Aaq For Judicial Review Of A Decision Of The Secretary Of State For The Home Department Dated 30 April 2010
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2012] CSOH 2 |
| Year | 2012 |
| Published date | 12 January 2012 |
| Docket Number | P1134/10 |
| Court | Court of Session |
| Date | 12 January 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 2 | |
| P1134/10 | OPINION OF LORD KINCLAVEN in the Petition of A A Q Petitioner for Judicial Review of a decision of the Secretary of State for the Home Department dated 30 April 2010 ______ |
Petitioner: Byrne, Advocate; Drummond Miller LLP
Respondent: K Campbell, Advocate; Office of the Solicitor to the Advocate General
12 January 2012
Introduction
[1] This is a first hearing in a petition seeking judicial review of a decision of the Secretary of State for the Home Department ("SSHD") dated 30 April 2010 (No 6/1 of Process) refusing to accept that certain representations on behalf of the petitioner amounted to a fresh claim for asylum.
[2] The respondent is the Advocate General on behalf of the Secretary of State for the Home Department who has responsibility for the enforcement of immigration and nationality legislation and related provisions throughout the United Kingdom. It is admitted that this court has jurisdiction.
[3] Mr Byrne, Advocate, appeared for the petitioner. He sought reduction of the decision dated 30 April 2010.
[4] Mr Campbell, Advocate appeared for the respondent. He invited me to refuse the orders sought by the petitioner.
[5] In my opinion the petitioner's submissions are sufficiently well-founded to result in decree of reduction.
[6] In the whole circumstances, and for the reasons outlined below, I shall sustain the petitioner's first plea-in-law, repel the pleas-in-law for the respondent, and reduce the respondent's decision dated 30 April 2010.
The Background
[7] The petitioner is AAQ normally residing in Glasgow.
[8] On 30 April 2010 the Secretary of State decided that representations on behalf of the petitioner did not constitute a fresh claim pursuant to Immigration Rule 353.
[9] The petitioner now seeks:
(i) reduction of the decision of the SSHD dated 30 April 2010 that representations on behalf of the petitioner do not constitute a fresh claim; ...
(iii) the expense of the petition; and
(iv) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case.
Productions
[10] The Productions for the petitioner were as follows:-
1. Decision letter dated 30 April 2010 (I was referred in particular to paragraphs 15, 16, 22, and 25 to 30);
2. Letter of representations dated 15 April 2001 from Steen Bali McSherry;
3. Statement of SHM dated 7 April 2010;
4. Grant of Asylum for SHM;
5. Statement of FAA dated 24 March 2010;
6. Status document of SHM;
7. Statement document of DHA;
8. Status document of FAA;
9. Grant of Indefinite Leave to remain for FAA;
10. Decision of SIJ Gill dated 19 September 2007;
11. Grounds of appeal for petitioner; and
12. Determination of IJ Agnew (undated/unsigned) heard 21 August 2007 (particularly at paragraph 22).
[11] The Productions for the respondent consisted of:-
7/1 Letter of representations dated 15 April 2001 from Steen Bali McSherry.
Authorities
[12] I was referred to the following authorities at the hearings:-
1. Paragraph 353 of the Immigration Rules;
2. WM (DRC) v SSHD C4/2005/2782 [2006] EWCA Civ 1495 (particularly at paragraphs 6 to 11, 24 and 26);
3. AK (Sri Lanka) v SSHD [2009] EWCA Civ 447 (at paragraph 34);
4. IM v SSHD [2010] CSOH 103 (at paragraphs 7 to 9 and 11);
5. ZT (Kosovo) v SSHD [1009] UKHL 6 (at paragraph 20);
6. TN (Uganda) [2006] EWCA Civ 1807 (at paragraph 10);
7. AK (Afghanistan) v SSHD [2007] EWCA Civ 535 (at paragraph 23);
8. AH v SSHD 2004 SCLR 524 (at paragraph 36);
9. The Queen on the Application of YH v SSHD [2010] EWCA Civ 116 (at paragraph 24);
10. AAS and SAAS v SSHD [2010] CSIH 90 (at paragraphs 1, 4, 9, 11 and 12);
11. M v SSHD [2005] EWCA Civ 367 (at paragraph 30);
12. NM and Others (Lone Women - A) Somalia CG [2005] UKIAT 00076 (at paragraphs 117, 118, 122, and 128);
13. MA (Somalia) (Respondent) v SSHD [2010] UKSC 49;
14. AH v SSHD [2011] CSOH 7 (at paragraph 32);
15. WM (DRC) v SSHD (2007) Imm AR 337 (at paragraphs 10 and 11);
16. R (TK) v SSHD [2009] EWCA Civ 1550 (at paragraphs 1, 7 and 8);
17. O v SSHD 2010 SLT 1087, [2010] CSIH 16 (at paragraphs 22 and 23);
18. Devaseelan v SSHD [2003] Imm AR 1 (at paragraphs 37 to 40 and 41);
19. Boum v SSHD [2006] CSOH 111;
20. LD (Algeria) v SSHD [2004] EWCA Civ 804 (at paragraph 30);
21. AA (Somalia) v SSHD [2007] EWCA Civ 1040 (at paragraph 54 and 55);
22. NAK v SSHD [2009] CSOH 162;
23. The Queen on the application of TR (Sri Lanka) v SSHD [2008] EWCA Civ 1595;
24. The Queen on the application of MN (Tanzania) v SSHD [2011] EWCA Civ 193 (at paragraphs 1, 13, 14 and 16);
25. KD Petitioner v SSHD [2011] CSIH 20 (at paragraphs 6, 7 and 9); and
26. RA Petitioner v SSHD [2011] CSOH 68 (at paragraph 19).
The Petitioner's Position
[13] The petitioner sought judicial review on the following grounds.
[14] The petitioner is a national of Somalia. She arrived in the UK on 16 June 2007 and claimed asylum on the same day. She was refused asylum by a letter from the SSHD dated 13 July 2007. The petitioner appealed this decision to the then Asylum and Immigration Tribunal ("AIT") and that appeal was refused in a decision of Immigration Judge Agnew bearing a prepared date of 19 September 2007. Reconsideration was sought of that decision and subsequent decision was made that "no order for reconsideration" would be made on 19 September 2007. That "no order" decision was made by Senior Immigration Judge Gill who ultimately concluded that the previous decision of Immigration Judge Agnew, whilst not clear in part (paragraph 4), contained no error of law (paragraph 10).
[15] On 22 January 2009 further representations were submitted to the SSHD which were in turn rejected on 15 March 2010.
[16] By letter dated 15 April 2010 the petitioner's representative submitted further representations. The petitioner contends that those representations amounted to fresh submissions and fresh evidence. The fresh evidence submitted was two letters from members of the Somali community in Scotland who were in a position to link the petitioner to Somalia, had status to remain, and are willing to testify to a court or immigration officer to that effect.
[17] The petitioner contends that the further evidence if credible is material to the petitioner's claim which is that she is a Somali and a member of a minority clan which if true would give rise to a real risk of persecution.
[18] The SSHD, by letter dated 30 April 2010, decided that the fresh evidence and fresh submissions did not entitle the petitioner to international protection and secondly did not give rise to a realistic prospect of success before an immigration judge.
[19] Accordingly the SSHD rejected the petitioner's fresh claim as not constituting a fresh claim for the purposes of Immigration Rule 353.
[20] Rule 353 of the Immigration Rules (made under the Immigration Act 1971 section 1(4) and 3(2)) provides that:
"353. 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.
This paragraph does not apply to claims made overseas."
[21] In the petition it was averred that in considering the application of that rule in terms of the guidance issued by the Secretary of State relating to such matters, the Secretary of State requires to consider three matters sequentially.
[22] Firstly, the Secretary of State must consider whether in her view the representations mean that the petitioner should now be granted Leave to Remain on Refugee or Human Rights grounds or in exercise of the Secretary of State's discretion to grant Leave to Remain to any person she chooses. Only if the Secretary of State concludes that the answer to those questions is negative should the Secretary of State go on to consider the next matter.
[23] The second matter the Secretary of State must consider is whether the submissions have been considered previously. The submissions do not require to be evidence - they could for example be new legal arguments or a new Country Guidance decision. It is irrelevant whether the new evidence or submissions was or was not available previously (except that this may affect the reliability or some evidence). Reference was made to the previous form of Immigration Rule 353 which was Immigration Rule 346 that did include a requirement that the new material must not have previously been available, but that requirement was withdrawn on 25 October 2004.
[24] The third matter the Secretary of State requires to consider is whether there is a realistic prospect of success in an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the refusal of the Applicant's claim for asylum taking account both of the new material and all that has gone before including, for example, the findings in fact of any Immigration Judge who considered the matter previously.
[25] If the Secretary of State, having rejected the representations as not making good an applicant's claim for leave to remain, nonetheless decides that the representations are a fresh claim for asylum, as a matter of policy the Secretary of State will issue a formal "immigration decision" to the applicant that they are entitled to appeal against the First-tier Tribunal (Immigration and Asylum Chamber).
[26] If the Secretary of State decides that the representations do not constitute a fresh claim the applicant is not issued with a formal "immigration decision" and cannot appeal to the Tribunal. It is necessary for the...
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