Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER68
P1340/10	OPINION OF LORD HODGE in the Petition RA (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of the Secretary of State's decision to refuse to accept representations on the Petitioner's behalf as a fresh claim for asylum ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Olson; Office of the Solicitor to the Advocate General

19 April 2011

[1] The petitioner ("RA") is a citizen of Pakistan and is forty six years old. He arrived in the United Kingdom in 2003 using a false passport. His wife and children joined him in 2007; they also used false passports. He claimed asylum in October 2008. His application was refused and his appeal was dismissed. When a Senior Immigration Judge reconsidered the appeal he identified certain errors in the Immigration Judge's decision but those did not affect the decision that RA was able to relocate in flee to another part of Pakistan to avoid persecution.

[2] RA was accepted as a credible witness who had experienced a pattern of persecution for religious reasons and was viewed as a person at risk of persecution for a reason specified in the Refugee Convention. Significantly, however, the risks which RA faced were limited to the area around his initial home near Lahore and it was held that he could reasonably be expected to relocate to another part of Pakistan. In reaching that conclusion the Immigration Judge observed that RA had business experience and had been a photographer, that his health was reasonably good for his age, that he might be able to call for support from on his family, who lived in his home area and close to Lahore, and that he could use his experience and skills to establish himself in business or employment.

[3] In about August 2010 further submissions,s which were undated, were submitted on RA's behalf to the UK Border Agency in which he claimed a change of personal circumstances. He stated, first, that his wife's uncle had been killed and his brother had been attacked by members of the organisation, Sipah-e-Sahaba Pakistan ("SSP"), who had persecuted him, and that his wife's brother had fled to Spain. Secondly, he claimed that he had serious health problems and attached a psychiatric report dated 3 June 2010 from Dr Andrew Gray.

[4] Dr Gray diagnosed RA as suffering from a severe and long standing depressive illness and stated that disorders of that kind were associated with a significant risk of suicide. He had first had contact with a psychiatrist in Pakistan in 2000 after he had been seriously assaulted. He had no further psychiatric care until he was referred to psychiatrists in Glasgow in October 2008. Dr Gray diagnosed him as suffering from Recurrent Depressive Disorder, severe with psychotic symptoms (F33.3). Dr Gray recorded that RA had experienced persistent low mood, severe anxiety, auditory hallucinations, nihilistic delusions, sleep disturbance, poor appetite and weight loss, poor motivation, self neglect and poor concentration and memory. He had had recurrent thoughts of suicide and had a brief spell of inpatient treatment in May 2010 after a suicide attempt. At the time of the report he was being treated as an outpatient with antidepressants and antipsychotic medication. Dr Gray expressed the view that the uncertainty surrounding RA's immigration status had contributed to the persistence of his symptoms.

[5] Dr Gray expressed concern that RA's mental health would deteriorate if he were returned to Pakistan. He gave two reasons for that concern. First, he thought that, while there were facilities for treating severe mental illness in Pakistan, it was likely that there would be a break in his treatment, which would significantly increase the risk of the deterioration of his condition. Secondly, the stress associated with a return to uncertain circumstances in Pakistan would of itself be likely to damage his mental health.

[6] In a decision on behalf of the Secretary of State dated 24 August 2010 an official of the UK Border Agency commented on the allegations that members of RA's family had been attacked by the SSP and concluded that, even if the allegations were true, the incidents had occurred in the vicinity of Lahore and did not call into question the viability of internal relocation in Pakistan. The official expressed the view that there was not a realistic prospect of success that another Immigration Judge, applying the rule of anxious scrutiny, would reverse the decision of the original Immigration Judge on this ground. In his submissions challenging the Secretary of State's decision, Mr Caskie, who appeared for RA, did not strenuously challenge that conclusion. He confined his comments to the observation that those events would reduce the support which RA's family might be able to give him if he were to relocate within Pakistan.

[7] The UK Border Agency official went on to consider Dr Gray's report, which he summarised accurately. He concluded that RA's condition did not meet the high threshold that of whether the illness had reached a critical stage so that removal would amount to a breach of his Article 3 rights under the European Convention on Human Rights ("ECHR"). He referred to N (FC) v Secretary of State for the Home Department [2005] UKHL 31, Y (Sri Lanka) & Z (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362 and KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354 and to the Country of Origin Report for Pakistan dated 18 January 2010 in relation to mental health facilities in that country. He concluded that there were mental health facilities and treatment available in Pakistan, although they might not be of the standard available in the United Kingdom. He concluded that there was no realistic prospect of success of another Immigration Judge, applying anxious scrutiny, concluding that the removal of RA from the United Kingdom would amount to a breach of his rights under Articles 3 or 8 of ECHR because of his mental condition. Accordingly he determined that RA's submissions did not amount to a fresh claim.

The Petitioner's challenge
[8] Mr Caskie's submission raised a number of issues but at its heart it involved a criticism of the Secretary of State for failing to reconsider the decision on reasonableness of internal relocation in the light of RA's mental illness. In essence his submission was that the Secretary of State had not considered this question and thus had not reached a view on whether an appeal on this issue had a realistic prospect of success. Thus while he pleaded his case as one of Wednesbury unreasonableness, the circumstance could also be analysed as a failure to take account of a relevant consideration.

[9] Mr Caskie summarised the law on internal relocation in five propositions. First, he submitted that it applied to both refugee claims and Article 3 claims. Secondly, the question of internal relocation arose only where there was a finding that a person was at risk of persecution or breach of his Article 3 rights in part of his homeland. Thirdly, it was necessary to identify an area within the homeland where the person would be safe from persecution or breach of those rights. Fourthly, the decision maker must then ask whether it was reasonable to require the person to relocate to that safe place or whether it would be unduly harsh to expect him to do so. Fifthly, in assessing whether it was unduly harsh or unreasonable, the decision maker must take all factors into account, except the circumstances of the applicant in the country of putative refuge. In this regard he referred to D.B.N.B.K. [2009] CSIH 83, at paragraph 15 and the cases which Lord Hardie cited in that paragraph.

[10] He also submitted that the decision maker in making immigration decisions which affected a child or children had to take account of the best interests of the child as "a primary consideration": Article 3(1) of the United Nations Convention on the Rights of the Child 1989 ("UNCRC") and ZH (Tanzania) v Secretary of State for Home Department [2011] UKSC 4, Lady Hale at paragraphs 23-25 and 33. Section 55 of the Immigration Act 2009 also required the Secretary of State, in discharging her functions in relation to immigration, asylum or nationality, to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. He observed that RA's wife and children had all entered the United Kingdom illegally and their entitlement to stay was dependent on RA's claim. The decision maker accordingly had to look at the circumstances which the children would face in Pakistan when deciding whether it was unduly harsh or unreasonable to require internal relocation. In considering the welfare of the children, the decision maker should not compare their circumstances in the United Kingdom and those which they would face in Pakistan. But he had to take account of their welfare as a weighty consideration when assessing internal relocation. He had not done so and so failed to take account of a material consideration.

[11] He also referred to the Strasburg case of M.S.S. v Belgium and Greece (Application no. 30696/09. Grand Cchamber 21 January 2011) in support of a contention that the applicant had only to present factual material to the Secretary of State and it was the task of the Home Office decision maker to fit those facts into the correct legal framework, which included an assessment whether RA's illness affected the appropriateness of internal relocation within Pakistan.

[12] Mr Olson for the Secretary of State accepted that the decision maker had not reconsidered the merits of internal relocation in the light of Dr Gray's psychiatric report but submitted that he did not have to so do as the medical report was not relevant to that issue. He accepted that if the report had raised factual issues which were relevant to the question of relocation from Lahore to, say, Islamabad, the decision maker would have had to reconsider that question. But he submitted that the report had addressed only the consequences of RA's removal to Pakistan and Mr Caskie had conceded that RA's condition was not of the severity to establish that such removal amounted to a breach of Article 3 of ECHR. The onus lay on the applicant to provide information which called into question the appropriateness of internal relocation having regard to the established tests of undue harshness and unreasonableness.

[13] He referred to Januzi v Secretary of State for the Home Department [2006] 2 AC 426 and Symes and Jorro, Asylum Law and Practice, at paragraphs 5.14-5.16, as an indication of the factors which the decision maker should take into account when assessing the possibility of internal relocation. Dr Gray had not addressed these matters in his medical report. The issue to be addressed was whether the applicant could live a relatively normal life in the place of relocation in Pakistan, judged by the standards generally prevailing in that country, and whether he could reach that place without undue hardship. He referred in particular to the statements in Januzi by Lord Bingham of Cornhill at paragraphs 19 and 20 and Lord Hope of Craighead at paragraphs 52 to 54.

[14] In summary, Mr Olson contended that the medical report had not put in issue facts which called for a reconsideration of the earlier decision on the acceptability of internal relocation. Nor had the application raised any separate issue about the welfare of RA's children in that context. Thus the information which was put forward on RA's behalf did not require the Secretary of State to reconsider the question of internal relocation. Even if that submission were incorrect, the decision maker had not made a material error as the information would have made no difference to the decision.

The legal test
[15] Rule 353 of the Immigration Rules provides that after a claim has been refused and any appeal is no longer pending, the decision maker will consider further submissions and, if rejected, will then determine whether they amount to a fresh claim. The Rule states:

"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."

[16] There is no appeal to an Immigration Judge from an adverse decision under Rule 353.

[17] The decision maker in determining whether there is a "realistic prospect of success" must consider whether there is a realistic possibility that an Immigration Judge might decide in favour of an applicant's asylum or human rights claim on considering the new material together with the material previously considered: AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535, Toulson LJ at paragraph 19. The standard to be applied in assessing whether a claim has a "realistic prospect of success" is a modest one; it means only more than a fanciful prospect: R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855, Laws LJ at paragraph 34.

[18] When I recently considered Rule 353 in TN v Secretary of State for the Home Department [2011] CSOH 35 the parties were in agreement that the appropriate test to be applied was that which Carnwath LJ adopted in R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, which drew on the decision of the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348. It is now the Secretary of State's position that the judge should not himself decide whether there is a realistic prospect of success but he should apply the Wednesbury test to the Secretary of State's decision. Since I heard this debate an Extra Division in KD v Secretary of State for the Home Department [2011] CSIH 20 has reaffirmed that in Scotland the decision of the Inner House in F O, Petitioner 2010 SLT 1087 remains binding on judges of the Outer House. Accordingly, the court does not itself answer the question whether there is a realistic prospect of success in an appeal before an Immigration Judge but asks whether the Secretary of State was unreasonable in reaching the view that there was not.

[19] Having regard to the forensic character of the judgement which the Secretary of State must make and the low level of the hurdle that the applicant has to surmount, it is difficult to foresee circumstances in which the court would consider that there was more than a fanciful prospect but nonetheless hold that the Secretary of State could reasonably reach the opposite view. Thus in practice the question, however posed, is likely to lead to the same answer. But the requirement that there be a finding of Wednesbury unreasonableness, or that another ground of review be made out, may better serve to keep the court's consideration of Rule 353 within conceptual structure of judicial review.

Discussion
[20] In this case the challenge, while pleaded as Wednesbury unreasonableness, amounts to an assertion that the decision maker failed to consider what, if any, effect RA's serious mental illness had on the earlier decision of the Senior Immigration Judge that it was appropriate for him to relocate within Pakistan to avoid persecution. In substance the challenge is that the decision maker did not apply his mind to whether an argument that the illness materially altered the assessment of the appropriateness of internal relocation had a realistic prospect of success.

[21] While I have sympathy with the decision maker as RA's further submissions did not focus on the matter which is the subject of this challenge, I have come to the conclusion that the challenge is well made and that the Secretary of State's decision falls to be reduced.

[22] When Immigration Judge D'Ambrosio and Senior Immigration Judge Deans reached their determinations on the appeal in December 2008 and August 2009 respectively, it was part of the balance in their assessment of the reasonableness or undue harshness of internal relocation that RA's health was reasonably good for his age. Dr Gray's report, while not addressed to the question of internal relocation, contained information about a serious mental illness, which was clearly relevant to such an assessment. Mr Caskie did not question the merits of the decision which the Immigration Judge and Senior Immigration Judge had reached on the facts before them. But he pointed out that both had assumed that there was a reasonable prospect that RA would be able to earn a living in the place to which he and his family relocated.

[23] In AH (Sudan) [2008] 1 AC 678, which Senior Immigration Judge Deans cited in his determination, Lord Bingham stated that the enquiry must be directed to the particular appellant, "whose age, gender, experience, health, skills and family ties may all be very relevant." In the present case tThe decision maker simply did not consider whether or not the emergence of severe symptoms of RA's mental illness altered to any material extent the assessment of the factors which were relevant to internal relocation. In my opinion, in failing to do so, he erred in law.

[24] I do not accept the submission on behalf of the Secretary of State that the information, if considered in the context of an assessment of internal relocation, could not have altered the outcome. The test is whether there is a realistic prospect of success before an Immigration Judge. That test imposes a modest hurdle for the appellant. It is clear that the mental illness would be considered in the context of relocating from Lahore to somewhere else in Pakistan, and a comparison of the standards of psychiatric provision in the United Kingdom and in that state would not be in issue. But I am not persuaded that the decision maker, if he addressed the issue, could reasonably have concluded that the supervening aggravation of RA's mental illness gave him no more than a fanciful prospect of success before an Immigration Judge.

[25] The decision maker must also treat the interests of children as a primary consideration in order that the United Kingdom may comply with its international obligations under the UNCRC. It is clear that "a primary consideration" is not the same as "the primary consideration" and falls far short of "the paramount consideration": ZH (Tanzania), Lady Hale at paragraph 25. Nonetheless, the interests of RA's children require to be considered when assessing the reasonableness of internal relocation in the context of RA's mental condition. While RA did not raise the issue of his family in his further submissions, it was or should have been apparent from the decision of Senior Immigration Judge Deans that they were inevitably involved in any process of internal relocation. Accordingly, having held that psychiatric report required the decision maker to reconsider whether internal relocation was reasonable or unduly harsh, I conclude that the decision maker should also have considered their interests in that exercise.

[26] I express no view on whether an Immigration Judge, having considered the information in the further submissions together with the previously considered material in the context of an assessment of internal relocation, would reach a different view from that of the Immigration Judges who had earlier considered RA's case without the additional information. The test that relocation would be unduly harsh sets a high threshold: AH (Sudan), Lord Brown of Eaton-under-Heywood at paragraph 42. All I have decided is that it was unreasonable for the Secretary of State to fail to address the information in the context of that assessment, when deciding that an appeal to an Immigration Judge did not have a realistic prospect of success. In other words, using the formulation of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, at paragraph 11, the Secretary of State failed to satisfy the requirement of anxious scrutiny.

Conclusion
[27] I therefore sustain the Petitioner's plea in law to the extent of finding that the Secretary of State's decision, that his submissions did not amount to a fresh claim, was unreasonable and I repel the Respondent's plea in law. I reduce the decision with the result that the matter returns to the Secretary of State for reconsideration. I reserve in the meantime the question of expenses.