C4/2006/1031
Neutral Citation Number: [2006] EWCA Civ 1807
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE HODGE)
 
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 12th December 2006
 
B E F O R E:
LORD JUSTICE MAURICE KAY
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THE QUEEN ON THE APPLICATION OF TN (Uganda)
CLAIMANT/APPELLANT
- v -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
DEFENDANT/RESPONDENT
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MR M PAGET (instructed by Messrs Lawrence Lupin Solicitors) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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J U D G M E N T 

1.	LORD JUSTICE MAURICE KAY:  This is a renewed application for permission to appeal.  Permission was refused on the papers by Carnwath LJ.  The decision in respect of which the application is made was a decision of Hodge J sitting in the Administrative Court when he refused an application for permission to apply for judicial review.  The proposed challenge was to a decision of the Secretary of State refusing to treat representations made on behalf of the applicant as a fresh application under paragraph 353 of the Immigration Rules.  

2.	The position is that the applicant has engaged with the immigration decision-making bodies for a substantial period of time without substantive success.  However, there are positive findings in her favour following a hearing before an adjudicator some time ago to the effect that she had been abused, ill‑treated and probably raped by her father in Uganda, and that she was at real risk of further mistreatment and possibly death at his hands.  Why her appeal to the adjudicator failed was that the adjudicator concluded that the applicant could reasonably relocate within Uganda to a place where she would be beyond the reach of her father.

3.	Since that hearing before the adjudicator, which was in January 2003, further representations have been made on behalf of the applicant on a number of occasions, in all cases resulting in an unsatisfactory outcome as far as she was concerned.  I am concerned only with the most recent further representations.  

4.	The matter arose in this way.  In December 2005, the applicant received a letter from Uganda.  On the face of it, it reported that her youngest sister had been killed by her father and he had become an active member of the Lord’s Resistance Army.  At about the same time the applicant also heard that her aunt had died and her brothers had disappeared.  These developments resulted in the fresh representations to which I have referred.  However, the Secretary of State concluded that the matter did not satisfy the demands of rule 353.  At the inter partes permission hearing before Hodge J he came to the conclusion that the Secretary of State’s decision was unassailable.  He described it as “not an easy case” but he concluded that the application for permission to apply for judicial review was unarguable.  His reasons are to be found in paragraph 40 where he said this:

“It is important to look at this case in its full context.  There is force in the submission made by the Secretary of State that there had been numerous attempts on behalf of the claimant, mostly ill‑founded, to sidestep the decisions of the adjudicator.  I share the doubts expressed by the Secretary of State about the provenance of the information said to come from the Pastor in Uganda.  It is unclear as to when the information arrived.  The claims were raised in full detail only after the appellant had been detained prior to her removal.  I am not satisfied that the evidence itself is so clear as to get anywhere near the tests set out in Onibayo as to whether this current claim would have a ‘realistic prospect that a favourable view’ could be taken of it.  I accept that I do not have to decide that no such favourable view would be taken but it seems to me that on the basis of the information I have and the submissions I have heard the right answer is to dismiss this application.”

5.	As I have indicated to Mr Paget, to whom I am grateful for attending at very short notice following some mix up about the listing of this case, that I propose to grant permission.  It seems to me that there are two aspects of the case which call for full consideration on judicial review.  The first relates to the sequence of events between December 2005, when the applicant received the latest information from Uganda, and 15 February 2006, when the fresh representations were submitted to the Secretary of State.  Plainly Hodge J considered on the material that was before him that the chronology did not favour the applicant.  

6.	However, since the hearing before him material has come to light which tends to establish the date of the letter from Uganda, which began this sequence of events, as being 13 December 2005.  That is the postmark upon an envelope which was not before the court on the previous occasion.  Related to that is the fact that Hodge J, on the information before him, was left with a lack of clarity as to when material came to hand resulting in his observation that the claims were raised in full detail only after the applicant had been detained with a view to her removal on 6 February.

7.	There is now a detailed account covering the period between December and January in Miss Hooper’s skeleton argument.  Suffice it to say that on any view the applicant was unfortunate in her previous selection of legal advisers.  The first firm of solicitors to whom she took the letter from Uganda did not take the case further because they required a payment on account which the applicant was unable to provide.  A second firm of solicitors agreed to act, but the Law Society intervened in that firm on the grounds of insolvency before they had submitted the fresh representations.  It was three days after the second firm received the file from the first firm that the applicant was detained.  Following the intervention by the Law Society, the present solicitors were instructed on 14 February and they acted with expedition after that.  

8.	It follows from that brief history, if such it is, that Hodge J’s view that the applicant only raised her new circumstances in detail after detention on 6 February has to be seen in the context that in reality she had been trying to raise the same factors with two firms of solicitors prior to that date.  To the extent, therefore, that Hodge J’s perception of the case was disadvantaged by the limited amount of information that he had dealing with the period December 2005 to February 2006.  That is something with impacts upon his reasoning because plainly he attached importance to it.  

9.	The second matter which it seems to me calls for consideration on a substantive basis is whether the decision of the Secretary of State in refusing to view this as a fresh claim under paragraph 353 is in fact sustainable.  When Carnwath LJ refused permission he observed that the Secretary of State:

“… was entitled to conclude that the adjudicator’s conclusion on relocation was not wholly dependent on the prospect of protection by members of the family”.

For my part, having read the determination of the adjudicator it seems to me that the facts concerning relocation and the family as at the date of that determination in 2003 played a significant part in the conclusion.  The adjudicator came to the conclusion that the applicant had open to her protection “within a relatively short distance from her father”.  That is because she had been living with her aunt and siblings.  Paragraphs 26 and 28 of the determination in particular seem to me to be premised on the expectation that upon return to Uganda this vulnerable young woman would have a meaningful degree of family support.  It seems to me to be arguable that that underlay the reasoning of the adjudicator.  

10.	If ultimately the fresh material concerning the death of the aunt, the murder of the sister and the disappearance of the brothers is accepted, then the aspect of family support would look very different.  It is important to remember the level at which I have to consider this case.  I am not called upon to decide the ultimate credibility of the new material.  As Collins J said in Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin) if that information is intrinsically incredible, or if when one looks at the whole of the case it is possible to say that no person could reasonably believe it, then of course it must be rejected.  However, that is not this case.  The Secretary of State’s ultimate submission before Hodge J was in the form of scepticism about the new material but did not go so far as to characterise it as intrinsically incredible.

11.	If it is on its face credible, even though it may ultimately not find favour, then it seems to me that it is at least arguable that the challenge to the decision of the Secretary of State has some prospect of success.  I consider the appropriate questions to be those set out in paragraph 26 of Miss Hooper’s skeleton argument to this court, namely: 

1) Has the material been previously considered?
2) If not, could it reasonably be believed?
3) If it could, when considered with the previously considered material is there a reasonable prospect that a favourable view could be taken of the new claim?  

If in the end the Secretary of State has to treat this as a fresh claim within rule 353, but rejects the application under Article 3, then as I understand it that would give the applicant access once again to the Asylum and Immigration Tribunal.  

12.	What I feel unable to say is that at this stage the application should be brought to an end because it has no more than a fanciful prospect of success.  I remind myself that this is an application for permission arising out of a refusal of permission to apply for judicial review.  

13.	In granting permission I shall proceed by way of CPR 52.15(3) and (4) and grant permission, not for a full appeal in this court but to apply for judicial review in the Administrative Court to which the case must now be returned for a substantive hearing.  It will be appropriate for the Court Office to seek an appropriate time estimate from both counsel.

Order: Application granted, to be remitted back to the Administrative for the hearing of this appeal, the claimant’s publicly funded costs.