Petition Of Yh For Judicial Review Of A Decision Dated 29 October 2014
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2016] CSOH 72 |
| Date | 20 May 2016 |
| Docket Number | P427/15 |
| Court | Court of Session |
| Published date | 03 June 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 72
P427/15
OPINION OF LADY WOLFFE
In the petition of
Y H
Petitioner;
for
Judicial Review of a decision dated 29 October 2014 refusing to treat the petitioner’s further submission as a fresh claim
Secretary of State for the Home Department
Respondents:
Petitioner: Dewar QC; Winter; Drummond Miller LLP
Respondents: Pirie; Office of the Advocate General
20 May 2016
Introduction
[1] The issue in this case is whether the letter from the petitioner’s agents to the Secretary of State for the Home Department (“the Secretary of State”) dated 16 January 2014 (“the cover letter”), together with its appendices (which, together with the cover letter, are “the further submissions”) constituted a ‘fresh claim’ for asylum for the purpose of rule 353 of the Immigration Rules (“the Rules”). By Letter dated 29 October 2014 (“the refusal letter”) the respondent determined inter alia that the petitioner’s further submissions did not constitute a fresh claim and that, as the petitioner had no basis to stay in the United Kingdom, she should make arrangements to leave without delay. There is no right of appeal afforded against a decision of the Secretary of State that a submission presented is not a “fresh claim” under rule 353 of the Immigration Rules. Accordingly, the petitioner challenges the refusal letter by this application for judicial review.
Background
[2] The petitioner is a Chinese national from Fujian province. She first entered the UK as a student on 7 August 2008. The last extension of her application for leave to remain expired on 29 August 2011. Meantime, the petitioner returned to China in March 2010 and married her current husband. She returned to the UK in April 2010. She and her husband have two children, both of whom were born in the UK but after the date upon which the petitioner’s leave to remain expired.
[3] In March 2012 the petitioner encountered immigration officers. She was deemed to be an overstayer. She claimed asylum on 7 March 2012 with her husband as a dependant. This was refused. The petitioner’s appeal to the First Tier Tribunal (“the FTT”) was refused by Judge Bradshaw, as were her applications to the FTT and, separately, to the Upper Tribunal (“the UT”) for permission to appeal that refusal. The FTT decision refusing the petitioner’s appeal dated 22 June 2012 (“the FTT decision”) is produced at no. 7/3 of process. The petitioner’s judicial review of the UT’s refusal to grant permission was itself refused (“the first judicial review”). Lord Boyd’s decision in the first judicial review is produced at no. 6/1 of process.
The petitioner’s further submissions giving rise to this judicial review
[4] The petitioner lodged further submissions with a view to their being accepted as a fresh claim under paragraph 353 of the Immigration Rules. The petitioner made further submissions on the following grounds:
- Her well-founded fear of persecution if returned to China due to her political opinion (“ground 1”);
- Her well-founded fear of persecution if returned to China due to her membership of a particular social group (“ground 2”);
- The best interest of her children (“ground 3”); and
- Risk of return as a failed asylum seeker (“ground 4”).
[5] She produced certain documents in support of her claim. The cover letter from her agents (running to 11 pages) and the additional documentation sent with the cover letter were compendiously lodged at no 6/3 of process (“the petitioner’s further submissions”). So far as relevant to the grounds of challenge in this petition, the additional documentation relied on as constituting “new evidence” included the following (retaining the numbering and description used in the cover letter):-
(1) Letter dated the 21st November 2013 from Hua Huang, Secretary-general of the UK Branch of China Democracy Party (“the UKCDP letter”);
(2) Receipt dated the 20th November 2013 from the UK Branch of the China Democracy Party confirming the petitioner’s membership (“‘the UKCDP receipt”);
(3) Chinese extract from the website of the UK Branch of the CDP – showing members’ comments;
(4) English translation of extract noted at item 3 above – showing two articles written by the petitioner;
(5) Chinese extract from the website of the UK Branch of the CDP – relating to an article written by the petitioner titled “Chinese Communist Party’s lies”. (This is the document containing a photo with the name of the petitioner alongside it, as referred to at paragraph 27 of the refusal letter.);
(6) English translation of extract noted at item 5 above;
(7) Chinese extract from the website of the UK Branch of the CDP – relating to an article written by the petitioner titled ‘About my views on China’s food safety’;
(8) English translation of extract noted at item 7 above;
(9) Letter from the Home Office to the petitioner dated the 12th January 2014;
(10) Copy of birth certificated for [child 1]; and
(11) Copy of birth certificate for [child 2].
Although not listed as part of the ‘new evidence’ in the further submissions, there was also produced a lengthy document (extending to 43 closely-typed pages) described as a “Country Expert Report” prepared by Dr Sheehan (“Dr Sheehan’s Report”). This was dated 29 August 2013. The version produced was unsigned and, from the redactions marked on it, bore to relate to someone other than the petitioner. (I shall refer to a report of this character as a “third party report”.) It was not a generic report. As will be seen, the petitioner advances certain criticism of the way that Dr Sheehan’s report was dealt with in the refusal letter. Separately, an issue arises as to whether it was permissible in certain circumstances to disregard Dr Sheehan’s third party report, and whether, as the respondents contend, those circumstances obtained in this case.
[6] By letter dated 29 October 2014 the Home Office refused to treat the petitioner’s further submissions as a “fresh claim” (“the refusal letter” is produced at no 6/4 of process).
[7] The petitioner challenges that refusal on a number of bases. However, at the start of her submissions at the first hearing, she indicated that she would not be advancing any argument in respect of her claim for asylum based on the best interests of the children and which formed ground 3 of her further submissions to the Secretary of State.
[8] The Home Office’s refusal to treat her further submissions as a fresh claim for the purposes of rule 353 is challenged on the overarching ground that the Secretary of State failed to apply anxious scrutiny in her consideration of the whole materials presented. The refusal letter was subjected to a number of detailed criticisms to demonstrate a want of anxious scrutiny. However, as senior counsel for the petitioner explained, the gravamen of his attack was on the failure on the part of the Secretary of State “to engage” with Dr Sheehan’s report in the refusal letter. Before turning to the petitioner’s arguments, it may assist to set out the relevant statutory provisions and the recent case-law concerning the proper approach by the court to fresh claim cases.
The law
A fresh claim under Immigration Rule 353
[9] The petitioner made her further submission to the Secretary of State with a view to this being treated as a fresh claim for the purposes of paragraph 353 of the Immigration Rules. Paragraph 353 sets out the correct approach on the part of the Secretary of State to material presented by way of further submissions after the dismissal of inter alia an asylum claim where there is no extant right of appeal. Immigration rule 353 is in the following terms:
“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”.
It is clear from rule 353 that the Secretary of State must first consider the further submissions and reach a decision on them. It is only if she rejects the further submissions that she requires to consider whether they amount to a fresh claim and, for that purpose, to consider the matters set out in paragraphs (i) and (ii) of the rule. In respect of limb (ii), the ‘realistic prospect of success’ test in Rule 353 is not a high test. The prospects need only be “more than fanciful”: per Laws LJ, para 34 in R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855.
The approach by the court in fresh claim cases
[10] While there has been some debate as to the proper approach to be taken by the court in considering challenges based on a failure to comply with Immigration Rule 353, that has been authoritatively resolved for this court by the Inner House in the case of Dangol v SSHD 2011 SC 560. In Dangol, an Extra Division of the Inner House considered the divergent views expressed in several first instance cases (referred to paragraph [6] in its decision). The court in Dangol confirmed the guidance given by the Second Division the previous year in FO, Petitioner 2010 SLT 1087 as to the proper approach to be taken by judges sitting at first instance. In particular, at paragraph [7] in Dangol, the court quoted the following from FO (which, in the manner of a Chinese nested box, itself contains an observation by Buxton LJ in the case of WM (Democratic Republic of Congo) v SSHD [2006] EWCA Civ 1495 (who in the passage quoted by FO was himself commenting on R v SSHD ex p Onibiyo [1996] QB 768 and Cakabay v SSHD [1999) Imm AR 176)):
“As far as...
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