R Sara Shakeri v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURNETT |
| Judgment Date | 13 March 2012 |
| Judgment citation (vLex) | [2012] EWHC J0313-1 |
| Date | 13 March 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7101/2010 |
[2012] EWHC J0313-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Burnett
CO/7101/2010
Miss C Fielden (instructed by Fadiga and Company) appeared on behalf of the Claimant
Dr C Staker (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
( )
This claim for judicial review comes before me as a challenge to a decision of the Secretary of State for the Home Department of 15 June 2010 refusing to treat representations, made on behalf of the claimant, as a fresh claim for the purposes of paragraph 353 of the Immigration Rules. That decision was augmented by a more recent one dated 13 January 2011. Permission to apply for judicial review was granted by Mr Rabinder Singh QC, as he then was, on 28 January 2011.
The claim was issued on 28 June 2010. It was urgent because the claimant's husband was due to be removed to Iran the following day. The claim form contained no information of any substance. Attached to it was a document described as "Emergency Statement of Grounds", settled by counsel, which was expressed to be provisional. The removal of the claimant and her husband was deferred by the Home Office. In September 2010, Irwin J stayed removal after permission to apply for judicial review had been refused by the Single Judge, but a notice of renewal had been lodged. At that time Irwin J contemplated that fresh proceedings might be issued either by the claimant or her husband, but that has not in fact occurred.
In November 2010 the claimant's husband sought permission to be joined as a claimant himself in these proceedings. That application was refused by Calvert Smith J. There is no sign of any proceedings having been issued by him.
The proceedings have never been amended formally to take in the more recent decision. It is a striking feature of this judicial review claim that, so far as either counsel has been able to discern, no witness statement has ever been served by, or on behalf of, the claimant. Instead a large volume of material in documentary form has been produced piecemeal over the time during which these proceedings have been afoot. No statement was provided by the claimant when the application to renew was made.
The only statement that the parties have located was one made by the claimant on 10 September 2007 in support of her first attempt to make a fresh claim, to which was attached a number of photographs showing her taking part in anti-Iranian activities. It is also a striking feature of this case that a considerable amount of material was provided to the Home Office without a clear or proper explanation of its context. The same has been the position in this court. This has led to considerable difficulty for Miss Fielden, who appears for the claimant today, who has done her best to explain some of the material that has been placed before the court. That said, and as we shall see when I look at some material which is available on a website, the absence of a proper evidential foundation has made Miss Fielden's task extremely difficult.
The Secretary of State lodged detailed grounds of resistance on 7 April 2011. That document has stood as the skeleton argument today. It was a very detailed document, which carefully unpicked the various arguments and supporting material provided by the claimant, both before and after the June 2010 decision. It noted, for example, that the material contained much speculation, which was not supported by evidence from either the claimant or her husband. I draw attention to these features of the case to emphasise two things: first, when seeking to persuade the Secretary of State and then to persuade a court that the material provided surmounts the hurdle to be considered a fresh claim, it is for the claimant to discharge an evidential burden; secondly, it is necessary to emphasise that an application for permission to apply for judicial review must be supported by evidence.
At the least there should be a statement from the claimant in such proceedings setting out the factual basis upon which it is contended that the court should approach the claim. A witness statement signed by the solicitor may, if there is good reason why a claimant himself cannot make a statement, be sufficient. However, a statement of truth from a solicitor to the effect that he believes what a claimant has told him is of much less value than a statement of truth from a claimant himself. That is all the more important in the context of a case such as this where there have been adverse credibility findings by an Immigration Judge in the past.
The Immigration History
The claimant is an Iranian national born on 13 December 1982. On 24 November 2005, she applied for entry clearance to the United Kingdom. It was refused, but the claimant was successful in an appeal in April 2006. On 25 April that year she arrived in the United Kingdom with her husband on a six-month visitors visa. Her husband claimed asylum on 22 June 2006, a claim which was refused on 8 August of that year. On 17 August 2006, the claimant herself made a claim for asylum which was refused on 8 September 2006. In the meantime, on 10 July the claimant had given birth to their son. Both the claimant and her husband appealed against the refusal of their asylum claims.
The appeals were heard together on 10 November 2006 by Immigration Judge Cohen. He refused the appeals in a written determination prepared on 13 November. His conclusion was that the claimant and her husband had fabricated the underlying basis of their asylum claim. The case advanced by the claimant before the Immigration Judge was essentially as follows. She said that she had stayed with an aunt in the United Kingdom when she was studying here in 2002 and 2003. Her aunt was active in support of the Mujahideen. Her aunt had been granted refugee status in the United Kingdom. The claimant said that after her return to Iran in 2003 she formed a small cell which produced and distributed anti-government leaflets. She said that she distributed information orally to members of the public in Iran to tell them what was really going on. She said that her home had been raided after she left Iran and that her computer had been seized. Her claim is that the computer contained compromising anti-regime material. She suggested that her mother had been detained and ill-treated and questioned about her and her husband.
The Immigration Judge concluded that the account given by the claimant and her husband was totally implausible and lacking in all credibility. He concluded that the claim had been fabricated. He did so in the course of a very lengthy section of the determination, which set out in some detail the very many factors that he took into account.
The claimant applied for a statutory reconsideration of that decision. That was the procedure then in place. On 20 December 2006, that application was refused. So it was that the claimant and her husband became appeal rights exhausted on 4 January 2007. Neither left the United Kingdom, nor does it seem that any attempt was made to remove them.
On 6 September 2007, further material was provided in support of the asylum claim, including the statement made by the claimant, to which I have already referred. Additional material was provided during the course of September. At about the same time the claimant and her husband involved their Member of Parliament. Further submissions were made in October 2007 and again in June 2008. The further evidence and submissions supplied at that time do not appear to have been considered immediately. At all events there is no sign of a response in the material before me before June 2009 when yet further representations were made on behalf of the claimant by Refugee and Migrant Justice. Those representations similarly failed to evince an immediate reply.
RMJ chased the Secretary of State on 27 January 2010. It was at that stage that all the outstanding representations were considered. On 2 March 2010, a decision letter was served refusing to treat the representations and evidence provided in support as a fresh claim. That decision was not challenged. Instead further representations were made by RMJ on 10 March 2010. The Secretary of State considered and rejected those additional submissions on 4 May 2010. That decision too was not challenged.
On 2 June 2010, RMJ sent to the Secretary of State a report dated 19 May 2010, which had been prepared by Miss Roya Kashefi, an expert in Iranian matters. The report was accompanied by a request from RMJ that the report should be considered by the Secretary of State and accepted as a fresh asylum claim and a fresh human rights claim.
On 15 June 2010, the Secretary of State responded rejecting all that material as amounting to a fresh claim.
The law on fresh claims
The applicable principles are now well-established. Under paragraph 353 of the Immigration Rules the Secretary of State will consider further submissions once appeal rights have been exhausted. That paragraph provides:
"353. 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...
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