Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 127

 

P548/14

OPINION OF LORD DOHERTY

In the petition of

MH

Petitioner;

for

Judicial Review of decisions of the Secretary of State for the Home Department to decline to accept that the petitioner has made a fresh claim for asylum

 

Petitioner:   Forrest;  Drummond Miller LLP

Respondent:  Maciver;  Office of the Advocate General

 

17 September 2015

Introduction
[1]        The petitioner seeks judicial review of decisions of the Secretary of State for the Home Department (“the respondent”) dated 13 June 2014 and 20 March 2015 in terms of which she decided that representations made on 8 June 2014, taken together with his previous representations, did not give rise to a fresh claim in terms of Immigration Rule 353. The matter came before me for a first hearing.

[2]        The petitioner is a national of Sri Lanka.  He applied for and obtained a Tier 4 (General) Student Visa valid from 9 September 2010 to 14 January 2013.  He entered the UK on 29 September 2010.  He abandoned his studies two weeks after his arrival.  On 16 January 2013 he claimed asylum.  On the same day he was served with an IS151A as an over-stayer. His application for asylum was refused on 8 February 2013.  His appeal was dismissed by FTT Judge D’Ambrosio on 5 August 2013.

[3]        Before the FTT the petitioner had claimed that he had left Sri Lanka because he had feared persecution there.  He was a Tamil-speaking Muslim.  He maintained that the police and the government believed that he was associated with and supported a Tamil terrorist group, the LTTE.  He claimed that because of that he had been subjected to violence by persons representing the authorities on a number of occasions over the course of several years; and that he had sustained injuries at their hands.  In support of his appeal the petitioner produced a medico-legal report prepared by Dr Catriona Gillespie.  Dr Gillespie identified three scars to the petitioner’s left hand which she considered were highly consistent with their being defensive wounds caused during a sword attack.  Two scars on his right flank were typical of the attributed cause of burning with a smouldering piece of wood.  Two scars (on the left forearm and left thigh) were typical and highly consistent with the attributed cause of burning with a heated knife or other triangular metal object.  In her view the petitioner met the ICVD-10 criteria for the diagnosis of depression, but he did not meet the ICD-10 criteria for the diagnosis of post-traumatic stress disorder.  The physical and psychological evidence was in keeping with his account of torture.

[4]        The FTT found the petitioner’s claims to be incredible and unreliable for a host of reasons, including major inconsistencies between the accounts which he had given at various times.  It did not accept the petitioner’s account that the aforesaid scarring had been caused by or with the connivance of government agents.

 

[5]        Permission to appeal to the Upper Tribunal was granted on 4 September 2013, but the Upper Tribunal dismissed the appeal on 9 December 2013.  It held that the weight to be given to Dr Gillespie’s report had been a matter for the FTT having regard to the whole of the evidence before it and its other findings.  It concluded that the FTT’s determination “read fairly and as a whole, more than adequately explains to the [petitioner] and to any other reader why, for a number of good reasons, the evidence of the [petitioner] has been found to be less than persuasive.”  Permission to appeal to the Court of Session was refused on 27 January 2014. The petitioner became appeal rights exhausted on 12 March 2014.

[6]        On 8 June 2014 the petitioner’s solicitors wrote to the respondent seeking to intimate a fresh claim in terms of Immigration Rule 353. The letter stated:

“We enclose herewith a letter from the Medical Foundation which fundamentally undermines the credibility findings which were made by Immigration Judge D’Ambriosio in the First Tier Tribunal. The letter clearly sets out that the Immigration Judge erred in his findings on the question of whether the (then) appellant would need medical treatment, and was so wrong in those findings that the entire credibility findings made in his determination are thus fatally undermined and should not be relied upon.”

 

The enclosed letter was a “response letter” prepared by Dr Juliet Cohen.  Dr Cohen is a G.P. who also works as a forensic physician for the Medical Foundation Medico-Legal Report Service.  The curriculum vitae appended to the report states that Dr Cohen “has developed a service writing response letters to decision makers’ comments on medico-legal reports written by MF doctors.”  In her letter she observed that Dr Gillespie’s report found that the petitioner had six scars typical of the attribution of torture given and one scar highly consistent with the attribution of torture given.  She opined that those scars represented “strong corroboration of the account given”.  In particular, the injuries to the hand were much more likely to be defensive injuries than accidental injuries.  She was critical of the FTT Judge attaching weight to the absence of evidence that the petitioner had sought medical treatment - in her view the injuries discussed would not necessarily have required it.

[7]        In her decision letter of 13 June 2014 the respondent decided that while the response letter was new material, the FTT’s findings regarding the medical evidence formed only part of the overall consideration.  The views expressed by the FTT which were criticised by Dr Cohen were not pivotal to the FTT’s findings that the petitioner’s account of events was not credible.  There was no realistic prospect that another immigration judge, having regard to the material submitted with the letter of 8 June 2014 and all the other material previously considered, might find that the petitioner would be at real risk of a breach of his rights under article 2 or 3 of the ECHR were he to be returned to Sri Lanka.

[8]        By letter dated 21 November 2014 the petitioner’s solicitors submitted a further statement from the petitioner and yet further material. In her decision letter of 20 March 2015 the respondent held that the new submissions were not significantly different from the material that had previously been considered: and that even if they were they did not create a realistic prospect of success.  The new material related largely to a matter which was not ultimately pursued at the first hearing.

 

Submissions for the petitioner

[9]        At the end of the day the only submission which Mr Forrest adhered to was that the letter from Dr Cohen had been significant new material which the respondent ought to have treated as giving rise to a fresh claim when taken together with the rest of the material which had previously been considered. (A second submission relating to different matters was withdrawn and it is unnecessary to discuss it).  Dr Cohen’s letter had clarified the significance of Dr Gillespie’s findings and had reaffirmed their consistency with the petitioner’s account.  It had also pointed out that the injuries which the petitioner suffered would not necessarily have required medical treatment.  The FTT had misinterpreted Dr Gillespie’s findings.  In so far as it had treated the absence of evidence of medical treatment as counting against the credibility of the petitioner’s account, it had been wrong to do so. An immigration judge looking at all the evidence including Dr Cohen’s report might well find the petitioner’s account to be credible and reliable.  It could not be said that there was not a realistic prospect of success before another immigration judge.  The respondent’s decision to the contrary was irrational. She had failed to exercise anxious scrutiny in deciding as she had.  She ought to have concluded that the relatively modest test which the petitioner required to meet was met.  Reference was made to Immigration Rule 353; WM (DRC) v Secretary of State for the Home Department [2007] Imm A R 337 at para. 6.

 

Submissions for the respondent

[10]      Mr Maciver drew attention to the fact that the FTT had found the petitioner’s account to be incredible and unreliable for the plethora of reasons set out in paras 94-138 of its decision.  It had not believed the petitioner that the injuries which had caused his scarring had been injuries inflicted by, or with the connivance of, government agents.  Dr Cohen’s letter had no real bearing on that issue.  The information that medical treatment might not necessarily have been required was new but it was not of great significance when the evidence as a whole was considered.  It was not suggested that the respondent had not applied the correct test.  On the contrary, it was plain that she had correctly applied it.  She had been fully entitled to conclude that there was not a realistic prospect of success before another immigration judge.  Her decision was reasonable.  It was not unlawful.  Reference was made to WM (DRC) v Secretary of State for the Home Department, supra; Dangol  v Secretary of State for the Home Department  2011 SC 560; A v Secretary of State for the Home Department 2015 SLT 306, para. 29; Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367; RT v Secretary of State for the Home Department [2008] UKAIT 00009.

 

Decision and reasons

[11]      Immigration Rule 353 is in the following terms:

“When a human rights or asylum claim has been refused 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.”

 

Part (ii) of the rule is the live issue in the present case. It is clear that the decision of the respondent that part (ii) is not satisfied is capable of being impugned before the court only on Wednesbury grounds, applying the rule of anxious scrutiny (FO, Petitioner 2010 SLT 1087, paras 22-23;  Dangol v Secretary of State for the Home Department , supra , para 7; and WM (DRC) v Secretary of State for the Home Department, supra , paras 6, 8, 10 and 11).

[12]      While it seems clear that the respondent did approach matters on the basis that the material set out in Dr Cohen’s letter was significantly different from the material which had already been considered, in my opinion that was true only of some of the contents of the letter. Much of the letter was devoted to repeating the contents of Dr Gillespie’s report. That repetition, and most of the commentary related to it, was not significantly different from the material that had previously been considered.  On the other hand, Dr Cohen did opine that, contrary to the assumption of the FTT, some of the injuries discussed would not necessarily have required medical treatment.  That was plainly new material. But since the respondent did not differentiate in this way between the points raised in Dr Cohen’s letter I shall approach matters on the basis that the whole of that letter is the additional material which ought to be considered. 

[13]      I am not persuaded that there is a good basis for impugning the respondent's decision.  In the result I am in very substantial agreement with Mr Maciver's submissions.

[14]      I am satisfied that the respondent identified and applied the correct test (WM (DRC) v Secretary of State for the Home Department, supra, para 11).  The bottom line for the respondent was that Dr Cohen’s letter, taken with the other material which had already been considered, did not give rise to a realistic prospect of success before another immigration judge.  There were manifold, and serious, difficulties and inconsistencies in the various accounts the petitioner had given.  In the whole circumstances, even having regard to such assistance as Dr Cohen’s letter could provide, the modest threshold of a realistic prospect of success had not been met.  In my opinion that was a conclusion which was open to the respondent.  She was entitled to reach it on the material before her, applying the rule of anxious scrutiny.  I am not persuaded that her decision can be said to be Wednesbury unreasonable, or that it contains any material error of law.  In my view her decision was lawful.

 

Disposal

[15]      I shall repel the petitioner's pleas-in-law, sustain the respondent's second plea-in-law, and refuse the petition.  I shall reserve meantime all questions of expenses.