Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 170

P366/12

OPINION OF LORD WOOLMAN in the Petition of I.A.W. detained at Dungavel Detention Centre, by Strathaven, Lanarkshire Petitioner; for Judicial review of a decision of the Secretary of State for the Home Department dated 5 April 2012 refusing to treat the petitioner's further submissions as a fresh claim and certifying his claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 ________________

Petitioner: Winter: Drummond Miller LLP

Respondent: Creally QC, Office of Advocate General

30 October 2012

[1] The petitioner is a citizen of India and comes from the troubled region of Kashmir. He was born on 20 February 1977 and is now aged 35. He has never had an Indian passport. He left the country with the assistance of a smuggler and arrived in the United Kingdom on 27 November 2000. He has remained here ever since, despite a long history of failed applications.

[2] On 5 April 2012 the Secretary of State issued a decision refusing to treat the petitioner's further submissions as a fresh claim for asylum. She certified that the claim was "clearly unfounded" in terms of section 94 (2) of the Nationality, Immigration and Asylum Act 2002. In this petition for judicial review, the petitioner seeks to reduce both those decisions.

[3] On arrival the petitioner's claim for asylum was refused. His appeal against that decision was dismissed on 26 November 2001. His asylum appeal rights were deemed to be exhausted on 12 December 2001. The petitioner's claims under Articles 2, 3 and 14 of the European Convention on Human Rights were refused on 28 February 2005. His Article 8 claim was refused on 12 April 2006.

[4] On 7 January 2008 the petitioner appeared at Rochdale Magistrates Court. He was convicted of one count of possession of an article for use in a fraud and two counts of making false representations for gain. He was sentenced on 25 March 2008 to a total of 18 months in prison. No recommendation for deportation was made. He did not appeal against conviction or sentence. On 16 May 2008 a notice of liability to deportation was issued.

[5] The petitioner submitted further representations stating that his life would be in danger if he returned to India. Those submissions were refused on 29 August 2008. On 6 November 2008 a notice of liability (automatic deportation) was issued and on 31 January 2009 a Deportation Order was served on him. His appeal against the order was dismissed on 17 March 2009 by Immigration Judge Kempton.

[6] In her judgment the immigration judge considered whether the petitioner would be at risk if he returned to India and stated:

"although the [petitioner] was accepted as having been a member of the Mujahadin, he was not accepted as having ever come to the attention of the authorities as he admitted he had never been arrested or detained. In addition, he relocated for three or four months to another area of India, to the Punjab, where no one sought him and he appeared to be safe. In the circumstances [he] has shown that he can exercise the internal flight option as he has done so successfully in the past. In any event, given that [he] has been in the UK for over eight years, if the authorities had any interest in him, they might have issued a warrant for his arrest, but [he] does not allege any such like having occurred. There is simply no evidence of any continuing interest in [him] either in Kashmir or any other part of India and so a claim under Article 3 is bound to fail. I acknowledge that from the objective information before me that the situation in Kashmir is not at all good, however, the [petitioner] does not have to go to Kashmir and can relocate to any area in India.

[7] Both parties rely on the immigration judge's decision. The petitioner emphasises the finding that he was a member of the Mujahadin. The Secretary of State relies on the twin findings that he would not be exposed to risk on his return and that he could relocate. The petitioner's application for that decision to be reconsidered was dismissed by Senior Immigration Judge Storey on 7 April 2009. He held that the grounds did "not disclose an arguable error of law." The petitioner sought judicial review which was refused on 10 June 2009. He became 'appeal rights exhausted' on 22 June 2009.

[8] By letter dated 20 July 2010 the Secretary of State refused the representations made in a pre-action protocol letter. The refusal was certified as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. The decision carried an 'out of country' appeal only.

[9] On 1 October 2010 the petitioner's agents submitted a further pre-action protocol letter requesting revocation of the Deportation Order on the basis of his article 8 rights. This was refused by decision dated 20 October 2010. No appeal was lodged until 27 May 2011. That appeal was out of time. It was dismissed on 12 August 2011 by Immigration Judge De Haney. The decision concludes as follows:

"Whereas we accept of course that every individual has the right to use the Appeals system in order to have the opportunity to put their case the [petitioner] has shown today, by failing to provide any evidence, that this has been used as a delaying tactic rather than an opportunity to present his case."

[10] On 15 February 2012 the Indian authorities agreed that the petitioner could return to India on the basis of an Emergency Travel Document. On 13 March 2012 the petitioner was detained. By letter dated 20 March 2012 the Secretary of State refused his further submissions alleging that he had been tortured by the Indian authorities. The refusal was certified as one that should not have been brought in terms of section 96 of the Nationality, Immigration and Asylum Act 2002..

[11] By letter dated 3 April 2012, the petitioner's solicitors wrote again to the Secretary of State seeking asylum on his behalf. They challenged her finding that he would be of no interest to the authorities. They pointed out that the Indian authorities would be alerted to his return, because advance passenger information is sent to India within 15 minutes of a plane departing there: UK Country of Origin Information Report on India dated August 2011. para. 34.02. They contended that on his arrival, the Indian immigration authorities and other border control agencies would question him and learn that he was a member of the Mujahadeen. At that stage he would be detained and ill-treated.

[12] The petitioner's solicitors submitted that the immigration judge had applied the wrong test. They argued that an "individual found to hold genuine political beliefs cannot be required to modify their behaviour or deny their beliefs in order to avoid persecution." Reference was made to HJ (Iran) v Home Secretary [2011] 1 AC 596, per Lord Rodger at paragraph 82; and RT (Zimbabwe) v Secretary of State for the Home Department [2011] Imm AR 259.

[13] That starting point to consider fresh claims is paragraph 353 of the Immigration Rules. It provides:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn ... 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."

[14] In the refusal letter dated 5 April 2012, the Secretary of State did not accept that the Indian authorities had any interest in the petitioner. Accordingly, she concluded that it would not be necessary for him to lie in order to conceal his political opinions. She also decided that he could relocate to another area of the country and expressly stated that he would "not be removed directly to Kashmir".

[15] In reviewing a decision of the Secretary of State, the court must ask two questions: WM (DRC) v Secretary of State for Home Department [2007] Imm AR 337, para. 11 per Buxton LJ. First, did she ask herself whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return? The test is a modest one. It is enough if there is "only more than a fanciful prospect of success": R (AK (Sri Lanka)) v The Secretary of State for the Home Department
[2010] 1 WLR 855, para. 34 per Laws LJ. Secondly, in evaluating the facts and drawing conclusions from those facts, has she applied anxious scrutiny? The decision letter "should demonstrate that no material factor that could conceivably be regarded as favourable ... has been left out of account in the review of the evidence": Dangol v The Secretary of State for the Home Department 2011 SC 560 at para. 9.

[16] The petitioner accepts that the Secretary of State identified the correct test. He argues, however, that she did not give anxious scrutiny to his claim. He states that the new claim is significantly different from that previously advanced, standing new case law and new country guidance. He relies on the following factors:

a)    It is reasonably likely that on his return the Indian authorities will question him. They will do so because he left the country without being in possession of an emergency travel document

b)    They will discover that he is a failed asylum seeker and that his claim was based upon his political beliefs - his membership of the Mujhadeen.

c)    Internal relocation is no answer as it does not take account of the risk he faces at the airport.

[17] The Secretary of State's refusal letter dated 5 April 2012 consists of twenty paragraphs and sets out her reasoning in full. It contains a detailed examination of the petitioner's immigration history, the law, the immigration judge's findings and the submissions made on his behalf. It includes quotations from the relevant case authorities and the Country of Origin Report dated August 2011. On examination of all those materials, the Secretary of State concludes (a) that the Indian authorities do not have any interest in the petitioner, so it will not be necessary for him to lie in order to conceal his political opinions; and (b) that he could relocate to another area of the country. The refusal letter expressly states that the petitioner "will not be removed directly to Kashmir".

[18] In my view, the Secretary of State carefully evaluated each of the factors relied upon by the petitioner. In particular, she considered whether he would face questioning on his return. She identified and evaluated the risk he would face. She also took into account the possibility of relocation. I reject the submission that she treated her own view as the end point, rather than as only a starting point. I hold that she did apply anxious scrutiny in determining whether another adjudicator would come to a different decision.

[19] The petitioner may well be questioned on his return for appearing to have left India without valid travel documents. If he is liable to prosecution in that connection, then that is a matter for which he must take responsibility. The UK Country of Origin report states that "it is not aware of any reports of Indian nationals facing adverse treatment for reason of having claimed asylum abroad, following their return to India." (para. 34.05).

[20] Against that background, I hold that the challenge fails. The petitioner has failed to identify any flaw in the decision making process adopted by the Secretary of State in arriving at her decision. I shall dismiss the petition.