M.a. (ap) For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 8 |
| Docket Number | P825/10 |
| Date | 19 January 2011 |
| Court | Court of Session |
| Published date | 19 January 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 8 | |
| P825/10 | OPINION OF LORD STEWART in the cause M.A. (ASSISTED PERSON) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to refuse to treat further representations made on his behalf as a fresh asylum claim in terms of paragraph 353 of the Immigration Rules (HC 395) ________________ |
Petitioner: Devlin, Advocate; Drummond Miller LLP
Respondent: Olson, Advocate; Office of the Solicitor to the Advocate General
19 January 2011
[1] This Petition for Judicial Review of a United Kingdom Border Agency determination called before me for a First Hearing on 11 November. The hearing was adjourned part heard and continued to a conclusion on 12 November 2010. I granted the Petitioner's motion made at the bar, unopposed, to amend the Petition: at page 8 paragraph (iv) between the words "Bewran website existed or that" and the words "(paragraph 46)" by inserting the words "it was a news gathering organisation." At the hearing Petitioner's Counsel moved me to sustain the Petitioner's Plea, to repel the Respondent's Pleas and to reduce the UK Border Agency's determination of 20 March 2010. Counsel for the Respondent made the counter-motion and moved for dismissal of the Petition. Having made avizandum my opinion is that the Petition should be dismissed.
History of claim for Asylum etc
[2] On 7 April 2009 at a Shell filling station at Pembury on the A21 London-Dover road the Petitioner was arrested on suspicion of illegal entry into the United Kingdom. On 8 April he claimed asylum. His screening interview with an Immigration Officer took place on 9 April 2009. He had an Asylum Interview on 30 April 2009. By Notice of Immigration Decision/Reasons for Refusal Letter dated 8 May 2009 issued by a member of Asylum Team 2 Glasgow, UK Border Agency, on behalf of the Respondent, the Petitioner was refused asylum and ordered to be removed from the United Kingdom. The Petitioner appealed to the Asylum and Immigration Tribunal in terms of the Nationality, Immigration and Asylum Act 2002 section 82 on grounds specified in the 2002 Act section 84(1)(a) and (g).
[3] The Petitioner's appeal was heard at Glasgow on 18 June 2009 by Immigration Judge Blair. The Petitioner was represented by Ms L A Mulholland, solicitor, of Messrs Quinn, Martin, Langan, Solicitors, Glasgow. There was no appearance for the Respondent. Certain documents were submitted in support of the Appeal. By Determination dated 20 June and promulgated on 7 July 2009 under cover of Notification Letter dated 3 July the Immigration Judge dismissed the appeal. The Petitioner did not appeal or apply for review and reconsideration in terms of the Nationality, Immigration and Asylum Act 2002 sections 103 and 103A. The Petitioner was recorded by the Respondent as being "rights of appeal exhausted" on 17 July 2009.
[4] Two months later, by letter dated 14 September 2009, the Petitioner's solicitor made further representations to the Respondent in relation to the Petitioner's claim for Asylum. Additional documents were enclosed. The further representations were considered in terms of the Immigration Rules, Rule 353. By decision letter dated 20 March 2010 a member of Asylum Team 1 Glasgow, the UK Border Agency, acting on behalf of the Respondent determined that the decision of 8 May 2009 upheld by the Immigration Judge on 3 July 2009 should not be reversed; that the Petitioner's submissions did not amount to a "fresh claim" in terms of Rule 353; and that the Petitioner had no basis to stay in the United Kingdom and should make arrangements to leave without delay.
[5] The UK Border Agency determination of 20 March 2010 is the decision which the Petitioner now seeks to bring under Judicial Review. The Court granted first orders on 4 August 2010 and assigned 11 November 2010 as the date of the First Hearing.
Basis of claim for Asylum etc and Reasons for Refusal
[6] The Petitioner's claim for Asylum has been treated as (a) an application for Asylum based on a well-founded fear of persecution in the Islamic Republic of Iran due to political opinion; (b) an application for Humanitarian Protection based on fear that if returned to the Islamic Republic of Iran the Petitioner will face a real risk of death or torture etc; (c) a claim that requiring him to leave the United Kingdom or removing him to the Islamic Republic of Iran will be in breach of ECHR Arts. 2 (right to life) and 3 (right not to be tortured etc.)
[7] No issue has been taken with the Petitioner's claimed birth date 29 May 1988. It is accepted that the Petitioner is from Iran. The Respondent does not contest that the Petitioner is an Iranian national of Kurdish ethnicity. The Petitioner claims that Kurdish Sorani is his mother tongue. He claims to have left Iran on 20‑22 March 2009 and that he travelled to the United Kingdom on foot, by car and by lorry, arriving in the United Kingdom on 7 April 2009, the day of his arrest. The Petitioner claims that his departure from Iran was precipitated by an event that occurred on 18 March 2009.
[8] The claimed event on 18 March 2009 involved the Petitioner and his cousin travelling in his cousin's car carrying Kurdish Democratic Party of Iran [KDPI] literature which had been smuggled from Iraq. The cousin was driving. The car was intercepted by Iranian security forces. The security forces opened fire. The cousin was shot and wounded and subsequently shot dead. The Petitioner escaped. He claimed that his identity card was left in his cousin's car and that the authorities must have found it, discovered his identity and traced his home address. I assume that the setting for the claimed event was the border area of north-west Iran.
[9] For the avoidance of doubt the Petitioner does not submit that Kurdish ethnicity and sympathy for the KDPI would by themselves found a claim for Asylum etc. The Respondent for her part accepts that, if the Petitioner's account of the event of 18 March 2009 is true, the Petitioner is entitled to have a well-founded fear of persecution in the Islamic Republic of Iran due to political opinion.
[10] The reasons for rejecting the Petitioner's initial claim for Asylum etc were, to put it shortly, that his account was disbelieved. Among other things, it was not accepted that the Petitioner's cousin introduced him to the KPDI and got the Petitioner involved in working for the KDPI; it was not accepted that the Petitioner came across the Iranian security forces in the mountains on 18 March 2009 as claimed; it was not accepted that the Petitioner left Iran in the manner he claimed; and it was not accepted that the Petitioner travelled to the United Kingdom in the manner he claimed. It was found that that there was no evidence that failed asylum seekers who had exited Iran illegally were subject to ill-treatment on return to Iran.
Reasons for refusing the Petitioner's appeal to the Asylum and Immigration Tribunal
[11] At the appeal heard by Immigration Judge Blair on 18 June 2009 the Petitioner challenged the assessment of his credibility made in the Reasons for Refusal Letter. In support of his case he produced: "Statement in Chief by the Appellant" (commenting on the Reasons for Refusal Letter); fax copy attestation by KDPI in Europe (in French) together with certified translation; CV of translator Isabelle Capaldi; article from www.bewran.com website (in Kurdish Sorani) together with certified translation; CV of translator Kasim Kerim; copy birth certificate of deceased cousin together with certified translation and report by Dr A M Kakhki. The Respondent was not represented at the hearing. Ms Mulholland led evidence from the Petitioners. The Immigration Judge clarified the Petitioner's evidence in relation to the website article and the birth certificate [§§ 17-22]. The Immigration Judge did not consider the Petitioner credible. He considered that the Petitioner had fabricated his account and that the Petitioner was not at any risk of harm on return to Iraq (sic) [§§ 27, 52].
[12] The Immigration Judge made certain findings favourable to the Petitioner [§§ 28, 31, etc]. Even so, weighing competing factors and considering the whole evidence in the round he formed the view that the Petitioner had fabricated his account [§ 31.] The Immigration Judge's reasoning gave detailed consideration to the copy document bearing to be, on the evidence of the Petitioner and the report of Dr Kakhki, a copy birth certificate of the deceased cousin with the details of death entered on it [§§ 15‑19, 33‑43]. In the whole circumstances the Immigration Judge considered the document to be a fabrication [§ 43]. The Immigration Judge gave consideration to the document bearing to be a printout from the Bewran website, said to be a report of the cousin's death, and its translation [§§ 21‑22, 44‑47]. He considered the report to be a fabrication [§ 44]. The Immigration Judge gave consideration to the fax copy KDPI attestation dated at Paris 2 June 2009 [§§ 48‑50.] The translation stated:
"We, the undersigned, representatives of the PDKI in Europe, hereby testify that Mr [the Petitioner] is a sympathiser of our party and that as a result of the oppression exerted by the regime of the Islamist Republic or Iran over him, he was forced to leave Iran. His return to his country will put his life in danger..."
The Immigration Judge could not be satisfied that the attestation was reliable [§ 48.]. He stated: "As with the website I was given no evidence as to whether the KDPI has an office in Paris or whether this was an organisation which was prepared to provide attestations to those who seek them [§49]." The Immigration Judge gave consideration to the Petitioner's evidence about how the attestation was obtained and the content of the attestation. He stated that it did not appear to him that if the attestation were genuine it would have been expressed in such vague terms and would have...
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