J.m. For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2011] CSOH 174 |
| Date | 19 October 2011 |
| Docket Number | P387/11 |
| Published date | 19 October 2011 |
| Court | Court of Session |
| Year | 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 174 | |
| P387/11 | OPINION OF LORD BRODIE in the Petition of J C M (AP) Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department dated 20 January 2011 refusing to accept that further representations amounted to a fresh claim for asylum ________________ |
Petitioner: Forrest; Drummond Miller LLP
Respondent: John MacGregor; Office of the Solicitor to the Advocate General
19th October 2011
Introduction
[1] The petitioner is a national of Zimbabwe. His date of birth is 1 April 1954. The respondent is the Secretary of State for the Home Department.
[2] The petitioner arrived in the United Kingdom on 24 August 2004 with the appropriate visa. The petitioner remained in the United Kingdom after the expiry of his visa and, having come to the attention of the authorities, claimed asylum on 17 January 2009. The application was refused and the petitioner was issued with a Reasons For Refusal Letter dated 2 April 2009. The petitioner appealed in terms of section 82(1) of the Nationality Immigration & Asylum Act 2002. The appeal was heard by an Immigration Judge and refused in terms of Determination dated 17 May 2009. The petitioner then applied for an order for reconsideration which was refused on 16 June 2009. His rights of appeal became exhausted as at 26 June 2009.
[3] A feature of the petitioner's application to this court and, as the respondent came to argue, before the Immigration Judge, is that having originally left Zimbabwe in 1993, the petitioner has spent most of the subsequent years outside that country. He was resident in Zimbabwe between 1996 and 1999 and visited there briefly in 2004 but otherwise he has worked and studied elsewhere. During this time, as the Immigration Judge accepted as a matter of fact, the appellant was involved as a contractor and driver for various companies who operated under the auspices of the United Nations.
[4] Following his appeal rights having become exhausted, the petitioner submitted fresh representations on 16 July 2009, on 24 July 2009, on 30 April 2010, on 10 June 2010 and on 4 August 2010. These were rejected by the respondent respectively on 21 July 2009, 30 July 2009, 25 May 2010, 25 June 2010 and 6 August 2010.
[5] The petitioner made a further representation by way of a letter from solicitors dated 17 December 2010. Having referred to previous correspondence with the respondent, the letter summarised the petitioner's movements since leaving Zimbabwe in 1993 and noted that his case had been considered and refused by an Immigration Judge. The letter continued as follows:
"However his situation now is materially different.
He has now been absent from Zimbabwe for a further two years. Indeed, apart from 1996 to 1999 he has been absent from Zimbabwe since 1993, seventeen years ago. Having regard to this and to his employments with the United Nations, and with particular reference to the antipathy with which the UN is regarded by Zanu PF, there is no doubt Mr M's case will be regarded critically on his return. There is little doubt he will be unable to demonstrate loyalty to Zanu PF because of his protracted absence and because of his links with the UN. It is additional factors such as these which were referred to in the case of R N (Returnees) Zimbabwe CG [2008] UKAIT 00083.
Mr. M also has a claim now under Article 8 ECHR. He has now been resident in the United Kingdom for more than six years and a further two years since his case was last considered by an immigration judge. He has a daughter and two grandchildren in London with whom he is in contact regularly. His wife resides in Glasgow and although they are living apart he sees her socially twice a week and he speaks with her daily. We further enclose the documents referred to on the Schedule annexed which confirm Mr.M has a private life in the United Kingdom.
We should be grateful if you would consider these particular aspects of our client's new claim for asylum".
The respondent responded to the representation on behalf of the petitioner by letter dated 20 January 2011 refusing to accept that the representation amounted to a fresh claim for asylum. By petition lodged on 31 March 2011 and amended in terms of Minute of Amendment lodged on 9 September 2011, the petitioner now seeks judicial review of that decision.
[6] The petition called before me for a first hearing on 30 September 2011. Mr Forrest appeared on behalf of the petitioner. Mr MacGregor appeared on behalf of the respondent. Mr Forrest's motion was for reduction of the respondent's decision of 20 January 2011. Mr MacGregor's motion was to dismiss the petition or, alternatively, on the basis that no useful purpose would be served thereby, to refuse to reduce the decision.
Applicable law
[7] There was no dispute as to what was the applicable law. The relevant Immigration Rule is 353 which is in the following terms:
"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 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 previously considered material created a realistic prospect of success, notwithstanding its rejection".
What the Rule requires has been explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2007] Imm. AR.337 at 340, as adopted by the Inner House in FO Petitioner 2010 SLT 1087 at paragraph 23. Buxton LJ 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 judgments. 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 and material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, 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".
Having thus identified the task of the Secretary of State, Buxton LJ then considered the task of the court in the event of an application for judicial review of the Secretary of State's decision. He said this (supra) at 341:
"[10] ...a court when reviewing the decision of the Secretary of State as to whether a fresh claim exists must address the following matters.
[11] 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 the question both in respect of the evaluation 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 these questions is in the affirmative, it will have to grant the application for review of the...
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