N.a.k. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department Dated 3rd December 2008
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2009] CSOH 162 |
| Date | 08 December 2009 |
| Docket Number | P1994/08 |
| Published date | 08 December 2009 |
| Court | Court of Session |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 162 | |
| P1994/08 | OPINION OF LORD KINCLAVEN in the Petition of N A K Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 3 December 2008 _______________ |
Petitioner: S. Winter, Solicitor Advocate; McGill & Co, Edinburgh;
Respondent: K. Campbell, Advocate; Office of the Solicitor to the Advocate General.
8 December 2009
Introduction
[1] This is a petition seeking judicial review of a decision of the Secretary of State for the Home Department dated 3 December 2008 (No 6/1 of Process) refusing to treat certain further submissions from the petitioner as amounting to a fresh application for asylum.
[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, including Scotland. It is admitted that this court has jurisdiction.
[3] Mr Winter, Solicitor Advocate, appeared for the petitioner. He sought reduction of the decision dated 3 December 2008.
[4] Mr Campbell, Advocate, appeared for the respondent. He invited me to refuse the orders sought by the petitioner.
[5] In my opinion the petitioner's submissions are sufficiently well-founded to result in decree of reduction.
[6] In the whole circumstances, and for the reasons outlined below, I shall sustain the petitioner's plea-in-law, repel the first three pleas-in-law for the respondent, and reduce the respondent's decision dated 3 December 2008.
The Background
[7] The petitioner arrived in the United Kingdom on 7 February 2005. He applied for asylum on the same day. By letter dated 7 April 2005 the respondent refused to grant the petitioner asylum. The petitioner appealed to an Immigration Judge. By a determination promulgated on 16 June 2005 (No 6/7 of Process) the Immigration Judge refused the petitioner's appeal on asylum grounds and also under Article 3 of the of the European Convention of Human Rights and Fundamental Rights (ECHR). The Immigration Judge disbelieved him.
[8] By letter dated 10 December 2005 (No 6/2 of Process) the petitioner made further submissions to the respondent. The petitioner avers that he submitted fresh evidence to the respondent in support of those further submissions and that he relied upon a letter he had received from the Democratic Party of Iranian Kurdistan ("DPIK" also referred to as "KDPI") confirming he is a supporter. By letter dated 5 November 2007 the respondent refused to treat the further submissions as giving rise to a fresh application ("the refusal decision"). Thereafter a petition for judicial review was lodged with the Court. The respondent conceded that petition and agreed to reconsider the further submissions. By letter dated 3 December 2008 (No 6/1 of Process) the respondent again refused to treat the further submissions as amounting to a fresh claim. It was not disputed that the petitioner's only remedy is judicial review.
[9] In the current Petition as amended (No 15 of Process) the Petitioner seeks:-
(1) reduction of the refusal decision dated 3 December 2008;
(2) the expenses of the petition; and
(3) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case.
[10] Declarator is no longer insisted upon.
Productions
[11] The Productions for the petitioner were as follows:-
6/1 Refusal of application dated 3 December 2008 - the decision under review;
6/2 Application dated 10 December 2005 - which includes a letter from the Democratic Party of Iranian Kurdistan ("DPIK"), Bureau of International Relations, dated 7 September 2005;
6/3 Operational Guidance Note - Iran 27 February 2007;
6/4 Home Office Country of Origin Information - Iran - August 2008;
6/5 Home Office Country of Origin Information - Iran - April 2004;
6/6 Home Office Country of Origin Information - Iran - October 2004;
6/7 Immigration Judge decision promulgated 16 June 2005.
Authorities
[12] The petitioner referred me to the undernoted authorities:-
1. WM (DRC) v SSHD [2006] EWCA Civ 1495 (particularly at paragraphs 6, 7, 10 and 11);
2. MG v SSHD [2008] COSH 115;
3. AD Iran CG [2003] UKIAT 00107 (paragraphs 3, 4, and 10-13);
4. Zarnaghi v SSHD [2002] UKIAT 02272 (paragraphs 4 and 12-14);
5. Sepet and Bulbul v SSHD [2003] UKHL 15;
6. TN (Uganda) v SSHD [2006] EWCA Civ 1807 (paragraph 10);
7. Hassan v SSHD [2004] SLT 34;
8. Boybeyi v SSHD [1997] ImmAR 491;
9. AK v SSHD [2007] EWCA Civ 535;
10. Harbachou v SSHD [2007] CSOH 18;
11. Kaniz and others v SSHD [2007] CSOH 29;
12. Kurtaj v SSHD [2007] EWHC (Admin) 221;
13. IK v SSHD [2004] UKIAT 00312 (paragraph 133.7);
14. J v SSHD [2006] EWCA Civ 1238 (paragraphs 8, 9 and 11); and
15. R (Iran) and others v SSHD [2005] EWCA Civ 982 (paragraphs 21 and 27.
[13] The respondent also referred me to:-
1. Devaseelan v SSHD [2002] UKAIT 702; [2003] ImmAR 1 (particularly at paragraphs 1 and 37-42);
2. AA (Somalia) v SSHD [2007] EWCA Civ 1040;
3. Januzi and others v SSHD [2006] EWHL 5; [2006] 2 AC 426;
4 South Bucks DC v Porter (No 2) [2004] 1 WLR 1953;
5. Immigration Rules, r. 353;
6. Boum v SSHD 18 July 2006, Lord Macphail, [2006] CSOH 11; and
7. Extract from Asylum and Immigration Tribunal Practice Directions, Section 18 (Starred and Country Guidance Determinations).
The Petitioner's Position
[14] In overview, the petitioner sought judicial review on the following six inter-related grounds.
Ground (1)
[15] In Ground (1) the petitioner avers that that the respondent has acted unreasonably et separatim acted irrationally.
[16] 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 court. The respondent has made what would appear to be a decision on the merits of the petitioner's case. In so doing the respondent has erred by treating her own view on the validity of the further submissions and its effect as more than a "starting point" (see the last paragraph on the second page and the last paragraph of page 3 of the refusal letter). In addition the previous Immigration Judge does not appear to have considered whether the petitioner would be questioned on return and how he would respond to such questioning. Although the respondent refers to whether there would be a realistic prospect of success before an Immigration Judge the respondent does not appear to have kept clearly in mind the proper test to be applied. The respondent 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 that no reasonable decision maker would in the circumstances have acted (see WM (DRC) v SSHD [2006] EWCA Civ 1495 per Lord Justice Buxton at paragraphs 6, 7 and 11).
Ground (2)
[17] In Ground (2) the petitioner avers that respondent has erred by failing to bear in mind that delay (which is referred to in the refusal letter No 6/1 of Process at page 2 of 8) and the previous Immigration Judge's findings 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.
[18] The new material referred to is the letter from the Democratic Party of Iranian Kurdistan "DPIK" dated 7 September 2005 which forms part of No 6/2 of Process.
Ground (3)
[19] In Ground (3) the petitioner avers that the respondent erred in law by failing to satisfy the requirement of anxious scrutiny.
[20] The petitioner submitted that contrary to the assertion by the respondent on page 3 of the refusal letter that there is no evidence to substantiate the petitioner being at real risk the respondent has failed to properly consider all information. Although the respondent has considered some of the country information, the country information also demonstrates that the petitioner is reasonably likely to be questioned on return not only with regard to his support of the KDPI but also for appearing to have left illegally (see AD Iran CG [2003]...
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