Ak For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2009] CSOH 123 |
| Date | 04 September 2009 |
| Court | Court of Session |
| Published date | 04 September 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 123 | |
| OPINION OF LADY CLARK OF CALTON in the Petition of AK (AP) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 16th January 2009 ________________ |
Petitioner: Winters, solicitor-advocate; McGill & Co
Respondent: Campbell; C Mullin
4 September 2009
Summary
[1] The history of the case is summarised in Article 4 of the petition. Some of the issues which were advanced at earlier procedural stages were not issues in the judicial review. The judicial review was directed to the decision contained in the decision letter dated 16 January 2009 (6/2 of process). The decision was made by an official on behalf of the respondent.
The Legal Framework
[2] It was agreed on behalf of both parties that Rule 353 of the Immigration Rules provides the legal framework within which a decision must be made by the respondent. Rule 353 provides:
"When a human rights or asylum claim has been refused and any appeal in relation 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) has not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection...".
The grounds of challenge
[3] The solicitor advocate for the petitioner advised that he was not relying on paragraph 14 of the petition. On behalf of the petitioner, he made submissions in relation to the issues set out in paragraphs 6-13 and 15-18 of the petition. It was submitted on behalf of the respondent that many of the submissions made on behalf of the petitioner are inter-related. I now summarise the submissions which were made.
[4] Paragraph 6 of the Petition states:
"That the respondent has acted unreasonably et separatim acted irrationally. Reference is made to the facsimile from the respondent dated 17th April 2009 which is herein incorporated brevitatis causa confirming that they are reviewing the petitioner's case. It is unclear why the respondent continues to oppose the petitioner's case when it appears that the respondent is again reviewing the case. The petitioner's solicitors have contacted the respondent to enquire as to whether the petitioner and his family are to be granted indefinite leave to remain. The respondent has not been able to confirm whether the petitioner and his family are to be granted indefinite leave to remain. The respondent appears to be acting unreasonably et separatism irrationally by continuing to oppose the Petition when they also appear to be reconsidering the petitioner's case".
[5] Counsel for the respondent produced two affidavits explaining how the petitioner's case had been dealt with by officials. The affidavits explain that the case has been reviewed, the results of that review are contained in the decision letter and that there is no active ongoing review.
[6] In relation to paragraph 6 of the petition, I am satisfied on the basis of the affidavits that there is no reconsideration of the petitioner's case which is outstanding. I accept that the wording of the letter dated 17 April 2009 is not clearly expressed but the affidavits make plain that the petitioner's case is not under active review.
[7] Paragraph 7 of the petition states:
"That the respondent has acted unreasonably et separatim acted irrationally by referring to a refusal letter dated 1st August 2008 on page one of the refusal letter dated 16th January 2009. The respondent agreed that this refusal letter dated 1st August 2008 was flawed and was withdrawn. By referring to the letter dated 1st August 2008 which was withdrawn and agreed was flawed it is unclear whether the respondent has been influenced or other subsequent findings tainted by having reference to the previous refusal letter which was withdrawn. In so doing the respondent has acted unreasonably et separatim acted irrationally. Any subsequent references to the refusal letter/refusal decision refer to the letter dated 16th January 2009".
[8] Submissions on behalf of the parties added nothing of significance to the pleadings on this point. I consider that the issue raised in paragraph 7 is without merit. In my opinion, it is plain that the respondent is merely giving a historical narrative in referring to the earlier refusal letter dated 1 August 2008. I do not consider that the decision is flawed merely because reference to this historical narrative is included in the decision letter.
[9] Paragraph 8 of the petition states:
"That the respondent has accepted that the petitioner and his family have established private and family life in considering the representations made under the case resolution program and Article 8, ECHR at the fourth paragraph on page four of the refusal letter. That the respondent has erred in law because her decision to refuse to accept that further submissions amounted to a fresh claim is irrational by appearing to usurp the function of the court. The respondent has made what would appear to be a decision on the merits of the petitioner's case. In so doing the respondent has erred by treating her own view on the validity of the further submissions and its effect as more than a 'starting point' (see pages four and five of the refusal letter). Although the respondent refers to whether there would be a realistic prospect of success before an Immigration Judge the respondent does not appear to have kept clearly in mind the proper test to be applied. In so doing the respondent has acted unreasonably and in a way that no reasonable decision maker would in the circumstances have acted".
[10] In developing the submission on behalf of the petitioner, the solicitor advocate for the petitioner relied on WM (DRC) v SSHD [2006] EWCA Civ 1495 per Lord Justice Buxton at paragraph 6, 7 and 11. Reference was also made to Hassan v SSHD 2004 SLT 34.
[11] The short response by counsel for the respondent was to the effect that the respondent had not erred. The respondent had asked the right question and adopted the correct approach.
[12] Before considering the submissions in relation to paragraph 8, I wish to make some general comments which bear upon the proper approach by the Court to this case. In considering WM (DRC) v SSHD, I have borne in mind that this case helpfully sets out the task of the Court in paragraphs 8 to 11 as well as considering the task of the respondent in paragraphs 6 and 7. Lord Justice Buxton analysed the role of the Court and concluded
"the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds....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. ....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 inquiry; 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 that question, both in respect of the evaluations of the facts and in respect of the legal conclusions 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 of these questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision".
There is no dispute between the parties that these passages summarise the proper approach to be adopted by the respondent and by the Court in reviewing the decision. The solicitor advocate for the petitioner accepted that the review powers of the Court are limited and that this is not an appeal on the merits.
[13] Although the decision letter 6/2 of process was subjected to detailed scrutiny, I consider that it must be read as a whole, fairly and in context. It is not to be subjected to scrutiny as if it were a contract document. I bear in mind that the determination of the respondent is only capable of being impugned on "Wednesbury grounds". I consider that on any fair reading of the decision letter it is plain that the respondent had in mind the proper test and applied it. The logic of the submission on behalf of the petitioner appears to be that the respondent is disbarred from forming any judgement about the matters in issue. I consider that the submission is ill founded. The respondent, according to Lord Justice Buxton in paragraph 6 "has to consider whether (the material) taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material....". I am of the opinion that, in addressing the test, which is not in dispute in this case, as to whether the new material creates a realistic prospect of success in an application before an adjudicator, the respondent is entitled and must be in a...
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