Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 182
P570/13	OPINION OF P A ARTHURSON, QC (Sitting as a Temporary Judge) in the cause D F M Petitioner; against The Secretary of State for the Home Department Respondent: ________________

Petitioner: Winter, Advocate; Drummond Miller LLP

Respondent: Pirie, Advocate; Office of the Advocate General

27 November 2013

Background

[1] The petitioner is an Iraqi national. On 20 June 2008 he claimed asylum in the United Kingdom, having claimed to have made a clandestine entry. His claim was based on having a well-founded fear from a terrorist group, A. On 7 July 2008 his claim was refused. His appeal against that refusal was heard on 18 August 2008 and on 26 August 2008 the appeal was dismissed. An order for reconsideration was made on 30 January 2009 and accordingly the case came before SIJ Deans for a hearing at Glasgow on 23 March 2009. The determination by SIJ Deans to refuse the order for reconsideration was issued on 12 June 2009. On 16 July 2009 SIJ Gleeson refused the petitioner's application for permission to appeal. On 3 March 2011, an Extra Division refused the petitioner's application for leave to appeal. On 23 November 2011 the petitioner submitted further representations. These further submissions were refused on 29 November 2011. A second set of further representations were submitted on 1 February 2012. These submissions were refused on 6 February 2012. By letter of 24 October 2012 the petitioner advanced a third set of further submissions with an accompanying report by Dr Alan George dated 2 September 2012. By decision letter of 28 February 2013 the respondent declined to treat the third set of further submissions as a fresh claim. The petitioner now seeks judicial review of the decision of 28 February 2013 and counsel for the petitioner at a first hearing on the petition on 8 November 2013 sought reduction of that decision in terms of his single plea-in-law.

Common ground

[2] Immigration Rule 353 is in the following terms:

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

[3] There was considerable common ground between the parties in respect of the proper approach by a court at this stage to Rule 353 cases in the light of the developed jurisprudence on this issue on both sides of the border. Counsel were agreed that Lord Bannatyne in ABC v Secretary of State for the Home Department [2013] CSOH 32 (22 February 2013) sets out the correctly applicable law, in the generality, in summary form at paragraph 11 therein in the following terms:

"[11] Before turning to the parties' detailed submissions it is perhaps convenient to set out that parties were agreed on certain aspects of the law: first as regards the approach the court must adopt in cases of this type:

1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3. The court must ask itself two questions:

1. Has the Secretary of State asked himself the correct question? - that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7).

Secondly, parties were agreed as to the approach to the issue of anxious scrutiny:

1. The Secretary of State's decision will be irrational if it is not taken on the basis of anxious scrutiny (see: Dangol at paragraph 7).

2. Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see: Dangol at paragraph 9).

3. But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner's account (see: Dangol at paragraph 9)."

[4] Mr Winter, for the petitioner, founded on the observation of Laws LJ in AK (Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855 at paragraph 34 in the context of consideration of the "realistic prospect of success" test in Rule 353 in the following terms:

"A case which has no realistic prospects 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."

Mr Pirie, for the respondent, did not dispute that point of definition.

[5] Counsel were further agreed that the correct approach to the issue of internal relocation is as set out in the leading authority of AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 per Lord Bingham of Cornhill at paragraph 5 to the effect that the decision maker, having taken into account all relevant circumstances pertaining to the claimant and his or her country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him or her to do so. Counsel were further agreed that, in terms of AH (Sudan), per Baroness Hale of Richmond at paragraphs 21 and 22, the test for internal relocation is not to be equated either with a "well-founded fear of persecution" or a "real risk of ill-treatment" under the Refugee Convention and European Convention for the Protection of Human Rights and Fundamental Freedoms, respectively, and that the test of reasonableness is a stringent one ("unduly harsh").

Submissions for the petitioner

[6] Mr Winter emphasised that SIJ Deans in his determination promulgated on 12 June 2009 accepted the petitioner's account of the basis for his claim for asylum and found that the petitioner could relocate to B. He is originally from K in the north of Iraq. The decision letter also indicated that the petitioner could go to Kurdistan. While SIJ Deans had accepted that in order to obtain required documentation the petitioner would require to make a short visit to his home area, he had nevertheless determined that a short visit to K would [not] "necessarily carry a real risk of persecution or serious harm", and "that the possibility of random violence on this route (from B to K) would not render the prospect of internal relocation unduly harsh" (SIJ Deans, decision letter 12 June 2009, paragraph 44). In developing his submission to the effect that the decision maker had failed to exercise anxious scrutiny, counsel referred to MK (documents - relocation) Iraq CG [2012] UKUT 00126 (IAC) and advanced a detailed argument on the three security cards required for any individual to access essential services in Iraq. The three cards are the Civil Status ID card (CSID), Iraqi Nationality Certificate (INC) and Public Distribution System (PDS) card (food ration card). The CSID card is a gateway document, counsel submitted, to gaining the INC and the PDS cards. In this case the petitioner could obtain (but had not yet) his CSID card whilst still in the UK. SIJ Deans had already found him to be in danger in K, his home area, and in order to obtain his PDS card, he would require to make a return journey there. The case of MK made it clear that an Iraqi national would require all three cards to gain entry into and residence in the KRG (Kurdistan). He would require his INC card to be registered in B, and in order to obtain an INC card he would require to go back to K to obtain his PDS card. Counsel developed his submission under reference to paragraphs 40 to 47 of MK. He noted from paragraph 83 that unregistered Internal Displaced Persons (IDPs) are unable to rent or purchase property, vote, obtain land title and access services. He founded on paragraph 87 in MK which is in the following terms:

"Where an IDP is unregistered, and hence is unlikely to have a PDS card, and is unable to access family, governmental or NGO support, it may be that relocation would be unreasonable, in particular, of course, if they faced a real risk of significant harm in their home area and could not therefore be expected to return there to renew their PDS card. The particular circumstances of a returnee may therefore be such as to make relocation unreasonable."

The petitioner last had contact with an uncle in B in 2002. Without that uncle's help he would have no access to accommodation, and without his supporting documentation would not be able to have access to rented accommodation nor to the public food distribution network. Counsel submitted that the absence of the PDS card would undoubtedly impact on the reasonableness of relocation to B.

[7] Counsel further founded upon another country guidance case in which MK was considered, namely HM and others (article 15(c)) Iraq CG [2012] UKUT 00409 (IAC), an Upper Tribunal decision of 13 November 2012, in which MK was considered at paragraphs 354 to 358. Counsel drew the court's attention to the review of these country guidance cases in the Court of Appeal in HF (Iraq) and others v Secretary of State for the Home Department [2013] EWCA Civ 1276 (dated 23 October 2013) at paragraph 85 per Elias LJ in terms of which the findings in MK were not impugned:

"As to the submission that the Upper Tribunal erred in concluding that the conditions were viable, there was again no reason to depart in this respect from the findings in MK. Mr Fordham submitted that if the relevant information card had not been obtained then benefits were not accessible. But the evidence in MK was that the information card could readily be obtained. Difficulties might arise where someone would have to go back to their home territory in order to obtain a PDS, but the Upper Tribunal was alive to that point. Accordingly, I would reject this ground of appeal."

[8] For completeness under this chapter counsel drew my attention to the recent opinion of Lord Burns in DKR v Secretary of State for the Home Department [2013] CSOH 171 in terms of which Lord Burns considered the cases of MK and HM and dealt with a similar factual point about cards in the light of MK. While making the point that in DKR the court was considering a different test and different set of circumstances for the individual petitioner (who had not been held to be in fear of a particular group and already had his INC card), counsel for the petitioner accepted that DKR may present him with certain difficulties in the light of paragraph 19 which he very properly drew to my attention, which paragraph is in the following terms:

"[19] Furthermore, I am not able to state that the point has a strong prospect of success as opposed to being merely arguable (see Robinson page 946 A‑D). It is far from clear from the country guidance cases cited to me what difficulties, if any, might be encountered by the petitioner in getting his PDS card transferred; how long that process might take; whether, during the time the process of transfer was proceeding, he would require to travel from Kurdistan to his place of origin in order to collect food rations each month or whether, rather than having to return to his place of origin, he would be able to rely upon support from UNHCR, financial or otherwise, that might be available to him in that period. If he could, the risk apprehended by the petitioner would not arise."

[9] As developed by counsel, the argument on anxious scrutiny came to this: there did not seem to have been anxious scrutiny demonstrated by the decision maker in the decision letter of 28 February 2013 in relation to the assessment of internal relocation in the light of MK at paragraph 87. Counsel submitted that it would not be difficult to imagine another immigration judge, in the light of MK, taking an entirely different view of matters. On any view, there was more than a fanciful prospect of success (Laws LJ in AK (Sri Lanka)). The decision maker in the letter of 28 February 2013 had mentioned the case of MK (paragraph 28) but had not applied anxious scrutiny to its implications for the case of the petitioner. Counsel submitted that it was not sufficient for a decision maker simply to indicate that he or she had taken into account the findings in MK. He submitted that anxious scrutiny must be seen to have been given to the content of MK and how it impacted on the petitioner's case, being a material matter which should be properly assessed. He accepted that the decision maker had very properly considered MK ex proprio motu (MK not being referred to at all in the third set of further submissions), but the matter having been raised and being at large before the decision maker, the various factors therein informing the country guidance content and conclusion must be the subject of anxious scrutiny. A whole reading of MK must be seen to inform the country guidance rule therein, and would surely assist another immigration judge in assessing of new the question of internal relocation, counsel argued, submitting that there was more than a fanciful prospect of such a judge coming to a different conclusion.

[10] Counsel advanced further a secondary challenge to the decision letter, namely that there had been a conflation of a real risk of persecution with the proper approach to internal flight as set out in AH (Sudan). Counsel submitted that SIJ Deans had done so at paragraph 24 of his determination of 12 June 2009, as had the decision maker in the letter of 28 February 2013 in paragraph 30. The height of counsel's argument with regard to the critical passage in paragraph 30 of the decision letter, was in terms that it could be perceived from paragraph 30 that there may not have been a correct assessment of internal relocation by the decision maker. This submission was not further developed and counsel emphasised, on several occasions, that he was, in his challenge, relying primarily on his contention that the decision maker had failed to exercise anxious scrutiny.

Submissions for the respondent

[11] Counsel for the respondent invited the court to repel the petitioner's plea-in-law and refuse the petition, submitting that the decision of 28 February 2013 was not vitiated by error, either in terms of a failure to exercise anxious scrutiny or in terms of a misdirection in law by the decision maker.

[12] SIJ Deans in his decision of 12 June 2009 had correctly addressed the internal relocation test, as was evident in paragraphs 42 and 49 of that determination. In addressing the question of "whether it would be unreasonable or unduly harsh to expect the appellant to relocate" (paragraph 42), SIJ Deans had determined the matter with reference to the appropriate test at the end of paragraph 44 and in his concluding paragraph 49, in terms of which he stated "On the basis of the foregoing, I am not satisfied that it would be unreasonable or unduly harsh to expect the appellant to relocate in central or southern Iraq or, more particularly, B". Counsel submitted that the thrust of the immigration judge's decision was that the petitioner would be able to access the PDS card. In particular the immigration judge made no findings on the reasonableness of relocation to B in the absence of a PDS card. Counsel further submitted that the immigration judge had made an impeccable relocation self-direction in paragraphs 42, 44 and 49 and referred the court to MA (Somalia) v Secretary of State for the Home Department [2011] Imm AR 292 at paragraphs 43 and 46, in terms of which the Supreme Court in that case highlighted the degree of caution to be exercised by a court in approaching appeals from expert tribunals, noting that their decisions should be respected unless it is quite clear that they had misdirected themselves in law. Sir John Dyson SCJ, at paragraph 46, delivering the opinion of the court, makes the following observation:

"It is often easy enough to find some ambiguity or obscurity in a judgment or determination, particularly in a field as difficult and complex as immigration, where the facts may be difficult to unravel and the law difficult to apply. If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms."

[13] Counsel for the respondent took the court through the refusal of leave to appeal dated 16 July 2009 and interlocutor and short note by the Inner House of 3 March 2011, noting that the immigration judge's overall conclusion on the reasonableness of relocation all survived these further exercises of judicial consideration. Turning to the third set of further submissions of 24 October 2012, counsel emphasised that there was no focus whatsoever on the case of MK, which had been decided some eight months before these submissions were presented to the respondent. Further, there was no mention of any risk which could be caused by return to the petitioner's home area to acquire a PDS card, and aside from the material contained in the further submissions about the general situation in Iraq, there was nothing to suggest therein that SIJ Deans' findings (about returning home to collect the card) should no longer stand. The statement of the petitioner within the further submissions made no mention of problems which could be faced by him on return concerning the issue of collecting a PDS card. The annexed report by Dr George of 2 September 2012, at paragraphs 104 and 183, pointed to a risk to all returnees in Iraq rather than anyone with a particular risk profile. Counsel turned to make further submissions about the decision letter of 28 February 2013 itself, characterising the petitioner's contention on anxious scrutiny as follows: a failure by the decision maker to deal appropriately with the case of MK infers that she failed to exercise anxious scrutiny. Counsel founded on a definition of "anxious scrutiny" offered in the Court of Appeal in YH v Secretary of State for the Home Department [2010] EWCA Civ 116 at paragraph 24 per Carnwath LJ in the following terms:

"Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an 'axiomatic' part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining 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."

[14] Counsel advanced three propositions in support of his general submission that there was no failure by the decision maker to exercise anxious scrutiny in considering the petitioner's application. First, counsel submitted that the argument in the petition was not made out in submissions to the Secretary of State. Second, he submitted that the petitioner had failed to establish that the Secretary of State did not take the case of MK into account. Thirdly, it was submitted that, on the material that was before the Secretary of State, the case of MK did not "tell in favour" of the petitioner, and that accordingly any failure to take it into account did not breach the requirements of anxious scrutiny. In South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, Lord Brown of Eaton-under-Heywood, at paragraph 36, summarised the proper approach to a reasons challenge in the context of town and country planning. Counsel for the respondent submitted that his observations were pertinent across the public law domain and submitted that while the reasons given must be intelligible and adequate, these could be briefly stated and required only to refer to the main issues in dispute, not to every material consideration. Counsel submitted that the Secretary of State had taken into account the country guidance set in MK and that adequate reasons had been given on the main issues in terms of the dictum of Lord Brown in South Bucks. Counsel indicated that he accepted that the Secretary of State should follow the Upper Tribunal's country guidance but submitted for three reasons that the material founded upon in MK did not tell in the petitioner's favour: first, the passages founded upon were not part of the actual guidance; second, the guidance as a whole did not establish that the petitioner would need to return to his home area for his PDS card for relocation to be reasonable; and, third, esto the guidance did establish such a need, there was no realistic prospect of an immigration judge finding that the return for that limited purpose carried risk, there being no material before the Secretary of State to the effect that the journey could not be made. In any event, counsel submitted that these matters had been considered recently by Lord Burns in DKR, and he founded on paragraph 19 thereof. In short, counsel submitted that neither MK nor DKR established that it was unreasonable to relocate without a PDS card. The principal challenge therefore, under the head of failure to exercise anxious scrutiny, fell to be repelled.

[15] Counsel briefly dealt with the second ground of challenge, namely misdirection in law, submitting that a fair reading of the decision letter of 28 February 2013 as a whole disclosed that the respondent had applied the correct test per AH (Sudan). The layout of the letter made that clear: between paragraphs 13 and 27, the decision maker dealt with the general situation in Iraq (being the actual substance of the further submissions before her), and with relocation in paragraphs 28 and 29, the correct test twice being quoted in paragraph 29. Even before these paragraphs, the decision maker had noted the correct test on three occasions in the decision letter, namely at paragraphs 5, 11 and 13. Counsel submitted that one could only properly consider what paragraph 30 in the decision letter (the conclusion under challenge) was directed at once one had considered the submission to which it was responding, which was of course directed to the issue of fear of persecution on return, as set out plainly in the letter of 24 October 2012, page 1, paragraph 3, where the submission is summarised by the petitioner's solicitors as follows: "It is submitted that our client has a continued well-founded fear of persecution on return to his country of origin". That being the substance of the further submission before the decision maker, paragraph 30 could not be criticised, counsel contended. Reading the letter as a whole, culminating in paragraphs 28 and 29, there could not be said to be any failure to apply the correct test in respect of internal relocation.

Discussion and decision
Failure to exercise anxious scrutiny

[16] The issue for the court under this head of challenge is whether it is clear from the decision letter of 28 February 2013 that the respondent addressed the two correct questions as required by Immigration Rule 353: namely, in this case, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that it would be unduly harsh to expect the petitioner to return; and whether, in addressing that question, the respondent has satisfied the requirement of anxious scrutiny?

[17] It appears to me from a fair reading of the letter of 28 February 2013 as a whole that both of these criteria have been addressed properly by the respondent. At paragraphs 5, 11, 13 and 29 of that letter, the correct test is identified, and at paragraph 12 it is stated: "Thus it is noted that the senior immigration judge accepted your client's account of past events in Iraq. The senior immigration judge then went on to find that your client can reasonably relocate within central and southern Iraq, specifically B. While it was argued for the respondent that the failure to raise the issue of MK and the related matter of a PDS card in the further submissions was a determinative preliminary point against the petitioner, I do not accept that contention standing the terms of the pre-action protocol letter lodged in process dated 17 May 2013 and the approach urged on the court by the Extra Division in Dangol at paragraph 9, under reference to Carnwath LJ at para 24 in YH (Iraq):

"Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence."

Having properly raised the issue of MK, despite the absence of reference to it in the further submissions, in my view the matter was in the event at large before the decision maker. That having been said, I am satisfied that, on my reading of the documentation referred to before this court, the petitioner cannot be said to have established that the respondent did not take MK into account, and that further and in any event taking into account the whole material available to the respondent in making the decision of 28 February 2013, it was not the position that the case of MK necessarily could be said to tell in favour of the petitioner as a matter of inference from the terms of the decision letter. In reaching this conclusion, I take into account that the respondent has expressly referred to almost the whole terms of the country guidance general conclusions set out in MK (and at the outset of paragraph 27 to the general terms of the country guidance set in HM), and at paragraph 28 concludes: "As per MK (Iraq) internal relocation is in fact available throughout Iraq including KRG". I conclude that the reasons for the decision on internal relocation in the respondent's letter, although perhaps briefly stated, are intelligible and adequate. I bear in mind that the submissions to which they were directed made not a whisper of reference to the case of MK nor to the issue of the PDS card; nevertheless, the respondent's official has elected to address the matter ex proprio motu. In any event, closer inspection of the country guidance contained in MK does not, in my view, by any means necessarily favour the construction advanced for it on behalf of the petitioner. The petitioner founds on paragraphs 40 to 47, 77, 81, 83 and 87. While I accept that it is reasonable that these passages must inform the general conclusions set out in paragraph 88, they are not, as such, part of the Upper Tribunal's actual guidance insofar as such requires to be followed by the Secretary of State. A significant amount of the passages founded on by the petitioner relate to evidence matters and a discussion of such. I note that in the Upper Tribunal the case of HM, which follows MK, at paragraph 245 the Upper Tribunal stated:

"In MK the Tribunal concluded that it is wrong to say that there is, in general, no internal flight alternative in Iraq, bearing in mind in particular the levels of governmental and NGO support available."

[18] I conclude further from detailed consideration of MK that it is not clear that the PDS card requires actually to be renewed in person. At paragraph 44, the Upper Tribunal in MK record that the card "may be renewed in Iraq at the Ministry of Trading branch in the area of residence". Accordingly, while renewal in the area of residence may be a criterion, there is no express requirement that the card be renewed in person. It is of note that in the passage in paragraph 42 dealing with the INC card, the Upper Tribunal record that that certificate "must be collected in person". Turning to the nub of the petitioner's contention for the import of MK to his own case, namely paragraph 87, the Upper Tribunal state:

"Where an IDP is unregistered, and hence is unlikely to have a PDS card, and is unable to access family, governmental or NGO support, it may be that relocation would be unreasonable, in particular, of course, if they faced a real risk of significant harm in their home area and could not therefore be expected to return there to renew their PDS card. The particular circumstances of a returnee may therefore be such as to make relocation unreasonable."

[19] Insofar as the petitioner founded on this passage as the key to his claim for reduction of the decision of 28 February 2013, it bears closer analysis. The passage does not say that lack of a PDS card means that one cannot access governmental or NGO support. The word "and" is of significance in this regard, and suggests that perhaps the petitioner would not need a PDS card in order to access support. The word "may" is also significant: it suggests that even without a PDS card and lack of access to family, governmental or NGO support, relocation in certain circumstances may still be reasonable. In this area of consideration, emphasis on the importance of individual circumstances is highlighted in the consequent Upper Tribunal case of HM at paragraph 354. It is of further note that SIJ Deans in his determination of 12 June 2009 made no finding that the petitioner requires a PDS card; the passage at paragraph 44 of that decision in respect of a return home for a short visit bears to refer to his ID card. I further note the reference in HM at paragraph 356 to relative stabilisation in the security situation across Iraq, leading to people being more confident in returning to their place of origin for a short time to require documentation and paying for people, such as taxi drivers, to return on their behalf and through a power of attorney obtain documentation for them. I conclude accordingly that the country guidance in MK and passages founded upon informing that guidance, as developed in HM, does not necessarily tell in the petitioner's favour and that accordingly there is in fact no inferential breach of the anxious scrutiny requirement by the respondent by any alleged failure to take into account the further submissions. Further, although Lord Burns applies a different test in different circumstances in DKR, I refer on this matter for completeness to DKR at paragraph 19. I conclude therefore, under reference to MK, HM and DKR, that there is no authority establishing that it would be unreasonable for this petitioner to relocate without a PDS card. In any event, the context of judicial review must be borne in mind. In a case like this the function of the court is to carry out a public law review of the decision of the respondent. The petitioner cannot succeed by showing that the observations by the Upper Tribunal in MK demonstrate that internal relocation might be unreasonable in certain circumstances; instead, the petitioner requires to demonstrate a public law error by the respondent. I conclude that no such error has been demonstrated in respect of this head of challenge.

Misdirection in law

[20] The challenge advanced by counsel for the petitioner under this head can be put shortly thus: that there was at various points in the determination of SIJ Deans and in the decision letter of 28 February a conflation of the proper internal relocation test (the test of reasonableness - whether it would be "unduly harsh" to expect an applicant to return: AH (Sudan) per Baroness Hale of Richmond at paragraph 22) with the "well-founded fear of persecution" test under the Refugee Convention.

[21] With regard to the determination of SIJ Deans, I deal with this shortly under reference to the note accompanying the interlocutor of the Extra Division of 3 March 2011 in terms of which the court refused the applicant's application for leave to appeal. The note is in the following terms:

"We are grateful to counsel for their submissions in this case. The discussion ultimately focused upon paragraph 6.2 of the application. That paragraph as framed in writing is answered fully by the case of HM and others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC). Paragraph 6.2 as clarified or developed in Court today raises the question that the applicant might have to return to his home area for a short period for documentation. But the Tribunal thoroughly covered this issue in their paragraphs 37 through to 42 and also paragraph 49 and having examined these in Court today we are unable to identify an error of law. Therefore we are not persuaded that this appeal has any real prospect of success in terms of Hoseini v Secretary of State for the Home Department 2005 SLT 550 and the application for leave falls to be refused."

[22] On the remaining issue of the approach taken by the respondent in the letter of 28 February 2013, in my view, a fair reading of the letter as a whole discloses that the correct test was applied on behalf of the respondent. The reference in paragraph 30 of the decision letter to "real risk" is not made in the context of internal relocation. It is, of course, responding to the actual further submission made, which refers to "a continued well-founded fear of persecution". The decision maker has made multiple references in the body of the letter to the correct test for internal relocation, but paragraph 30 deals with what it requires to deal with, namely the submission actually contained in the further submissions. In order to read the letter fairly, one must distinguish between paragraph 30 on the one hand, which does just that, and is accordingly nothing to do with internal relocation, and the internal relocation references on the other hand in paragraphs 28 and 29 of the letter. Accordingly, reading the letter fairly and as a whole, there was in my view no failure on behalf of the respondent to consider and apply the correct test in respect of internal relocation.

[23] With regard to the question of anxious scrutiny, I am satisfied that no material factor which could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the information available to her by the respondent. The respondent's official herself required to raise the matter of internal relocation. Having done so, she applied the correct test and gave adequate reasons for her decision. In doing so, the decision maker duly addressed and answered the question whether there was any realistic chance of another immigration judge making a different decision, in the light of all the information before her, and further satisfied the requirement of anxious scrutiny. I am in turn satisfied that the substantive approach of the respondent in this matter has been consistent with the public law and country guidance authorities to which I have been referred. In conclusion I am satisfied that no public law error on behalf of the respondent has been demonstrated by the petitioner.

Disposal

[24] For these reasons I hold that there was no failure in this case to exercise anxious scrutiny and further that there was no misdirection in law on the part of the respondent. I will therefore repel the petitioner's plea-in-law and refuse the petition, reserving meantime all questions of expenses.