Ez Against The Secretary Of State For The Home Department

JurisdictionScotland
JudgeLady Wolffe
Neutral Citation[2017] CSOH 29
CourtCourt of Session
Date17 February 2017
Published date17 February 2017
Docket NumberP644/16
Year2017

Web Blue CoS
OUTER HOUSE, COURT OF SESSION

[2017] CSOH 29

P644/16

OPINION OF LADY WOLFFE

In the cause

EZ

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner: Forrest; Drummond Miller LLP

Respondent: C Smith; Office of the Advocate General

17 February 2017

Introduction

[1] In this application for judicial review the petitioner seeks reduction of the decision of the Secretary of State dated 25 April 2016 refusing to accept his submissions as constituting a fresh claim (“the Decision Letter”). The bases of that fresh claim, which was the petitioner’s third fresh claim, were

  1. his claim for political asylum based on certain political activities (namely, online postings to his Facebook page and his membership of and attendance at the meetings of the National Movement of Iranian Resistance (“NAMIR”), a body critical of the regime in Iran) (“the Asylum claim”); and
  2. his claim for protection of family life under Article 8, based on his relationship with his partner, a UK national (“the Family Life claim”).

Immigration History

[2] The petitioner is a national of Iran. He entered the UK on 16 July 2007. He claimed asylum in the UK, but his claim was rejected. His appeal against this decision was also rejected and his appeal rights were exhausted as at 12 October 2007. He submitted a fresh claim but this was also rejected.

[3] The petitioner submitted a further fresh claim to the Secretary of State on 5 March 2014 (“the second fresh claim”). In brief, the matters then said to be new were (1) certain political activities on the part of the petitioner and (2) the relationship he had formed with his partner, who is a UK national. The Secretary of State rejected the petitioner’s second fresh claim. The petitioner raised judicial review proceedings in December 2015. These proceedings were dismissed after the Secretary of State agreed to withdraw her decision and to consider the petitioner’s further claim (“the third fresh claim”). It is the Secretary of State’s rejection of this claim that is the subject matter of this petition.

The Correspondence Leading to the November Decision of the Secretary of State

[4] An unusual feature of this case is the fact that, shortly before the issue of the Decision Letter under challenge, the Secretary of State had written to the petitioner’s agents requesting further information by a stipulated date. The petitioner’s agents sent further information (“the further information”), but failed to do so by that date. The Secretary of State initially refused to consider the further information by reason of the fact that it had arrived late. Meantime, she issued the Decision Letter. (The foregoing is a simplified chronology, as one of the items of correspondence was misdated, and it was conceded that another had been sent in error.) However, no issue is now taken about the fact that the Secretary of State did not have regard to the further information in reaching the decision communicated in the Decision Letter, and I do not trouble to set out the full detail of the correspondence.

[5] After these proceedings were raised, however, the Secretary of State proceeded to consider this further information as, in effect, a further fresh claim (“the fourth fresh claim”). She issued her decision on 21 November 2016 refusing this further claim (see No 7/1 of process) (“the November Decision”).

Procedural History

[6] The first substantive hearing in this case was due to have been heard in November 2016. However, by reason of the receipt of the November Decision, that hearing was discharged to enable the petitioner to consider whether a challenge to the November Decision should be incorporated into these proceedings.

[7] By letter dated 20 January 2017, the petitioner’s agents advised that they would not, in fact, challenge the November Decision.

[8] As a consequence, and notwithstanding the foregoing, when matters called before me for a substantive hearing on 27 January 2017, the grounds of challenge were those that were to be advanced at the first hearing in November 2016, with one difference. There was no longer any challenge to the Secretary of State’s refusal to consider the further information she had requested. It was accepted that she had done so. For the avoidance of doubt, it was confirmed that there was to be no challenge to the November Decision.

[9] The potential significance of the November Decision is the impact it might have had on the utility of these proceedings. The most that the petitioner can hope to achieve by these proceedings is a reduction of the Decision Letter with the effect that the Secretary of State must reconsider the third fresh claim anew. In practical terms, however, the Secretary of State may have already done this in the November Decision, but this is not challenged. It appeared to be the petitioner’s position that the November Decision did not address the sur place activities. Neither party referred to the terms of the November Decision. I proceed on the hypothesis that this did not supersede the Decision Letter. Accordingly, while the respondent’s counsel submitted a copy of the cases of King v East Ayrshire Council 1998 SC 182 and Ashiq v Secretary of State for the Home Department 2015 SC 602 after the hearing and while Mr Forrest did not make any reply to these cases when afforded a chance to do so, and which might have been relevant to the consideration of the utility of these proceedings, I determine the matter on the basis of the substantive arguments presented to me. In any event, that seems both appropriate and the most expeditious way to determine these proceedings. I would not wish to contribute to what is already a prolonged process, by resolving it on the basis of a procedural matter.

Decision Letter

Refusal of Asylum Claim

[10] The Decision Letter narrated the matters I have set out in paragraph [3], above, and it recorded (in 32 bullet points at pages 4 and 5) the materials submitted by the petitioner under cover of the letters dated 17 February 2012 and 5 March 2014 from his agents. Mr Forrest referred to only four of these items: namely, witness statements from (i) the petitioner, (ii) his partner, (iii) an individual who spoke to the petitioner’s membership in NAMIR, and (iv) a collection of four individual Facebook postings. See pages 4 and 5 of the Decision Letter. Mr Forrest made brief reference to a few passages in these documents. The Decision Letter described much of the new material as “generic” and as making no mention of the petitioner. Mr Forrest does not challenge this characterisation. The Decision Letter then recorded submissions that had previously been considered (at pages 5 to 6). These included the conclusion of the Immigration Judge, who had refused the appeal proceedings referred to above, that the petitioner’s account was not a credible one and that his findings that the petitioner was not considered to be of interest to the Iranian authorities upon his return remained a valid finding. Mr Forrest accepts this part of the Decision Letter.

[11] The Decision Letter then turned to consider the submissions not previously considered (at pages 6 to 8). It did so under reference to the five factors in BA (Demonstrators in Britain- risk on return) Iran CG [2011] UKUT 36 (IAC) (10 February 2011) (“BA”). After referring to the Country Guidance case of BA, the Decision Letter then turned to consider the five factors identified in BA in detail. Only the first, concerning sur place activities, was put in issue in these proceedings. The second paragraph of the Secretary of State’s consideration of the sur place activities narrated certain conclusions:

“There is no evidence to suggest that your active involvement in NAMIR would be brought to the attention of the Iranian authorities in Iran. There is also no evidence to suggest that your blog is a regularly viewed blog, that it has gained any sort of publicity in the wider outset [sic, read as ‘outlet’] of the internet, that would lead to it have gained the attention of the Iranian authorities in the millions of blogs on the internet”

[12] Mr Forrest indicated that he did not take issue with the conclusion in the first sentence. He accepted that this was not a case involving participation at public demonstrations and that the Secretary of State’s conclusion about the petitioner simply attending meetings was correct.

The Challenges to the Decision Letter

[13] The petitioner presented only a limited challenge to two of the determinations in the Decision Letter.

Challenge in the petition

[14] It should be noted that the oral submissions presented on behalf of the petitioner at the substantive hearing bore no relationship to the matters set out in the petition. As identified in the petition, the part of the Decision Letter concerning the rejection of the Asylum claim was challenged on the basis that the Secretary of State had erred in law by failing to exercise scrutiny. In particular, it was suggested that it was not clear whether she applied the correct test or whether she had gone beyond her own view of matters. In relation to that part of the Decision Letter concerning the rejection of the petitioner’s Family Life claim, the only challenge was to the Secretary of State’s determination outwith the Immigration Rules. It was suggested that the Secretary of State had “ignored the effect the petitioner appears to have had in [his partner’s] life, and how she would feel if he were not allowed to remain in the UK”. No legal ground was particularly associated with this statement. In the petition, under reference to Razgar v Secretary of State for the Home Department [2004] 2 AC 368, it was stated that “there is no sign in the [Decision] letter that proportionality has been addressed in any way”.

Challenge presented in oral submissions

[15] However, in his principal oral submissions at the substantive hearing, Mr Forrest did not make any...

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2 cases
  • Upper Tribunal (Immigration and asylum chamber), 2017-11-23, PA/04467/2016
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • November 23, 2017
    ...tribunal also takes note of the decision of the Outer House, Court of Sessions, citation EZ v Secretary State for the Home Department [2017] CSOH 29. The appellant in that case, an Iranian national, based a claim for asylum uncertain political activities namely online postings to his Facebo......
  • Upper Tribunal (Immigration and asylum chamber), 2017-08-17, PA/06655/2016
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • August 17, 2017
    ...to be placed in the public domain. The Court of Sessions, Outer House, in the decision in EZ v Secretary of State for the Home Department [2017] CSOH 29 repeated that AB is not a country guidance case and that to say that a great deal of activity was not necessary for someone to become prom......

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