A V (ap) For Judicial Review Of A Decision Of The Secretary Of State For The Home Department

JurisdictionScotland
CourtCourt of Session
JudgeLady Clark Of Calton
Neutral Citation[2012] CSOH 118
Docket NumberP428/12
Publication Date13 July 2012

OUTER HOUSE, COURT OF SESSION

[2012] CSOH 118

P428/12

OPINION OF LADY CLARK OF CALTON

in the petition of

AV (A.P)

Petitioner;

for Judicial Review of a Decision of the Secretary of State for the Home Department dated 11th March 2012 refusing to treat the petitioner's further submissions as a fresh claim.

________________

Petitioner: Forrest; Drummond Miller

Respondent: Olsen; Office of the Advocate General

13 July 2012

Summary
[1] The petitioner is an Iranian national.
He arrived in the United Kingdom on 23 September 2010. He claimed asylum on the same date. This was refused. Thereafter following unsuccessful appeal procedure, a letter dated 23 February 2011 (6/2 of process) was submitted on behalf of the petitioner. That letter and accompanying documentation (6/2 of process) were considered by an official acting on behalf of the Secretary of State who concluded that they did not amount to a fresh claim. The decision letter dated 11 March 2012 is 6/1 of process.

[2] At my request counsel for the petitioner and respondent produced at short notice written notes of argument. I am most grateful for their assistance.

Submissions by Counsel
[3] The note of argument for the petitioner is 11 of process.
Counsel for the petitioner sought reduction of the decision dated 11 March 2012 (6/1 of process). In his written submissions, which he adhered to in oral submission, he restricted the case for the petitioner.

[4] Counsel set out a summary of the applicable law in paragraph 3 of 11 of process. He relied on case law which is well settled in relation to the application and interpretation of Immigration Rule 353 and the approach by the court to judicial review of the Secretary of State's decision making. I did not understand that there was any dispute by the parties about the applicable law. The dispute related to the way in which the respondent considered the only two documents now said to be relevant by the petitioner. These documents are the letter of warning and the summons contained in 6/2 of process.

[5] In paragraph 4 of 11 of process, counsel set out three reasons as the foundation of his criticisms of the approach of the respondent. Counsel for the petitioner focused on the respondent's reasoning in paragraph 39, paragraphs 41-42 and paragraph 43 of 6/1 of process. In said paragraphs the respondent gives specific consideration to the two said documents. Counsel submitted firstly that it was irrelevant that the respondent had rejected the petitioner's case in relation to his student status. Secondly, the respondent's approach to the new documents was said to be unreasonable. Thirdly, it was submitted that the criticisms made by the respondent about the provenance or origin of the documents was wrong. Counsel submitted that the said documents appear to originate and be issued by the Iranian authorities. He submitted that documents of this type assist the petitioner to meet the low threshold test which is all that is required in cases under Immigration Rule 353. In conclusion, he submitted that the respondent had erred in concluding in all the circumstances that there are no realistic prospects of success before another judge.

[6] To take account of the restriction which had been made to the petitioner's case, counsel for the respondent revised his written...

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1 cases
  • S.a. V. The Secretary Of State For The Home Department
    • United Kingdom
    • Court of Session
    • 6 June 2013
    ...The petition called before the Lord Ordinary (Pentland) for a first hearing. On 28 June 2012 the Lord Ordinary refused the petition ([2012] CSOH 118). The petitioner reclaimed. Cases referred to: A v Secretary of State for the Home Department sub nom AKA, PetrUNK [2012] CSOH 86; 2012 SLT 10......

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