Petition of A B and C for Judicial Review (Court of Session) [2024] CSOH 88 (13 September 2024)

OUTER HOUSE, COURT OF SESSION

[2024] CSOH 88

P1184/23

OPINION OF LORD LAKE

In the Petition

A, B and C

Petitioners

for

Judicial review of the Secretary of State for the Home Department's decisions that the

Petitioners' further submissions do not amount to a fresh claim

Petitioners: D James, Advocate; Drummond Miller LLP

Respondent: A McKinlay, Advocate; Office of the Advocate General

13 September 2024

[1]

The petitioners seek review of a decision of the Secretary of State for the Home

Department that further submissions made in support of the petitioners' applications to

remain in the United Kingdom do not amount to a fresh claim. The first and second

petitioners are the father and mother of the third petitioner. She was aged 5 at the time the

further submissions were made and is now aged 7.

[2]

In September 2018, the second petitioner claimed asylum on the basis of a fear of

forced female genital mutilation. The first and third petitioners were dependants on that

application. The application was refused and an appeal to the First-tier Tribunal was

unsuccessful. On 31 July 2020, the second petitioner submitted further representations to

the Secretary of State, claiming that they amounted to a fresh claim. On 28 July 2022, the

Secretary of State determined that these did not amount to a fresh claim. After having

sought to submit additional further representations on 11 August 2022 and having been told

she must make an application to regularise her stay, on 7 October 2022 the second petitioner

made such an application in respect of herself, the first petitioner and the third petitioner. In

the context of that application, she submitted the further representations she had previously

sought to submit. The further representations relevant to this application were that the third

petitioner had an out-patient appointment at an ophthalmology clinic, had been prescribed

emollients by her doctor for eczema and had started attendance at school. No issue arises in

the arguments before me as to the fact that the second petitioner was required to submit an

application in this way and the representations were made in that context. On 6 October

2023, the respondent refused the applications. There was a separate decision letter for each

petitioner, but they all had the same application reference. In the letters, the respondent

refused the application for leave to remain and concluded that the further submissions did

not amount to a fresh claim.

The applicable legal tests

[3]

The parties were agreed as to the tests that were to be applied by the respondent in

making a decision on the application. It was necessary first to decide whether the

application for leave should be granted. If it was not granted, it was necessary to decide

whether the submissions amounted to a fresh claim. In making this decision, it was first

necessary to consider whether the material had been considered before. If it had not, it was

necessary to go on and consider whether the material gave rise to a realistic chance that an

immigration judge would accept the individual's claim. These propositions were vouched

by reference to ABC (Afghanistan) v Secretary of State for the Home Department [2013] CSOH 32,

at [11]). In relation to the test of the realistic chance, I was referred to the decision of the

Inner House in SM v Secretary of State for the Home Department, [2022] CSIH 21 where it was

noted of the test that:

"It is whether an immigration judge may find in favour of the asylum seeker, not that

he or she would so find. If he or she may, then there is a realistic prospect of

success" (paragraph 25).

The petitioner submitted that the decision taker must apply anxious scrutiny when

answering the questions.

Submissions for the petitioner

[4]

In general, the petitioner submitted the issue of whether leave should be granted had

been conflated with the issue of whether the new material amounted to a fresh claim. It was

submitted that the two stages are distinct and that the test to be applied is different but, on

the basis of the contents of the letters, it was not apparent that there had been separate

consideration of the test for whether there was a fresh claim.

[5]

The arguments were slightly different in respect of each of the petitioners. In relation

to the second petitioner, it was noted that the decision letter said that there was no material

that had not been considered before. It was argued that this was irrational in that it had

been accepted that there was material that had not been considered before in relation to the

first and third petitioner and that the same information had been submitted in relation to

each person. In relation to the claim by the respondents that any error in this regard was not

material, it was submitted that in not having regard to the additional material the

respondent could not have approached the decision with the necessary anxious scrutiny and

that it was speculation to attempt to determine what the decision might have been had the

information been considered. By reference to R (Balajigari) v Secretary of State for the Home

Department [2019] 1 WLR 4647, it was noted that the test for immateriality was whether the

decision would "inevitably" have been the same (paragraph 134). It was submitted that in

the circumstances relating to the second petitioner, it was possible that another decision

might have been reached in relation to whether there were realistic prospects and therefore

whether this was a fresh claim and that was sufficient for the petitioner. It was not

necessary to demonstrate that there was in fact a realistic prospect.

[6]

Lastly in relation to the second petitioner, it was submitted that the respondent had

not addressed the relevant question; the decision letters did not consider whether the

material meant that there was a realistic chance of success before an immigration judge and

only had reasoning relating to the different and separate issue of whether leave should be

granted. It was said that the last sentence of the decision letter which makes some reference

to the issue of prospects before an immigration judge was a "token gesture" and that the

substance of the letter revealed that the issue that had been considered was only whether

leave should be granted and/or whether previous decisions should be overturned.

[7]

In relation to the third petitioner, it was said that although the decision correctly

recognised that there was material that had not previously been considered, it did not

properly evaluate the issue of whether the additional submissions amounted to a fresh

claim. It was submitted that that issue had been conflated with the issue of whether leave to

remain should be granted. It was submitted that the test of whether there was a reasonable

chance of success before an immigration judge was a lower test than that the test for whether

leave should be granted and that it had not been considered. It was emphasised that all the

petitioner need do is show that there was a reasonable chance and not that she would

succeed. The issue was not whether or not the claim was thought to be strong. It was

submitted that there was no reasoning in relation to the application of the correct test and

that the absence of reasoning was itself an error. To be lawful, the reasoning would have to

identify the correct question and then follow it to indicate how the result was achieved.

[8]

In relation to the first petitioner, it was submitted that the same conflation of the

issues was apparent and that it was not recognised that the test for a fresh claim was a lower

threshold than the test for whether leave should be granted. It was submitted that the only

reasoning in the letter concerned the issue of whether leave should be granted, that the issue

of whether the submissions amounted to a fresh claim was distinct and that there was no

reasoning to support the conclusion that there were no reasonable prospects before an

immigration judge. It was submitted also that the connection between the three decisions

was such that the claimed errors in relation to the second and third petitioners were relevant

also to the first petitioner.

[9]

In relation to all of the decision letters it was noted that the decision letters referred

to paragraph 353B of the Immigration Rules and it was submitted that this paragraph had

no application. The relevant test was in paragraph 353 and the correct test had not been

applied.

Submissions for respondent

[10]

The respondent accepts that there was new material submitted in relation to the

applications. It was submitted that despite this, the material related all to the third

petitioner, it was slight, the averments in the petition in this regard had no detail and,

having regard to these matters, it did not create a realistic prospect of success. It was said

that, in reality, there was one decision by a single decision-taker in response to the same

material but a separate letter for each applicant. It was said that the decisions in relation to

the first petitioner and, in particular, the third petitioner in relation to the additional

material indicate that the result in relation to the second petitioner would have been the

same and that no issue of speculation arises in reaching the same conclusion. The

respondent placed reliance on the statement within the letters that there was no fresh claim

on that basis it was said that there no conflation. It is apparent from the letters that the

decision-maker was aware that there were two separate tests and had given a decision on

each. It was submitted that to contend that the statements in the letters were "token" was an

illegitimate attempt to step into the mind of the decision-maker. It was plain that the test

has been identified and considered. It was inconceivable that the same decision-maker,

having stated the test in all three decisions and applied it in relation to the first and second

petitioner would have left it out of account for the third petitioner.

[11]

It was submitted that as all the decisions were given at the same time and the claims

had always been treated together, each had to be considered in the context of the other. It

therefore did not matter that in respect of the second petitioner it had been stated that all the

material had been considered previously. It was noted that submissions tending to bear on

Article 8 of the European Convention on Human Rights had been considered previously in

June 2022 and at that time they were considered not to amount to a fresh claim. It was

recognised that in relation to the materiality argument raised in relation to the second

petitioner, it would not be appropriate for the court to substitute its own view. Nonetheless,

as the petitioner has expressly said that there was no submission that there was material that

generated a realistic prospect, it would be open to refuse to grant the remedy sought on the

basis that it is academic.

[12]

It was noted that the first page of the letters which make up the decision each states

"your submissions do not amount to a fresh claim" and that this indicated that the relevant

issue had been considered and a decision reached in relation to it. It was submitted that the

new material all relates to the third petitioner the child. It was submitted that if this

material is considered in the context of the decision letter for the third petitioner, it is

apparent that it does not amount to a fresh claim. It was recognised that in relation to this

petitioner, it is clear from the letter that there was fresh material and it is apparent that it

was considered. If it was judged not to be relevant there, it was apparent that it could not be

relevant for the first and second petitioners as it had no relevance to them other than in so

far as it affected the claim in relation to the third petitioner. That being so, the same decision

followed in relation to the first and second petitioner.

[13]

In relation to the arguments that the tests were conflated, it was claimed that the

issue of realistic prospects of success inevitably involves consideration of the merits and it

was legitimate for the decision-maker to proceed as they had. Although it was a different

judgement call, it was the same factual material and there would be no benefit in repeating

what had been said in other letters. It was submitted that the petitioners had not been

prejudiced by the reasons given and that the basis for the decisions was readily

understandable.

[14]

It was submitted that although the decisions referred to in paragraph 353B, that itself

refers to a situation in which the decision-maker had determined whether submissions

amount to a fresh claim under paragraph 353. It was submitted that although the test was

not specifically referred to in that decision, the context is clear that the correct issue was

identified and considered in relation to the first and second petitioners.

Decision

[15]

Each of the three letters sent to the petitioners intimates the decision that the

individual does not quality for permission to stay in the United Kingdom and then states "In

addition, your further submissions do not amount to a fresh claim for the reasons given in

the `reasons for decision' section." In that section of the letter in respect of the first

petitioner, after concluding that permission to stay will not be granted, paragraph 25 states:

"25.

I have considered your further submissions together with previously

considered material and concluded that your further submissions, although rejected

for the reasons given above, would have no realistic prospect of success before an

immigration judge, so they do not amount to a fresh claim."

The same text is included in paragraph 19 of the decision in relation to the second petitioner.

It is not included in the decision letter in relation to the third petitioner.

[16]

As the additional material related to the third petitioner, the decision letter in respect

of her is the logical place to start. There was no dispute before me as to whether reasons

require to be given. Within the letter to the third petitioner, although there is reference to

issues of education and healthcare, including the ophthalmology appointment, in the

reasons for the decision to refuse leave to remain, there is no reasoning concerning whether

the further information amounts to a fresh claim - ie whether there was a realistic prospect

of success before an immigration judge. I have considered whether, in that situation, it is

sufficient that there is a clear statement that the submissions do not amount to a fresh claim

and/or whether what is said in the reasons section of the letters for the first and second

petitioner that there is no realistic prospect before an immigration judge can be read across

to this decision. The answer to this issue turns on consideration of what is required by way

of reasons.

[17]

In Wordie Property Co Limited v Secretary of State for Scotland, 1984 SLT 345, the

Lord President (Emslie) said that reasons must

"deal with the substantial questions in issue in an intelligible way. The decision

must, in short, leave the informed reader and the court in no real and substantial

doubt as to what the reasons for it were and what were the material considerations

which were taken into account in reaching it."

In South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, Lord Brown of

Eaton-under-Haywood stated:

"The reasons for a decision must be intelligible and they must be adequate. They

must enable the reader to understand why the matter was decided as it was and

what conclusions were reached on the `principal important controversial issues',

disclosing how any issue of law or fact was resolved. Reasons can be briefly stated,

the degree of particularity required depending entirely on the nature of the issues

falling for decision. The reasoning must not give rise to a substantial doubt as to

whether the decision-maker erred in law, for example by misunderstanding some

relevant policy or some other important matter or by failing to reach a rational

decision on relevant grounds. But such adverse inference will not readily be drawn.

The reasons need refer only to the main issues in the dispute, not to every material

consideration. ..." (paragraph 36)

It is clear form this that what required by way of reasons depends on the context in which

they are given. The decision there was a planning decision was in a completely different

sphere to the decisions before me. However, the issue at stake in the present decisions seem

to be at least as important and to justify at least the same level of reasons as a planning

decision.

[18]

The statement in the letters that the submissions do not amount to a fresh claim and

the statement in two of the sets of reasons that there is no realistic prospect of success before

an immigration judge are the conclusions reached on the key issues that were before the

respondent. I agree with the submission for the respondent that, despite the error in

referring to paragraph 353B of the Immigration Rules, the letters do indicate that the

decision-maker had in mind the correct test for a fresh claim. However, the tests for each of

the two issues differ with the test for leave to remain being more stringent. This means that

leave to remain may be refused but there could still be a reasonable prospect before an

immigration judge.

[19]

Although reasons are stated for the decision as to leave to remain, in relation to the

issue of whether it was a fresh claim, the letters do not indicate the basis on which that

decision was reached. As stated by Lord Brown in South Bucks Council, giving such an

indication of how the decision has been reached is one of the functions of reasons. Although

the decision on each issue and the relevant test to be applied are stated, they on the one

hand and the reasons for them on the other are distinct matters. In R v Birmingham City

Council, Ex p B [1999] ELR 305, Scott Baker J concluded that in giving reasons, it was not

enough merely to state that the test had been applied in making the decision. In my view

that is all that has been done here. Even the contents of the letters in respect of the first and

second petitioners shed no light on how the test was applied and therefore how the stated

conclusion was reached. Those letters identify the subsidiary conclusion that even with

additional material the submission would have no realistic prospect of success before an

immigration judge but do not state the basis for this conclusion. They therefore did not

perform the function of reasons identified in South Bucks Council. The reasons underlying

the decision might not be hard to divine, but it is not the function of the court to speculate or

guess as to what they were. To do this would mean that the purpose identified by Lord

Brown was not achieved.

[20]

In Uprichard v Scottish Ministers 2013 SC (UKSC) 219, Lord Reed, giving the decision

of the Supreme Court, said that the Court should not impose an unreasonable burden on

decision-makers. I do not consider that giving some indication of why it was concluded that

even with the additional material there was no realistic prospect of success would have

required very much. It would not be an unreasonable burden. Requiring that there is an

indication of how the conclusion was reached is not dictating how the letters should be

written. It is merely requiring that they have basic content to perform their intended

function. As they stand, not only do the letters for the first and second petitioners not meet

the shortfall in the decision letter for the third petitioner, they do not provide adequate

reasons for the decisions they record. The result is that the decisions contained in each of

the letters fall to be reduced.

[21]

Although the above factors mean that the other issues are academic, I will express

my views on them briefly in case this matter is considered further. If there were reasons

stated in relation to the third petitioner's claim which were sufficient to indicate how the

decision had been reached that there were not reasonable prospects before an immigration

judge, I would have concluded that the error in the decision for the second petitioner to the

effect that there has been no material that had not been considered before would not vitiate

the decision. As is submitted for the respondent, it would be apparent from the decision

letter relating to the third petitioner that the new material had been considered and had

been found not to create reasonable prospects for her. That being the position, it would not

create a better prospect for the first or second petitioners, her parents. Accordingly,

although there was an error in the decision, it had had no practical effect and it would be

academic. There had been a single application leading to all three letters and the letter for

the third petitioner was available to the second petitioner. On the hypotheses that the

reasons given in relation to the third petitioner were adequate, the petitioners would have

the necessary information to verify that the material had been considered and that the

correct test had been identified even if they disagreed with the conclusion that was reached.

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