Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 87
P1029/13	OPINION OF LORD McEWAN in the Petition YZ (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: Komorowski; Office of the Advocate General

15 May 2014

[1] In this case the petitioner seeks reduction of an immigration decision made against him, a section 96 certification made thereunder and reduction of two following related letters.

[2] In essence what has happened is this. He and his wife came to the UK on a visa. They overstayed and in 2012 they were arrested. The wife claimed asylum with the petitioner as her dependent. When her claim was refused he made a claim of his own. The difficulty which emerged was that his claim raised matters which could have been raised earlier in spite of having had a One Stop Notice served on him. When his claim was refused by the respondent she was of the opinion that there was no satisfactory reason for these new matters not having been raised before. She accordingly issued the certificate preventing further appeal.

[3] The record in statement and answer 4 asserts that in separate interviews in 2012 the petitioner failed to mention being suspected by the Chinese police of involvement in pro-Tibetan activities or of having been charged with or arrested for any offence. In April he was served with a One Stop Notice which stated:

"You must now make a formal statement about any reason why you think you should be allowed to stay in the United Kingdom ....If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused...."

The petitioner made no response to that. Statement 5 sets out the risks perceived by the petitioner and those relate to four matters, viz, membership of the China Democratic Party (CDP), a police visit to his family home looking for him, alleged illegal activities in relation to Tibet and him being charged with trying to break up China. The respondent claims that all of these matters were known prior to his interviews and the One Stop Notice.

[4] His claim was refused and statement and answer 6 make clear that was on the grounds of credibility with the consequent certification preventing any appeal to the FTT (Statement 7). Statement 8 argues for a particular construction of section 96 which is not wholly accepted by the respondent in her answer. Statement 9 sets out the four stage process for certification which for the present case is conceded by the respondent as correct. The refusal and protocol letters are there referred to (statements 10 to 12). Statement 13 refers to legal advice and what is called corroboration of a failure by solicitors. Statement 14 raises the issue of the apparent use made by the respondent of the decision in the wife's case, and statement 15 complains that no regard was had to the Country of Origin information report.

[5] All of the foregoing issues were argued before me.

[6] The Nationality, Immigration and Asylum Act 2002 provides inter alia:

"Section 96....

(2) An appeal under section 82(1) against an immigration decision ('the new decision') in respect of a person may not be brought if the Secretary of State or an immigration officer certifies -

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice...."

"Section 120....

(1) This section applies to a person if -

(a) he has made an application to enter or remain in the United Kingdom, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state -

(a) his reasons for wishing to enter or remain in the United Kingdom,

(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c) any grounds on which he should not be removed from or required to leave the United Kingdom.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in -

(a) the application mentioned in subsection (1)(a), or

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."

The "Notice" is conveniently known as a "One Stop Warning".

[7] I was referred to the following authorities, viz:

R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin)

R (Adehisi) v SSHD [2011] EWHC 2471 (Admin)

AN v SSHD [2013] CSIH 111

Chicanza v SSHD [2002] UKIAT 01200

MJ (Iran) v SSHD [2008] EWCA Civ 564

Ocampo v SSHD [2007] Imm AR 225

(AA (Somalia) v SSHD (AA (Iran) v SSHD [2008] Imm AR 241

The following text book was referred to, viz:

MacDonald: Immigration Law and Practice (8^th Edition)

[8] The argument for the petitioner was to this effect. His claim for asylum was based on the fact that his wife was a member of the China Democratic Party (CDP); that he was a wanted man and that he was thought to have provided support for Tibet. There would normally be an "in country" right of appeal but the section 96 certification has prevented that. That should be reduced along with related documents to allow the matter to be returned to the Secretary of State to either allow an internal appeal within the system or else to maintain the certification.

[9] In spite of the terms of section 96 of the Act there remained a discretion open to the Secretary of State which she had to exercise with "anxious scrutiny" when considering any additional grounds brought forward under section 170. It was accepted that the petitioner had not stated these until he had been served with a refusal of his wife's claim. Counsel referred in detail and at length to the case of J which, he said, showed that in spite of its terms section 96 was a four stage process. (I pause at this stage to observe that when challenged about the fourth and discretionary stage, counsel said that J had been followed in other cases. The matter is in any event academic as Mr Komorwski for the respondent accepted for the purposes of this case that there was a discretion and that the Minuter had correctly exercised it).

[10] Mr Winter continued by saying that the petitioner's case had been robustly rejected on narrow grounds without any detailed analysis. For example, the petitioner was interviewed about the police visit but had no chance to say anything about it until he got the section 120 notice. It was mentioned within four months and the explanation he gave was satisfactory, viz, the fault of his solicitor. By way of contrast, in J the delay was three years. The respondent had taken no account of the Country Information and had reached a very narrow view on credibility. A holistic view was required (McDonald at 12.28). He referred me to AN and to Chicanza.

[11] It was an error in law to use his wife's case against him. Her claim had been refused and used as an authority against him, in particular that part which related to the CDP. Counsel then took me to a series of cases where the matter of issue estoppel had been raised on identical but separate claims. Usually these involved members of the same family or people in a close relationship. He looked at MJ, Ocampo and AA (Somalia). The last case had laid out a very detailed analysis which should be followed. He ended by inviting me to reduce the protocol letters nos. 6/4 and 6/6 of process.

[12] In moving me to sustain his plea in law counsel for the respondent maintained that there was no error in law in what had happened or if there was it was not material. The decision, he said, was inevitable in view of the history of the matter. The petitioner had delayed to make any claim until his wife's claim had been rejected. He then put in a claim of his own on rejected facts and matters inconsistent with previous accounts given by him. To fulfil her duty under section 96(2)(c) the Minister only had to form an opinion on what was before her. It was not for the court to see if it was a good explanation. That was why the history was crucial and for the purposes of this case the Minister had accepted the discretionary fourth test even though it was not written in the statute. It was in her letter. There was a last residual possibility that she may not choose to apply section 96 but when all three enacted statutory tests were passed there would have to be something to make her not act.

[13] Counsel then took me to the history of the case which he examined in great detail. I do not intend to set out what he said here but only to summarise the main points. I will later look at and acknowledge the details.

[14] Having entered the UK on a visa on 25 December 2010 the petitioner alleged that by March 2011 the police had been to his home in China and questioned his parents about his Tibet connections. Yet there was no claim for asylum then or later that year when he claimed his parents had been taken in for questioning. When he and his wife were arrested in March 2012 she claimed asylum and he was interviewed yet he made no mention of Tibet or being accused of trying to break up the country. In his second interview he said he had no wish to claim on his own, had never been arrested or charged or made no mention of being wanted by the authorities. In April 2012 he got the One Stop Notice; that should have warned him of the risks of a certification. However, he did nothing even in June when he got notice of the decision adverse to his wife. That made clear that the CDP point had not been believed. Only in late August did he make the claim raising matters, which had resulted in a refusal and a certification. The new matters became apparent in his October interview and the failure to disclose these had nothing to do with his solicitor; if he was not told anything by his solicitor that did not amount to being told to conceal facts. He did not need legal advice to tell the truth; he had been told that at interview. It was thus easy to see why he had provided no satisfactory explanation, why he was not accepted as truthful and why discretion was exercised against him; even the protocol letters did not improve his position (nos. 6/2 and 6/4).

[15] There was no merit in the corroboration point which at best was only a factor. It had only arisen late in the opinion of his counsel. At best it only went to weight of evidence. Counsel referred to J at para 131.

[16] Counsel then considered what, if any, use had been made of the finding in the petitioner's wife's case against the guidance given in Devaseelam as recently set out in AA (Somalia) by the Court of Appeal. Where there were different parties one had no control over the other. It was simply a matter which was taken into account as was the fact that he had not given evidence in his wife's case and his failure to respond to the One Stop Notice. All these matters together with the inconsistencies showed that all proper issues had been fully explored.

[17] In the exercise of her discretion the respondent was not bound to take account of Country of Origin Information in every case; the more so when the primary facts were not accepted and found to be untrue. The rules were only in general terms and the case of AN should be distinguished. Plausibility on Country Information did not add credibility to the claim. The respondent was aware she had a discretion and the result was "plain" as best described in Adebisi, paragraph 78.

[18] What then do the authorities tell me. The case principally discussed was R (on the application of J) v SSHD cit sup and it has to be said at the outset that the facts were materially different from the case before me. It is a decision of a single judge Stadlen J. It involved both an earlier appeal and a One Stop Notice. At the same time it appeared that the offending matters were accepted as amounting to fresh claims.

[19] The claimant was from Sri Lanka and having arrived in the UK claimed asylum at the airport. He was served with a OSN with the usual warning. A statement of grounds was prepared but was not received until after his claim had been refused. The claimant feared persecution because of his involvement with the Tamil Tigers (LTTE). There was a history of violence, torture and eventual escape to freedom due to bribery. He blamed his solicitor for the failure to submit the grounds in time. He appealed to an adjudicator who refused the appeal on the substantive grounds of asylum and human rights. The appeal was allowed on the issue of late lodging. Permission to appeal to the IAT was refused. Then new solicitors appeared with a fresh claim alleging bad advice from the first solicitors in particular advice to suppress information about the extent of his dealings with LTTE. A third set of solicitors became involved and his application was refused and two separate section 96 certificates were issued (para. 38). The judge found that this complicated an already difficult issue. The reasons for refusal appeared to be credibility and lack of corroboration in the face of earlier deliberate falsehood. There were two COI reports.

[20] He was then granted permission for judicial review against the certification. Between paras 63/69 it appears that there was tension about updated COI reports and a clash between the executive and the court. It is in my opinion not necessary to say any more to show how different J is from the case before me.

[21] However, it was cited as authority for certain propositions vide that there is a four stage process (para 106 - conceded before me in this case) and that the decision taken must give anxious scrutiny when balancing two conflicting public policy objectives (para 137/8). That point was "assumed" by Stadler J (see also paras.143/5). The matter of corroboration is dealt with in paras 130/1 and stated to be a matter going to weight. Thereafter to the end (para 316) many cases were cited and carefully analysed and in the end the judge ordered the Secretary of State to reconsider the earlier claim and to take account of later material.

[22] I move now to look at AA (Somalia) with the linked case of AH (Iran). It is an important authority and, as I read it, summarises all the guidance and tests where there has been an earlier finding in a different case; involving the same party, related parties, different parties, the same or differing factual matrix and which guidelines work both ways either for or against the Secretary of State. It also analyses the need in administrative law to limit endless separate inquiries into the same issue and the need to avoid decisions which are unnecessarily divergent. The Court of Appeal was unanimous in refusing the appeal in the Somalia case but were divided in allowing the appeal in the Iran case. The leading opinion was given by Hooper LJ and contains significant extracts from Devaseelam (not referred to in detail before me {2003] Imm AR 1) and Ocampo (cit sup).

[23] It is helpful to look at the facts of each. AA involved a brother and a sister. The application for asylum was by the brother and was refused by the Minister. The brother appealed to an adjudicator (Hulme) who was told that the sister had had a successful application. He was not shown the determination and it was not argued to him that he was bound by it. The adjudicator did not believe AA or his sister and went on to say that he was not bound by any earlier finding as to her credibility. He refused AA who appealed to the AIT. They adhered saying that the adjudicator was not bound to ask for the sister's case nor was the Minister bound to produce it. It would have made no difference if he had seen it, as the evidence before him was different. The Court unanimously refused the brother's appeal.

[24] AH was a more complex case involving two homosexual men who at one time were in a relationship. The relationship was between AH and someone identified as HRM. Some of the evidence concerned a homosexual party and arrests. There was a further complication because AH had a wife (AKN) who was a cousin of HRM. The wife was described as estranged and vengeful. She was liable to report the homosexual activity to the Iranian authorities. By the time the case got to the adjudicator (Aitken) AH and HRM had parted and AH was in a new relationship.

[25] The Minister refused AH's claim for asylum and human rights. On appeal to Mr Aitken his claim succeeded. What Aitken did was to look at the decision of a different adjudicator (Cope) who had found in favour of HRM's asylum claim on this basis. He had disbelieved the evidence about the "gay" party but because of the "vengeful" cousin found in his favour. Aitken had considered he was bound by Cope's findings. The Minister then appealed Aitken's decision to the (first) AIT who, without giving reasons, ordered reconsideration. They held that Aitken was in error and had bound himself by facts found by Cope (a conclusion agreed to by Hooper LJ (para 47) but not by the other Lord Justices).

[26] Before a second AIT, AH gave evidence as did his second and (by then) former partner (M). His third and latest partner did not give evidence. The claim failed on lack of credibility and before the Court of Appeal it was conceded that the AIT was entitled to come to that conclusion.

[27] The decision of the majority of the Court (Carnwath and Ward LJJ) was that Aitken correctly treated Cope's findings as determinative, there being no compelling new evidence. There was no reason not to follow it. The AIT's decision that it was an error in law and required reconsideration was wrong and Mr Aitken's decision was restored. It was commented that Aitken might have been better not to have said he "was bound" (by Cope).

[28] I want now to extract from these cases what I think is relevant for the case before me. It can be put shortly because, of course, the respondent was fully aware of the wife's failed claim and the reasons for that. The guidance operates the same whether cases fail or succeed (see para 6, page 251 "para 68 of the AIT" and para 61). Where there is the same or similar factual basis the decision taker is entitled to use an earlier decision as a starting point, but must decide the case before him on the evidence presented to him even if it reaches a different conclusion. An earlier decision is not binding but should not be ignored. I consider para 29 of Hooper LJ to be the ratio of AA and AH after his careful analysis.

[29] Since it was much referred to in AA I want to look briefly at Ocampo. It concerned a father and daughter. The asylum claim of the daughter had succeeded but that of the father failed before the Minister. The father ultimately was heard on a reconsideration by the AIT but they did not believe him and found inconsistencies in the daughter's evidence in spite of being aware an earlier adjudicator had believed her in her own case. The facts in the earlier case were not binding. The Court of Appeal held that the Tribunal had correctly applied the Devaseelam guidance consistent with fairness and firm immigration control. It is of some interest to note that it was accepted that the father could return to Columbia and be protected (paras 21 and 31).

[30] I do not intend to canvass the other cases cited to me of Adebisi; AN, Chicanza and MJ (Iran). They are all fact sensitive and do not impinge on the main three authorities. It is, however, worth noting that in Adebisi, the Minister had not properly engaged with later correspondence and papers, nor had given reasons for the exercise of a discretion. Also, I think counsel was correct about AN. It is clearly distinguishable as there the COI document related to healthcare in Malawi which was the de quo of the case. No 6/8 of process is not the issue in this case.

[31] Let me now look further at the immigration history which was not disputed in this case and summarise it. Much of this is not disputed but it was helpfully set out by Mr Komorowski. The petitioner entered the UK in December 2010 on a visit visa. By March 2011 he was aware that the Chinese police had been to his home to question his parents about his pro-Tibet activities. Although his visa expired in June 2011 he took no action. By December he was aware that his parents had been taken in for questioning about his and his wife's membership of the CDP and his trying to "break up the country". I pause to observe that he could have claimed asylum in March of 2011 but did not do so and even after this second alert he did nothing.

[32] After their arrest in March 2012 the wife claimed asylum and as was appropriate the petitioner was interviewed. The interview is important as it is a matter before the Minister when she has to take decisions. It is no 7/3 of process. It was given under caution and I refer in particular to his answers to questions 3, 5 and 13. There is no mention of Tibet or breaking up the country. The only mention is of the CDP. In my view that is not a consistent position to adopt. The silence on these matters is unexplained. His second screening interview some days later was as a dependent. He said he had no wish to claim asylum. At paragraph 4.1 he denied he had ever been arrested or charged and was not a "wanted man" (4.2). In my view that is not consistent with what he knew had happened in China (see 7/4 12 March). The point about all of this surely is that faced with serious warnings in 2011/12 he did not vouchsafe the whole truth early to the authorities.

[33] By 24 April matters had moved on. The wife's claim had been refused and he had received the One Stop Notice (7/5/1 and 7/5/2). These could not be clearer, the latter being a simple exercise in ticking boxes. Again the prompting had no effect and when the decision in the wife's appeal was received at the end of June it was clear that the CDP point on which he too had relied was not believed. His own claim came at the end of August raising the new matters, at worst for him 16 months late. (I again observe that the period in J was much longer but the facts were very different). His interview on 10 October is no 7/6 of process. The new matters appear in answers to questions 28 to 36 and 43 and 53. Question 54 is the most pointed and gives a reason for delay in telling. It has nothing to do with his solicitor. In answer 55 (as corrected in no 7/7 of process) he said he meant "the previous solicitor never said anything".

[34] Lack of positive advice is not really an explanation. He was told at interview to tell the truth.

[35] It is convenient now to take note of the pre-action protocol letters. The first of these is 6/3 from the petitioner's solicitors. It endorses the opinion of counsel as a prelude to judicial review. The opinion refers at length to the case of J v Secretary of State which I have already referred to. In its paragraph 9 there is a reference to corroboration of a failure by solicitors; and the opinion ends with an analysis of the impact of the wife's case and reference to a number of authorities including Ocampo and AA (Somalia). The response to that (and sought to be reduced) is 6/4. That refers to the decision of 18 October, adheres to it and quotes from it. It repeats that the four stage process seen in J was adhered to. The reply to that is 6/5 which now mentions Country of Origin Information (COI). The Home Office response is 6/6 (sought to be reduced). That disputes any need to take account of COI about Tibet since the issue was never properly raised.

[36] My decision in this case is to refuse judicial review. Accordingly the pleas-in-law for the petitioner will be repelled and the plea for the respondent will be sustained. My reasons can be shortly stated.

[37] The petitioner was given the adverse decision in the letter no.6/2 of process. It contains 59 detailed and closely argued paragraphs. It covers both asylum and human rights. It addressed issues raised in the main authorities (J v Secretary of State and Devaseelam). The decision taker has addressed the discretion available to her whether or not to operate section 96 at all, whatever the facts. Clearly the respondent has taken account of all relevant factors and not failed to take account of any.

[38] The history of the petitioner is crucial and should properly be looked at holistically, rather than isolating parts and dividing it up. Where it becomes a matter of opinion for the decision taker it is not for the court to substitute its own opinion. It is plain that full account was taken of the two main issues (Tibet and the CDP) (paragraphs 15 to 28) and that the account of the petitioner was not believed and showed up significant inconsistencies. It is unarguable that the respondent was not entitled to form that view. It is also made clear from the history that at the earliest possible stage the petitioner knew that he had to disclose the whole truth and tell it early. That he plainly did not do, and I regard the belated attempted to blame his legal advisers as muddled and confused.

[39] In these circumstances in my opinion the respondent was not only entitled but bound to find that the terms of section 96(2)(a), (b) and (c) were fulfilled. The respondent then correctly exercised her discretion and has given reasons for her decision, having fully explored all the proper issues.

[40] There are three other points I must mention. I regard the matter of corroboration (see opinion of counsel and 6/4 page 2, para 2) as something and nothing. It was never raised before the respondent and at best would only touch on the weight of evidence (see J v Secretary of State at para 131). I accordingly reject this argument.

[41] I also reject the argument about Country of Information reports on Tibet. The point here is that the primary facts have not been accepted as true and in that situation the voluminous document is simply not relevant however plausible its contents may be.

[42] Finally I am satisfied beyond a peradventure that the respondent did not fall into error or misdirect herself in the way the wife's case was considered. That is clear from paragraphs 18 and 23 to 25 in no.6/2 of process. Earlier I have dealt at some length with AA (Somalia) and Ocampo. In my view the respondent has faithfully followed the guidance set out by the two Courts of Appeal.

[43] For all these reasons I refuse the petition, repel the petitioner's plea-in-law and sustain that of the respondent; and meantime reserve all questions of expenses.

DH