Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 95A
P52/11	OPINION OF LORD STEWART in the Petition T.N.C. (A.P.) Petitioner; for Judicial Review of a determination by the Secretary of State for the Home Department that further submissions do not amount to a fresh claim in terms of the Immigration Rules (HC 395 as amended) Rule 353 ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie, advocate; Drummond Miller LLP

Respondent: McIlvride, advocate; Office of the Solicitor to the Advocate General

3 June 2011

[1] This Petition is for judicial review of a determination dated 18 November 2010 by the UK Border Agency exercising powers on behalf of the Secretary of State for the Home Department. The determination was to the effect that certain further submissions do not amount to a fresh human rights or asylum claim in terms of the Immigration Rules (HC 395 as amended) Rule 353.

[2] The petition was lodged on 21 January 2011. A first hearing took place on 4 May 2011. Counsel for the petitioner moved me to sustain the petitioner's plea and to reduce the Border Agency determination of 18 November 2010. The motion was opposed by counsel for the Advocate General on behalf of the Secretary of State, respondent. He moved me to sustain the respondent's plea and to dismiss the petition. Having heard parties' submissions and made avizandum I have formed the opinion that the petitioner's motion should be granted with a view to the matter being re-determined by the Border Agency.

The issue

[3] The petitioner's previous attempts to prove that he is entitled to asylum etc. by virtue of his being a member of the Yazidi minority in Iraq have failed. It is a matter of agreement between parties that if the petitioner were now accepted as being of the Yazidi faith his claim would have a reasonable prospect of success before an Immigration Judge. This is because there is relatively new Country Guidance which states that the previous Country Guidance case is no longer to be followed; and that being an Iraqi Yazidi must now be considered "a significant risk factor and special reasons would need to exist for not finding that such a person faces a real risk of persecution or treatment contrary to Article 3 ECHR" [ZQ (serving soldier) Iraq CG [2009] UKAIT 00048.]

[4] The question raised by the petitioner is whether the Border Agency decision-maker erred in determining that there was no reasonable prospect that an Immigration Judge exercising anxious scrutiny would find it established that the petitioner is an Iraqi Yazidi.

[5] Parties were agreed that the question raised by the petitioner should be decided by this Court on conventional Wednesbury grounds, applying anxious scrutiny because of the potential extreme risk [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193 (4 March 2011) at § 16; KD (Nepal) v Secretary of State for the Home Department [2011] CSIH 20 (16 March 2011) at § 6; RA (Pakistan) v Secretary of State for the Home Department [2011] CSOH 68 (19 April 2011) at §§ 15-19; SKM (Democratic Republic of Congo) v Secretary of State for the Home Department
[2010] CSOH 172 (23 December 2010) at §§ 29-31].

[6] I would be entitled to be mistrustful of consensus between parties on these matters: for some months before the KD judgment was handed down counsel in Rule 353 cases tended to agree that the Court should not decide matters on conventional Wednesbury grounds but should make its own judgment. See for example MA (Iran) v Secretary of State for the Home Department [2011] CSOH 8 (19 January 2011) at §§ 48-57 where I also considered what is involved in making Rule 353 determinations. In the instant case however I judge it reasonably safe to proceed on the agreed basis.

Submissions for the petitioner

[7] On the Yazidi issue the determination of 18 November 2010 states at paragraph 23: "You have submitted no credible evidence to suggest that another Immigration Judge would come to a different conclusion [on the petitioner's claim to be of the Yazidi faith.]"

[8] The Wednesbury point taken by Mr Caskie, counsel for the petitioner, is that in reaching this conclusion the Border Agency decision-maker failed to take into account relevant material namely the statement of the petitioner's sister DNJ dated 20 October 2010 [part of Production No 6/2].

[9] The sister's statement was included in the petitioner's further submissions; the decision-maker accepted that the sister's statement had not previously been considered [Production No 6/1, Determination of 18 November 2010, paragraphs 7 and 8]; and the sister's statement is prima facie relevant. Paragraph 4 of the sister's statement contains the following passage:

"I know T would face problems in [sic] he was returned to Iraq. We are both members of the Yazidi faith and if T was returned he would be killed. The Yazidi are persecuted and mistreated in Iraq."

[10] Counsel for the petitioner submitted that the information could not properly be discounted unless the decision-maker were able to say that no Immigration Judge could reasonably accept the information and that no Immigration Judge, were the sister to testify in person, could reasonably find her credible and reliable.

[11] Counsel continued to the effect that no reasons had been given for rejecting the sister's statement. Indeed, the decision-maker's determination contained no reference to the sister's statement beyond stating that it had been received and had not previously been considered. Yet the sister now offered, in a sense, a certificate of good character in that she had been naturalised and is a British citizen. Her statement referred to this matter at paragraph 2; and a copy of the photograph page of her passport had been produced to the Border Agency.

[12] If the sister's statement were not rejected then the credibility and reliability of the petitioner and the weight to be attached to his documents would require to be re-assessed in the light of her evidence. It could not properly be said that there was no reasonable prospect of success. To leave such significant material out of account amounted to a structural flaw and was an error of law [AAS and SAAS (Somalia) v Secretary of State for the Home Department [2010] CSIH 90 (16 November 2010) at §§ 9-11].

Submissions for the respondent

[13] Mr McIlvride, counsel for the respondent, made a cogent submission to the effect that the previous adverse findings about the petitioner's credibility were unimpeachable having regard to the information then available; and that the Border Agency decision-maker was entitled to conclude that there was no realistic prospect of an Immigration Judge being persuaded of the genuineness of the documents included in the petitioner's fresh submission [YH (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 116 (25 February 2010) at §§ 43-46; Asif Naseer (Pakistan) v Secretary of State for the Home Department [2006] EWHC 1671 (Admin) (21 June 2006) at §§ 12, 13, 16-18, 24, 28-31, 36 and 37].

[14] Counsel drew attention to the deficiencies in the petitioner's position referred to in the Border Agency determination at paragraph 21, in the Immigration Judge's determination of 11 May 2008 [Production No 7/1] at paragraphs 36 to 46 and in the Reasons for Refusal Letter of 11 March 2008 [Production No 7/2] at paragraphs 16 to 26.

[15] Counsel did accept that a critical issue was the weight to be given to the sister's statement. The decision-maker, counsel submitted, was entitled to take the view that no Immigration Judge could find the sister's evidence acceptable given the flaws in the petitioner's account.

[16] Knowing the detailed criticisms of his position, the petitioner had chosen to present as evidence from his sister only a bald assertion that the petitioner was a Yazidi. The bald assertion did not meet the criticisms. It was not for the decision-maker to speculate what other evidence might be available were the sister to give oral testimony to an Immigration Judge.

[17] Counsel submitted that the heading of paragraph 15 of the Border Agency determination - "Statement of TNC" - was clearly erroneous: the paragraph referred to the statement by the sister DNJ. This was also apparently the understanding of the drafter of the petition, paragraphs 20 and 21. On this basis the decision-maker had considered and had rejected the sister's statement.

[18] Properly understood the petitioner's complaint was not that some relevant factor had been left out of account, but that the decision was irrational. Counsel referred to the final sentences of paragraphs 21, 22 and 29 of the petition where, clearly, the criticism was that the determination was "unreasonable et separatim irrational". The submissions for the petitioner did not attempt to satisfy the test of Wednesbury unreasonableness and the petition should be dismissed.

Decision

[19] Paragraph 15 of the Border Agency determination reads:

"Statement of TNC

The statement you provided is self-serving and would be reviewed in line with Tanveer Ahmed, and the previous negative credibility findings from your asylum interview, court appearance and material previously submitted and on its own does not create a realistic prospect of success."

[20] I do not accept that this is meant to be a reference to the statement of the sister DNJ. If it is a reference to the sister's statement then there is no reference to the petitioner's own statement in the determination. And again, if it is meant to refer to the sister's statement, it is an inadequate treatment of that statement.

[21] The better view is that paragraph 15 is a reference to the petitioner's own statement; that the decision-maker has made the determination without taking account of the terms of the sister's statement; and that the determination is accordingly flawed because it has overlooked clearly relevant material. I am satisfied that I am entitled to reach this conclusion notwithstanding that the determination states at paragraphs 10 and 11: "These documents have been considered (as have all documents your client has submitted)...lack of reference to a specific item should not be taken to mean that it has not been read and fully considered."

[21] For these reasons I shall repel the respondent's plea, sustain the petitioner's plea and reduce the determination of 18 November 2010 so that the matter can be re-determined by the Border Agency taking account of all relevant material. In so doing I express some sympathy for the respondent who, in court, has had to meet a somewhat different case from the case presented on paper.

Other matters

[22] For completeness I should record that there were also submissions on both sides directed to the issue of the non-appearance of the petitioner and his sister at the Asylum and Immigration Tribunal hearing of 1 May 2008. The account given by counsel for the petitioner was that the sister had given birth by caesarean section that day and that the petitioner had to look after the older children during the confinement. A copy of the birth certificate was said to have been submitted to "the Secretary of State" in July 2009.

[23] Counsel for the respondent submitted that no reasons for the non-appearances had been given in the further submissions. In this judicial review it was for the Court to decide whether the Border Agency determination was erroneous or otherwise on the material that had been before the Border Agency decision-maker.

[24] I find it unnecessary to reach a view about these matters.