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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Omar, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2081 (Admin) (20 June 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2081.html Cite as: [2012] EWHC 2081 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		20 June 2012

1. JUDGE JEREMY RICHARDSON QC: In this application for judicial review Musa Fahki Omar ("the claimant") seeks to quash the first of two decisions of the Secretary of State for the Home Department ("the Secretary of State") refusing a fresh claim made by the applicant having considered paragraph 353 of the Immigration Rules.
2. The first decision was made on 22nd February 2011 ("the first decision") and the second was made on 10th February 2012 ("the second decision"). In respect of the first decision, permission to apply for judicial review was granted by me at an oral hearing on 8th November 2011. At the behest of the court certain information was sought from the Netherlands as to previous asylum decisions made there to which tangential reference had been made in a decision of an immigration judge in this case. Following receipt of that information, the Secretary of State reconsidered the case at her own instigation and issued a further decision on 10th February 2012 which reinforced the first decision and built upon it. There was no immediate challenge to the second decision which I confess was a source of surprise to me.
3. I would have today permitted the claim to be amended to seek to quash the second decision. I would have decided to treat this hearing as a rolled-up application in respect of the second decision. The Secretary of State rather suspected this would be the case and prepared for this hearing accordingly. Somewhat surprisingly Mr Hussain for the claimant had not been given instructions to make such an application. I made it plain to him that I would not be prepared to deal with this matter in a piecemeal way. He expressly took instructions. Following two short adjournments for that purpose he informed me there was no challenge to the second decision.
4. I indicated to him that I would not decide this case upon a wholly artificial basis and I would view both decisions. The second decision is after all the extant and operational decision. It is bizarre that the claimant does not wish to challenge it. I cannot compel him to challenge it, but I will not countenance the potential of procedural game playing.
5. In the result I have both decisions before me and I shall approach my task viewing both decisions. The reality is the second decision very much built upon the first.
6. This is a fresh claim case and the issue to be resolved by me in these judicial review proceedings is whether the Secretary of State reached a lawful decision to reject the fresh claim submissions of the claimant.
7. The circumstances of this case are as follows. The claimant is now aged 41. His citizenship, ethnicity and origins have been the focus of much debate since he arrived in the United Kingdom in December 2008 using a false Greek passport. He claimed asylum within two days of arrival and a decision to refuse that was made by the Secretary of State on 5th October 2009. There was an appeal to the Immigration Judge sitting in the First Tier Tribunal who upheld the decision of the Secretary of State on 20th November 2009. The Immigration Judge made very clear observations that the claimant did not tell the truth about the circumstances of his arrival in the United Kingdom as a means of concealing his true identity.
8. One aspect of the Immigration Judge's decision was that he rejected the claimant's contention that he was an ethnic Bajuni from the Island of Ras Kamboni in Somalia. A SPRAKAB report was before the Immigration Judge and he relied upon that to cast serious doubt upon the claimant's case as to his origins and ethnicity. I shall explain what a SPRAKAB report is later in this judgment.
9. Further representations were made to the Secretary of State on 10th February 2011 which were asserted to amount to a fresh claim. This largely relied upon the expert opinions of Dr Brian Allen and Professor Derek Nurse who sought respectively to cast doubt on the SPRAKAB report before the Immigration Judge and other matters relating to the origin of the claimant. They had not given evidence before the Tribunal.
10. The detailed submissions made by the claimant were urgently considered by the Secretary of State. She responded through her officials on 22nd February 2011 who decided that the further submissions did not amount to a fresh claim. That decision is the subject of challenge to this court.
11. It was apparent to the Immigration Judge and to me that decisions about asylum and the origins of the claimant had been made by the Dutch authorities when asylum had been claimed there. Following information supplied by the Dutch authorities, the Secretary of State reconsidered the matter and reached a further decision of 10th February 2012 to the same effect as her decision of 22nd February 2011 that the claimant had no legitimate fresh claim.
12. The history appears to be this.

1. The claimant has made three asylum claims to the Dutch authorities. All have been refused or withdrawn. The first was on 8th May 1998, the second on 7th March 2004, and the third on 29th January 2005. The first two were rejected. The third was withdrawn.

2. It would appear the claimant was travelling within Europe from 1998 to 2005. It is unclear where he was with any degree of precision between 2005 and December 2008 when he arrived in the United Kingdom on a false Greek passport.

3. It appears that the claimant made certain visits to Kenya in 2006.

4. Certain it is the claimant arrived in the United Kingdom in December 2008 having led an internationally itinerant life and a man who had failed in his attempts to be adjudged in need of asylum by a fellow EU country on three separate occasions.

5. His claim for asylum has been rejected in the United Kingdom as I have explained.

13. The core feature of the claimant's case is that he is from Somalia and comes from a tribe which would be the subject of persecution in the event he was returned to Somalia. The Secretary of State's contention is that the claimant is not from Somalia or the tribe that he asserts to come from, as was found by the immigration judge, and none of the fresh material casts any doubt on that so as to amount to a fresh claim.
14. It is very easy in this case to be distracted from what is truly relevant. I propose to concentrate on important and relevant factual matters, discarding the irrelevant. I propose to address my task today by considering the following:

1. What is a SPRAKAB language analysis?

2. What was the decision of the immigration judge?

3. What material was presented to the Secretary of State which was asserted to amount to a fresh claim?

4. The Secretary of State's decision of 22nd November 2011.

5. The Dutch information.

6. The Secretary of State's decision of 10th February 2012.

Let there be no doubt it is the second decision of 10th February 2012 which is the operational decision in this case.

15. Before setting sail into the ocean of material relevant to the six waypoints I have just mentioned, I propose to pause for a while in the relatively safe harbour of the law applicable to the circumstances of this case. The law is relatively straightforward.
16. Paragraph 353 of the Immigration Rules (HC 395 as amended) provides:

"353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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.

This paragraph does not apply to claims made overseas."

17. I have considered the case of R (on the application of MN) (Tanzania) and the Secretary of State for the Home Department [2011] EWCA Civ 193 where it was clearly established that the Wednesbury test is to be applied by this court when there is a judicial review challenge in a fresh claim case. Thus the question for this court is whether the decision of the Secretary of State is Wednesbury unreasonable, when concluding that there is no realistic prospect of success before an Immigration Judge when viewing an amalgam of the old and new material. The Secretary of State is required to apply anxious scrutiny to the relevant material when making the decision. The court must not substitute its own views as to the likely outcome before an Immigration Judge on the amalgamated material. The test to be applied is the conventional Wednesbury test.
18. In this case there can be no doubt the two reports of the experts had not been previously considered by the Tribunal. The issue for decision was whether taken together with the previously considered material there was created a realistic prospect of success before an Immigration Judge that the asylum claim would be accepted.
19. In all these matters the Secretary of State is required to exercise judgment and give reasons for the exercise of judgment in a particular way demonstrating the reasonable nature of the judgment and its lawfulness. Having made the legal position clear, let me now set sail into the ocean covering the six waypoints that I have identified.

1. What is SPRAKAB language analysis?

20. SPRAKAB is a form of language analysis devised in Sweden in 2000. It is widely used by various governments and analysis is undertaken by expert linguists. It involves two evaluations of the language used in the claimant's interview whereby there is comparison with known examples of the dialect or language in question. I have deliberately left out much technical detail. In this case a detailed analysis was undertaken. It is important that I should refer in this context to a decision of the Court of Appeal in the case of RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 where Moses LJ set out much information in relation to SPRAKAB at paragraphs 5 to 8:

"5. SPRAKAB's work is linguistic analysis. It works for the immigration services of a number of governments including Canada, Sweden, Australia, the Netherlands and the United Kingdom. Since 2000 it has conducted over 40,000 linguistic analyses. The Upper Tribunal was given only one example of an individual seeking analysis from SPRAKAB. The company employs linguists with university qualifications and members of the relevant international association. They are subject to regular evaluation. It also employs a pool of analysts who, generally, speak the language they are asked to analyse and are taught to think critically and analytically.

6. Linguistic analysis at SPRAKAB is a two-stage process. First, the analyst listens to a recorded specimen of speech, typically an interview. The analyst notes features of the speech which appear to be of interest. Second, the analyst discusses those features with a linguist. The analyst and linguist decide whether the features are diagnostic of the speaker's origin and produce a report with four grades of likelihood: certainty (one way or the other), most likely, likely and possibly. The rationale for identification of the degree of certainty or otherwise is usually explained in the report. The analysts are given extensive training by the linguists so as to look for certain distinctive features of any particular language or dialect. The manager, Ms Fernqvist, agreed that linguistic analysis could not determine a nationality, although it is of assistance. Interviews would usually last some 20 to 30 minutes and the recording would be discussed by analyst and linguist before a draft report was produced.

7. SPRAKAB carry out around 4,000 analyses per year and Ms Fernqvist was of the opinion that it supported applicants in about 60% of the cases in which they were involved. Certainly, it supported applicants more often than it rejected their claims. SPRAKAB has developed a database of recordings which, though not available for peer review, was, she believed, accurate.

8. SPRAKAB's policy is not to make the names or personal details of its analysts or linguists public. It fears that their safety may be endangered if it is known that they are producing analyses for governmental authorities. But each member of staff is given a unique identifier and the language background training and other relevant experience associated with that identifier. Thus the qualifications and background of a particular analyst linguist are disclosed and it is also possible to see whether the same or different analysts were involved. Those who reported in the instant case were identified only by letter and number. The tribunal was provided with the names of the witnesses but they were not disclosed to the appellant or her legal team. The number of those involved in the analysis in the instant case was disclosed and Ms Fernqvist was able to give evidence as to their qualifications."

21. At paragraph 10 of the judgment, Moses LJ expressly approved of certain guidance that had been given by the Upper Tribunal in relation to such reports:

"10. The Upper Tribunal then gave general guidance in three respects. It said:-

'171. First, we note that it is said that the decision as to a person's background or origin should not be based solely on linguistic analysis. We have heard and seen nothing enabling us either to endorse or doubt that advice. But where there is clear, detailed and reasoned linguistic analysis leading to an opinion expressed in terms of certainty or near certainty it seems to us that little more will be required to justify a conclusion on whether an applicant or appellant has the history claimed.

172. Secondly, the conclusions we have reached about SPRAKAB's reports do not, of course, mean that SPRAKAB or any other linguistic analyst is infallible. A decision-maker or judge must be allied to the possibility of error, whether or not the particular level of certainty expressed by the report leads one to expect it. Where there is linguistic evidence in a particular case it is important that all parties have a proper opportunity to submit it for expert assessment and it is equally important that all the evidence be taken into account in deciding the questions in issue according to the appropriate standard of proof.

173. The parties must have an opportunity to challenge any linguistic assessment opposing them. That means a sound recording of any interview of or discussion with an appellant that forms the basis of such analysis must be made available to the other party in good time before any substantive appeal hearing ... We would expect for the future that where linguistic analysis is in issue, no party should seek to rely on an analysis based on examples of the appellant's speech that all parties have not had the opportunity to analyse.

174. Thirdly, we have given our reasons above for acceding to SPRAKAB's request for anonymity for its linguists and analysts, subject to details being given of their background and qualifications. These reasons are of general applicability ... unless there was some very good reason for departing from this practice.'"

22. I will not set out the specific findings in the context of this case. I will however refer to two passages in the analysis of the SPRAKAB report relevant to this claimant:

"The person, who is a man, speaks Swahili on the recording. He speaks the language to the level of a mother tongue speaker. The person states that he comes from Kiamboni in Somalia. He does not speak a variety of Swahili spoken in Somalia. He speaks a variety of Swahili with certainty found in Kenya. The person is asked which dialect he speaks and he says he speaks the variety of Swahili spoken by the Bajuni people group. However, he does not use any words typical of the Bajuni variety. The person had deficient knowledge of Kiamboni in Somalia."

A little later in the analysis, the following is recorded:

"The person on the recording speaks Swahili to the level of a mother tongue speaker. He speaks a variety of Swahili with certainty not found in Somalia. The person speaks a variety of Swahili with certainty found in Kenya. The person says he speaks the variety of Swahili spoken by the Bajuni people group. However he does not use any words typical of the Bajuni variety. The person has deficient knowledge of Kiamboni and Somalia in general."

2. What was the decision of the immigration judge?

23. I do not intend to analyse the judgment of the immigration judge in any great detail. It suffices for me to quote certain passages from it. I turn first to paragraphs 27 and 28 of the judgment:

"27. Following the dismissal of his third claim to asylum in Holland, the appellant [the claimant in this case] says that he made his way to Germany. He accepts that he was advised to claim asylum in Germany and says he elected not to do so. Instead he says he gained the assistance of a church group who arranged for him to fly to Kenya. He says that he does not know the name of the church group in question and says he does not know how travel documents were arranged for him to fly to Kenya or which country issued them to him. The only evidence that the appellant relies upon to corroborate his claim to have travelled to Kenya and to have lived there between 2006 and December 2008 are some receipts for rental payments and a copy lease for residential premises and what is said to be an affidavit made by his landlord.

28. The appellant says that he used a false Greek passport to fly from Kenya to the United Kingdom on 7th December 2008. He does not deliver up either that passport, a boarding card or any ticket details. He does not appear to know the identity under which he says he travelled. He says that he did not declare his intentions upon entering the United Kingdom to immigration officers and so having given the passport to the agent who he claims had accompanied him on the flight, he claimed asylum in the United Kingdom on 9th December 2008."

It is important that I should also refer to paragraph 32:

"I am not satisfied, therefore, that the appellant has told the truth about the circumstances of his travel to the United Kingdom. I am satisfied that the most likely reason for this is an effort to conceal at least the identity and probably also the means and date upon which he did so. That of course begs the question of what his true identity actually is and/or whether he ever left Europe for Africa in 2006. In the circumstances, I am satisfied that the section 8 matters do carry significant weight with consequent damage to his credibility as a witness."

24. The learned judge, when he most carefully analysed the facts of the case, reached these conclusions in relation to the language aspect of the case:

"33. The core of the appellant's case is his claim to be an ethnic Bajuni from the Island of Ras Kamboni. I note that the appellant does not assert that the Dutch authorities ever accepted that this claim was true. I note that upon the occasion of his screening interview on 9th December 2008 he said he spoke English, Swahili and Arabic and made no mention of an ability to speak Kibajuni. He was then interviewed in English. When interviewed on 20th January 2009 arrangements had been made for the interview to be conducted in Swahili, but the appellant requested that he be interviewed in Kibajuni on the advice of his solicitor and this was undertaken.

When interviewed on 24th September 2009, the appellant's interview was once more undertaken with the assistance of a Kibajuni interpreter. Before me the appellant spoke either in English or said he was speaking in Kibajuni to the interpreter who told me that he was doing so. I am aware that there are a number of forms of Kibajuni dialect, one that would be spoken by a Bajuni from Somalia and one that would be spoken by a Bajuni from Kenya and yet another that would be spoken by a Bajuni from Tanzania."

25. The learned judge then undertook a review of the available evidence and having reviewed that evidence concluded in the following way within paragraph 43:

"43. I look therefore at the evidence in the round and bearing in mind the applicable low standard of proof. Having done so, I am not satisfied that the appellant has told the truth in his evidence. I am not satisfied that he is a citizen of Somalia as he claims to be and I am not satisfied that he was born or grew up on the Island of Ras Kamboni as he claims to have done. I am not satisfied he is ethnically Bajuni as he claims to be.

44. If the appellant did travel to Kenya as he claims in 2006, then that is a strongest possible indication that he is in truth a citizen of Kenya because he would not otherwise have been issued with a travel document that would have allowed him to do so."

26. The critical finding, quite apart from the matter to which I have just called attention, is the fact that the claimant was not telling the truth. Putting it bluntly, in terms that everyone understands, he was a liar.

3. The asserted fresh material

27. Two reports were presented to the Secretary of State. The first: from Dr Brian Allen of 12th January 2011. He is an expert in East Africa and languages within that part of the world. The second report was from Professor Derek Nurse of 21st January 2011. He is an expert in linguistics, in particular those relevant to East Africa.
28. Both produced detailed reports having considered the papers. It is important to note that they did not consider all the papers. Both were convinced that there was strong evidence that the claimant was Bajuni, although Professor Nurse accepts that the claimant does not speak Bajuni but his linguistic performance was compatible with having grown up as a Bajuni. I have read the two reports with some care. It is apparent to me from the documents produced by the Secretary of State that those reports were carefully read by officials who made the decision on her behalf.

4. The decision of the Secretary of State of 22nd February 2011 (the first decision)

29. There can be no doubt that the Secretary of State conscientiously considered the material submitted by the claimant both speedily and efficiently. I will not recite the decision which I have scrutinised myself with some care. Its core features are these: First, the conclusions of the Immigration Judge were noted, in particular the dishonesty of the claimant. That was and remains an important backdrop to this entire case. Second, it was noted the interviews with Dr Allen were two years after the substantive interviews for immigration purposes in 2009. The Secretary of State bore in mind the fact that the claimant may well have learned more and practiced more for the purposes of the expert opinion. Third, Dr Allen, it was pointed out by the Secretary of State, was not provided with the Immigration Judge's decision and in particular was blissfully ignorant of the finding of dishonesty on the part of the claimant by the Immigration Judge. Fourth, the Immigration Judge it was pointed out looked not simply at the SPRAKAB report but all the evidence in the round. In the result, the Secretary of State concluded as follows:

"It is important to note that the Immigration Judge did not dismiss your appeal based solely on the evidence of the Sprakab language analysis. As outlined fully in the appeal determination, the Immigration Judge looked at all the evidence in the round before coming to the conclusion that he was not satisfied that you were a Somali Bajuni as claimed (appeal determination paragraph 43). As outlined fully in the appeal determination the Immigration Judge made adverse credibility findings as regards to section 8 of the Asylum and Immigration Act 2004 in regards to your claim when assessed with objective information and in regards to the Sprakab language analysis. Furthermore, and importantly, the Immigration Judge stated:

'If the appellant did travel to Kenya as he claims in 2006, then that is the strongest possible indication that he is in truth a citizen of Kenya because he would not otherwise have been issued with a travel document that would have allowed him to do so (appeal determination paragraph 44).'

Neither of the reports that you have submitted have addressed the Immigration Judge's findings in regard to your ability to travel on your own accord to Kenya and as such do not detract from the findings outlined in the appeal determination. It is therefore considered in the light of the Immigration Judge's finding that you possess the ability to at least reside in Kenya and as such will be removed to Kenya from the United Kingdom. This is reinforced by the Immigration Judge's findings:

'Given these conclusions I find that the appellant has not discharged the burden of proof that lies upon him to establish that he faces serious harm in Somalia. If he is not a citizen of Somalia then there is no prospect of his being returned to that country. I am not therefore satisfied that the appellant's removal from the United Kingdom would cause the United Kingdom to be in breach of its obligations under the 2006 qualification regulations or would give rise to a real risk of a breach of his article 3 rights. Again, given these factual conclusions I find that the appellant has not shown substantial grounds for believing that he will face a real risk of serious harm in Somalia since there is no prospect of his being returned to that country. I do not find that the appellant is entitled to a grant of humanitarian protection pursuant to paragraph 339C(ii) of the Immigration Rules (appeal determination paragraph 45).'

Taking the findings of Dr Allen and the criticisms of the SPRAKAB report by Professor Nurse and 'the researcher' into account, it is not considered that you would still be entitled to any form of leave to remain in the United Kingdom due to the fact that you have the right to reside in Kenya. As such it is considered that the submission of the documents outlined above would not create a realistic prospect of success before an Immigration Judge."

5. The Dutch information

30. The Dutch Government has provided information as to what the claimant told them about his life and history. This has been compared and contrasted with what the claimant has told the United Kingdom authorities.

6. The Secretary of State 's decision of 10th February 2012 (the second decision)

31. Following the grant of permission and receipt of the Dutch information, the case was reviewed by the Secretary of State and a further decision was made on 10th February 2012. The decision was approached systematically. First, there was a further analysis of Dr Allen's report and the revealed inconsistencies with what the claimant told the Dutch authorities in relation to inter alia family lineage and currency in use in Somalia. It emerged the claimant was also able to remember certain matters when he claimed not to remember them to the Dutch authorities. I have deliberately not set out an exhaustive list of all the divergent answers of the claimant. Secondly, the decision went on to consider the expertise of Dr Allen and Professor Nurse with reference to previous cases, namely KS (Minority Claims - Bajuni - Ability to speak Kibajuni) Somalia Country Guidance [2004] UK IAT 00271 and AA (Expert Evidence Assessment) Somalia [2004] UK IAT 00221. Professor Nurse is exposed to criticism about his level of expertise too and his criticisms of the SPRAKAB technique.
32. The Secretary of State concluded as follows, having considered the material to which I have called attention and other matters:

"As with any expert report, the evidence needs to be considered alongside all of the evidence available and not in isolation."

That is a very important observation and an accurate assessment of the situation. To continue:

"In addition to the comments above, the case of RB found that:

'In our judgment because of SPRAKAB's underlying library of data and the process by which it produces its reports, SPRAKAB evidence is of high quality and its opinions are entitled to very considerable weight.'

The Immigration Judge also found that your client was not a credible witness and that his evidence was inconsistent with country information. The language analysis was only one of the reasons for the dismissal of your client's asylum claim. There are now further discrepancies in your client's evidence as noted above in relation to different accounts given to the Dutch authorities. Therefore, even without the language analysis, your client has not demonstrated that he is a Somali national. The Secretary of State notes that the Dutch authorities gave careful consideration to the fact that your client's description of his claimed home area did not match objective publicly available information. His account of the location of villages and islands were at odds with the actual geography of the area he claimed to be from. The Dutch authorities were so un-persuaded by the claimant's ability to describe his home area that they considered language analysis unnecessary.

For all of the reasons given above, along with the refusal letter of 22nd February 2011, your submissions would not create a realistic prospect of success."

33. Having now covered the circumstances of this case at some little length upon the core issue, I turn to the submissions of counsel. I firstly refer to the claimant's submissions advanced by Mr Hussain. He makes five basic points. First, he asserts that the Secretary of State based too heavy reliance upon the SPRAKAB report. Second, it is asserted that the Secretary of State did not give sufficient weight to the reports of Dr Allen and Professor Nurse and the alleged errors in the SPRAKAB analysis as asserted by at least one of them. Third, it is asserted that the Secretary of State has misapplied the test that I adumbrated earlier in this judgment. Fourth, it is asserted that there has not been anxious scrutiny of all the relevant material, and that, finally, the Secretary of State should not lightly ignore expert opinion.
34. Pausing for one moment, I make these observations about expert evidence. Expert evidence is part of all the evidence in a case and as the Secretary of State correctly indicated. It needs to be considered alongside all of the available evidence and not in isolation. Expert evidence must be properly weighed as part of the whole picture. The weight to be attached to it is case specific and is part of the whole matrix. Expert evidence should not be looked at in isolation, certainly not in this case where a Minister was being asked to view the material in accordance with the law relating to paragraph 353 of the Immigration Rules.
35. Mr Fulwood, who appears on behalf of the Secretary of State, has made robust, and in my judgment, sensible submissions in relation to this case. First, it is asserted that the Secretary of State was perfectly entitled to reconsider this matter as she did (the second decision). She has made a new decision. That is the extant decision. He asserts therefore it is wholly artificial for this court to simply look at the first decision in isolation. The new information (the Dutch information as I have called it) simply bolsters the first decision. The Minister demonstrably has viewed the matter as a whole and taken into account all the information before reaching a global assessment of it, correctly applying the test that she is required to do. He asserts that both decisions were entirely lawful. The Minister, as I say, he submits, applied the right test. He finally asserts that it is only permissible for this court to interfere with the Ministerial decision if it is on legitimate grounds adjudged to be Wednesbury unreasonable.
36. In my judgment there can be no doubt that the Secretary of State was entitled to reconsider the matter of her own volition in the light of the information derived from the Dutch government. She was not slavishly following their decision but has utilised that information and placed it in the matrix to make a new decision using the first decision as the foundation. Indeed, had she not done so, I venture to suggest she might have been exposed to criticism. Had the information been supportive of the claimant's case, she would have been very wrong to have ignored it. So too is the reverse where the information buttresses her earlier decision.
37. It would have been quite wrong for this court to reach a conclusion on the first decision on a stand-alone basis. The first decision is not the operative decision. The second decision builds upon the first and must be considered. I have no idea why the claimant has given instructions not to challenge the second decision. If it is borne out of an expectation of procedural advantage hereafter, that thought must be dispelled at once. This court deals with the reality of administrative decisions and not artificial constructs designed to appeal to lawyers. It would be quite wrong to countenance a potential challenge to the second decision sequentially when it is part and parcel of the overall factual matrix. Had I decided otherwise, I would have been viewing this case with blinkers placed around my focus of vision. It would also have been very costly and against the important principle of resolving administrative cases as efficently as possible.
38. The role of the Secretary of State is clear. She is required to anxiously scrutinize the amalgam of the old and new material. That is to say she must view the material with great care. She must then ask herself whether there is a realistic prospect of success before an Immigration Judge that the claim to asylum will succeed. This decision is only open to judicial review if the Secretary of State has made a Wednesbury unreasonable or irrational conclusion.
39. Paragraph 353 provides a very sensible test to be applied. It must be remembered that it is not the Secretary of State's view of the matter. It is whether the Secretary of State considers that the claimant would have a realistic prospect of success before an immigration judge. It is entirely legitimate for the Secretary of State to view the previous findings of the Immigration Judge as a whole and as a starting point. In this case the critical backdrop is the claimant's dishonesty as found by the Immigration Judge. Furthermore, it is now apparent that there are massive discrepancies between what he told the Dutch authorities and what he told the United Kingdom authorities. This only serves to further demonstrate the lies he told to the Immigration Judge.
40. Examples of this in summary form relate to: firstly, the clan membership. He told the United Kingdom authorities that he was part of the Wachanda Tribe, whereas he told the Dutch authorities that he was part of the Al Nufally Tribe. Secondly, in relation to currency he gave different information about the relevant currency to both the Dutch and United Kingdom authorities. Finally, in relation to the names of village elders, he told the Dutch authorities he could not remember them (when he was much closer in time to allegedly having contact with them); whereas to the United Kingdom authorities, many years after he allegedly left Somalia, the names were conveniently provided. All of this serves to demonstrate, I am afraid, the comprehensive unreliability of the claimant. I have used polite language to describe these important discrepancies.
41. In my judgment, the claimant has not been able to demonstrate to me that the Secretary of State approached this matter erroneously. Indeed, my view is that there has been conspicuous fairness. Everything has been looked at carefully. Everything has been looked at again. The Minister is required to form a judgment and approach the question that must be answered in a realistic way, taking a view of all the material, including the critical backdrop of the claimant's dishonesty which has been revealed the more by the Dutch material which has been incorporated into the recent decision.
42. I have reconsidered my observations contained at paragraphs 11 and 12 of the judgment I gave when granting permission. I have now heard full argument. I have considered the second decision as well as the first. These are far from flawed decisions. I am of the view that the Secretary of State applied the correct test in respect of both decisions. The Dutch information buttresses the first decision; not that it needed any buttressing. The Secretary of State has placed the expert opinion into the balance and reached a conclusion demonstrably applying the right test on both occasions. I should add, for the avoidance of doubt, had the first decision stood alone, quite apart from the Dutch information and the second decision, I am entirely satisfied, having now reviewed the matter and heard full argument, the first decision (as a stand-alone decision) was not unlawful. I have however viewed both decisions. The second decision merely buttresses the first; and both decisions, as I have already indicated, were made entirely lawfully.
43. In the result, I dismiss this application in respect of the first decision. There is no application in respect of the second, even though I would have made all technical arrangements for me to review it in a rolled-up hearing today. So the second decision, the operational decision, stands. That information needs to be recited in the preamble or recital to the order upon the first decision in case the claimant decides to make a fresh application for judicial review. I shall so order.
44. MR FULWOOD: I am grateful, my Lord. Have you a form of words in mind for the recital?
45. JUDGE RICHARDSON QC: I have not. As long as the fact that I would have entertained an application for judicial review, I would have treated the hearing as a rolled-up hearing and I would have made all technical arrangements for that to be done by abridging whatever time limits were operational.
46. MR FULWOOD: If I propose some form of "whereas" recording and then go straight into the principle orders of--
47. JUDGE RICHARDSON QC: Exactly. I think it needs to be recorded because technically the claimant cannot be prevented from making an application for judicial review, in the next 10 minutes if he wanted to. But I rather suspect if he did the Secretary of State would immediately call to the court's attention the decision today.
48. MR FULWOOD: So just standing on my feet it could read something along the lines of: "Whereas the claimant has chosen not to seek to challenge the decision dated February 2012, despite the court indicating... "
49. JUDGE RICHARDSON QC: "Its willingness to".
50. MR FULWOOD: "... its willingness to entertain such a challenge..."
51. JUDGE RICHARDSON QC: "And would have made appropriate arrangements to do so, including a rolled-up hearing today".
52. MR FULWOOD: "It is ordered: 1." and so on. I will hand-write that out and perhaps pass it through.
53. JUDGE RICHARDSON QC: Certainly, what I have in mind to do is to -- since we are now at ten minutes to two -- is perhaps having heard any further submissions about whatever needs to be decided now, to rise for a short while to allow you to put that together. It can then be passed through and I can approve it. I need not sit again on this case unless there is a real necessity for that to be done.
54. MR FULWOOD: On the issue of costs just the normal order for the claimant to pay the defendant's costs to be assessed if not agreed.
55. JUDGE RICHARDSON QC: Certainly.
56. MR HUSSAIN: He is publicly funded so I would also ask for no enforcement of any costs order without the further authority of this court.
57. JUDGE RICHARDSON QC: Yes, very well. I assume the Secretary of State has a plan now to issue removal directions?
58. MR FULWOOD: Yes.
59. JUDGE RICHARDSON QC: Well he must face up to that as best he can. There we are. Thank you very much indeed. Can you put that together? There is no rush. If you have it by 2.20pm, that would be perfectly convenient.
60. MR FULWOOD: I think I can do it in five minutes.
61. JUDGE RICHARDSON: If you can all well and good. Just pass it through and I will approve it and that will be that. Thank you, gentlemen, very much indeed.