M.o. (ap) For Judicial Review Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2010] CSOH 170 |
| Year | 2010 |
| Published date | 21 December 2010 |
| Date | 21 December 2010 |
| Court | Court of Session |
| Docket Number | P115/10 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 170 | |
| P115/10 | OPINION OF LADY CLARK OF CALTON in the Petition of M O (AP) Petitioner; For Judicial Review of a decision of the Secretary of State for the Home Department dated 26th September 2009 to refuse to accept that representations made on behalf of the Petitioner constitute a fresh claim for asylum Respondent; ________________ |
Petitioner: Byrne; Drummond Miller (for Livingstone Brown)
Respondent: MacGregor; C Mullin
21 December 2010
Summary
[1] This is an action of judicial review of a decision of the Secretary of State for the Home Department dated 26 September 2009 (6/1 of process) to refuse to accept that representations made on behalf of the petitioner constitute a fresh claim for asylum.
[2] The petitioner is a citizen of Iran. He arrived in the United Kingdom on 7 July 2008 and claimed asylum on 9 July 2008. That application was refused on 28 October 2008. An appeal was heard at Glasgow on 9 December 2008. By determination sent on 24 December 2008, the appeal was dismissed (6/3 of process).
[3] Thereafter further representations were made on behalf of the petitioner by letter from his agent dated 10 September 2009 (6/2 of process). The said letter included: a letter dated 13 August 2009 from Dr Ian Brown; a medical report from Mr Dignon MB, ChB, MRCP, FCEM, Dip.IMC, consultant in emergency medicine dated 28 August 2009; a letter from Mr Jalih, WPI - Organisation Award (UK) dated 19 February 2009; seven photographs with no date or location in which the petitioner is pictured demonstrating.
[4] The petitioner sought to have the claim reconsidered in terms of Rule 353 of the Immigration Rules. Rule 353 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 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".
[5] An official acting on behalf of the respondent considered the letter and further information (6/2 of process) and issued the decision letter dated 26 September 2009 (6/1 of process). The said letter and further information were not therefor put before an Immigration Judge for consideration.
Submissions by counsel and case law
[6] There was no order for written submissions. I am grateful therefore to counsel who were able to produce outline submissions for me. Submissions on behalf of the petitioner, described as the skeletal argument, are 13 of process. Submissions on behalf of the respondent, described as outline note of argument, are 14 of process.
[7] The cases referred to by counsel for the petitioner included: R (AK Sri Lanka) v SSHD [2010] WLR 855; IM v SSHD [2010] CSOH 103; ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348; TN (Uganda) [2006] EWCA Civ 1807; AK (Afghanistan) [2007] EWCA Civ 535; Abdul Hassan 2004 SCLR 524; SB (Risk on Return Illegal Exit) Iran CG [2009] UKAIT 00053; FK (Persecution - Refugee - Political Writer) CG [2002] UKIAT 01328; MT (Iran) CG [2002] UKIAT 06995; Francois Mibanga [2005] EWCA Civ 367; Damias [1999] EWCA Civ 3000; Alan v Switzerland 1997 INLR 29.
[8] Additional cases referred to by counsel for the respondent included: WM (DRC) v Secretary of State for the Home Department [2006] EWCA; FO v Secretary of State for the Home Department [2010] CSOH 16; LA Petitioner [2010] CSOH 83; SY Petitioner [2010] CSOH 89; JS, Petitioner [2010] CSOH 75; JBM v Secretary of State for the Home Department [2009] CSOH 57; Mibanga [2005] INRL 377; EB Kosovo v Secretary of State for the Home Department [2008] 4 All ER 28; Tanveer Ahmed v SSHD [2002] UKIAT 00439; SD v SSHD [2007] CSOH 97; RY, QA, ZA, & MA v SSHD [2010] CSOH 65; SS (Iran) v SSHD [2008] EWCA Civ 310;
[9] Counsel agreed that it was important to consider the representations and the further documents and photographs in relation to Rule 353. There was some discussion in oral submission about the test which was to be applied and the role of the Court in reviewing the Secretary of State's decision in a Rule 353 case. There was no dispute in this case that 353(i) of the Rule was satisfied. The issue in dispute focussed on Rule 353(ii).
Discussion
[10] In considering the legal approach which should be adopted by the Court in the present case, there was a difference in emphasis in submissions by counsel. Counsel for the petitioner submitted that IM, was a useful summary of the relevant authorities and represented the current approach adopted in Scotland. He submitted that the task of the Court is to review on irrationality grounds the decision of the Secretary of State taking into account the letter and additional information. If the Court's decision, applying "a low test", is that there is a realistic prospect of success, the decision of the Secretary of State is irrational in holding otherwise.
[11] On behalf of the respondent, counsel accepted that the standard to be applied is a modest one. Counsel for the respondent submitted however that the Lord Ordinary in IM did not conclude that the Court must make its own assessment. The Lord Ordinary concluded against the background of the facts in IM that the Court may make its own assessment. Counsel for the respondent submitted that the approach adopted by the Lord Ordinary in IM is not necessarily appropriate in all Rule 353 cases. The Court is involved in a judicial review process which is restricted to a review taking into account the material before the Secretary of State. In circumstances where the facts are disputed, as in the present case, the Court is not well placed to substitute its own decision. Counsel emphasised that the Court's task is a review process not a de novo appeal. He accepted that fresh representations require to be considered in the round. He submitted that the findings of the Immigration Judge are always relevant and should be given appropriate weight.
[12] Detailed consideration of the legal approach required in the application of Rule 353 was narrated in WM (DRC) v SSHD. This case helpfully sets out the task of the Court in paragraphs 8 to 11 as well as considering the task of the respondent in paragraphs 6 and 7. Lord Justice Buxton analysed the role of the Court and concluded:
"the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds....Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly a Court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters....First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return....The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that inquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluations of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the Court cannot be satisfied that the answer to both of these questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision".
[13] In IM, paragraphs 8 to 11, the Lord Ordinary makes reference to some recent cases which he considers cast some doubt on the observations of Lord Justice Buxton at paragraph 18 of WM (DRC). I do not consider however that the case law referred to casts doubt on the analysis made by Lord Justice Buxton in the passages which I have quoted. I accept that analysing the Court's task of judicial review in relation to Rule 353 may lead to difficulties if one tries to analyse the task in terms of classic Wednesbury grounds. Nevertheless the approach of anxious scrutiny appears to be well settled and understood in immigration cases. I refer to the discussion by the Lord Ordinary in LA Petitioner at para. 14. I consider that the Court has to make a decision, applying...
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H.y. (ap) For Judicial Review Of A Decision Of The Secretary Of State For The Home Department Dated 17 May 2013
...[2010] CSOH 103; RA v Secretary of State for the Home Department [2011] CSOH 68; TR(Sri Lanka) [2008] EWCA Civ 1549; MO, Petitioner, [2010] CSOH 170, [2012] CSIH 20; R.C. v Sweden, ECtHR (41827/07) 9 March 2010; Hamden v Secretary of State for the Home Department [2006] CSIH 57; AD, Petitio......