CO/8328/2005 
Neutral Citation Number: [2007] EWHC 3105 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 28 November 2007

B e f o r e: 

HIS HONOUR JUDGE MACKIE QC
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Between: 
THE QUEEN ON THE APPLICATION OF BAKSKARAN NADESU
Claimant

v 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr J Martin appeared on behalf of the Claimant
Mr D Pievsky appeared on behalf of the Defendant
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J U D G M E N T
1.	JUDGE MACKIE:  This is an application for judicial review by the Claimant, Mr Baskaran, an asylum seeker from Sri Lankan, who contends that the decision made by the Defendant, the Secretary of State, on 11th February 2005, and maintained in a letter dated 18th May 2006, declining to regard the Claimant's submissions as amounting to a fresh claim, is unlawful.  
2.	There is an air of unreality to this case in that the debate between the parties surrounds not so much the letter dated 18th May 2006 but the consequences of the country guidance case LP (Sri Lankan CG) [2007] UKAIT 00076.  The Claimant asserts that in the light of the facts found to be credible in his case and the deterioration of the situation in Sri Lanka set out in LP he does have a valid fresh claim.  In July 2006 Mr Justice Jackson granted permission after an oral hearing.  I first set out the background.
3.	The Claimant was born in 1975 and came to the United Kingdom in March 1999.  He was arrested as an illegal entrant and immediately claimed asylum.  The claim was rejected in January 2001 and there was a hearing before an Adjudicator in March 2003.  At that point the Claimant accepted, as he still does, that he was never involved with LTTE or any or political groups in Sri Lanka and that the basis for his fear for persecution was essentially his Tamil ethnicity. 
4.	The Adjudicator dismissed the appeal, concluding that although he satisfied the appropriate standard of proof and credibility, the Claimant had no well‑founded fear for a Convention reason.  The Adjudicator concluded that although the Claimant and his family had suffered during the civil war, there was no basis for thinking that he was a wanted man or would come to the attention of the authorities so as to put him at any risk.  On 17th April 2003 the IAT refused permission to appeal from the Adjudicator's decision .  
5.	In the course of the Adjudicator's decision, he made a number of findings and observations relied upon by counsel for each side in this application.  At paragraph 8 the Adjudicator found that there was a measure of corroboration for the Appellant's claim to have been subjected to prolonged and severe torture and refers to a report from Dr Turner, a consultant physician, described as follows by the Adjudicator: 
"He bears scars although by no means prominent or extensive scars, consistent with certain details of the torture he himself described.  In addition, Dr Turner, although not primarily a psychologist or psychiatrist, has given the opinion that the appellant is depressed and has early features of post‑traumatic stress disorder."
6.	The Adjudicator then refers to a clandestine journey to the United Kingdom and concludes that the United Kingdom was the destination of the Claimant's choice, but adds this:
"I do not think, however, that this necessarily shows that the appellant's claim was not genuine when it was first made nor that it was contributed to in significant measure by considerations other than a well‑founded fear of persecution.  I am therefore prepared to accept that the appellant is outside the country of his nationality owing a well‑founded fear of persecution for a Convention reason.  It therefore becomes necessary to consider whether the appellant is unable to return to his country or, for reasons of that well‑founded fear, is unwilling to do so."
7.	The decision was made in the context in which the Adjudicator describes of there having been a cease‑fire in place since December 2001 between the Sri Lankan government and the LTTE.  The Adjudicator makes it clear that he has in mind the cases which were then the appropriate guidance for him ‑‑ Brinston and Jayachadran ‑‑ and proceeds to apply those tests.  The significant paragraphs are 14 and 15 of his decision where he says this:
"14.  Applying to the present case these facts and principles, and also the contents of those parts of the objective evidence specifically commended to my attention and not already expressly adverted to, I make the following findings.  The Appellant and his family have undoubtedly suffered during the civil war.  The Appellant in particular has as a suspect been a victim of that unlawful and brutal treatment at the hands of security forces so inadequately dismissed as 'over‑zealousness'.  He may have been fingerprinted and photographed but he was ultimately, albeit on payment of a bribe, released without condition.  There is no basis at all for holding that he is listed as wanted.  He was dealt with and restored to liberty... before the order... to maintain a computerised registry of persons arrested under the Prevention of Terrorism Act was made.  There is no reason to suppose that any record has been maintained of this.  Even had it been so kept, the objective evidence shows... that photographs are not kept at the airport and that the record of his release... would be likely to reflect a release in circumstances where the Appellant was regarded as no longer of interest.  Even if the presence of scarring were material to the manner of treatment of a returnee at the airport, the scarring of the Appellant is unobtrusive and not at all distinctive.  
"15.  For all these reasons I formed the conclusion that, in the current changed circumstances in Sri Lanka, the Appellant no longer has any basis to fear persecution on a Convention ground in that country."
8.	I next turn to the decision of LP.  LP, which it is not possible or useful for me to summarise beyond the headnote, except to draw attention to particular passages relied upon by the parties in this case.  The Claimant relies upon passages attributed to the evidence of Dr Smith in that case, particularly those views said to have been expressed by the Inspector General of Police about the quality of the database, saying:
"The records go back 10‑15 years and the database is being chronologically extended all the time.  It is my opinion the database that is available at the airport is derived, or possibly the same as, the centralised database maintained by the DII." 
9.	There are other observations drawn from the evidence of Dr Smith.  Mr Pievsky points to the observations made by the Tribunal about Dr Smith's evidence in which they reject some of his conclusions but appear to accept the helpfulness of the background material which he provides.  And reliance by Dr Gunaratna and Professor Goode.
10.	The case draws a distinction between those who have not been to court and may have been released after the payment of a bribe, who, the case concludes, do not fall into the same category as bail jumpers and others who are on the run from court proceedings.  The case deals with the presence of scarring and concludes, at 217, that the scarring may again be relevant:  
"[The Tribunal agrees] that the issue of scarring was considered by the police to be a very serious indicator of whether a Tamil might have been involved in the LTTE.  However, on the evidence now before us we consider that the scarring issue should be one which only has significance when there are other factors that would bring an Applicant to the attention of the authorities, either at the airport or subsequently in Colombo, such as being wanted on an outstanding arrest warrant or a lack of identity."
11.	They deal with a factor of return from London as being highly case‑specific, which appears to be an allusion to the distinction between those who may have been involved in political activity in London and those who may have had nothing to do with it at all.  
12.	At paragraph 227 the Tribunal conclude their assessment of the various risk factors, emphasise that each case must be determined on its own facts and make observations about the relative importance of those facts in 227.  
13.	At 236 the Tribunal draws attention to other issues which require careful evaluation, such as:  
"... the previous attention paid to the Appellant by the Sri Lankan authorities.  Questions of whether the Appellant has been previously detained and for how long will be significant, as will the reasons for the detention.  A Short detention following the a round‑up may be of little significance; a longer detention as a result of a targeted operation will be much more significant.  The question of release and how that came about may be important."  
14.	At paragraph 238 there is a list of factors with which the court is now familiar, which, it is emphasised, is not a checklist.  Those 12 factors include seven which are relevant to the Claimant but the two central ones are:  "Previous record as a suspected or actual LTTE member or supporter" and "The presence of scarring."  It is around those two issues that this case turns.  
15.	Before looking at the competing submissions of the parties, I remind myself of the relevant legal provisions.  I am concerned with Paragraph 353 which provides as follows:
"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 a claim if they are significantly different from the material that has previously been considered.  The submissions will only by 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..."
16.	It is common ground that first factor does not apply and I am concerned with the second and the concept of a realistic prospect of success.  That is a matter which I approach with the benefit of the guidance in WM (DRC) and AR v SSHD [2006] EWCA Civ 1495 which establishes that the two questions which need to be considered are, first, whether the Secretary of State has considered whether there is a reasonable prospect of an immigration judge coming to a different conclusion from that previously reached on asylum and human rights; and, secondly, whether the Secretary of State has satisfied the requirement of anxious scrutiny.  If the answer to these questions is yes, the claim for judicial review should fail.  
17.	Some emphasis is placed by counsel for the Claimant upon the characterisation by the Court of Appeal, and by Lord Justice Buxton in particular, in WM of the threshold as being "relatively modest".  He draws my attention to a decision of Mr Justice Collins in the case of Lutete, where the learned judge says this:
"In fact the test would appear to be whether the Secretary of State could reasonably take the view that the evidence which is produced will not be accepted.  I emphasise 'will not be accepted', because if it might reasonably be accepted then it would be wrong for the Secretary of State to decide for herself that the evidence which she has before her which supports her view is to be preferred.  It is not for her to take that decision, particularly where the matter is already before a tribunal.  If in reality the fresh material, whether or not it was capable of being produced at an earlier stage, is such as might reasonably result in a difficult view being taken, then it must be regarded as a fresh claim and there should in due course, if the claim is rejected, be a right of appeal given."
18.	Counsel for the Claimant submits that in the light of LP and what is said in that case and the evidence of Dr Smith on that issue, the matter needs to be looked at again, given the material which suggests that records of detentions go back to at least 1997 and would probably include the claimant.  That material includes the Country of Origin Report, an extract from which Mr Martin sets out at paragraph 15 of his skeleton argument.  
19.	Counsel for the Defendant submits that the question of records has already been fully disposed of by the Adjudicator in a way which is not susceptible to the prospect of change as a result of any new material.  He draws attention to Adjudicator's finding that the Claimant was dealt with and released before the order to maintain a computerised register of persons was made.  The Claimant's counsel submits that was that even though his client left the country in 1998, the further material shows that there may well be a record, available to the authorities in Colombo, of the treatment which his client experienced over a 2‑month period. 
20.	The next relevant conclusion of the Adjudicator is that even if there had been a record kept and maintained, the Claimant's photograph would not be kept at the airport.  The submission on behalf of the Claimant is that it is abundantly clear that the airport is no longer the prime place of vulnerability, bearing in mind what is said in LP about the way in which relatively random searches are made throughout Colombo.  
21.	The third finding of the Adjudicator, relied upon by the Defendant, is that even if the Claimant were identified at the airport, and even if the record of his former detention were produced, that record would show an unconditional release, reflecting a lack of interest in the Claimant.  The submission of the Claimant is that, having regard to the material now available, and the extent and duration of his client's detention accepted to be credible by the Adjudicator records cannot be assumed to reflect a lack of interest.
22.	The other distinctive feature of this case relied upon by the Claimant is the question of scarring.  The Claimant accepts that the Tribunal and LP are not stating that scars on their own create suspicion.  They might confirm suspicion when others factors are present.  It is submitted by counsel for the Claimant, that those situations are not restricted to cases where the individual is wanted or there is an arrest warrant.  Counsel for the Claimant submits that he can rely on Dr Smith's source, being a senior Sri Lankan police officer, who was telling a delegation from the Metropolitan Police that they use scars as useful tool to identify suspects.  There was no suggestion that this only happened when there was already strong suspicion of individual, strip‑searching being routine.
23.	I would, in normal circumstances, have had no hesitation in accepting the Defendant's submission that, taken together with the previously considered material, the new material created no realistic prospect of success, but it seems to me there are two particular features of this case that stand it apart from many of those currently going, if I may use the expression, through the system.  The first is the fact the Adjudicator accepted the credibility of what the Claimant said about the extent of his detention and ill‑treatment, which was significant and for a significant period.  The second is that the Adjudicator accepted expressly that the appellant was outside the country of his nationality owing to a well‑founded fear of persecution for a Convention reason and attached some significance to that.  It may well be that whoever takes the decision or decides the case can discount that observation by the Adjudicator.  It seems to me that that is something which it is not for me to do at this point in the process.  The scarring issue also adds a little weight to the claimant's case.
24.	I return to what was said by Mr Justice Collins: 
"If in reality the fresh material, whether or not it was capable of being produced at an earlier stage, is such as might reasonably result in a different view being taken, then it must be regarded as a fresh claim and there should in due course, if the claim is rejected, be a right of appeal given." 
25.	It seems to me that the Claimant's case just scrapes through.  
26.	I re‑emphasise as strongly that it seems to me there are particular features of this case which take it away from so many which come before the court.  Further my decision is not to be taken as some expression of a view that the Claimant's fresh case is entitled to succeed.  
27.	As the decision which I am judicially reviewing is no longer really that contained in the letter, I invite submissions from counsel about the form of order and the form of relief which should follow from my conclusions. 
28.	MR MARTIN:  I am grateful, my Lord.  My Lord, in my respectful submission, as your Lordship suggested to my learned friend, in effect his skeleton argument could stand as the decision of the Defendant, which is that the Claimant did not have a valid fresh claim.  My Lord, in those circumstances I would ask that you do issue a mandatory order requiring the Defendant to treat the representations advanced in this claim as a valid fresh claim and then leave it to the Defendant to decide whether or not to grant status or a right of appeal, but your Lordship having expressed the judgment that your Lordship has, it would be my submission that some finality should be reached in this case, given the length of time which has elapsed since the claim was first applied for. 
29.	JUDGE MACKIE:  Oh, yes, it would have been absurd to go ahead on the original letter for obvious reasons, because then you would have started again. 
30.	MR MARTIN:  Indeed, my Lord. 
31.	MR PIEVSKY:  My Lord, I think that probably is right.  The right thing that needs to happen now is that ‑‑ as I understand your judgment, it was unreasonable of the Secretary of State to resist the conclusion that this was a fresh claim. 
32.	JUDGE MACKIE:  Right. 
33.	MR PIEVSKY:  If that is your judgment then that maintenance of a decision cannot stand so it has to be considered as a fresh claim, if that is your judgment. 
34.	JUDGE MACKIE:  Yes.  What I am thinking of is how we are going to draw up the order. 
35.	MR PIEVSKY:  My Lord, if I perhaps could take some time to consider this with my learned friend ‑‑
36.	JUDGE MACKIE:  Could you try and sort this out between you?
37.	MR MARTIN:  My Lord, yes. 
38.	MR PIEVSKY:  ‑‑ and up with the appropriate wording and submit it to the court in due course. 
39.	MR MARTIN:  My Lord, yes.  The only other application I would have to make is an application for the Claimant's costs.  I have provided a schedule to the Defendant and I would ask you Lordship to summarily assess the costs there and the amount claimed, and order the Defendant to pay that. (Handed). 
40.	MR PIEVSKY:  My Lord, I apologise.  On the costs, our position is that of course we cannot resist some of these costs but we do say that they should not go right the way back to the time when the claim was started.  A fair way of divvying it up would be from the time of LP onwards, because it is the (inaudible) the Defendant is being criticised for.  So in relation to the counsel's fees it is, we would submit, the skeleton argument of Mr J Martin of counsel onwards.  That is 1875.  I do not know how much of the 1190 is in relation to that but an appropriate discount could be made for that.  We are very much in the hands of your Lordship.  We do not resist in principle. 
41.	JUDGE MACKIE:  I take your point, which is that this is a case not about a letter that the Secretary of State wrote and the grounds therein expressed, but about LP.  Do you have any view about that? 
42.	MR MARTIN:  Well, my Lord, we are where we are for a variety of reasons and obviously the Defendant is not responsible for all of those reasons but, my Lord, I would simply offer this by way of response.  LP heard evidence predominantly at the end of 2006, although the decision was not promulgated until August 2007.  It is the evidence on which the case is based that obviously materially effects the situation, and not just the Tribunal's view of it.  In those circumstances, I would submit that the evidence which effectively gives the Claimant a valid fresh claim has been in existence for a considerable period longer than the promulgation of the decision of LP in August.  My Lord, there was some considerable delay from the Claimant first submitting fresh representations and then the Defendant acting in a way which really gave the Claimant another option. 
43.	JUDGE MACKIE:  Can I ask you a question?  What you do not get from the Secretary of State, you get from public funds?
44.	MR MARTIN:  My Lord, no. 
45.	JUDGE MACKIE:  You do not?
46.	MR MARTIN:  No.  My Lord, I say that effectively the Claimant had no alternative but to launch these proceedings, in that because he was given so little time to respond, and it is only fair to order the Defendant to pay the whole amount. 
47.	MR PIEVSKY:  My Lord, it is worth pointing out ‑‑ I think I did in the skeleton ‑‑ if I may, but the original claim was decided by two of the judges of the Administrative Court not to have any merit at all, both the permission judge on the papers and then Mr Justice Jackson, who said to both of us the claim, as originally formulated, was unarguable.  It was only once Mr Martin got involved ‑‑ 
48.	JUDGE MACKIE:  Yes, I saw that, yes.  Well, taking all those factors into account, I am going to give a broadbrush assessment and award costs in favour of the Claimant in the sum of £3,750. 
49.	MR MARTIN:  Grateful, my Lord. 
50.	JUDGE MACKIE:  Anything else? 
51.	MR PIEVSKY:  My Lord, it only remains for me to ask for leave to appeal. 
52.	JUDGE MACKIE:  Yes. 
53.	MR PIEVSKY:  The two features which you mentioned which you mentioned which stand this case apart from others are (1) that the Claimant was accepted as credible and, secondly, that it was expressly accepted that at the time he left the country he was described as having a well‑founded fear of persecution.  In my submission, there is a real prospect that the Court of Appeal will say that LP does not change the conclusion in relation to people in that situation alone, that there is no prospect of a successful claim before an Adjudicator, where a person is not recorded ‑‑ there is no evidence that he has been recorded as being wanted or even any reason now to think that he would be a suspect if returned.  For that reason I ask for the appeal. 
54.	JUDGE MACKIE:  Yes.  Any views on that?
55.	MR MARTIN:  My Lord, no.  I would simply ask you to find that there are no valid reasons why the Court of Appeal should entertain an application and accordingly refuse permission. 
56.	JUDGE MACKIE:  I am going to refuse permission to appeal because as I see it I am applying what is now a well‑established legal framework to an undisputed set of facts.  
57.	MR PIEVSKY:  My Lord. 
58.	JUDGE MACKIE:  So that is that.  Thank you all very much.   
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