R (Mehmood) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR. STEPHEN MORRIS QC Sitting as a Deputy High Court Judge |
| Judgment Date | 19 June 2009 |
| Neutral Citation | [2009] EWHC 1390 (Admin) |
| Date | 19 June 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2173/2006 |
[2009] EWHC 1390 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr. Stephen Morris Qc Sitting as a Deputy High Court Judge
Case No: CO/2173/2006
David Lemer (instructed by Thompson & Co) for the Claimant
Sarabjit Singh (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 23 March 2009
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Stephen Morris QC :
Introduction
The Claimant, Saad Tariq (also known as Tariq Mehmood), seeks judicial review of the refusal of the Defendant, the Secretary of State for the Home Department, to treat his further representations as a fresh asylum claim under paragraph 353 of the Immigration Rules. As matters have developed, the relevant refusal is contained in a letter from the Defendant dated 27 November 2008. The Claimant seeks a declaration that his representations dated 4 August 2008 represent a fresh claim and should be dealt with on that basis.
The issue is whether the Defendant's decision to refuse to treat the Claimant's representations as a fresh claim was unreasonable.
Factual Background
The Claimant is a citizen of Pakistan, now aged 35. He arrived in the United Kingdom on 20 September 1998 and claimed asylum on 29 September 1998, on the basis of persecution by reason of his Ahmadi faith. His claim was refused in a letter dated 22 September 2000. He appealed to an adjudicator, who dismissed his appeal in a determination promulgated on 23 April 2001. A human rights claim was refused on 7 December 2001. He appealed successfully to the Immigration Appeal Tribunal, which on 3 December 2003, remitted the case for de novo hearing. The appeal was then dismissed by a different adjudicator in a determination promulgated on 2 February 2004 (“the Adjudicator's Determination”). Permission to appeal to the IAT was refused on 27 April 2004.
Between 30 June 2004 and 23 February 2006, the Claimant made further representations on asylum and human rights grounds. These representations were ultimately refused by a letter dated 10 March 2006, the Claimant having been detained pending removal on 23 February 2006.
The application for judicial review was made on 13 March 2006. James Goudie QC, by order dated 1 June 2006, refused permission on the papers. By consent order dated 30 October 2006, the renewed permission application was adjourned, pending the determination by the Asylum and Immigration Tribunal (“AIT”) of pending Country Guidance cases concerning issues relating to those of the Ahmadi faith in Pakistan.
On 17 October 2007 the AIT promulgated its determination in the Country Guidance case of IA and others CG (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088. On 4 April 2008, the AIT promulgated its determination in the further case of MJ and ZM (Ahmadis-risk)(Pakistan) [2008] UKAIT 00033; and on 22 May 2008 the Court of Appeal gave judgment in the appeal in the IA case: SSHD v. IA (Pakistan) [2008] EWCA Civ 580.
At the renewed oral hearing in the present case on 21 July 2008, Walker J granted permission, subject to certain conditions providing for the making of further submissions. The Claimant made further representations by letter dated 4 August 2008, and received on 8 September 2008 (“the Further Representations”). By its decision letter of 27 November 2008 (“the Decision”), the Defendant refused to treat these further representations as amounting to a fresh claim. On 9 December 2008, the Claimant filed Amended Grounds of Claim for judicial review and on 25 February 2009 the Defendant filed Detailed Grounds of Defence.
The Adjudicator's Determination and the Decision are considered in more detail below. Before doing so, I set out the relevant legal principles applicable to the Claimant's case.
Relevant legal principles
Fresh claims and judicial review
Paragraph 353 of the Immigration Rules sets out the correct approach to material presented by way of further submissions after the dismissal of an asylum claim where there is no extant appeal. It 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.
This paragraph does not apply to claims made overseas.”
The approach to be adopted, by the Secretary of State and by this Court respectively, when dealing with an application under paragraph 353 is set out in the judgment of Buxton LJ in R (on the application of WM DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, at §§6 to 11. The Secretary of State has to consider whether there is new material which is significantly different from that already submitted, and if so, whether that material, when taken together with the previous material, creates a realistic prospect of success in a further claim. In so doing, the Secretary of State must be informed by anxious scrutiny of the material.
As to the approach to be adopted by the Court when itself reviewing a decision of the Secretary of State taken pursuant to paragraph 353, the first issue for the Court is whether the Secretary of State asked herself the right question, namely whether there is a realistic prospect of success before an immigration judge. The second issue for the Court is whether the Secretary of State has applied the requirement of anxious scrutiny. Finally, the question for the Court is whether the Secretary of State's conclusion of “no realistic prospect” is Wednesbury unreasonable; it will be unreasonable, in particular, if the conclusion was not reached on the basis of anxious scrutiny. Most recently, in ZT (Kosovo) v. SSHD [2009] UKHL 6 [2009] 1 WLR 348 the House of Lords confirmed this as the correct approach for the Court. At the same time, the majority of their Lordships recognised that, where there are no issues of primary fact, the Court's own view as to whether there is a realistic prospect before the immigration judge is likely to inform its view as to whether the Secretary of State's conclusion was Wednesbury unreasonable and that, in such a case, if the Court itself concludes that a claim has a realistic prospect of success, it will quash the Secretary of State's contrary view as being irrational: see opinions at §§ 21 to 23, 75 to 76 and 83.
The issue before me therefore is whether, applying the requirement of anxious scrutiny, the decision of the Defendant that, considering the Claimant's personal circumstances in the light of IA and MJ and ZM, there is no realistic prospect of the Claimant establishing, before an immigration judge, that there is a real risk of persecution or ill-treatment upon return to Pakistan was unreasonable and whether in reaching that conclusion the Defendant satisfied the requirement of anxious scrutiny.
The Claimant also seeks to rely upon the principle now enshrined in the Immigration Rules as paragraph 339K:
“339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated”
The principles to be applied to Pakistan Ahmadi cases
The two recent Country Guidance cases of IA and MJ and ZM consider the approach to be adopted to asylum and human rights claims concerned with the risk on return to Pakistan of those of the Ahmadi faith. IA addresses specifically the issue of risk in Rabwah, whilst MJ and ZM addresses the position of Ahmadis in Pakistan more generally. I deal with the relevant judgments in chronological order.
(1) IA and Others in the AIT
In IA, the AIT held, contrary to earlier case law, that Rabwah does not necessarily constitute a safe haven for every Ahmadi and should not necessarily be treated as an appropriate place for relocation within Pakistan. The headnote to the AIT's determination states as follows:
“Contrary to what is said in KM (Pakistan) [2004] UKAIT 00302, MM (Pakistan) CG [2002] UKIAT 05714, KK (Pakistan) [2005] UKIAT 00033, MC (Pakistan) [2004] UKIAT 00139, and AZ (Pakistan) CG [2002] UKIAT 02642, Rabwah does not constitute a safe haven for any Ahmadi at risk of persecution elsewhere in Pakistan and should not, without more, be treated as an appropriate place of internal relocation.”
Relevant parts of the AIT's decision are as follows:
“3. The existence of what has been described as an Ahmadi stronghold, as indeed it is when seen from the point of view of the demographic structure, has seemed on a number of occasions to the Tribunal to give a reason for supposing that an Ahmadi who in Pakistan needed to seek refuge, that is to...
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