Ad For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2012] CSOH 140 |
| Docket Number | P506/12 |
| Date | 31 August 2012 |
| Court | Court of Session |
| Published date | 31 August 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 140 | |
| P506/12 | OPINION OF LORD JONES in the cause AD Petitioner; for Judicial Review ________________ |
Petitioner: Forrest; Drummond Miller LLP
Respondent: Davidson; Office of the Advocate General
31 August 2012
Background
[1] The petitioner is a national of Guinea. He entered the United Kingdom illegally in March 2007 and claimed asylum. That claim was refused by the Secretary of State for the Home Department ("the SSHD") on 29 March 2007, and the petitioner was served with notices informing him of the intention to remove him from the United Kingdom. The petitioner then appealed to the Asylum and Immigration Tribunal, under the provisions of the Nationality, Immigration and Asylum Act 2002. His appeal was dismissed on 31 May 2007 and, on 3 July 2007, a senior immigration judge refused the petitioner's request for reconsideration of the 31 May determination. The petitioner's rights of appeal were exhausted as of 12 July 2007.
The findings of the immigration judge
[2] The basis of the petitioner's claim, as recorded by the immigration judge, was as follows: "The appellant has a well founded fear of persecution from the authorities if returned to Guinea by reason of his imputed political opinion." Failing success on that ground, the petitioner sought humanitarian protection, or protection under articles 2 and 3 of the ECHR.
[3] The immigration judge summarised the petitioner's case before him in the following terms:
"a) His name, nationality and date of birth are as given. He was from Conakry, the capital.
b) There were a lot of problems in Guinea. There was no work, no electricity and no running water.
c) As a result, there was a general strike on 22 January 2007. He was one of numerous people at the demonstration. The demonstration was stopped at 'The 8th of November Bridge' by the security forces who opened fire and teargassed the crowd indiscriminately.
d) In the confusion, the appellant was one of many arrested and taken to Central Police Station by lorry. En route, some soldiers put out their cigarettes on them and he was also kicked many times.
e) He was put in a cell at gunpoint by two soldiers in red berets. Later, he was interrogated and threatened with torture by two other such soldiers. The appellant was so scared that he told them they were marching to the President's residence in a peaceful demonstration. He told them that the marchers would have killed him if not stopped, but that was not his own intention. He was interrogated once, beaten and locked up.
f) That night, other soldiers took him to Kundara prison. He was kept there until 5 February 2007. Meantime, his brother found out where he was.
g) On 5 February 2007, he was called by a guard and taken to an officer who was a neighbour through whom his brother had organised his release. He was taken out of prison and driven to an empty house. The officer came back with his brother. It was explained that he was released unofficially from prison and there were still many problems because of his involvement with the demonstration. The authorities would still be looking for him. The appellant thinks his brother must have paid a bribe to get him released. The officer said it was too dangerous for him to stay in Guinea as the authorities [would] be looking for him and it would not be safe for him or the brother either.
h) It was unusual for someone to get out of Kundara prison alive. It was used to deal with political opponents. The reason the appellant was taken there was because he was part of the group that the authorities thought was going to kill the President.
i) After 24 days in hiding he was taken to the airport by an 'agent' (a euphemism for a human trafficker) and his brother. His brother left him there.
j) He flew from Guinea to the UK on what he believes to have been a false passport, accompanied and assisted by the "agent" who went with him all the way to Croydon.
k) He was afraid of being tortured or killed on return because he had escaped from prison and the authorities thought he wanted to kill the President. His brother had told him that unidentified people not in uniform had asked for him one day but went away when he told them he did not know where the appellant was.
l) He acknowledged that the newspaper [which had been produced in evidence] was dated 30 April 2007 and had been provided for translation in Scotland on 2 May 2007. This he said was sent by his brother by post. He thought the red berets might have provided the photograph [of the petitioner, which was in the newspaper]." (Determination and Reasons, paragraph 7)
The newspaper which is referred to purported to report "savagely cruel repression" of the strikers by the authorities and that the petitioner was among the victims who ended up in the hands of the police in Conakry.
[4] The immigration judge dismissed the appeal. He held that, although in parts credible, the appellant overall did not give a credible and reliable account, and explained why he had come to that view. He expressed grave misgivings about the authenticity of the newspaper, for reasons which he gave. Importantly, in my view, he made this finding:
"In any event, even if he were to be believed as to his story of detention, mistreatment and release, I do not consider that there is a real risk of repetition given his release." (Determination and Reasons, paragraph 18)
The immigration judge explained that the circumstances of his release as spoken to by the petitioner were such as to point towards its being either regular, and not involving a friendly soldier, or at least made to appear regular so as to cover those involved. Further, accepting that the petitioner flew from Guinea to the UK, the immigration judge concluded that it was not credible that he would have taken the risk involved in doing so if he were suspected of wanting to harm the President and was fleeing in fear. The immigration judge's reasons survived scrutiny by the senior immigration judge.
The circumstances of the present application
[5] Under cover of letter, dated 17 June 2011, solicitors acting for the petitioner, Loughran & Co, sent to the SSHD a number of documents, described in the letter as "significant new evidence", which had not previously been seen by her. It was explained that, on the basis of these documents, the petitioner "would like to make a fresh claim for asylum and humanitarian protection". By letter, dated 5 July 2011, the SSHD intimated her decision that the petitioner's "fresh representations do not amount to a fresh claim". On 15 August 2011, the petitioner's solicitors again wrote to the SSHD, making further representations in response to certain findings which had been set out in the letter of 5 July. No further document was submitted with that letter. On 24 October 2011, the Border Agency intimated the SSHD's decision that the 15 August representations, taken together with previously considered material, did not amount to a fresh claim. On 4 July of this year, the SSHD withdrew both decision letters and replaced them with a single letter of that date ("the decision letter"). The petitioner now seeks reduction of the SSHD's decisions as contained in that letter.
The relevant law and practice
[6] Acting under the provisions of section 3(2) of the Immigration Act 1971, the SSHD has laid down rules as to the practice to be followed in the administration of the Immigration Acts for regulating entry into and the stay of persons in the United Kingdom. Paragraph 353 of the Immigration Rules (HC 395) provides as follows:
"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] In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855, Laws LJ construed the phrase "a realistic prospect of success" in this way:
"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 a case with no more than a fanciful prospect of success. 'Realistic prospect of success' means only more than a fanciful such prospect." (Paragraph 34, original emphasis)
[8] When this case came before me for a first hearing on 13 July 2012, parties were agreed as to the respective tasks of the SSHD in determining whether or not further submissions amount to a fresh claim, and of the court in determining an application for judicial review of the SSHD's decision. They were also in agreement as to the approach which the SSHD and the court should take in reaching their respective decisions.
The task of the SSHD
[9] In WM (Democratic Republic of Congo) v SSHD [2006] EWCA Civ 1495; [2007] Imm. A.R. 337; [2007] I.N.L.R. 126, Buxton LJ, with whom Jonathan Parker and Moore‑Bick LJJ agreed, said this:
"6. There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the...
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