Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 74

P1207/14

OPINION OF LORD UIST

In the Petition of

SAMINA MANZOOR

Petitioner; 

For Judicial Review of decisions by the Secretary of State for the Home Department

Petitioner:  Forrest;  Drummond Miller LLP (as agents for Maguire Solicitors, Glasgow)

Respondent:  Maciver;  Office of the Advocate General

9 June 2015

[1]        The petitioner, who was born on 9 December 1986, is a national of Pakistan.  She entered the United Kingdom on 10 June 2012 under a visit visa.  She claimed asylum on 28 June 2012 on the ground that she feared persecution if returned to Pakistan.  Her application for asylum was refused by the Secretary of State for the Home Department on 31 August 2012.  Her appeal against that decision was refused by a judge of the First‑tier Tribunal on 10 April 2013 and her rights of appeal became exhausted on 16 May 2013.  By letter dated 4 November 2013 the solicitors for the petitioner asked the Secretary of State to consider that there had been a substantial change in the circumstances of the petitioner in that she had reconciled with her husband and been living with him for the previous seven months.  It was submitted that to remove her to Pakistan in these circumstances would amount to a breach of article 8 of the European Convention on Human Rights (ECHR).  Documentary materials enclosed with the letter were said to amount to fresh evidence in support of the petitioner’s case.  The Secretary of State, having rejected the further submissions for the petitioner, considered whether the solicitors’ letter of 4 November 2013 amounted to a fresh claim under paragraph 353 of the Immigration Rules and concluded that it did not.  In these proceedings the petitioner seeks reduction of that decision. 

[2]        The grounds of challenge to the Secretary of State’s decision of 9 June 2014 are that she did not consider whether there were realistic prospects of success before another judge and also that she failed to apply anxious scrutiny to the fresh material presented with the solicitors’ letter of 4 November 2013.  It was submitted, on the basis of the decision in the case of WM (DRC) v Secretary of State for the Home Department [2007] INLR 126, that the test was not whether the claim would succeed before the Secretary of State herself, but whether there was a realistic prospect of success before another immigration judge, applying anxious scrutiny.  The test required only that there was a realistic, not a guaranteed, prospect of success and it had been described in WM as “a modest test”.  It was submitted that the Secretary of State had considered whether she would grant the claim, not whether another judge, exercising anxious scrutiny, would grant the claim.  It was also submitted that the Secretary of State had erred in making detailed reference to and placing reliance on evidence given by the petitioner before the judge of the First‑tier Tribunal relating to her relationship with her husband. 

[3]        The submission for the Secretary of State in response was that the prior findings of the judge of the First‑tier Tribunal on the credibility of the petitioner were of considerable importance and had to be taken as unchallenged:  Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702 at paragraphs 37 to 40.  In this particular case the judge of the First‑tier Tribunal had made very damning findings on the credibility of the petitioner:  he had concluded that it was even unclear whether she was married.  So far as anxious scrutiny was concerned, it had never been established that it applied to article 8 cases, as opposed to article 3 and asylum cases:  R (Yogatas) v Home Secretary [2003] 1 AC 920 per Lord Bingham of Cornhill at page 927 B‑H, paragraph 9 and Dangol v Secretary of State for the Home Department 2011 SC 560 per Lord Bonomy at page 565, paragraph [9].  The Secretary of State’s decision was based on all matters rejected by the judge of the First‑tier Tribunal and the evidence of the petitioner’s reconciliation with her husband.  At paragraph 4 of her decision letter she had quoted in full Immigration Rule 353.  She had then gone on to state in paragraph 5: 

            “The points raised in your submissions have not previously been considered, but taken together with the material which was considered in the letter giving reasons for refusal dated 31 August 2012 and the appeal determination of 10 April 2003 they would not have created a realistic prospect of success.”

 

At paragraph 8 she had quoted the correct test to be applied, as set out by the Court of Appeal at paragraphs 15 and 16 of R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116.  At paragraph 14 she had stated: 

            “On the basis of Ashiq Ali’s statement alone it is not considered that your client is at real risk of ill treatment amounting to persecution from Mr Ali’s family, when taken together with all other previously considered material.  It is considered that there is no realistic prospect of success of another immigration judge coming to a different conclusion.” 

 

Paragraphs 38, 39 and 40 stated as follows:

            “38.  It is considered that the further representations submitted on behalf of your client contain no good arguable case that the rules alone produce an unfair result for your client.  Your client’s case has been considered against the Immigration Rules and in doing so consideration has been given to proportionality in a reasoned and clear manner.  It is therefore the Secretary of State’s decision that your client’s removal from the United Kingdom would not breach article 8 of the ECHR.

 

39.  Therefore having given anxious scrutiny to your further submissions along with all previously considered material it is considered that your client’s article 8 rights would not be breached if she were removed from the UK, as her removal is legitimate and proportionate. 

 

40.  As we have decided not to reverse the decision on the earlier claim and have determined that your client’s submissions do not amount to a fresh claim, your client has no further right of appeal.” 

 

It was submitted that, had the last sentence of paragraph 14 been inserted at the end of paragraphs 38 or 39 there would have been no basis for the petitioner’s challenge.  Moreover, paragraph 40 stated in terms that the submissions did not amount to a fresh claim.  The petitioner sought to take an excessively formalistic approach to the terms of the decision letter. 

[4]        In my opinion the decision of the Secretary of State dated 9 June 2014 is not open to any valid criticism.  It is clear from paragraphs 4, 5 and 8 that she was aware of the exact terms of Immigration Rule 353 and the test which she had to apply.  Furthermore, it is clear from paragraphs 14, 38, 39 and 40 that she correctly applied the rule to the facts of the case.  She was entitled to, as she did, reject the further submissions made by the petitioner and also to determine that they did not amount to a fresh claim.  The challenge to her decision is unfounded and the petition is refused.