I.m. (ap) For Judicial Review Of A Decision Of The Secretary Of State For The Home Department Dated 31 March 2010
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2010] CSOH 103 |
| Year | 2010 |
| Published date | 30 July 2010 |
| Docket Number | P487/10 |
| Court | Court of Session |
| Date | 30 July 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 103 | |
| P487/10 | OPINION OF LORD TYRE in the cause I.M. (A.P.) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 31 March 2010 Defender: ________________ |
Petitioner: Caskie; Drummond Miller LLP
Respondent: Webster; Office of the Solicitor to the Advocate General
30 July 2010
[1] The petitioner is a citizen of Libya who arrived in the United Kingdom on 31 October 2008 with leave to enter as a visitor. On 9 April 2009 she sought asylum. Her application was refused by the Secretary of State on 28 April 2009 and her appeal against refusal was dismissed by an Immigration Judge on 24 June 2009. Her appeal rights ended on 11 November 2009. On 10 December 2009 she was detained pending removal but, in the light of submissions made on her behalf, her removal was cancelled and she was released from detention. Those submissions were made in a letter dated 15 December 2009 in which the petitioner sought leave to remain in the United Kingdom under reference to her right to respect for her family life under Article 8 of the European Convention on Human Rights. She was further interviewed on 18 February 2010. By a decision letter dated 31 March 2010 addressed to the petitioner's solicitors, the Secretary of State refused to accept that the petitioner's removal from the United Kingdom would give rise to a breach of her Article 8 rights. The Secretary of State further declined to accept that the petitioner's representations constituted a fresh claim with a consequent right of appeal against removal. In this application for judicial review the petitioner seeks reduction of the latter decision and the matter came before me for a first hearing.
[2] The petitioner's claim for asylum in 2009 was based upon a fear of exposure to a risk of persecution on her return to Libya. The Immigration Judge who refused her appeal made certain adverse findings regarding the petitioner's credibility. The claim for asylum now constitutes no part of the representations made on her behalf. Rather, the petitioner asserts that her removal would give rise to a breach of her Article 8 right to family life for the following reasons. She states that she has formed a relationship with a person to whom I shall refer as Mr M, who was born in Libya but who was granted asylum in the United Kingdom in 2003 and became a naturalised British citizen in May 2009. The petitioner and Mr M have known one another since their early teenage years in Libya, when Mr M was a friend of the petitioner's older brother. After her arrival in the United Kingdom, Mr M made contact with the petitioner. He visited her on a number of occasions and their relationship developed. The petitioner states that on 23 September 2009 she and Mr M underwent a marriage ceremony at the Manchester Islamic Centre. This marriage is not recognised as valid under English or Scottish law because the petitioner and Mr M have not obtained a certificate of approval from the Secretary of State. The petitioner further states that she and Mr M have cohabited and that she suffered a miscarriage in December 2009.
Statutory provisions and the test to be applied by the Secretary of State
[3] The statutory background to the making of a "fresh claim" on asylum or human rights grounds has been before the courts on many occasions. The relevant provision is Rule 353 of the Immigration Rules (made by the Secretary of State in exercise of powers contained in the Immigration Act 1971), which provides as follows:
"When a human rights or asylum claim has been refused 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 the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
[4] There is therefore a two-stage process for the decision maker. First, he or she must decide whether or not to accept the asylum or (as the case may be) human rights claim. Where the claim is rejected, the decision maker must then consider whether it is "significantly different" from the material previously considered, as defined in the Rule, i.e. whether the content (a) has not already been considered and (b) taken together with previously considered material creates a realistic prospect of success in an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the refusal. If so, the decision maker must treat the claim as a fresh claim notwithstanding his or her decision to reject it, with the consequence that the refusal is appealable.
[5] It is common ground that the standard to be applied in assessing whether a claim has a "realistic prospect of success" is a modest one. In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855, Laws LJ observed at paragraph 34:
"A case which has no realistic prospect of success...is a case with no more than a fanciful prospect of success. 'Realistic prospect of success' means only more than a fanciful such prospect." (Emphasis in original.)
That description of the standard has been adopted in a number of Scottish applications for judicial review of decisions taken by the Secretary of State in pursuance of Rule 353 and I adopt it for the purposes of this application.
[6] During the hearing, there was discussion of whether the standard to be applied by the Secretary of State in fresh claim cases considered under Rule 353, where the test is "a realistic prospect of success", is the same as that to be applied in cases concerning certification by the Secretary of State under section 94(2) of the Nationality, Immigration and Asylum Act 2002, where the statutory test is that an asylum or human rights claim is "clearly unfounded". The two tests were closely analysed and compared by the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 and differing opinions were expressed. In AK (Sri Lanka) (above), Laws LJ cited passages from each of their Lordships' opinions in ZT (Kosovo). Having observed at paragraph 33 that "these are deep waters", Laws LJ concluded at paragraph 34 that there was a difference between the two tests but that the difference was "so narrow that its practical significance is invisible". For my part I find it unnecessary to venture far into these waters: this application is concerned with the "realistic prospect of success" test, and as I have already noted the standard to be applied in Rule 353 cases seems to have been clearly established. There does, however, remain the difficult question of whether the role of this court is the same in Rule 353 cases as in certification cases and, in particular, whether observations made in certification cases regarding the role of the court can safely be applied in a Rule 353 case such as the present application. In respectful agreement with Carnwath LJ in R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at paragraph 10, I propose to proceed on the basis that, whatever theoretical difference there may be between the two tests, it can for practical purposes be ignored, and accordingly that observations made in certification cases can provide guidance as to the proper approach to be taken by the court in the present case.
Scope of the review by the court
[7] Parties were in agreement that the approach to be adopted by this court was as explained by Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraphs 8-11: that is, that the decision of the Secretary of State is challengeable only on Wednesbury grounds, with the rider that a decision will be challengeable as irrational if not taken on the basis of "anxious scrutiny". At paragraph 11, Buxton LJ set out the matters which the court must address as follows:
"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... Secondly, in addressing that 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 of these questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
This approach has been adopted by the court in Scotland, notably in the decision of the Second Division in FO, Petitioner [2010] CSIH 16 at paragraph 23. It has also been reaffirmed by the Court of Appeal in England in R (TK) v Secretary of State for the Home Department [2009] EWCA Civ 1550 at paragraph 10.
[8] It respectfully appears to me, however, that the approach described by Buxton LJ in WM (DRC) requires some elaboration in the light of recent decisions of the House of Lords, the Supreme Court and the Court of Appeal. In the first place, I have derived assistance from the following explanation of the expression "anxious scrutiny" by Carnwath LJ in R (YH) (above) at paragraphs 22-24:
"22. The expression "anxious scrutiny" derives from the speech of Lord Bridge in Bugdaycay v Secretary of State [1987] AC 514, 531, where he said:
"The most fundamental of all human rights is the individual's right to...
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