Petition Of Naai (ap) Against The Secretary Of State For The Home Department

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 142

P166/16

OPINION OF LADY WISE

In the petition of

NAAI (AP)

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Pursuer: Forrest; Drummond Miller LLP

Defender: Gill; Office of the Advocate General

7 October 2016

Background

[1] The petitioner is a citizen of Libya. He arrived in the United Kingdom on 13 January 2011 on a student visa, valid until 10 July 2011. He claimed asylum on 6 June 2011 which was refused by the respondent on 1 July 2011. He appealed that decision to the First‑tier Immigration Tribunal and his appeal was allowed on 6 September 2011. The respondent appealed and the Upper Tribunal allowed that appeal leading to dismissal of the petitioner’s claim for asylum on 5 April 2012. An application for permission to appeal the Upper Tribunal decision was refused. The petitioner became appeal rights exhausted on 25 July 2012.

[2] On 5 February 2013 the petitioner presented further submissions and asked for them to be treated as a fresh claim. After further correspondence between the petitioner’s agents and the respondent, the respondent made a final decision in a letter dated 17 November 2015, the challenge to which is the subject matter of this petition.

[3] The background to the petitioner’s initial claim for asylum is relevant. The claim he made was that he was at risk if he was returned to Libya because of his attendance at demonstrations in the UK against the Gaddafi regime. It was accepted that the regime would have evidence of his attendance at those demonstrations as the petitioner’s father had telephoned him to inform him of that. The immigration judge concluded that the petitioner would be at risk on return to Tripoli. That having been decided he went on to consider briefly the question of internal relocation and decided that the petitioner could not solely relocate. The fact that Libya was in the middle of a civil war was a material factor. By the time the case was heard by the Upper Tribunal the Gaddafi regime had been overturned. The Upper Tribunal, having decided that the immigration judge had given insufficient reasons for his findings on internal relocation and had erred in law, found that there was no evidence that the petitioner would by that time be at any risk of persecution, given that by April 2012 the Gaddafi regime had been removed from power. The petitioner had named that regime as his likely persecutors and as they had fallen from power it followed that this claim fell to be rejected.

[4] The further submissions made in 2013 on behalf of the petitioner claimed that the risk now presented to him on return was that he was a member of the Wershfana tribe who were pro Gaddafi supporters and also that his father was a member of the revolutionary council at the time of that regime placing him at risk from the current government. This is effectively the antithesis of the claim made by the petitioner at the time he initially sought asylum. It was now his association with those connected with the previous regime that is said to create the risk.

[5] In support of his attempted fresh claim the petitioner lodged a very detailed report from Dr Alan George, dated 12 September 2012. That report sets out a considerable amount of background information in relation to Libya. Dr George had also been provided with a statement from the petitioner about his membership of the Wershfana tribe and his father’s strong support of the late Colonel Gaddafi. Dr George narrates the petitioner’s testimony as given to him and concludes that he might be at risk in Libya because of his membership of the Wershfana tribe and the continuing intermittent violence there. He then addresses the possibility of internal relocation or “internal flight” in the last three pages of his report. He expresses concerns that such internal relocation may be problematic and that there was no particular party or place that would be able to protect him.

The Applicable Law
[6] Counsel before me were agreed that the law is well established in relation to both the proper approach of the Secretary of State in making a decision as to whether further submissions constitute a fresh claim under rule 353 of the Immigration Rules and the correct approach of the court in a judicial review of such a decision. For that purpose I adopt the convenient summary by Lord Bannatyne in ABC v Secretary of State for the Home Department [2013] CSOH 32 which is in the following terms:

“1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3. The court must ask itself two questions:

1. Has the Secretary of State asked himself the correct question? – that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7).

Secondly, parties were agreed as to the approach to the issue of anxious scrutiny:

1. The Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny (see: Dangol at paragraph 7).

2. Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see: Dangol at paragraph 9).

3. But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner’s account (see: Dangol at paragraph 9).”

[7] The context of the respondent’s decision in this case is that it relied on a country guidance case relating to Libya which was issued in November 2013. The significance of country guidance cases is accordingly important when considering the petitioner’s challenges in this case. Mr Gill for the respondent provided a useful summary of the law on country guidance decisions and counsel for the petitioner Mr Forrest did not demur from anything said.

[8] The system of country guidance decisions of the Upper Tribunal is based on the unusual notion of “factual precedent”. The Upper Tribunal makes an authoritative determination of a general question of fact in relation to the conditions obtaining in a particular country, with the intention that it should be binding in subsequent proceedings. (See Macdonald’s Immigration Law & Practice, Ninth Edition, paragraph 20.119 (RLOA 8).)

[9] Section 12.2 of the Practice Directions of the Immigration and Asylum Chambers of the First‑tier Tribunal and the Upper Tribunal (RLOA 6) provides that a country guidance decision “must be treated as an authoritative finding on the country guidance issue identified in the determination”.

[10] There are strong policy reasons for this unusual system. It enables appropriate resources, in terms of the representations of the parties to the country guidance appeal, expert and factual evidence and the personnel and time of the tribunal, to be applied to the determination of conditions in, and therefore the risks of return, for persons such as the appellants in the relevant country guidance appeal to the country in question. It is aimed at arriving at a reliable, in the sense of accurate, determination. (See R (SG Iraq)) v Secretary of State for the Home Department [2013] 1 WLR 41 paragraphs 45-46.)

[11] For that reason, a judge of the First‑tier Tribunal “[is] required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying [his] not doing so” (R (SG (Iraq)), paragraph 47).

[12] Such a judge of the First‑tier Tribunal includes the putative immigration judge envisaged in a rule 353 consideration of whether the further submissions amount to a fresh claim. For that reason, although the practice directions do not apply to this court, when considering a challenge to a rule 353 decision this court must, logically, treat country guidance determination as authoritative (R (SG (Iraq)),paragraph 49).

[13] The particular country guidance decision pertinent to the petitioner’s further submissions is that of AT and Others, (article 15c risk categories) Libya CG [2014] UKUT 00318. That guidance addresses conditions in Libya “in the aftermath of the armed revolution that brought about the fall of the dictatorial and oppressive regime of Colonel Gaddafi”. The guidance makes clear that, as a generality, following the fall of that regime there is no longer such a high level of indiscriminate violence in Libya such that substantial grounds exist for believing that an individual would, solely by being present there, face a real risk which threatens his or her life or persons. However, the guidance identifies four particular categories of person that may be at risk. These include former high ranking officials within the intelligence services of the regime and others with an association at senior level with the regime; individuals close “to the centre of power within the former regime”; persons of Tawurga, Tuareg or Mashashiya ethnicity; and women who are of African ethnicity,...