RR, Re Judicial Review [2015] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 109

P1261/14

OPINION OF LORD UIST

In the petition of

R.R.

Petitioner;

for

Judicial Review of the decision of the Secretary of State made on 4 September 2014 to refuse to receive representations made by the petitioner to her on 27 March 2013 as a fresh claim for asylum for the purposes of Immigration rule 353.

Petitioner: Bryce; Drummond Miller LLP (for Quinn Martin & Langan, Glasgow)

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

11 August 2015

Introduction

[1] The petitioner is a Sri Lankan national of Tamil origin who was born on 28 May 1952. He claimed asylum when he entered the United Kingdom without documentation on 14 December 2002. He stated that he feared persecution from the Liberation Tigers of Tamil Eelam (LTTE) and from the army. On 31 January 2003 the Secretary of State for the Home Department rejected his claim for asylum. On 30 May 2003 an immigration adjudicator allowed his appeal against that refusal as she was satisfied that he had discharged the low burden of proof on him to prove that if he were to be returned to Sri Lanka there was a reasonable degree of likelihood that he would be persecuted on the ground of his political opinion and that the State would be unable and unwilling to offer him effective protection. On 24 March 2004 the Immigration Appeal Tribunal (IAT) allowed an appeal by the Secretary of State against the adjudicator’s decision on the ground that her assessment of the objective evidence before her was incomplete and inadequate and her overall assessment was unsustainable. On 29 April 2004 he was refused permission to appeal against the decision of the IAT. Over the subsequent years the petitioner submitted various applications and representations, including applications for judicial review, which were either withdrawn or refused. Eventually he sought to make a fresh asylum claim by letter dated 27 March 2013. That claim was refused by the Secretary of State in her decision letter dated 4 September 2013. In these proceedings he seeks reduction of that decision on the ground that it overlooked a finding in fact made by the adjudicator that the petitioner was persecuted in the past on account of his association with a certain member of the Sri Lankan Parliament, where the matter was formally raised.

The adjudicator’s determination

[2] At para 10 of her determination the adjudicator made the following findings in fact:

“(i) the appellant left school when he was fifteen; he always supported Tamil demands for recognition and human rights but he never became involved with terrorism or took up arms; he never supported the violent approach of the LTTE;

(ii) he supported TULF (Tamil United Liberation Front) as a young man in the 1979 elections;

(iii) in 1989 he secured a job as a driver to an EPRLF (Eelam People’s Revolutionary Liberation Front) MP Mr X;

(iv) in the following year he was abducted and beaten up by soldiers in civilian clothes who interrogated him as to the movements and contacts of his employer and of other EPRLF members; Mr X made a formal complaint about the incident to the Sri Lankan Parliament;

(v) the appellant’s other problem with the authorities arose in May 2002 when he was questioned and detained routinely on moving into a new area; he was released without charge but on a two monthly reporting condition, with which he did not comply; initially he did not tell the UK authorities about this as he was advised that it may reflect badly on him;

(vi) in 2000 the appellant left the EPRLF and took up employment as a driver for the EPDP (Eelam People’s Democratic Party); because of this involvement with the pro-government group he became an LTTE target; he was twice abducted, beaten and injured by them and was told to give up his work;

(vii) in the incident on 23 October 2002 he narrowly escaped serious injury or death at the hands of his LTTE captors; one of the group of EPDP supporters abducted with him was killed in front of him;

(viii) this incident was the trigger for the appellant to leave Sri Lanka; he could have left with the help of his EPRLF contacts many years before but was not an economic migrant and did not lightly decide to leave his country; despite the peace agreement he was not confident that the authorities could have supplied him with adequate protection against the continued violence and intimidation of the LTTE; more prominent pro-government Tamils were securing a degree of protection but he could not expect such protection.”

[3] At paras 10 and 11 of her determination the adjudicator stated as follows:

“10. Whilst I accept that the appellant was ill-treated, probably to the point of persecution, in 1990, I do not accept that he was persecuted by the routine questioning in 2002. I am satisfied that the two monthly reporting condition was no more than a token intelligence hold on someone of no real concern to the Sri Lankan authorities. The appellant did not suffer as a result of interrogation as to his part in terrorism. I find that the authorities would very quickly (sic) have been aware of his anti-LTTE history.

Even persons known to have been active members of the LTTE are now free to move around the country and set up political offices. The fact that this was an armed organisation committed to the use of force for its then goal of independence means that these people inevitably have records of past involvement in violence and terrorism; yet they are not ‘wanted’ by the police or security forces; in effect their past is being overlooked in the interests of the peace. All the more so, I am satisfied that the appellant’s comparatively minimal brush with authority in 1990 and his failure to comply with the infrequent reporting condition would be of no significance. I do not accept that he would be of any interest to the authorities on return; he is not a suspect or on a database of wanted persons. I am satisfied from the objective bundle that he would be waived through the airport controls. Even if he were to be stopped and his record investigated, I conclude that there is no real risk to him.

The Sri Lankan authorities have confirmed by Diplomatic Note that they will accept returnees with EU standard documents for return to non EU countries; they are treated in the same way as those returned on Sri Lankan documents. The appellant does have some visible bodily scarring but the consensus of objective material confirms that this is no longer a factor in in deciding whether a returnee should be detained; that decision is taken purely on whether the person is on record as being wanted by the police.

11. The appellant has not satisfied me, even on the lower standard of proof, that because of his particular, personal circumstances he genuinely believes that he would be persecuted by the Sri Lankan army for a Convention reason if returned to Sri Lanka or that he has a well-founded fear of such persecution.”

[4] Nevertheless, in allowing the asylum appeal she went on to state at paras 12 and 13:

“12. Given the reports of increased LTTE defiance and of violent confrontation with its political opponents, I find that in this particular instance there would be a real risk of the appellant being re-targeted for persecution on return. I find that there is a real likelihood of his being perceived a traitor to the cause and a person with significant information about rival movements and their members. The fact that he is not a prominent or articulate political spokesman makes him more vulnerable as it si unlikely that the authorities would be interested in offering him any protection at all. Taking all these findings in the round and cumulatively, I am satisfied that the appellant genuinely believes that the LTTE’s threat to kill him would be carried out. I find that he has a well-founded fear of very serious ill-treatment amounting to persecution.

13. Internal flight would not avail this appellant; the LTTE is now free to operate throughout the country, including Colombo. I am satisfied that the appellant has discharged the low burden on him to prove that if he were to be returned to Sri Lanka there is a reasonable degree of likelihood that he would be persecuted and that the State would be unable and unwilling to offer him effective protection. This would be persecution on the grounds (sic) of his political opinion.”

The determination of the IAT

[5] In allowing the Secretary of State’s appeal against the adjudicator’s determination appeal the IAT stated at para 10:

“We consider that the adjudicator’s assessment of the objective evidence before her was incomplete and inadequate and that her overall assessment was unsustainable. … her approach to the nature of the risk to the respondent on return was in error. The adjudicator made clear and, for the most part, positive credibility findings and we take those as our starting point. The respondent had been a driver for an EPRLF Member of Parliament. He had taken that position in 1989 and in 2000 had left the EPRLF and taken up employment as a driver for the EPDP. He had been arrested and detained on two occasions by the government; first in 1990 and secondly in May 2002. The adjudicator had accepted the first incident in 1990 but not the second incident of May 2002. She found that the respondent would not be at risk of ill-treatment from the authorities. Specifically she found that he would not be suspect or on a database of wanted persons and that on return to Sri Lanka he would be waived through airport controls. The adjudicator accepted the two detentions by the LTTE; the first on 10 November 2001 and the second on 23 October 2002. … Both the abductions by the LTTE had occurred outside Colombo. … It is clear … that the respondent could have been at risk, perhaps even reasonably likely to be at risk, were he to have returned to the areas of Vavuniya or the areas under the former control of the LTTE. With regard to the risk in Colombo or elsewhere, we make our own assessment as we consider that the assessment by the adjudicator, namely one line in which she notes that the LTTE is now free to operate throughout the country, was inadequate. … We can find no proper or credible basis for concluding that the respondent would be of continuing risk in Colombo.”

The petitioner’s further representations

[6] By letter of 16 September 2011 the appellant made further submissions to the Secretary of State which he requested be considered as a fresh application for asylum and/or human rights protection under Immigration Rule 353, which provides:

“Where a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 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 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

had not already been considered; and
taken together with the previously considered material created a realistic prospect of success, notwithstanding its rejection.”

In a determination dated 27 July 2012 the Secretary of State concluded (in para 46) that when considered individually and cumulatively did not amount to a real risk for the appellant on return to Sri Lanka and that there was no realistic prospect of another immigration judge, applying the rule of anxious scrutiny, finding that he would be exposed to a real risk of persecution. She also held that his removal from the UK would not breach articles 2 and 3 of the European Convention on Human Rights (ECHR) and that he did not qualify for humanitarian protection.

[7] By letter dated 14 August 2012 the solicitors for the appellant wrote to the Secretary of State asking her to reconsider her decision of 14 August 2012. That letter was rejected by the Secretary of State as further submissions made by post after 13 October 2009 were not accepted by her. Subsequently the petitioner personally submitted to the Secretary of State a letter from his solicitors dated 27 March 2013 intimating a fresh claim for asylum on his behalf. In that letter the solicitors stated:

“As will be clear from the accepted factual background of our client’s case he worked as a driver to, amongst others, a prominent politician in Sri Lanka, namely Mr X MP. This gentleman is now a prominent member of the Tamil National Alliance (TNA) and a member of the Sri Lankan parliament. We understand that he became joint secretary and spokesperson for the TNA after being returned to Parliament in the elections of 2010.

Mr X has now provided a letter in support of our client’s claim. This letter, dated 15 December 2012, is enclosed. He has confirmed that he is happy to be contacted directly if any of the information on the letter needs to be verified. ..

It is clear that the TNA are closely related to the LTTE and as such our client’s political associations are likely to lead to him being regarded with intense suspicion by the Sri Lankan government. As Mr X has stated in his letter: ‘The TNA … is widely regarded by the Sri Lankan government as the mouthpiece of the Liberation tigers of Tamil Eelam (LTTE). Any supporters or associates of TNA Members of Parliament are seen as enemies of the government in the present environment … If Mr R returns to Sri Lanka in the present environment his life will be in danger.’

Mr X’s predictions in this respect appear to be confirmed by the most recent Home Office COI report and further country information on Sri Lanka …

Clearly this indicates that our client would be at risk of persecution if returned to Sri Lanka and therefore we would be grateful if you could recognise him as a refugee.”

By letter dated 4 September 2014 the Secretary of state rejected his fresh application for asylum. She concluded that his submissions did not amount to a fresh claim and that they would have no realistic prospect of success if placed before an immigration judge.

Submission for the petitioner

[8] In the challenge now made to the Secretary of State’s decision in these proceedings it is asserted that the legal test to be applied by the court is as set out in D v Secretary of State for the Home Department 2011 SLT 465, namely, whether, applying anxious scrutiny, there is a realistic prospect of the independent tribunal finding that the petitioner qualifies for international protection. It is said that the thread by which the Secretary of State’s decision hangs is that the authorities would not connect the petitioner to X, an assertion which determinedly overlooks the adjudicator’s finding in fact that the petitioner was persecuted in the past on account of his association with the MP and that the matter was formally raised in the Sri Lankan Parliament. Reliance is placed on article 4.4 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the contents of the protection granted, which provides:

“The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm unless there are good reasons to consider that such persecution or serious harm will not be repeated.”

Reliance is also placed on Immigration rule 339K, which provides as follows:

“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm unless there are good reasons to consider that such persecution or serious harm will not be repeated.”

[9] The petitioner summarises his current international protection needs as follows. It has been definitively found that he has in the past been persecuted by government agents in Sri Lanka on account of his employment by X MP, who has written a recent letter vouching that the petitioner would be perceived as an enemy of the government. Objective evidence produced by the petitioner to the Secretary of State shows both that Mr X is active in protesting the human rights record of the government of Sri Lanka and that an assistant of his has been attacked. The current Country Guidance allows for the possibility of opposition politicians and human rights activists and their associates being persons who remain at risk of persecution. As it has been judicially determined that the petitioner has already been persecuted on account of his association with Mr X he should be regarded as being at risk unless there is good reason to think otherwise, which there does not seem to be. The Secretary of State’s decision that the petitioner has no arguable fresh asylum claim was not reasonably or rationally made, and should be reduced. In addition, the petitioner has a sound claim under article 8 of the ECHR. In EB (Kosovo) [2009] 1 AC 1159 the House of Lords held that the weight otherwise to be attached to the requirements of firm and fair immigration control might be reduced if the delay in addressing a claimant’s asylum claim were shown to be the result of a dysfunctional system which yielded unpredictable, inconsistent and unfair outcomes. The petitioner was deprived of the initial decision in his favour by the IAT purportedly reversing a finding in fact, namely, whether risk from the Tamil Tigers extended throughout Sri Lanka, when its jurisdiction was restricted to points of law and no error of law was averred, let alone found. Section 101 of the Nationality, Immigration and Asylum Act 2002 was in force from 1 April 2003 and, accordingly, on 12 January 2004, when the IAT heard the petitioner’s appeal. The IAT acted ultra vires by making an error of fact of its own and that error of fact went on to infect the Secretary of State’s subsequent decision-making, with the result that the petitioner was denied the refugee status which would otherwise have been his on the basis of the case law extant from August 2007 until July 2013. These are “unpredictable, inconsistent and unfair outcomes” which constitute exceptionality meriting the grant of leave. The court also has an inherent remedial power to correct injustice: Rashid [2005] Imm AR 608; and S [2007] Imm AR 781.

Submission for the Secretary of State

[10] It was submitted in response on behalf of the Secretary of State that the issue was, where the petitioner’s current fears of persecution are said to emanate from an incident that occurred around 24 years before the date of the decision under review, whether the Secretary of State entitled to find that there was no particular link still existing between the petitioner and the MP around 24 years later? The Secretary of State did not accept that the petitioner qualified for refugee status at any point or that the IAT erred in allowing the appeal. The persecution which the petitioner claimed to fear today was persecution from the State authorities in Sri Lanka only. The function of the court was restricted to reviewing the Secretary of State’s decision in relation to the petitioner based on immigration rule 353. The court was not concerned with whether the Secretary of State was correct to find that the submissions did not satisfy the rule: it was concerned only with whether she committed a public law error when she considered the submissions. The test was irrationality, as set out by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 (and approved by the Inner House in Dangol v Secretary of State for the Home Department 2011 SC 560) at paras 10 and 11 as follows:

“[10] … Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] First, has the Secretary of state asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return … The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing the that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both these questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”

[11] The petitioner’s reference to the incident in 1990 took his case no further and could not be said to be relevant. The Secretary of State was entitled to proceed on the basis that no particular connection would be made by the Sri Lankan authorities between the petitioner and Mr X: indeed, there was no basis for her to suppose the possibility of the contrary. The task of the Secretary of State was to predict what the First-tier Tribunal might do on the basis of the material submitted to her. That tribunal had to take as its starting point the findings made in any immigration appeal. In Devaseelin v Secretary of State for the Home Department [2003] Imm AR 1 the IAT had laid guidelines for what were then second appeals to adjudicators based on a fresh claim and stated that the first adjudicator’s determination should always be the starting point as it was the authoritative assessment of the appellant’s status at the time it was made. At p 12, para 37 the tribunal stated:

“The first adjudicator’s determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the appellant was then making, at the time of that determination. It is not binding on the second adjudicator; but, on the other hand, the second adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second adjudicator may be quite different from what might have been expected from a reading of the first determination only. But it is not the second adjudicator’s role to consider arguments intended to undermine the first adjudicator’s determination.”

[12] By parity of reasoning the same principle applied in this case to the determination of the IAT on the petitioner’s claim for asylum. The question was whether anything had happened to move the petitioner’s claim away from the starting point of the decision of the IAT. The mention of the petitioner in the Sri Lankan Parliament by Mr X was not something new as it had been considered by the adjudicator. The following three inferences could be drawn from the adjudicator’s findings. First, at least in 1990, the authorities viewed the EPRLF as enemies, or at least with suspicion. Secondly, the soldiers’ interest in the petitioner was as a source of information, as he was questioned about the movements of Mr X: once he ceased to be a source of information he would cease to be of interest to them. Thirdly, the adjudicator’s findings in para 10 indicated that those who detained him in 2002 did not know or care about his links with Mr X. Nothing had changed since then.

[13] The material which was said to be new consisted of, first, the Country Guidance for Sri Lanka, and, secondly, the recent letter from Mr X. The Country Guidance set out by the Upper Tribunal (Immigration and Asylum chamber) in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) stated at para 356(7):

“The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they have, or are perceived to have, a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
Journalists (whether in print or other media) or human rights activists who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
A person whose name appears on a computerised ‘stop’ list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a ‘stop’ list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities in pursuance of such order or warrant.”

The petitioner did not come within any of the above categories. Nor did he fall within the UNHCR guidelines as he was not a family member or dependant of Mr X. The Upper Tribunal’s Country Guidance was exhaustive: MP (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829 per Maurice Kay LJ at para 16. It was not open to an asylum seeker to supplement these definitive risk categories. It was difficult to see what was new in the letter from Mr X.

[14] It followed from the nature of rule 353 that the submissions made must tend to prove something that (a) has not yet been proved and (b) is material to the petitioner’s claim. Any new development has to have some bearing on the petitioner’s claim. The petitioner’s claim essentially amounted to saying the following:

The authorities view Mr X’s party as “the enemy”.
The authorities are prepared to inflict serious harm on those connected to the party.
The authorities would connect the petitioner with Mr X.

The material submitted did not advance the petitioner’s claim because:

The authorities must have viewed Mr X’s party as the enemy in 1992.
There had been no change since then.
There was no new material on the connection between the petitioner and Mr X or about what had been said in the Sri Lankan Parliament.

[15] Even without the adjudicator’s findings it was inherently unlikely that the authorities would make a connection between the petitioner and Mr X because no link was made when the petitioner was apprehended in 2002, there was now no purpose in prosecuting the petitioner as he was no longer driving for Mr X and 24 years had passed.

[16] There was no error in the Secretary of State’s decision. The petitioner’s immigration history set out on page 3 of that decision showed that removal directions had been sent to him on five separate occasions. He had never been led to believe that he would be allowed to stay in the United Kingdom. The Secretary of State was correct to state that the only real issue to be considered was whether the situation in Sri Lanka had changed to his detriment and to conclude that the authorities in Sri Lanka would not make any particular link between him and Mr X. Failure to consider irrelevant matters did not amount to an error in law. The adjudicator had previously considered the statement in the Sri Lankan Parliament. It was noteworthy that while the petitioner was living in Sri Lanka nothing happened to him from 1990 until 2002.

Decision

[17] In her determination the adjudicator considered the petitioner’s previous history in Sri Lanka, including his connection with Mr X and the statement in the Sri Lankan Parliament. She accepted that he was ill-treated, probably to the point of persecution, in 1990, but did not accept that he was persecuted by the routine questioning in 2002. She did not accept that he would be of any interest to the authorities on return and concluded that there was no real risk to him. He failed to satisfy her, even on the lower standard of proof, that because of his particular personal circumstances he genuinely believed that he would be persecuted by the Sri Lankan army on his return to Sri Lanka or that he had a well-founded fear of persecution. Those findings were not disturbed on appeal to the IAT and must therefore be considered as a final judicial determination. They required to be accepted by the Secretary of State as the starting point in her consideration of the petitioner’s further representations: Devaseelin, supra. The material presented to the Secretary of State in the solicitors’ letter of 27 March 2013 contained nothing new about the petitioner’s connection with Mr X: the position was the same as it had been when the adjudicator made her findings on 13 June 2003. In effect, what the petitioner was seeking was to have the Secretary of State reverse the adjudicator’s findings without presenting any new material to justify overturning the adjudicator’s findings. The petitioner did not provide any new material to bring him within any of the exclusive categories of persons at real risk of persecution or serious harm on return to Sri Lanka. In this connection I note what the Upper Tribunal stated at para 356(8) in GJ:

“The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Provence had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan State or the Sri Lankan Government.”

Nothing in the material presented to the Secretary of State suggested that the petitioner’s past history is perceived by the Sri Lankan authorities as indicating a present risk to the State or the Government. He must be in the same position as many Sri Lankan Tamils.

[18] In my opinion the petitioner’s further representations were fairly and properly considered by the Secretary of State and there was nothing irrational or illegal about her decision. The averments in the petition and the submission made on the basis of them proceed fail to take account of the applicable law, as set out in the submission for the Secretary of State. The petition is misconceived and without foundation. It must be refused.