact of her return or where she might settle."

Mr McIlvride suggested that this guidance as to the size of Abidjan and the nature of its population was helpful. There was nothing to suggest that if the petitioner returned her family could track her down in that large metropolis. Reference was made to paragraph 277 of MD, which I have already quoted. In the circumstances, said Mr McIlvride, there was nothing in the case which contradicted or undermined the respondent's assessment of how an immigration judge would consider this issue and there was nothing irrational about it. Even if I were against the respondent on the first issue, there was no realistic prospect of success in relation to the question of internal relocation. I should therefore refuse the petition.

Response for the petitioner

[49] Mr McIlvride said that the test was not whether there was a realistic prospect of success. It was one of review. It was not for the court to decide on the merits. Lord Malcolm had rejected a similar view in MAS, where he said the following at paragraph 12:

"There is a considerable body of law to the effect that in judicial review proceedings of the present nature, the judge should form his own view on whether the new claim did or did not amount to a fresh claim within paragraph 353 of the Immigration Rules, as opposed to applying traditional judicial review principles.

In Kishor Dangol an Extra Division confirmed the latter view, namely that, in general, judges should not adjudicate on the issue before the respondent. This has recently been adopted as the correct approach south of the border by the Court of Appeal in MM (Tanzania) [2011] EWCA Civ 193. The result is that I will simply quash the decision and remit the matter to the respondent for further consideration. It was in this context that counsel for the respondent invited the court to accept that such a procedure would be pointless since the ultimate decision was bound to be the same. I am not attracted to this submission. The court's discretion not to quash an unlawful decision is designed for clear cases where it is beyond doubt that the ultimate outcome must remain the same. I am not persuaded that this is such a case."

Mr Byrne submitted that if any of the challenges he made showed a lack of anxious scrutiny then the decision would fall to be reduced. The reference to YH had to be understood in its context. The petitioner had produced an arrest warrant himself. The court noted that even if it was genuine it only showed that he was wanted for fraud. It was a case of prosecution not persecution and took him nowhere. It was plain that his claim was barely plausible. His claims that he had been persecuted sat ill with the timescale. His explanation for not going back to Iraq was that the weather would help his cold or flu. In the instant case the immigration judge had attacked the credibility of the petitioner but at paragraph 48 he had identified that her account had some consistency. This was not the same territory as YH. For example one of the reasons the judge rejected the petitioner's account was that she did not know the colour of her boyfriend's karate belt. That was nothing like the criticisms in YH. The parts of the decision letter which criticised the article amounted to scepticism rather than a statement that the document was intrinsically incredible. See Hassan. This case, said Mr Byrne, was like that of AR, the other appellant in WM (DRC). In that case AR had produced a document that could not be said to be intrinsically incredible. If it was genuine it threw into great doubt the correctness of the adverse credibility findings which were undoubtedly made. It could not be said that such an outcome was no more than a fanciful prospect in the current case.

[50] It was agreed that expenses should follow success. During the course of the debate before me the petitioner had moved to amend a date in the petition, which amendment I allowed. It was agreed that the expenses of that amendment would be expenses in the cause.

Discussion

[51] Mr Byrne in essence raised four points which, he said, demonstrated that the respondent had failed to exercise anxious scrutiny in assessing whether or not the petitioner's latest submissions amounted to a fresh claim. I shall deal with each of these in turn, though not in the same order in which Mr Byrne treated them.

[52] The third ground on which he relied on in argument was that the respondent missed the point of the petitioner's purchase of the online article. The respondent noted that page 8 could not be viewed on the website and it was suggested that that criticism was inadequate and made little sense.

[53] In my opinion there is nothing in this point. It is a fact that the article appears on page 8 and that only the first three pages were available free of charge on the newspaper's website. It is also a fact that the petitioner in her statement of 17 May 2011, in paragraph 7, said that she searched the internet and saw the article online. She did not in that statement give any indication that she had to pay in order to access it. In my opinion the respondent's criticism goes no further than pointing out this discrepancy. While it may not amount to very much, I think that it is a criticism which the respondent was entitled to make. Furthermore, far from showing a lack of anxious scrutiny it seems to me, with respect, to show that the respondent has in fact paid careful attention to at least some of the material.

[54] I turn now to the first ground advanced by Mr Byrne. He argued that the respondent took the view that because newspaper articles were fabricated in the Ivory Coast there was no more than a fanciful prospect of an immigration judge placing any reliance on the article submitted by the petitioner. In the first place he challenged the evidential basis upon which that conclusion was reached. That submission was based on the fact that the respondent cited only a partial sentence of the US State Department report in a manner that might mislead. He did not suggest that the respondent had sought deliberately to mislead, only that her failure to refer to the full quote demonstrated a lack of anxious scrutiny.

[55] I think that there is merit in this point. It is plain that the quotation came from a section of the report dealing with respect for civil liberties, including freedom of speech and the press. The quotation came in the context of a paragraph dealing with attacks on political opponents. In my opinion the extrapolation of any more from it than appeared on the face of the report displays a lack of anxious scrutiny in the sense in which the authorities define it.

[56] I do not agree with Mr Byrne that lack of materiality is a matter which cannot be taken into account in carrying out the task which the court is to perform. See the quotation from Lord Bonomy giving the Opinion of the Court in Kishor Dangol at paragraph 9, discussing the question of "anxious scrutiny" as follows:

"...the decision letter should demonstrate that no material factor (my italics) ...has been left out of account..."

However, I do not think it can properly be said that the mis-quotation, if I may call it that, is immaterial. It is a factor which goes to the heart of the document submitted by the petitioner.

[57] The second ground relied on by Mr Byrne was that the respondent failed to recognise that the test was whether the document was "apparently credible" or at least had failed to apply that test. The document clearly did not emanate from the petitioner herself but from a third party who acquired the back issue of the paper from the newspaper's online service. The respondent had erred in treating the document as automatically suspect because of the findings made about the petitioner's credibility.

[58] In my opinion the respondent properly recognised that the article was accessible online and accepted the truth of the affidavit of Ms M and the email from Mr B. Mr McIlvride accepted that the document in the form in which it appears actually exists. It cannot be said, therefore, to be a forgery. In this regard it can be distinguished from cases where an applicant produces, or has produced on his or her behalf, a document which appears not to have any independent existence, such as a photocopy of an arrest warrant. However, the issue is not so much about who produced the document. An applicant could, if so minded, arrange for a document such as a newspaper article to be prepared on his or her behalf and submitted by the Archbishop of Canterbury. The real issue is the truth or otherwise of the contents of the document in circumstances such as we are dealing with here.

[59] The respondent, in paragraph 28 of the decision letter, makes a number of criticisms of the article, as I have indicated. It is said that no explanation has been provided as to why the article was published three and a half years after the petitioner left the country and no details of who reported the alleged incident or who provided the petitioner's photograph to the newspaper have been provided. It is also noted that the article is now over two years old and no information or evidence was provided to suggest any recent articles have been published.

[60] As far as the last criticism is concerned, while it may be true as a matter of fact, I fail to see how any reasonable respondent could regard that as a matter of significance. The other criticisms which I have just mentioned do not seem to me, with respect, to stand up. The article on a proper reading makes it plain, I think that at least some of the information in the article was obtained from certain members of the family, if not from the petitioner's mother herself. The respondent seems to me to have failed to appreciate that if there is anything in the petitioner's account the family members concerned would not wish to be named. In any event a source for the information, or at least some of it, has been revealed, albeit in oblique terms.

[61] The main criticism in paragraph 28 is what it says is an inconsistency in the article. It is said that the article states that the petitioner's mother is worried about her disappearance and has been knocking on doors. Later on in the article, according to the decision letter, it states that the petitioner fled the country with the help of her mother. The respondent's position is that it is unclear why the petitioner's mother would be reported as being worried about the disappearance of the petitioner if she helped her flee the country in 2007.

[62] It seems to me that in the exercise of anxious scrutiny the respondent would have discovered that the article does not in fact say that the petitioner left the country. Neither Mr Byrne nor Mr McIlvride raised this point but having considered the article in its original form, in the exercise of anxious scrutiny myself, I am perfectly satisfied that it has been mistranslated. It does not say that the petitioner fled the country. What it said in the original is that "Elle avait été exfiltrée grâce au soutien de sa mère". That means that she was spirited away or extracted. It is used, for example, in the context of extracting an agent from behind enemy lines. It does not mean that the person left the country, or at least not necessarily.

[63] I appreciate that the respondent relied on a translation supplied by the petitioner's agents but French is not some obscure dialect and the original was also submitted. The relevant parts of the translation read as follows:

"She took refuge at one of her friends in Bingerville. But harassed by her family who managed to find her, she fled the country thanks to the help of her mother, who is today banished from her family. (Miss AD) has been missing since 2007 and was last heard of in Grand-Bassam."

The information that she was last heard of in Grand-Bassam ought to have put the respondent on notice that something was wrong with the translation since Grand-Bassam is in the Ivory Coast.

[64] The apparent inconsistency relied on by the respondent disappears when the document is read in its original form and, while I accept that the respondent was led into this by the petitioner's agents' provision of the translation , it seems to me that it is a matter which I cannot ignore.

[65] I find that the respondent has failed to exercise anxious scrutiny in considering the apparent credibility of the article.

[66] Mr Byrne's fourth submission in argument criticised the respondent's failure to recognise that an immigration judge reconsidering the material would require to have regard to the case of MD. The respondent noted that Immigration Judge Robb considered the case of DI (IFA-FGM) but there was no reference to MD in the decision letter. Mr Byrne submitted that DI had been replaced and superseded by MD.

[67] Mr McIlvride on the other hand pointed out that DI was still on the tribunal's website of Country Guidance cases and, while the two were not easy to reconcile, MD had not stated that DI was superseded. Furthermore, he said, the respondent had in any event addressed the questions which were raised in MD so that even if I were with the petitioner so far she would fail on the question of internal relocation.

[68] I agree with Mr McIlvride that the cases are not easy to reconcile. It seems to me however that DI is a case which turns very much on its own facts and I agree with Mr Byrne that it is very much out of date. MD proceeds on a careful analysis of a great deal of information and, whether or not DI is technically to be regarded as superseded, it is plain that an immigration judge would require to refer to MD. I consider that it would be an error of law if he or she did not do so.

[69] That having been said, the mere fact that MD is not referred to in terms in the decision letter would not matter if the respondent had properly addressed the issues which arose from it.

[70] I think it fair to say that she has done so. The problem I have, however, is that in addressing the question of internal relocation the decision letter makes no reference to how a hypothetical immigration judge would approach it. Paragraphs 40 and 41 of the letter are in the following terms:

"40. As detailed above Immigration Judge Robb found your client's claims regarding the fear she had from her father's family was a fabrication designed to create a claim for asylum. (para 57 of the determination) Accordingly, it is not accepted that your client's new evidence establishes that she is at real risk of either persecution or ill treatment contrary to Article 3 of the ECHR at the hands of her father's family. Furthermore, the newspaper article is not evidence that your client's father's family could find her elsewhere in the Ivory Coast.

41. In conclusion therefore, even having fully considered the new evidence submitted, it is not accepted that even if your client is at risk in her home area that there would be a risk if she were to relocate elsewhere in the Ivory Coast."

[71] Thus far the respondent has indicated what her view of matters is. Nowhere in connection with relocation, however, does she say what a hypothetical immigration judge would do. I cannot be sure that she has addressed this question.

[72] While it is true that the earlier part of the letter properly sets out the test and the process for deciding whether material amounts to a fresh claim, I do not think that that will do. In paragraph 32 in relation to the newspaper article, the respondent says that

"..it is not accepted that there is a realistic prospect of an Immigration Judge placing any weight on it...".

In paragraph 44, regarding medical provision and treatment it is said that

"...there is no realistic prospect of another Immigration Judge, applying the rule of anxious scrutiny, concluding that your client's removal form (sic) the UK would amount to a breach of Article 3 of the ECHR due to her health issues."

In relation to article 8, paragraphs 48 and 59 make reference to what an immigration judge would do.

[73] I do not think it right simply to ignore the fact that in reference to relocation no mention is made of the hypothetical immigration judge. I cannot assume that the proper process has been gone through. While a similar argument was unsuccessful in Kishor Dangol the wording of the letter in that case was different.

In these circumstances I am persuaded that the respondent has not exercised anxious scrutiny in this regard either.

Decision

[74] I shall uphold the petitioner's plea-in-law, reduce the decision complained of and remit the case to the respondent for further consideration. I find the respondent liable to the petitioner in the expenses of the cause, insofar as not otherwise dealt with.