R Dilshad Qader v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. C M G Ockelton |
| Judgment Date | 08 July 2011 |
| Neutral Citation | [2011] EWHC 1765 (Admin) |
| Docket Number | Case No: CO/8209/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 July 2011 |
[2011] EWHC 1765 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. C M G Ockelton
(Sitting as a Deputy Judge of the High Court
Case No: CO/8209/2010
Graham Denholm (instructed by Wilsons Solicitors) for the Claimant
Rory Dunlop (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 25 May 2011 & 10 June 2011
MR C M G OCKELTON
This judgment relates to the second of two linked claims for Judicial Review brought by the claimant, a national of Iraq. I gave judgment in the first of them, CO/10561/2008, on 29 June 2011. The claimant's immigration history, including his conviction for a serious criminal offence and subsequent detention under the Immigration Acts, is set out in the earlier judgment.
The claimant is the subject of a deportation order made on 1 October 2009. There had been a proposal for his removal to the area of the Kurdish Regional Government (KRG) in December 2009, but that was not in the end carried out.
Removals to Government-controlled Iraq (GCI) recommenced in about October 2009. I have been told of a charter flight then, and some others: there were two in June 2010. The defendant proposed to have the claimant removed on a scheduled flight on 1 August. Removal directions were issued dated 28 July. On 29 July this second Judicial Review claim was issued. The removal directions were deferred.
Other claimants had raised concerns about risks to those returned to GCI; and allegations were made about the treatment of individuals in the process of return. The Upper tribunal sought to address those issues (amongst others) in HM and others (Article 15 (c)) Iraq CG [2010] UKUT 331 (IAC). Judgment was not handed down until 22 September 2010, after the date proposed for the claimant's removal. The Upper Tribunal found that the removal of failed asylum seekers to GCI was not in general unlawful: there was no general risk of a breach of either Convention, nor were circumstances for that group of individuals such as to demand protection under the Qualification Directive 2004/83/EC.
The claimant asked for the matters raised in the second claim to be treated as an application to revoke the deportation order against him. That was done, and on 21 January 2011 the defendant refused to revoke the deportation order. That refusal was an 'immigration decision' within the meaning of s 82 (2) of the Nationality, Immigration and Asylum Act 2002 so in principle carried a right of appeal; but the defendant also certified the claim under s 94 as clearly unfounded, with the effect that the claimant cannot appeal against it from within the United Kingdom. A primary reason for both aspects of the decision was the conclusions reached by the Upper Tribunal in HM.
The claimant responded on 15 March 2011, with amended grounds of challenge. They rely on new material as supporting a challenge to the defendant's decision to rely on HM. The defendant says (and I see no reason to dispute this) that that new material was first served on her on 24 March 2011.
On 15 April the Court of Appeal gave permission to appeal against HM. On 18 April the defendant refused to treat the new material as a fresh claim, leaving the certification decision of 21 January intact. In its fully amended and updated form the claimant's claim challenges both those decisions.
So far as concerns "fresh claims", the starting point is in the Statement of Changes in Immigration Rules, HC395
"353 When a Human Rights or Asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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 been previously 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.
This paragraph does not apply to claims made overseas.
A Consideration of further submissions should be subject to the procedures set out in these Rules. An applicant who has made further submission shall not be removed before the SSHD has considered the submissions under paragraph 353 or otherwise.
This paragraph does not apply to submissions made overseas."
In R (WM (DRC)) v SSHD [2006] EWCA Civ 1495 the Court of Appeal considered both the Secretary of State's process in considering further submissions and the standard of review if the Secretary of State's decision was questioned in judicial proceedings. The question for the Secretary of State is whether there is a realistic prospect of success in an appeal to the Tribunal. In reaching her conclusion, she must apply the anxious scrutiny that governs all decisions on Asylum and Human Rights issues.
The task of the Court is to determine whether the Secretary of State has asked herself the right questions and applied anxious scrutiny to them. If so, her decision is amenable to challenge only on Wednesbury grounds, that is to say irrationality.
Following a number of cases in which it had been suggested that there was a role for the Judge in determining whether an appeal would have a realistic prospect of success, the Court of Appeal has now emphasised in R (TK) v SSHD [2010] EWCA Civ 1550, and MN (Tanzania) v SSHD [2011] EWCA Civ 193, that the test remains that set out in WM.
Section 94 of the Nationality, Immigration and Asylum Act 2002 allows and sometimes requires the Secretary of State to certify an Asylum or Human Rights claim on the ground that it is "clearly unfounded". Certification has an effect on the availability of rights of appeal. The members of the House of Lords who decided ZT (Kosovo) v SSHD [2009] UKHL 6 appear to have agreed that a claim which was clearly unfounded was one which could not possibly succeed in the Tribunal. They differed on whether the test was essentially the same as that to be applied under paragraph 353, or whether it was more rigorous: that is to say, whether there might be cases of which it could not properly be said that they could not succeed, although there was no realistic prospect of success. But there is no doubt that, again, the role of the Court is to determine whether the Secretary of State, again applying anxious scrutiny, has reached a conclusion that she was entitled to reach.
In challenging the decisions reached in the present case, Mr Denholm relies on two strands of argument: the new material, which he says has or ought to have an impact on decision-making in relation to the claimant's claim; and the challenge to HM by way of appeal, which he says ought to have an impact on the defendant's reliance on it.
It is convenient to examine those two strands before looking at their impact on the decisions. I will deal first with the new material. It will be apparent from what I have already said that it was submitted after the decision to certify, but before the most recent rejection of the claimant's submissions as a fresh claim. Mr Denholm relies principally on three sources, which I will consider in turn.
A. The Danish Immigration Service fact-finding Mission Report dated 10 September 2010. Although this report just predates the Tribunal's decision in HM, it was not before the Tribunal, because the hearing was some weeks earlier. Mr Denholm points out that it comes from a source with which the Secretary of State has co-operated in the past. There is, he submits, no reason to regard it as unreliable. It reached conclusions that might be regarded as casting doubt on the conclusions in HM. "The number of civilian casualties has increased steadily and one cannot speak any longer of an improvement in security for Iraqis", it says; and, in relation to Kirkuk in particular, "the situation is fragile".
But, as Mr Dunlop points out, the use of the present tense is a little misleading. The report derives from two fact-finding missions in February-March and April 2010. The report contains a specific warning about this: "it should be noted that the report does not contain information other than that which was gathered up until mid-April 2010". The information on which it is based is thus not more up-to date than that which was before the Tribunal at the hearing in the summer of 2010.
Further, the new report is simply one further piece of information in an assemblage that the Tribunal in HM recognised did not present a uniform picture. The Tribunal looked at 133 reports in all, about 50 of which were based on information as recent as or more recent than that in the Danish report. It scrutinised a larger range of evidence in much more detail than the authors of the Danish report do. It reached its conclusions on the evidence taken as a whole. There is in my judgment simply no basis for saying that this one report casts any doubt on the conclusions drawn in HM; and the Secretary of State was amply entitled to take the view that it did not.
B. News and other reports about the treatment of individuals returned to Iraq on a charter flight in...
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