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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 >> Kakar, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1479 (Admin) (22 May 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1479.html Cite as: [2015] EWHC 1479 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/05/2015

Mr Justice Foskett:

1. The Claimant, who was born on 14 August 1983, is an Afghan national of Pashtun ethnicity. He was born and brought up in the village of Dergi, Qarbagh District, Kabul province. Until 2006 he lived in the village with his wife and his parents and sister.
2. For about 3 years before the events dealt with below he was working as a driver for SOZO International, a Christian charity with headquarters in the USA. It provides relief efforts and medical assistance in Afghanistan. Its director in Afghanistan is Mr Abdul Wakil Mehrabizadah. He was in post at the time of those events.
3. On the Claimant's case an incident took place in May 2006 that resulted in him becoming a revenge target of the Taliban. As a result he and his family left the village and lived in the relative safety of Kabul. In consequence of threats to which I will refer further below, he left Afghanistan initially in February 2008, travelling to Iran and continuing to Turkey and then to Greece. He was arrested and fingerprinted in Greece, but then sent back to Turkey. He was detained in Turkey for about a year and then expelled at the Iranian border. His account is that he was kidnapped and held for about 18 months in a detention centre in Iran. He alleges that he was tortured while detained in both Turkey and Iran. Although not directly material to his claim for asylum in the UK, it is to be noted that there is credible medical evidence to support his account of torture.
4. After his detention in Iran he was eventually left at the Iranian/Afghan border, but did not return to Kabul or his home village and, with the assistance of an agent, he travelled through various countries to the UK arriving, secreted in a lorry, on 12 September 2011. He claimed asylum. In support was a statement from the Claimant dated 7 November 2011 which essentially gave the account set out in paragraph 14 below and a short letter from Mr Mehrabizadah dated 25 February 2008. On 24 November 2011 his application for asylum was refused. He appealed against this decision and, in addition to a bundle of objective evidence, relied on the following documents at his appeal:

(i) an appeal statement dated 15 December 2012;

(ii) the letter from Mr Mehrabizadah;

(iii) a psychiatric report from Dr Enrique Zapata-Bravo of 5 June 2012;

(iv) a scarring report from Dr Naomi Hartree dated 5 June 2012;

(v) a Country Expert Report from Mr Tim Foxley dated 13^th January 2012.

5. I will say a little more about these documents as may be necessary in due course.
6. In a determination promulgated on 13 June 2012 First Tier Tribunal Judge Cary ("the FTTJ") dismissed the Claimant's asylum and human rights appeal. I will indicate below the material findings.
7. The Claimant was granted permission to appeal by First Tier Tribunal Judge French in a decision promulgated on 11 July 2012. On 14 September Upper Tribunal Judge Hanson directed that the Upper Tribunal would hear submissions to determine with the FTTJ made a material error of law and, if so, would go on to remake the decision. In anticipation of a possible rehearing by the Upper Tribunal Dr Hartree had produced an addendum report dated 17 October 2012, a second statement from the Claimant was produced and three "Taliban warning" letters were obtained from his family in Afghanistan. Although this further evidence was submitted to the Upper Tribunal, it was not considered because Upper Tribunal Judge Macleman decided that the there was no error of law and that the appeal was simply based on a disagreement with the result. The further appeal to the Upper Tribunal was heard on 24 October 2012 and dismissed by a decision dated 30 October 2012. The Claimant's appeal rights became exhausted on 29 November 2012.
8. The Claimant submitted further representations in support of a fresh asylum and human rights claim on 3 May 2013. Submitted on his behalf by the Islington Law Centre, it consisted of detailed representations and the following documents:

(i) a witness Statement from Mr Mehrabizadah dated 5 March 2013;

(ii) a witness statement from the Claimant dated 18 March;

(iii) medical reports of Dr Hartree dated 17 October 2012, 23 October 2012 and 21 March 2013;

(iv) an updated Country Expert Report of Mr Tim Foxley dated 13 March 2013;

(v) copies of letters from the Taliban and translations.

9. In a 12-page letter (which was undated but apparently produced on 26 September 2013) the Defendant rejected these representations and decided "not to reverse the decision on the earlier claim and … determined that [his] submissions did not amount to a fresh claim". The Claimant's advisers were unaware of that letter until after the Claimant was detained on reporting on 13 November 2013. At all events, they wrote a detailed letter before action on 18 November challenging the decision and asking that the Claimant be released from immigration detention. There was considerable focus on certain health issues.
10. The Claimant filed this claim for judicial review challenging the Defendant's decision to reject his further representations and seeking his immediate release from detention on 22 November 2013. In fact he was granted bail on 27 November 2013.
11. On 6 February 2014 Mr Mark Ockleton, sitting as a Deputy High Court Judge, granted permission to apply for judicial review in respect of his detention, but rejected the claim concerning the substantive decision. (The claim relating to the alleged unlawful detention was eventually settled in April 2015.) The Claimant renewed his application for permission to apply for judicial review in relation to the substantive decision, but this was refused following an oral hearing by William Davis J on 9 May 2014.
12. Following consideration of an application to the Court of Appeal for permission to apply for judicial review, Briggs LJ granted permission and the matter was returned to the Administrative Court. He made this observation to which I will return later (see paragraph 27): "There is no real prospect that the court would conclude, on a judicial review hearing, that the Secretary of State asked herself the wrong question, but … [there] is a real prospect of success on one or more of the other grounds for judicial review."
13. I heard the substantive application on 14 May.
14. The essential case that the Claimant seeks to advance in relation to his asylum claim is, in summary, as follows: in May 2006 a riot broke out in Kabul because people believed that Americans had killed two Afghan boys. The Claimant became caught up in this riot when he was driving a minibus back from Estalif (where SOZO ran a medical clinic) to SOZO's head office in Kabul. The passengers were foreign volunteers and on-board also was a freelance security guard. The mini-bus came to a standstill in the riot and three armed men who were members of the Taliban approached the vehicle and demanded that the Claimant hand over the foreigners. When he failed to do so they started shooting at the SOZO vehicle. The security guard returned the fire hitting some Taliban but was killed in the crossfire. The Claimant made an instinctive decision to drive away and drove through the crowd in the course of which he ran over two members of the Taliban who had been shot when firing at the vehicle. He believes that as a result two Taliban were killed and that the third Taliban was injured. As someone who did not cooperate with the Taliban in their demands to hand over the occupants of the minibus and as someone who either was or was seen to be responsible for the deaths of two of the Taliban, he was an obvious target for a revenge attack. Mr Mehrabizadah was very concerned for the Claimant's safety and about the consequences for the SOZO. The Claimant, who could not get back to his village that day, spent two nights at SOZO's office compound in Kabul before going home to the village. When he returned home, he learnt that his family home had been visited by the Taliban looking for him and that his father had been beaten and was seriously ill as a result. That same night he took his family to Kabul city to stay initially with his uncle. The Claimant's father died of his injuries a short time later. The Claimant and his family did not return to the village and stayed in Kabul which provided them with relative safety where there is a greater security presence. The Claimant continued working for SOZO but he did not drive a marked vehicle and only drove within Kabul city although he occasionally drove to the airport because that route was relatively safe. Things remained like this until February 2008. However, on an occasion when the Claimant returned home in the early hours of the morning from driving Mr Mehrabizadah to a wedding, he found that the Taliban had discovered where he lived and his family threatened. They had searched the house looking for him. His mother told him that she was told that the Taliban would not spare his life. It was that that prompted his departure from Afghanistan as set out in paragraph 3 above. Although he was unaware of it until October 2012, a number of "night letters" had been delivered to the family home threatening that he would be killed if found.
15. The "night letters" did not feature in the original asylum claim or the proceedings before the FTTJ but, on his account, were drawn to his attention by his mother after the initial appeal was unsuccessful.
16. The letter from Mr Mehrabizadah dated 25 February 2008 was in these terms:

"To Whom It May Concern

This is to certify that, SOZO International Organization employed Mr. Abdul Malik (Kakar) s/o Malik Mohammad (Kakar) as a Driver for its Kabul office during the period 23 September 2003 – 25 February 2008.

During this period he performed his duties in a professional way and has satisfied all the SOZO staff with his excellent works and behaviors, has proven himself capable of performing varieties of works in a number of fields and had completed all his duties within the planned time frames & has done an excellent job for our organization.

It's worth mentioning that in May 2006, when a military truck of the ISAF / Coalition forces collided with a local civilian car and a group of bad elements attacked the foreigners in different parts of Kabul city, & in that time a group of 12 guests (men & women) who were working in Istalif district and were not aware of the incident on their way back to the city, he bravely evacuated and brought them safely back to their guesthouse in Kabul, and that caused him a number of warnings from AOG and he was threatened that he will be killed by them for helping the foreigners.

We highly recommend him to the other Governmental, and Non-Governmental Organizations as well as to the other private companies, who wish to employee (sic) him for any kind of jobs or employment, please do not hesitate to contact us if you have any question regarding his service …."

17. This has all the hallmarks of a reference rather than a full witness statement about what Mr Mehrabizadah knew of the events, but as will be apparent from what follows, the FTTJ treated this as the account of Mr Mehrabizadah which, in some material respects, he considered did not support the account the Claimant had given. The relevant paragraphs of the FTTJ's decision were as follows:

"41. The letter from Mr Mehrabizadah refers to a disturbance in May 2006 'when a military truck of the ISAF-coalition forces collided with a car and a group of bad elements attacked the foreigners in different parts of Kabul city'. He confirms that the Appellant made arrangements to evacuate '12 guests' who were working in Istalif district. According to Mr Mehrabizadah 'that caused him a number of warnings from AOG and he was threatened he would be killed by them for helping the foreigners'.

42. However, in his Screening Interview on 6 October 2011 the Appellant claimed he had been asked by the Taliban 'to be an agent to kidnap foreigners' …. He did not make any mention of being involved in an incident in which members of the Taliban had been killed or injured or that he had been accused of murdering members of the Taliban which is what he subsequently asserted in his first Witness Statement (Paragraph 19).

43. There is no suggestion in the letter from Mr Mehrabizadah that the Appellant had been involved in a shooting incident in May 2006 let alone that he had driven over some dead bodies. Mr Mehrabizadah simply states that the Appellant was threatened he would be killed for helping foreigners yet it is the Appellant's case that the Taliban were primarily interested in him because he had 'murdered members of the Taliban'. The letter from Mr Mehrabizadah is lacking in any detail about the threats allegedly made to the Appellant or indeed, 'a number of warnings' that Appellant allegedly received. Mr Mehrabizadah does not identify the source of this information. He also makes no mention of any special precautions being taken to protect the Appellant after the incident although the Appellant claims in his Witness Statement that his employers had 'helped him by not sending him outside the city when I was driving' (Paragraph 17). He also makes no mention of the reasons why the Appellant decided to leave his employment with SOZO.

44. It is difficult to accept that if the Appellant genuinely believed himself to be at risk in respect of what occurred in April or May 2006, in view of his failure to immediate arrangements [sic] to leave his employment let alone Kabul. The evidence is that he continued to work for his employers until at least February 2008 and was doing so quite openly. I find it inconceivable that if the Appellant had been threatened as claimed he would have continued working for his employers particularly in a driving job where he would not doubt [sic] be exposed to potential attack on the open road. The Appellant suggested in his interview that after the Taliban visited the family home his family and himself went into hiding 'trying to live in a secret place' … but if that is right, it does not make sense that the Appellant would have continued to work quite openly for SOZO.

45. It is also difficult to accept that if the Taliban were genuinely looking for the Appellant to cause him serious harm they would have delayed for some 2 years or so before tracking him down. The Appellant suggested in his interview that the Taliban had not taken any further action against him until February 2008 because 'the time to be killed had not arrived. I think they were looking for a good opportunity' …. If the Taliban had 'contacts everywhere' as the Appellant asserted in interview … then if they were genuinely interested in the Appellant it seems to me that they would easily have located him and have been able to exact revenge if that was what they wished to do. In blunt terms, if the Taliban had wished to kill the Appellant they would have had every opportunity to do so when the Appellant was at work. There is nothing in the letter from Mr Mehrabizadah to suggest that any special precautions were taken after the incident in April or May 2006 to protect the Appellant. Indeed, Mr Mehrabizadah was more than willing to recommend the Appellant for potential employment to other governmental and non-governmental organisations. I cannot see how he would be prepared to do that if he knew the Appellant would be at risk from the Taliban and that steps needed to be taken to protect him.

46. I therefore consider that although the Appellant may well have worked for SOZO and been inadvertently caught up in one of the incidents that regular [sic] occur in Afghanistan, there is nothing to suggest he had ever been targeted by the Taliban. I do not consider it is reasonably likely that he has ever been of the slightest interest to the Taliban let alone they have threatened or attempted to harm him. It may well be that he is an economic migrant. I do not consider that when he left Afghanistan he had a well founded fear of persecution. I do not find him credible."

18. These findings were sought to be challenged in the unsuccessful appeal (see paragraph 7 above).
19. When the Claimant's further representations in support of a fresh asylum and human rights claim were submitted on 3 May 2013 there was a much more detailed statement from Mr Mehrabizadah dated 5 March 2013. He said that his letter dated 25 February 2008 was actually written some time after that date, but he dated it on the last date that the Claimant worked for SOZO. When he wrote it he said that he had "no idea of the information that would be wanted or needed" and that he had been asked to provide a letter confirming that the Claimant had worked for SOZO "and to mention the incident involving the Taliban". The new statement contained, amongst others, the following paragraphs:

"11. I was not present at the incident in May 2006 so my knowledge is from what [the Claimant] told me and what others also told me and our organisation, including the foreign volunteers who all witnessed what happened. From the statements given to us, I am aware that [the Claimant] was driving our mini bus back from the clinic in Estalif to the guest house. He had with him 10 "guests". Unfortunately, they were caught up in the riot that had erupted and they were fired on by the Taliban. On the mini bus was also a guard. He was not employed by Sozo, but was a freelance security guard who we paid. The money for his services came from the foreign volunteers who paid us for this extra service.

12. In the reports about the incident (and as I have I stated, we spoke to everyone on board and not just [the Claimant]) I was informed that there was cross fire shooting between the Taliban and the security guard in our vehicle. I believe that some Taliban were killed but the security guard was also killed in the exchange. Luckily everyone else on board survived but this was because [the Claimant] drove very bravely through the crowds, whilst the Taliban were still firing at him. I was informed by him and the others on board that [the Claimant] drove through and in so doing, he ran over some Taliban members who had been firing at the bus.

…

18. I am aware that [the Claimant] was given a warning in early 2008 by the Taliban which finally persuaded him that he had to go. His home in Kabul was attacked by the Taliban. I was waiting for something like this to happen. He had already lost his father and I believe that [the Claimant's] presence also meant that his family were at greater risk. The night that [the Claimant]'s family home was attached in Kabul, was thankfully a night when he had driven me to a wedding, and so was not at home when the Taliban came.

19. I think that when [the Claimant] realised that the Taliban had found him in Kabul, he finally accepted the enormity of the threat to him and again we spoke about it and I told him that he had to go as he was not safe. Again, as I have stated, it is my view from my personal experience and what I have seen of the Taliban that [the Claimant] will never be forgiven fro what he did. Even in another 20 years, the death of those that he ran over would be avenged either by the Taliban or their family members. This is completely part of the culture and this is why I also believe that he would be in danger anywhere in Afghanistan. I want to confirm that my personal view is that [the Claimant] would be at risk because he will be perceived as anti-Taliban for taking the action that he did and the Taliban will seek revenge for the deaths of their members, for which they blame [the Claimant]."

20. It will be apparent that, taking this at face value, it supports substantially material parts of the account given by the Claimant, and that it was not based solely on what the Claimant had told Mr Mehrabizadah, but on accounts given by others on board the minibus.
21. It would be convenient to see how Mr Mehrabizadah's new statement was dealt with in the decision letter challenged in these proceedings. The response has to be seen in the light also of the response to the further contribution of Mr Foxley the relevant part of which for this purpose will be seen from the decision letter (the italicised passages are italicised in the original, the emphasis by underlining is mine:

"Consideration has also been given to the report of Mr Foxley who describes the letters "… that the letters as presented could very plausibly have come from Taliban sources." Mr Foxley also states "If [the Claimant] had adversely come to the attention of a local Taliban group, I would not be at all surprised if the delivery of a series of night letters were to form the basis of an initial approach from the Taliban group." It is entirely accepted that the Taliban do deliver 'night letters'. However, these 'night letters' were not part of an "initial approach" from a local Taliban group. Indeed, according to your client, they had already beaten his father in the first raid on your client's home, resulting in his death a month later, and "ransacked" his house in Kabul in February 2008, telling your client's mother "that they would not spare my life and they would find me wherever I went"… It is therefore considered lacking in credibility that the group would then revert to letter writing rather than returning to the family home. It is also considered curious that the group have not returned to the home in the five years since their last visit.

Your client states that he believes that his mother did not mention these letters to him before as she did not wish to cause him alarm. This is supported by the statement of Mr Mehrabizadah, who claims that he saw one of the letters during a visit to the family home and "… had agreed with his mother that we would make no mention of these letters to him as we were concerned that if he knew, he would be very stressed and would be so worried about his family." It is considered to be lacking in all credibility that if your client's mother and Mr Mehrabizadah were aware that your client was claiming asylum in the United Kingdom, that they would not have forwarded the letters to him at the earliest opportunity to enable him to produce them in support of his application for asylum, particularly after his application had been refused by an official acting on behalf of the Secretary of State.

[Reference is made to the case of Tanveer Ahmed [2002] UKIAT 00439.] … As you have highlighted, the original documents and evidence that they were received from Afghanistan is no longer available. Furthermore, having taken into account the comments of Mr Foxley, it is concluded that no conclusions can be drawn as to the authenticity of documents. However, having considered them with your client's case in the round, it is concluded that [the Claimant] has failed to demonstrate that the letters are documents upon which any reliance can be placed.

… the witness statement of Mr Mehrabizadah … states "I have been the National Director of Sozo in Afghanistan since the beginning of it being set up. I cannot remember the exact date but it was some time in 2002." [Reference is then made to his LinkedIn profile and to a difference between the telephone number for the organisation in the letter of 25 February 2008 and that given on his statement.]

Notwithstanding this, it is considered that Mr Mehrabizadah's statement cannot be considered as a document upon which any reliance can be placed, when considered in the round. He made no mention of the issues he has raised in his original statement and it was only when spoken to after his initial statement was considered that he disclosed the additional issues. It is suggested that, having established a friendship with [the Claimant's] family, as he claims he has done, that Mr Mehrabizadah may be willing to support [the Claimant's] application to remain in the United Kingdom. Paragraph 45 of the appeal determination notes "Indeed, Mr Mehrabizadah was more than willing to recommend the Appellant for potential employment to other government and non-governmental organisations. I cannot see how he would be prepared to do that if he knew the Appellant would be at risk from the Taliban and that steps needed to be taken to protect him." Mr Mehrabizadah's statement does not address that point."

22. There can be no other interpretation of these passages than that the Secretary of State regarded Mr Mehrabizadah's new statement as one "upon which [no] reliance can be placed", the suggestion being that he was simply saying what he did "to support [the Claimant's] application to remain in the United Kingdom" because of the friendship he had developed with the family.
23. I will refer to the correct approach of the Secretary of State to representations of the nature advanced by the Claimant, but Miss Knorr submits that it was wholly untenable (and indeed irrational) for the Secretary of State to conclude that a future tribunal would inevitably reject Mr Mehrabizadah's evidence. She submits that the only rational conclusion that could be reached on this new evidence is that an immigration judge might accept it. She suggests the following as reasons why that might be so:

i) He is the National Director of SOZO International, an American NGO operating in Afghanistan, a post he has held for over 10 years. He holds an LLB and a Masters of Public Administration and has held previous roles with a NGO. In other words, there is nothing intrinsically to suggest that he would "bend" or indeed manufacture a story just to assist an economic migrant putting forward a false asylum claim.

ii) His evidence was previously accepted by the Defendant in the initial refusal of the claim after internet searches undertaken by the Defendant's caseworker confirmed his identity and was also relied on by the FTTJ in deciding the Claimant's initial asylum appeal. The starting point for an immigration judge considering Mr Mehrabizadah's evidence ought, therefore, to be that he is a credible witness.

iii) His new evidence is consistent with his previous evidence and with the other evidence provided in support of the Claimant's case.

24. In a telling and characteristically frank concession by Miss Busch during her submissions, she accepted that unless the Secretary of State had rejected Mr Mehrabizadah's statement as of no probative value she (the Secretary of State) would have been obliged to treat the representations as a fresh claim. In my view, she was absolutely right to make that concession.
25. In my judgment, that would be sufficient to afford grounds for quashing the decision letter because I do not see how any reasonable decision-maker (certainly approaching the task with the "anxious scrutiny" required in this context) could rationally reject Mr Mehrabizadah's statement as so implausible that there was no possibility of an immigration judge attaching weight to it. Of the three points relied upon by Miss Knorr, I would see (ii) and (iii) as the strongest, but that is not to diminish the significance of (i).
26. The approach of the Secretary of State on this issue alone demonstrates a failure to adhere to the approach required by the relevant authorities. The starting point is paragraph 353 of the Immigration Rules:

"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.

…."

27. When Briggs LJ observed that the Secretary of State must have asked the right question (see paragraph 12 above), I imagine he had in mind the fact that rule 353 was quoted in the decision letter. The decision letter contained this passage:

"Some points raised in your submissions were considered when the earlier claim was determined. They were dealt with in the letter giving reasons for refusal dated 24 November 2011 and the appeal determinations of 13 June 2012 and 30 October 2012.

The remaining points raised in your submissions, taken together with the material previously considered in the letter and determinations, would not have created a realistic prospect of success."

28. That appears to be the synthesis of the decision. Whilst I accept that the essential question posed by rule 353 was asked, it would have been more reassuring that the more nuanced approach disclosed by the established authorities had been referred to, not necessarily by lengthy extracts from the judgments (which would have extended the decision letter yet further), but at least by reference to a summary of the principles in deciding whether there is "a realistic prospect of success" for the application. The starting point is WM (Democratic Republic of Congo) v SSHD; AR (Afghanistan) v SSHD [2006] EWCA Civ 1495 where the Court of Appeal said this:

"6. … [The Secretary of State] has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution …."

29. It was held that the approach of the court on review of such a decision is as follows:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but 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: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

30. Further guidance was given in AK (Afghanistan) v SSHD [2007] EWCA Civ 535 where Toulson LJ (with whom Ward and Tuckey LJJ agreed) said this:

"22. … It follows from the nature and structure of the rule 353 scheme that a decision by a Home Office official whether further representations pass the rule 353 threshold amounting to a fresh claim is a decision of a different nature, and requires a different mind set, from a decision whether to accept an asylum or human rights claim.

23. Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."

31. In relation to what a realistic prospect of success means, the following was said:

"A case which has no realistic prospect of success … is a case with no more than a fanciful prospect of success. "Realistic prospect of success" means only more than a fanciful such prospect."

32. In ML (Nigeria) v SSHD [2013] EWCA Civ 844 the Court of Appeal considered the meaning of the expression "anxious scrutiny". Moses LJ (with whom Maurice Kay LJ and Sir Stanley Burnton agreed) said this:

"Of all the hackneyed phrases in the law, few are more frequently deployed in the field of immigration and asylum claims than the requirement to use what is described as "anxious scrutiny". Indeed, so familiar and of so little illumination has the phrase become that Carnwath LJ in R(YH) v SSHD [2010] EWCA Civ 116, between paragraphs 22 and 24, was driven to explain that which he had previously explained, namely what it really means. He said that it underlines "the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account". It follows that there can be no confidence that that approach has been taken where a tribunal of fact plainly appears to have taken into account those matters which out not to have been taken into account. To similar effect, our attention was drawn to a recent case of the European Court of Human Rights, the case of Singh & Ors v Belgium (Application no. 33210/11) (the second section of the court) on 2 October 2012 in which the court again reaffirmed the importance of decisions in this field and in the field of human rights. In that case it was Article 3 and, as it put it:

'...the irreversible nature of the harm likely to be caused in case of the realisation of the risk of ill treatment, [in the light of which] it is the responsibility of the national authorities to show that they are as rigorous as possible, and carry out a careful investigation of the grounds of appeal drawn from Article 3 without which the appeals lose their efficiency... Such an investigation must remove all doubt, legitimate as it may be, as to the invalidity of a request for protection regardless of the competences of the authority responsible for the control.'"

33. It is, of course, right to remember that the court's approach is to consider whether the Secretary of State's view that further submissions received from a claimant for asylum, taken together with the previously considered material, do not create a realistic prospect of success before an immigration judge is irrational or Wednesbury unreasonable, bearing in mind the requirement to exercise anxious scrutiny in the analysis: MN (Tanzania) v SSHD [2011] EWCA Civ 193. It is not purely a matter for the court's own evaluation of the material to decide whether there is a realistic prospect of success before an immigration judge.
34. However, for the reasons I have given in paragraph 25 above, I am unable to see how the reasoning in the decision letter in relation to Mr Mehrabizadah's statement can survive this analysis. Because it goes to the issue of the Claimant's credibility (which in a material respect the FTTJ found wanting), that is sufficient to lead to the quashing of the decision letter. In essence, I have concluded that Grounds 1 and 2 upon which the claim is based are sustained, Ground 1 being that the Defendant "failed to give anxious scrutiny to the question of whether an immigration judge might form a different view of the evidence to that of the Defendant and failed to give a reasoned decision on whether the claim has a realistic prospect of success before the Tribunal" and Ground 2 being that it was "irrational to reject Mr Mehrabizadah's evidence and to find that it does not create a realistic prospect of success before the Tribunal." Those grounds seem to me to subsume Ground 5 also, namely, that there was a failure to consider the evidence "in the round" (see Mibanga v SSHD [2005] EWCA Civ 367).
35. Because that is so and because (subject to any submissions of Counsel) the effect of the order I shall make will require the Secretary of State to treat the Claimant's representations as a fresh claim, I am reluctant to go further than is necessary because, on one outcome of the Secretary of State being required to treat the representations as a fresh claim, there may be a future appeal to a tribunal. In those circumstances, it will be for the tribunal to determine the merits and it is undesirable that I should say anything that could be seen as prejudging or influencing the outcome. However, I think I should say that I considered that Ground 3 also had substance, namely, that the decision letter contained "unevidenced speculation about how the Taliban, the Claimant and his employers would behave in Afghanistan" contrary to the guidance of the Court of Appeal on the dangers of making adverse credibility findings based on plausibility. Miss Knorr has drawn attention to what was said in HK v SSHD [2006] EWCA Civ 1037:

"Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:

'In assessing the general human rights information, decision-makers must constantly be on their guard to avoid implicitly recharacterising the nature of the risk based on their own perceptions of reasonability.'"

36. I need go no further than to say that the evidence of Mr Foxley could, in my view, lead an Immigration Judge to a different view on certain of the conclusions drawn in the decision letter and similar considerations may arise in relation to Ground 4, namely, that the reasons for rejecting the plausibility of the two year delay in the Taliban locating the Claimant may not necessarily be the same as in the decision letter.
37. The effect of this judgment being that the Secretary of State will now need to look at the Claimant's case on the basis that a fresh claim has been made means that any Article 3 or Article 8 claim will be judged on the basis of matters as they are when any reconsideration, either by the Secretary of State or a tribunal, takes place. To that extent, whether the position adopted in the decision letter of 14 November 2013 in relation to this aspect was correct is arguably academic. However, for the avoidance of doubt, if those claims were looked at in isolation I would say that the conclusions of the Secretary of State should be quashed.
38. Having referred to manner in which the FTTJ described the medical evidence, the way the matter was expressed in the decision letter was as follows:

"The Immigration Judge concluded "There is nothing to suggest that there is a clear likelihood that the Appellant would take his own life if returned to Afghanistan. There is no history of self harm. Although he may have been ill-treated outside Afghanistan I do not accept that there is any realistic prospect that on his return to Kabul and his family, any trauma he may have suffered will lead to him committing suicide. I do not consider he has been so traumatised by his experiences, and is so subjectively terrified at the prospect of return to Afghanistan (where he was not ill treated) that there is any prospect that he will take his own life Y & Anor (Sri Lanka) v SSHD [2009] EWCA Civ 362. Unlike the Appellant in KH the Appellant does not appear to have received any treatment in the United Kingdom for his mental health problems other than medication."

These findings were supported by Upper Tribunal Judge Macleman in his determination of 30 October 2012, which states "Where a judge records that he has taken medical reports into account in assessing the appellant's evidence, then unless he has plainly misunderstood the reports or gone wrong in applying them, he should be given credit for having done what he says. Reading the determination fairly and as a whole, there are several good reasons for not accepting the credibility of the appellant's account, which had nothing to do with medical disabilities, and which have not been criticised. The Judge was entitled to conclude that the Taliban had no interest in the appellant. His reasons for so concluding are more than adequate. The medical evidence did not tend significantly towards a different conclusion."

Consideration has been given to the Addendum Medico-Legal Report of 17 October 2012, written by Dr Hartree of the Helen Bamber Foundation, Dr Hartree's letter of 23 October 2012 and the Clinical Update of 21 March 2013, also written by Dr Hartree. It has not been disputed that [the Claimant] may be suffering from PTSD and other depressive illnesses. Nor has it been suggested that he is feigning his symptoms for the benefit of the Home Office and Immigration Tribunal. However, there is nothing in any of the reports that alter the conclusions of either Immigration Judge."

39. Miss Knorr has submitted that this paragraph failed to give meaningful consideration to the reports of Dr. Hartree of 17 October 2012, 23 October 2012 and 21 March 2013 and that there is merely the bald conclusion that nothing that alters the position taken by the FTTJ in July 2012. However, Dr Hartree had expressed the view that the risk of suicide would be heightened significantly if the Claimant was faced with imminent removal. Paragraphs 39 and 68 of her report of 17 October 2012 are as follows:

"39. If in future [the Claimant] were faced with a final refusal of his asylum claim, or with imminent removal from the UK, it is likely in my view that his risk of suicide would increase significantly. [The Claimant] does not currently intend or plan to end his own life. However, if refused, I am concerned that his mental health is almost certain to deteriorate; indeed, I cannot realistically envisage any other outcome than a serious deterioration in mental health, if [the Claimant] were faced with a final refusal. Since his mental health is already so poor, with further deterioration there is a serious risk that he would develop active suicidal intent, either due to the severity of his psychological distress, or linked to a psychotic state.

…

68. Paragraph 59 [of the FTTJ's determination] comments that "There is no history of self-harm … I do not consider he [the Claimant] has been so traumatised by his experiences, and is so subjectively terrified at the prospect of return … that there is any prospect that he will take his own life." Respectfully, I disagree with this. I consider [the Claimant] to be highly traumatised, both by his experiences in Afghanistan, where although not himself physically hurt, he saw his colleague fatally shot and his father fatally injured; and also by his journey to the UK, in which he was severely ill-treated, as discussed above. Subjectively, as described in the mental state examination, [the Claimant] feels so terrified, as discussed above. Subsequently, as described in the mental state examination, [the Claimant] fees so terrified of return that he exists in a state in which life feels not worth living; he is so distressed as to be almost unable to function. As discussed above (see 'risk of return' section), I cannot agree that there is "no prospect" that [the Claimant] would take his own life if faced with return to Afghanistan, or if actually returned. The lack of any previous history of self harm is not clinically reassuring, since (as discussed above) [the Claimant]'s current capacity to resist self-harm may be insufficient to prevent deterioration into active suicidal ideation, if his circumstances deteriorate."

40. She also said that, contrary to the FTTJ's findings, the Claimant would be unlikely to obtain in Afghanistan the treatment he required and would be unable to recover from his mental difficulties there. Paragraphs 42 and 43 of the above report were as follows:

"42. I am concerned that if returned to Afghanistan, [the Claimant] would not have access to the treatment he requires. He remains terrified of death from the Taliban and if returned, attempting to hide is the only course of action he can contemplate. In this state it is most unlikely that he would seek medical or psychological help. Further, the treatment that [the Claimant] requires is highly specialized, long-term psychotherapy. Even in the UK, this is not widely available. Although I am not a country expert, the UKBA Country of Origin information paints a bleak picture of health re sources and mental health care in Afghanistan (UKBA COI Afghanistan, October 2011, sections 28.04 and 28.32). I can see no indication from this information that the long term therapy which [the Claimant] requires would be available.

43. Further, it is my opinion that [the Claimant] would be unable to recover from his trauma in the setting of Afghanistan, even if the specialist therapy he requires were available to him there, because he would lack a sense of safety. As discussed earlier and in Dr Zapata-Bravo's report, the establishment of safety and security in the patient is a prerequisite for recovery from trauma (van der Kolk 2000). Without this, it is unrealistic to expect recovery."

41. Finally, in her report of 21 March 2013 Dr Hartree describes how the Claimant's mental health had deteriorated since the dismissal of his appeal was dismissed. I do not need to recite all the relevant paragraphs of the report, but paragraph 16 will suffice for present purposes:

"16. [The Claimant's] mental health is currently so poor that it cannot deteriorate much further without risking adverse outcomes such as a state of profound withdrawal, increasing psychosis, or active suicidal intent. In conclusion, [the Claimant's] mental health is near rock-bottom, and I have seen patients with similar severity of trauma and depression become overtly psychotic and make suicide plans when faced with unbearable fear."

42. I do not consider that it is within the band of reasonable responses to that evidence (which is not challenged or met by contrary evidence) to say, in effect, that there is nothing more than a fanciful prospect that a tribunal would reach a different conclusion on the risk of suicide. Plainly, any conclusion to which any such tribunal might come (if that is where this case finds itself in due course) will be a matter for the tribunal.
43. For the reasons I have given, I do not consider that the decision letter can stand and it will be quashed. I will invite the assistance of Counsel, to whom I am indebted for their helpful written and oral submissions, on the form of the order.