A.a.a. (ap) For The Judicial Review Of A Decision Of The Secretaryof State For The Home Department Dated 15 May 2014 To Refuse To Treat Further Submissions As A Fresh Claim
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2015] CSOH 37 |
| Year | 2015 |
| Published date | 08 April 2015 |
| Date | 08 April 2015 |
| Court | Court of Session |
| Docket Number | P909/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 37
P909/14
OPINION OF LORD ARMSTRONG
In the Petition of
A A A (AP)
Petitioner;
For the Judicial Review of a decision of the Secretary of State for the Home Department, dated 15 May 2014, to refuse to treat further submissions as a fresh claim.
Petitioner: Mullan; Drummond Miller LLP
Respondents: Pirie; Office of the Advocate General
8 April 2015
Introduction
[1] The petitioner is a national of Nigeria. She is married and has two young children. She entered the UK, together with her children, on 20 April 2011. Her husband followed her, entering the UK in June 2011. On 28 March 2012, she made an application for asylum, citing her husband and children as dependents. By decision made on behalf of the Secretary of State for the Home Department, dated 26 June 2012, her application was refused. Her subsequent appeal to the Asylum and Immigration Tribunal was dismissed by decision dated 20 August 2012. She sought and was granted permission to appeal to the Upper Tribunal. By decision, dated 8 April 2013, the Upper Tribunal upheld the decision of the Asylum and Immigration Tribunal. Her subsequent application for permission to appeal against the decision of the Upper Tribunal was refused by decision, dated 22 May 2013.
[2] By letter, dated 8 August 2013, the petitioner’s solicitors made further representations on her behalf (“the first submission”), requesting that they be treated as a fresh application for asylum under paragraph 353 of the Immigration Rules (HC395). By decision made on behalf of the Secretary of State, dated 13 February 2014, (“the first decision”), the decision to refuse the petitioner asylum was not reversed, on the basis that the further representations did not amount to a fresh claim. By letter, dated 15 April 2014, (“the second submission”), the petitioner’s solicitors made further representations on her behalf, based on article 8 ECHR rights, requesting that they be treated as a fresh application for asylum under paragraph 353 of Immigration Rules (HC395). By decision made on behalf of the Secretary of State, dated 15 May 2014, (“the second decision”), it was stated that the petitioner’s article 8 rights had been carefully and fully considered in the first decision, that following review of the petitioner’s case and taking into account the evidence newly presented, her removal from the UK would not place the UK in breach of its obligations under article 8, and that there was no realistic prospect of an immigration judge, applying anxious scrutiny, reaching a different conclusion. The petitioner seeks judicial review of the second decision.
The case law
[3] The parties were in broad agreement as to the applicable law. The terms of paragraph 353 of the Immigration Rules provide that further submissions, made following refusal of a human rights or asylum claim, will amount to a fresh claim only if they are significantly different from the material that has previously been considered. In that regard a two stage test is to be applied, viz:
“(i) the content of the further submissions must not already have been considered;
and
(ii) taken together with the previously considered material, they must create a realistic prospect of success, notwithstanding its rejection.”
In terms of the decision in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, it has been recognised that the test, in that latter regard, is a somewhat modest one in that the question is whether there is a realistic prospect of success, but not more than that (paragraph 7); that the determination of the Secretary of State can only be impugned on Wednesbury grounds (paragraph 9); that the decision will be irrational if not taken on the basis of anxious scrutiny (paragraph 10); and that the correct question for the Secretary of State is not whether she herself thinks that a claim is a good one or would 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 (paragraph 11).
[4] Further it was stated in AK (Sri Lanka), R (on the application of) v Secretary of State of the Home Department [2009] EWCA Civ 447, 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 …”
[5] Anxious scrutiny is to be applied in accordance with the definition set out by Lord Carnwath in MN (Somalia) v Secretary of State for the Home Department [2014] UKSC 30, at paragraph 31. In particular, every relevant factor should be taken into account.
[6] The applicable law in cases where the applicant does not satisfy the requirements of the Immigration Rules but resists removal, (as in this case) was reviewed in MS v Secretary of State the Home Department [2013] CSIH 52. App. FM to the new Immigration Rules, which came into force in 2012, sets out the provisions relevant to those seeking to remain in the UK on the basis of their family life and is directed at the rights protected by article 8 ECHR (paragraph 5). Although the new Immigration Rules do not have the force of statute, they were debated in Parliament and therefore have a degree of democratic approval and, as instructions put forward by the government minster, can be said to result from the democratic process. These are factors to which weight should be attached when the application of the rules is considered by a court (paragraph 21). In circumstances where, on the application of the new rules, the application fails and it is clear that consideration under the rules has fully addressed the family life or private life issues arising under article 8, it is not necessary to consider the case separately from rules. The new rules are likely to deal adequately with the great majority of cases where article 8 rights to private or family life are put in issue (paragraph 26). If a tribunal is asked to consider leave outwith the rules, the applicant must put forward a reason for doing so by reference to circumstances in which refusal would result in unjustifiably harsh consequences such that refusal of the application would not be proportionate (paragraph 28). Common or typical features of cases where removal is ordered, such as the loss of contact or the prospect of difficulties likely to be faced following removal, do not indicate a good arguable case for an independent valuation of article 8 rights (paragraphs 33,34). In any event, an error of law which is not material, in circumstances where the claim to private life in the UK is precarious, will not lead to a realistic prospect that an immigration judge might find removal to be in contravention of article 8 (paragraph 37).
[7] The fact that removal would sever or adversely affect a family relationship is a consequence of removal which will inevitably follow in every case in which reliance is placed on relationships in support of an article 8 claim, and is not a circumstance in which refusal would result in unjustifiably harsh consequences such as to render refusal disproportionate (TA (Turkey) [2013] CSOH 122 at paragraph 40).
The submissions for the petitioner
[8] The bases of the representations made in the first and second submissions were different. The first submission had focused on the likelihood of the petitioner’s daughter being subjected to female genital mutilation (“FGM”), if returned to Nigeria. That, it was submitted, was apparent from a proper reading of the solicitor’s letter and the attached supporting documentation. Although the first submission had included a reference to the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 and the well‑known passage, at paragraph 46, relating to the primacy of the importance to be accorded to a child’s best interests, that had been in the context of a consideration of FGM.
[9] The response constituted by the first decision had correctly applied the relevant tests in determining whether a fresh claim had been made. Paragraph 6 of the decision was to the effect that the representations made were the same grounds as those put forward in the petitioner’s original claim for asylum, that is that, if returned to Nigeria, her daughter was likely to be at risk of being forced to undergo FGM. The decision correctly set out the relevant previous immigration history and the previous findings, which included, at paragraph 118 of the decision of the First Tier Tribunal (“the FTT”), dated 20 August 2012, that it had not been proved that the children would be at risk of danger in Nigeria and that it would be in the best interests of each of them to live there with their parents. It was clear from the first decision that the supporting evidence tendered as part of the first submission had been properly considered since its analysis extended to a number of pages. It was significant that in identifying the relevant factors to be considered in the process of assessing proportionality, at paragraphs 38-46 of the first decision, it had been accepted that during the petitioner’s time in the UK she would have established a family life with her husband and children, although it was not accepted that returning the family to Nigeria would constitute an interference with that family life since they could return together and continue their family life there (paragraph 45). More particularly, it was significant that it was recognised that “little evidence had been provided to show the extent and quality of (the petitioner’s) private life”, (paragraph 46). The first decision had correctly followed the guidance set out in MS, at paragraph 28, in its treatment of proportionality by reference to a good arguable case and had correctly considered paragraph 353 of the Immigration Rules. In general, no criticism...
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