A.m. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2010] CSOH 121 |
| Date | 26 August 2010 |
| Published date | 27 August 2010 |
| Court | Court of Session |
| Docket Number | P275/10 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 121 | |
| P275/10 | OPINION OF LORD KINCLAVEN Petition by A M Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 15 February 2010 ________________ |
Petitioner: S. Winter, Solicitor Advocate; McGill & Co, Solicitors, Edinburgh
Respondent: Olson, Advocate: Office of the Solicitor to the Advocate General
26 August 2010
Introduction
[1] This is a first hearing in a petition seeking judicial review of a decision of the Secretary of State for the Home Department dated 15 February 2010 (No 6/1 of Process) refusing to treat certain further information from the petitioner as amounting to a fresh application for asylum ("the refusal letter").
[2] The respondent is the Secretary of State for the Home Department who has responsibility for the enforcement of immigration control throughout the United Kingdom. It is admitted that this court has jurisdiction.
[3] Mr Winter appeared for the petitioner. Mr Winter moved me to sist these proceedings and sought declarator that the respondent had acted unreasonably et separatim acted irrationally in failing to issue a notice of appeal allowing the petitioner an in country right of appeal against the refusal letter. Esto that remedy was not granted, Mr Winter sought reduction of the refusal letter on the other grounds set out in the petition (as amended) outlined below.
[4] Mr Olson appeared for the respondent. He opposed the sist and invited me to refuse the orders sought by the petitioner and to dismiss the petition for the reasons set out in the Answers.
[5] I refused the petitioner's motion to sist, which was made at the start of the hearing, and I proceeded to hear both parties' substantive arguments. I am grateful to Mr Winter and Mr Olson for their assistance.
[6] In short, in my opinion, the respondent's submissions are well-founded.
[7] In the whole circumstances, having heard parties, I shall sustain the respondent's pleas-in-law, repel the pleas-in-law for the petitioner and dismiss the petition.
[8] My reasons are as follows.
The Petitioner's Position
[9] The petitioner claims that he left Iran on 11 September 2008 and eventually arrived in the UK on 6 October 2008.
[10] The petitioner claimed asylum on 10 October 2008 and was refused by the respondent on 31 October 2008. The petitioner thereafter appealed to an Immigration Judge. The Immigration Judge refused the petitioner's appeal on asylum grounds and also under Article 3 of the European Convention of Human Rights and Fundamental Rights (ECHR) on 12 December 2009. The Immigration Judge disbelieved the petitioner. A copy of the determination is produced (No 6/3 of Process). The petitioner sought reconsideration from the Asylum and Immigration Tribunal and this was refused on 25 February 2009.
[11] By letter dated 31 August 2009 (No 6/2 of Process) the petitioner made further submissions to the respondent. The petitioner relied upon a request from the disciplinary forces of Mariwan to arrest the petitioner and a membership card from the Kurdish Worker's Organisation of Iran (Komala) in the name of his father.
[12] By letter dated 15 February 2010 (No 6/1 of Process) the respondent refused to treat the fresh evidence as giving rise to a fresh application ("the refusal decision"). The respondent's only remedy is judicial review.
[13] The petitioner now seeks:
i. declarator that the respondent has acted unreasonably et separatim acted irrationally in failing to issue a notice of appeal allowing the petitioner an in country right of appeal against the refusal letter dated 15 February 2010. Esto this remedy is not granted.
ii. reduction of the refusal letter dated 15 February 2010;
iii. the expenses of the petition;
iv. such other orders as may seem to the court to be just and reasonable in all the circumstances of the case.
[14] The petitioner did not insist upon declarator that the refusal letter is unreasonable et separatim irrational.
Productions
[15] I was referred to the following Productions for their terms:-
6/1 - Refusal letter dated 15 February 2010;
6/2 - Application and enclosures dated 31 August 2009;
6/3 - Asylum and Immigration Tribunal determination 12 December 2008 and intimation letter dated 15 December 2008;
6/4 - Country of Origin Report, Iran, January 2010, particularly paragraph 11.41; and
6/5 - Extract: Nationality Asylum and Immigration Act 2002, Part 5.
Authorities
[16] I was also referred to the following authorities:-
1 BA v SSHD [2009] UKSC 7, particularly at paragraphs 5, 6, 10, 14, 32-33, 35, 36, and 38;
2 ZA and SM v SSHD [2010] EWCH 718 (Admin), at paras 30-32;
3 WM (DRC) v SSHD [2006] EWCA Civ 1495, at paras 6-7, 11, and 22;
4 SB v SSHD [2009] UKAIT 00053, the rubric and paras 46, 48, 50 and 52;
5 RC v Sweden ECtHR Application No 41827/07, at paras 35-36;
6 R (Iran) and others v SSHD [2005] EWCA Civ 982, at para 27;
7 IK v Secretary of State for Home Department [2004] UKAIT 00312, at para 133, particularly sub-paragraph 7;
8 J v Secretary of State for Home Department [2006] EWCA Civ 1238;
9 Sepet and Bulbul v SSHD [2003] UKHL 15, at para 23;
10. Hassan v SSHD 2004 SLT 34,
11. SSHD ex p Boybeyi [1997] Imm AR 491, at pages 495-496;
12. R (on the application of TN) (Uganda) [2006] EWCA Civ 1807, para 10;
13. AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535;
14. Extract from Borders, Citizenship and Immigration Act 2009, section 53;
15. Extract from Tribunals, Courts and Enforcement Act 2007, section 20;
16. Eba [2010] CSOH 45;
17. ZT v SSHD [2009] UKHL 6, paras 54-55;
18. Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 00439, paras 5 and 29-36;
19. Asylum and Law Practice (Symes and Jorro), paragraph 14.79;
20. AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447, paras 33-34; and
21. N.A.K Petitioner [2009] CSOH 162.
The Petitioner's preliminary point
[17] As noted above, a motion to sist the cause was made by Mr Winter at the bar. It was opposed by the respondent who had been given prior intimation of the motion.
[18] The point underlying the motion is set out in paragraph 6 of the petition which is in the following terms:
"That the respondent has acted unreasonably et separatim acted irrationally by failing to issue a notice of appeal allowing the petitioner an in country right of appeal against the refusal decision dated 15 February 2010. That claims which are not certified under section 94 of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act") or excluded under section 96 of the 2002 Act, if rejected, should be allowed to proceed to appeal under sections 82 and 92 of the 2002 Act, whether or not they are accepted by the respondent as fresh claims. That Rule 353 has no part to play in the legislative scheme (see BA v SSHD [2009] UKSC 7 per Lord Hope at paragraphs 32-33). Reference is also made to ZA and SM v SSHD [2010] EWHC 718 (Admin) which held that the approach advocated in BA, supra was wrong (see ZA and SM at paragraphs 30-32). That the respondent has confirmed there has been an appeal marked by the claimants, ZA and SM, to the Court of Appeal in England and Wales."
[19] Mr Winter acknowledged that there appears to be a tension between the House of Lords' decision in BA, supra and the High Court in ZA and SM, supra which has subsequently been appealed to the Court of Appeal.
[20] This issue arose in the course of Mr Winter's research and there did not appear to be any Scottish authority on this preliminary point. Mr Winter thought it appropriate to bring the Court's attention to the ongoing proceedings in England and to raise the question of whether it would be appropriate to sist the present case.
[21] I was grateful to Mr Winter for bringing the point to my attention. However, I was satisfied that, as the law stands at present, the appropriate course was to refuse the motion and to hear parties on their other substantive submissions.
[22] The current authorities tend to support the respondent. I shall maintain the status quo. I shall decide the preliminary issue in favour of the respondent.
The Petitioner's position
[23] Apart from the preliminary point (mentioned above), the petitioner alleges essentially that the respondent has acted unreasonably et separatim acted irrationally. The petitioner seeks judicial review on the following grounds.
[24] Firstly, esto the correct approach is that the respondent is under no obligation to allow the petitioner an in country right of appeal (i. e. the preliminary point mentioned above), the respondent has thereafter applied the test under Rule 353 in the wrong manner. The respondent has erred at paragraphs 10 and 11 of the refusal letter by failing to bear in mind that the previous Immigration Judge's findings (cited on pages 2-3 of the refusal letter) may be of little relevance when, as is alleged in the present case, the new material does not emanate from the petitioner himself, and thus cannot be said to be automatically suspect because it comes from a tainted source. The respondent also appears to have failed to recognise that there is only a modest test before the submissions become a fresh claim. The respondent appears to have erred by failing to consider that the Immigration Judge does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. In so doing the respondent has acted unreasonably and in a way no reasonable decision maker would in the circumstances have acted (see WM (DRC) v SSHD [2006] EWCH Civ 1495 per Lord Justice Buxton at paragraphs 6, 7 and 11).
[25] Secondly, the respondent has acted unreasonably et separatim acted irrationally. The respondent has erred in law because her decision to refuse to accept that further submissions amounted to a fresh claim is irrational by appearing to usurp the function of the...
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