R.q.k. (ap) For Judicial Review Of A Determination By The Secretary Of State For The Home Department In Terms Of The Immigration Rules
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 199 |
| Year | 2011 |
| Published date | 09 December 2011 |
| Docket Number | P638/11 |
| Court | Court of Session |
| Date | 09 December 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 199 | |
| P638/11 | OPINION OF LORD STEWART in the Petition of RQK [Assisted Person] Petitioner; for Judicial Review of a determination by the Secretary of State for the Home Department in terms of the Immigration Rules (HC 395 as amended) Rule 353 ________________ |
Petitioner: Caskie, Advocate; McGill & Co, Edinburgh
Respondent: Webster, Advocate; Office of the Solicitor to the Advocate General
9 December 2011
[1] This Petition is for judicial review of a determination dated 29 March 2011 by the UK Border Agency exercising powers on behalf of the Secretary of State for the Home Department. The Border Agency decision maker concluded that certain further submissions do not amount to fresh asylum or human rights claims in terms of the Immigration Rules (HC 395 as amended) Rule 353.
[2] At the first hearing on 9 November continued to 10 November 2011 Mr Caskie, Counsel for the Petitioner, moved me to sustain the Petitioner's plea and to reduce the Border Agency determination of 29 March 2011. The motion was opposed by Mr Webster, Counsel for the Advocate General on behalf of the Secretary of State, Respondent. He moved me to sustain the Respondent's pleas and to refuse the Petition. Having heard parties' submissions and made avizandum I have formed the Opinion that the Respondent's motion should be granted and that the Petition should be refused.
Immigration history
[3] The Petitioner identifies himself as an Iraqi national with a date of birth of 1 January 1989. On 9 August 2005 the Petitioner was encountered by High Wycombe police walking on the M40. On 9 August 2005 the Petitioner was served with a notice of liability to removal from the United Kingdom form IS 151A. He then became liable to removal subject to any claim for asylum or humanitarian protection. He claimed asylum and stated that he had entered the United Kingdom that day. An asylum interview was arranged for 20 September 2005 but the Petitioner failed to attend claiming that notice received on 16 September was too short. The Petitioner's asylum claim was refused on 7 October 2005. On 28 November 2005 the Petitioner's appeal against refusal of asylum was dismissed. The Immigration Judge found that the Petitioner's account of persecution and his need to leave Iraq was entirely fabricated and untruthful [Production No 6/13, UK Border Agency letter dated 3 August 2009]. Permission to appeal to the High Court was refused on 15 December 2005. On 30 December 2005 the Petitioner became rights of appeal exhausted.
[4] An age assessment interview was first arranged with Birmingham Social Services on 29 September 2005. The Petitioner arrived unannounced with his brother on 27 September 2005. He was advised to attend the interview but failed to attend. On 27 March 2006 the Petitioner met with Birmingham Social Services for an initial interview. An age assessment interview was arranged for 4 April 2006. The Petitioner was age-assessed on 4 April 2006 and found to be over eighteen years of age, i.e. born before 4 April 1986. It was noted that the Petitioner gave different accounts of where he lived in Iraq. In his appeal statement of 27 October 2005 the Petitioner stated that he would produce copies of his birth certificate. He has never done so. The Petitioner subsequently produced an identity [ID] card of unknown provenance showing a date of birth of 7 March 1989. The Petitioner has not adduced evidence from his claimed older brother [see below] as to his age. Age remains a live issue as regards credibility.
[5] The Petitioner applied for assisted voluntary return [AVR] to Iraq on 3 October 2006 which was approved on 5 December 2006. The Petitioner withdrew the application on 7 December 2006. The Petitioner made a second application for AVR on 14 January 2008 which was approved on 16 January 2008. AVR was withdrawn on 2 May 2008 when the Petitioner failed to avail himself of the offer. On 1 May 2009 the Petitioner made a third application for AVR. AVR was refused. In oral submissions Counsel for the Petitioner explained that AVR comes with benefits, accommodation and food, pending return, so that no more than two grants of AVR are normally allowed. The Petitioner's lawyers explained in 2009 that the Petitioner applied for AVR to obtain benefits and National Asylum Support Service accommodation: he did not mean to return to Iraq [Production No 6/8, letter from McGill & Co, Solicitors, dated 31 July 2009].
[6] On 30 July 2009 the Petitioner was detained and served with directions for his removal to Iraq. He made further submissions in terms of Rule 353 on 31 July 2009. The further submissions included letters of support from his brother, sister-in-law, girlfriend, friends and acquaintances in the United Kingdom. On 2 August 2009 the Petitioner displayed disruptive behaviour in detention and was placed in Rule 40 secure accommodation for attacking another detainee. The Rule 353 application was refused by decision dated 3 August 2009. Also by letter dated 3 August 2009, which crossed with the refusal of the first further submissions, second further submissions in terms of Rule 353 were made by the Petitioner. On receipt of the refusal dated 3 August 2009, the Petitioner intimated an intention to apply for judicial review. On sight of the draft Petition the Border Agency on 4 August 2009 cancelled the removal directions and withdrew the decision of 3 August 2009 in order to re-address the Petitioner's Rule 353 further submissions. On 22 February 2010 the Petitioner submitted the ID card referred to above with translation in support of his further submissions. The Decision Letter identifies additional further submissions made on 28 May 2010. This is confirmed by Petitioner's Counsel.
[7] The Petitioner's brother has indefinite leave to remain in the United Kingdom. The Petitioner has resided with his brother and sister-in-law intermittently for a total of about 20 months between August 2005 and November 2010. On 11 August 2009 the Petitioner was released from detention on immigration bail of £1,500 deposited by his brother. The Petitioner has failed to comply with the bail reporting condition on fourteen occasions. In September 2009 the brother contacted the Border Agency to say that he wished the Petitioner to be "deported" to Iraq and to have the bail money refunded. He did not want to jeopardise his own future by "constant let downs" by his brother. The Petitioner now lives in National Asylum Support Service accommodation. The Petitioner's parents and six other siblings continue to live in Iraq. Counsel for the Petitioner does not contest the Border Agency decision maker's finding that the Petitioner has "an appalling immigration history".
Legislative framework
[8] The Human Rights Act 1998 Sched 1, Part 1 ('The Convention'), incorporated by section 1, provides:
"Article 8
Right to Respect for Private and Family Life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[9] The Immigration Rules 1994 (HC 395 as amended) made under the Immigration Act 1971 s. 3(2) provide:
"353.- Where 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."
Immigration Rule 353
[10] Failed asylum seekers can make "further submissions". Immigration Rule 353 stipulates how further submissions are to be treated. I have previously described the Rule 353 two-stage process and the two-part test involved in the second stage [MA (Iran) v Secretary of State for the Home Department [2011] CSOH 8 (19 January 2011)§§ 48- 56]. It is crystal clear from the Border Agency internal guidance lodged as a production for the Petitioner in this case that the first stage in processing a Rule 353 application involves the decision maker deciding whether or not to grant leave to remain on the basis of asylum, humanitarian protection or discretionary leave [Production No 6/9 (replacement version lodged 9 November 2011), UKBA Asylum Process Guidance on Further Submissions, page 12]:
"Two-Stage Process
Paragraph 353 requires that a two stage process be applied when further submissions are received:
· Stage One - consider whether to grant leave [to remain]
· Stage Two - decide whether the further submissions amount to a fresh claim.
If stage one results in a grant of leave [to remain], the case owner does not need to proceed to stage two."
[11] Assuming leave to remain is not granted, then the second stage decision - "whether the further submissions amount to a fresh claim" - is whether in effect to grant leave to appeal, the final part of the test being whether an appeal to an Immigration Judge sitting in the First Tier Tribunal might have a "realistic prospect of success". Such a right of appeal is exercisable in-country in terms of the Nationality, Immigration and Asylum Act 2002 s. 92(4)(a).
[12] In case after case UK Border Agency Rule 353 decision letters disclose no clear dividing line between the two stages....
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