AK (Afghanistan) v Secretary of State for the Home Department

This is an appeal from a judgment of Bean J [2006] EWHC 2139 (Admin) dismissing the appellant’s claim for judicial review of the Home Secretary’s refusal to treat the appellant as having made a fresh asylum or human rights claim, following the rejection of an earlier claim which had resulted in an unsuccessful appeal.

Rule 353 of the Immigration Rules provides as follows:

“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.”

In WM (DRC) v SSHD [2006] EWCA Civ 1495, decided since the judgment of Bean J, this court considered the proper approach which has to be taken by the Home Secretary when applying that rule and also the proper approach of the court to a challenge to a decision of the Home Secretary under that rule. The key passages in the judgment of Buxton LJ, with which the other members of the court agreed, are paragraphs 6 to 11. There is no merit in my attempting to summarise them and no useful purpose would be served by my simply repeating them. They set out the correct approach.

The judge in paragraphs 1 to 2 of his judgment set out the background. Put very shortly, the appellant is a citizen of Afghanistan of Pashtun ethnic origin. He entered the UK on 9 May 2002 and claimed asylum on the next day. His claim was rejected by the Home Secretary and his appeal was heard by an adjudicator, who delivered his decision on 16 October 2002. The adjudicator accepted that the appellant was entirely truthful in his evidence. His account in brief was that he had been brought up in the north west of Afghanistan. When the Taliban were in power, they forced his eldest brother to fight for them. After the Northern Alliance in the Uzbeks had gained the upper hand, Pashtuns who had fought for the Taliban and their families were at risk. One of the appellant’s brothers was shot and killed by an Uzbek party which raided their village. The appellant escaped and fled the country.

However, the adjudicator was not persuaded that the appellant would be at risk of persecution for a Refugee Convention reason or of violation of his rights under Articles 2 and 3 of the Human Rights Convention on return to Afghanistan. This was because there was no reason to suppose that he would be specifically targeted or that he would be at risk merely on account of his ethnic identity. An application for permission to appeal against the adjudicator’s determination was refused.

On 22 April 2003, the IAS wrote on the appellant’s behalf to the UK Immigration Service by first class recorded delivery post with more representations. These related to the general state of affairs in Afghanistan and the risks to Pashtuns returning to areas from which they had fled. Two years went by without a response. On 16 May 2005 the IAS wrote again. They referred to further material about the general state of affairs in Afghanistan including an ECRE report of May 2004, “Guidelines for the Treatment of Afghan Asylum Seekers and Refugees in Europe”. They also produced material to support the case that the appellant would be personally at risk on his return.

In particular, they enclosed a copy of an affidavit of the appellant’s mother. She recounted how, during the period of the war with the Taliban in 2001, she and other members of her family left their home, while certain members of her family stayed behind to protect their belongings. There came a time when her husband was arrested by an Afghan warlord, who accused him of being a member of the Taliban and had him imprisoned. During the war, one of her sons was killed, their property was destroyed and their home was occupied by warlords. Through bribery her husband’s business partner managed to secure his release and they then went to live in Iran near to the Afghan border. While they were there, Iranian police raided the house and handed them over to a well-known Afghan warlord, now said to be a member of the Kabul cabinet.

Her husband and sons were imprisoned and accused of being members of the Taliban. The women folk went ultimately to the appellant’s brother’s house in the Logar province, which is to the south of Kabul. She stated in the affidavit, as translated:

“After we arrived in my brother’s house, the Police Kabul came to my brother’s home and looking for my son Abdul Wali. They searched the house to interrogate and harassed us and then they took my brother with them to Kabul.”

She went on to describe how she had not seen her husband and sons since then, but at a later date local police had come to her brother’s house searching for them.

Another document put forward by the IAS on behalf of the appellant purported to be a letter from the branch of the Afghan Red Crescent Society (“ARCS”) in Logar province stating that her husband and sons had been detained.

On 20 June 2005, the Home Office replied to the IAS rejecting their representations as a fresh claim. The letter set out the Home Office’s position about the general state of affairs in Afghanistan without referring to the ECRE report on which the IAS placed reliance. It concluded as to the general situation:

“… it is accepted that Pashtuns in some areas of the country face discrimination and harassment, which can amount to serious injustice and persecution. There is a sufficiency of protection within Kabul and internal flight to Kabul or other areas of the country where Pashtuns are not in the minority, is an option. As a result claims based solely on the Pashtun ethnicity will not generally qualify for asylum or humanitarian protection. A grant of asylum would only be appropriate where an individual is able to show that because of specific facts relating to him/her there was not a sufficiency of protection available and internal flight was not an option.”

The letter then turned to the issue of specific factors and commented on the affidavit from the appellant’s mother as follows:

“With regards to the copy of a translated Affidavit dated 22 February 2005 that shows your client’s mother, a sister, wife and children have now refuge in Pakistan, your client has failed to provide the original document. Furthermore, an affidavit from a family member cannot add probative or corroborative weight to your client’s claim.”

It dismissed the copy of a letter from the ARCS as un-translated and therefore its provenance was un-established.

On 4 July 2005, the appellant issued a claim for judicial review. On 5 August 2005, Mr Rabinda Singh QC sitting as a deputy High Court judge granted permission. There was further correspondence between the parties. Because of what I am afraid can only be described as the abysmal way in which the bundle has been prepared for this appeal, it is difficult to follow the correspondence in any sort of chronological order, but it included some letters to which I should refer.

In January 2006, the Home Office obtained a statement from the ARCS head office in Kabul to the effect that the letter allegedly written by the ARCS Logar branch was not authentic. That, at least, is how the Secretary of State understandably read it. This document was passed on to the AIS. The appellant’s response was that the letter from ARCS’ head office denying the authenticity of the earlier document from the branch office should not be treated as establishing that the first document was a forgery. I will come later to his reasons for putting forward that case.

At some stage, the appellant produced what purported to be a statement from another relative, General Mohamed Ahmadzai, who is now living in Holland, together with a translation. This purported to confirm that the appellant’s father and brother had been imprisoned during the recent troubles in Afghanistan.

On 22 June 2006, a Home Office official wrote what was effectively a further decision letter. That letter acknowledged that the previous letter of 20 June 2005 had not addressed the passage in the ECRE report on Afghan asylum seekers relied on by the IAS, but it commented that this document did not show that Pashtuns in general in Kabul would be subject to persecution or mistreatment within the Refugee Convention or Human Rights Convention.

As to the document from ARCS, the writer continued as follows:

“With respect to the letter purportedly from the Afghan Red Crescent Society (ARCS)… we do not consider this document to be genuine. We have obtained a letter from ARCS, dated 20 January 2006, which advises that the letter whilst bearing ARCS emblem and stamp, is a fake, which did not originate from ARCS. A copy of this letter was served on you by the Treasury Solicitor on or about 24 January 2006. We first advised you that that was the view of ARCS in early January 2006. Your client has produced in response a 6-page manuscript letter, stamp-dated by you 10 January 2006, and has very recently produced a type written letter dated 16 June 2006. However, there is nothing in these letters which will cause us to alter our view of the authenticity of the ARCS letter on which your client seeks to rely. We do not consider it likely that Mr Walizada of ARCS is not giving his true opinion of the authenticity of the letter … [relied on by the appellant].”

The writer went on:

“This is a departure for your client in this case. You will recall that his account of events was believed in its entirety by the Adjudicator, and until this point, your client could claim to be credible. However we take the view that his credibility has been significantly damaged by the submission of a letter in support of his claims which is a fake.”

The letter then dealt with the letter from Lieutenant General Mohammad Ahmadazi as follows:

“You have not sent us the original of the letter of Lieutenant General Mohammad Ahmadazi… Accordingly, and bearing in mind your client’s lack of credibility, this document cannot be considered as genuine and, furthermore, a letter from a family member (Mr Ahmadadzi is a cousin of your client’s mother) cannot be considered a providing independent corroboration or your client’s claim.”

On 25 July 2006, the Home Office wrote a further letter dealing with the appellant’s mother’s affidavit, to which I will return.

The judge began by summarising the factual background and the legal test as set out in Obiniyo [1996] QB 768, which was then the leading authority. He observed that both sides were relying on new material since the Home Office letter of 20 June 2005. It was accepted that the Home Office had originally ignored a material factor, i.e. the ECRE report of May 2004. However, he recorded that both sides agreed that it would not be sensible to allow judicial review and send the case back for reconsideration on that basis, since the result would be the foregone conclusion that the Home Office would repeat what it had said in its letters of 22 June and 25 July 2006. Rather, he proposed to consider on all material whether there should be judicial review of the Home Office’s continuing refusal to treat the appellant’s representations as a new claim. This was a sensible and just approach. The judge examined the new material on the general risk to Pashtuns and concluded:

“Taking the evidence as a whole, I cannot say it is irrational or unreasonable of the Secretary of State to take the view that there is no reasonable prospect of a different conclusion about the general risk to a Pashtun returned to Kabul now than that reached by the Adjudicator in this case in 2002.”

Turning to the new material about a specific risk to the appellant, the judge was clearly troubled by the Home Office’s decision as a matter of fact that the document from ARCS Logar province was a fake and that this destroyed the appellant’s credibility. He said:

“I regard it as intrinsically unfair, save in the most obvious cases, that an applicant who has given evidence and has been cross-examined before a judge and whose credibility has been upheld should later be treated as a liar by the decision-maker without his having the opportunity to have that proposition tested before a judge.”

But the judge continued:

“But even if the March 2005 letter is genuine, it is of very little assistance to the Claimant. It does not say when where why or for how long the Claimant’s family members were detained, and it does not bear on the risk or otherwise to him if he is returned to Kabul.”

The judge made the same comment in relation to the letter from Lieutenant General Mohammad Ahmadazi. Referring to the mother’s affidavit, the judge highlighted the passage which I have quoted, dealing with the alleged visit of the Kabul police to the appellant’s uncle’s house in Logar province looking for her son. He was troubled by the Home Secretary’s response to that affidavit because he said as follows:

“The Secretary of State’s response to this is to say that the document is a copy and that ‘furthermore, an affidavit from a family member cannot add probative or corroborative weight to your client’s claim’. As a general proposition this would be far too sweeping.”

But he went on to take it as being specific to the claimant’s case. The judge’s conclusion was that if it were for him to make a decision whether the rule 353 threshold was passed, he might well conclude that it was, but that he could not say that the Home Secretary’s conclusion was irrational or Wednesbury unreasonable.

I am grateful to Mr Juss and Mr Patel for their clear and succinct arguments. Mr Juss began with the decision of this court in WM. He submitted that the decision letters demonstrated that the writers had not properly addressed the question which was the key question for them to address. He took us to the material specific to the claimant and the way that it was dealt with in the decision letters. We stopped him from going on to develop wider points and heard at that stage from Mr Patel.

Mr Patel submitted that the decision in WM did not alter the law, and he fortified that submission by reference to Onibiyo and Cakabay [1999] Immigration Appeal Reports 176. I agree that WM did not change the law, but it has helped to clarify its structure, and that should be of benefit to decision makers, advisers and the courts.

Mr Patel further submitted that, although Bean J did not in his judgment deal with the issues in the structural way laid out in WM, he applied the right law and that this court should not interfere with his decision.

Rule 353 is aimed at the mischief of an unsuccessful claimant seeking, after he has exhausted the appellate process, to begin the whole process all over again by making a supposedly fresh claim without sufficient cause. If an unsuccessful applicant is allowed to remain for a long time after the failure of his initial application, that is liable to magnify both the risk of abuse of process by the making of further supposed fresh claims when there is no substantial basis for them, and also the possibility of genuine fresh material of sufficient weight to justify a fresh claim. Rule 353 provides a test for determining what should be regarded as a fresh claim. The mechanism provided is that the Home Secretary determines whether the test is passed. The court has a power and responsibility through judicial review to see that the system is properly applied, but the role of the court is limited to that of review. To allow the same appeal process as applies to the original application would defeat the purpose of the exercise. 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.

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.

All this was made clear in WM, of which we have the benefit but Bean J did not. In paragraph 11, Buxton LJ set out the task of the Home Secretary when making a decision under rule 353 as follows:

“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 … 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.”

In the same paragraph Buxton LJ set out the task of a court when called on to review a decision of the Home Secretary under rule 353. It is to ask, first, whether the Home Secretary has asked himself the right question and, second, whether in addressing the right question he has satisfied the requirement of anxious scrutiny in his evaluation of the facts and the conclusions to be drawn from them.

Buxton LJ went on to observe that if the court cannot be satisfied that the answers to both questions are in the affirmative, it will have to grant the application for judicial review.

To my mind, it is clear from the tenor and substance of the decision letters dated 20 June 2005, 22 June 2006 and 25 July 2006 that the answer is no. I would not draw that conclusion from the comments made about the general situation in Afghanistan but I do draw that conclusion from the way in which the writers dealt with the fresh material specific to the appellant’s family. I will take these in turn.

First, the mother’s affidavit. As I have recounted, this was rejected in the letter of 20 June 2005 as having no relevance or reliability for two reasons. These were, first, that the Home Office had only been sent a copy and, second, that:

“An affidavit from a family member cannot add probative or corroborative weight to your client’s claim.”

As to the first reason, the Home Office was later supplied with the original document. As to the second reason, I have referred to the judge’s comment that as a general proposition this was far too sweeping. I agree, but that was all that was said about the content of the affidavit in that letter. There is no trace here of the writer pausing to consider what an independent tribunal might (not would) make of the affidavit and giving anxious scrutiny to that question.

The matter may be tested in this way: imagine that before an independent tribunal the appellant’s representative said that he wished to rely on an affidavit from the appellant’s mother. Can it be imagined that the tribunal would refuse to consider the document on the basis that it came from someone who was parti pris? The question answers itself. A tribunal would no more have taken that course than it would have refused to consider evidence from the appellant himself on the basis that he was partisan.

Mr Patel, on behalf of the Home Secretary, has properly and realistically accepted that neither of the two reasons given in the letter of 20 June 2005 for refusing to consider the contents of the mother’s affidavit is sustainable. I would go further. It demonstrates to my mind that the Home Office official who wrote the letter cannot have applied his mind to the right question.

But in relation to the mother’s affidavit, Mr Patel relies on additional matters set out in the letter of 25 July 2006. Here three reasons were maintained for attaching no significance to the mother’s affidavit. They were:

I will come back to the second point when referring to the ARCS document. But the fact that the writer was maintaining that an affidavit of a family member was on that account to be disregarded, irrespective of its authenticity or content is, in my view, demonstrative that he simply cannot have been looking at the matter from the perspective of how it might be considered by an immigration judge.

I take next the letter from Lieutenant General Mohammad Ahmadazi. It will be recalled that this was rejected in the decision letter of 22 June 2006 on two grounds. The first was the, by now familiar, ground that a letter from a family member could not be considered as providing independent corroboration of the appellant’s claim. This demonstrates that the writer of the letter of 22 June 2006, who was different from the writer of 22 June 2005, but the same as the writer of the letter of 25 July 2006, likewise cannot have been asking himself how an independent reviewer might view that document.

In the case of the General’s letter, the second reason given for disregarding it was that, because of the appellant’s lack of credibility arising from his reliance from the ARCS document, the letter from the Lieutenant General could not be considered genuine.

That brings me to the ARCS document. As set out in paragraph 15, the letter of 22 June 2006 concluded that this was a fake because of the later letter from the ARCS head office denying its authenticity; from which it followed, according to the letter, that the appellant’s credibility was significantly damaged, meaning that the appellant must have been party to the use of a forgery. I have already referred to the disquiet expressed by the judge about this approach.

How did it come about that the official writing the letter dismissed the first ARCS document as a fake and went on to make the conclusions that he did about the credibility of the appellant; whereas, the judge pointed out, there is an apparent intrinsic unfairness in doing so in circumstances where the individual has in the past given evidence on which he has been cross-examined, and held to be truthful, without any further opportunity on his part to demonstrate his truthfulness before he is branded a liar?

The letter of 22 June referred to two letters from the appellant regarding the ARCS document. In those letters, the appellant made the point that ARCS had many local branches. He said that the Logar province had been approached for help by his maternal uncle and had made enquiries. His uncle, he said, was adamant that the document from that branch was genuine. Once the UK Government started making enquiries of head office level, different people will have been involved. The present head of ARCS was closely related to the government in Kabul, who would not wish to embarrass it. It was therefore not difficult to envisage political reasons why the head office should disclaim responsibility for the branch office, but it by no means followed that it could be safely concluded that the document was indeed a fake, and the head office document recognised that it did have the correct stamp.

What did the letter of 22 June say about this beyond referring to the appellant’s letters? It said:

“However, there is nothing in these letters that will cause us to alter our view of the authenticity of the ARCS letter on which your client seeks to rely. We do not consider it likely that Mr Walizada [the signatory of the head office letter of ARCS] is not giving his true opinion of the authenticity of the letter.”

It is submitted by Mr Juss, with justification in my view, that this again suggests that the writer was not asking himself the right question. It may be perfectly reasonable for him to consider it unlikely that Mr Walizada would not express his true opinion, but that was not the end of the matter. He had to ask himself not whether he thought it was likely, but whether an immigration judge might regard the document as genuine after anxious scrutiny, bearing in mind the previous credibility finding in the appellant’s favour, which was a point emphasised by the judge in paragraph 21 of his judgment. The adjudicator had said:

“I find the appellant’s account of events that took place to be entirely credible. There was ample opportunity for him to embellish his account which he did not do.”

I am conscious that when reading the Home Office decision letters one has to read them fully, not construing each sentence for small linguistic deficiencies. But having read and re-read them, it does seem to me on a fair reading that the writers were forming their own judgment on matters of relevance and the credibility of the appellant, without addressing the key question whether an immigration judge might take a different approach. I have set out my reasons for being driven to that view.

Mr Patel properly accepted that, on the facts of this case, if the court concluded that the Secretary of State through his officials had not properly addressed the relevant question, the application for judicial review must succeed. He submitted that such a conclusion need not invariably follow, but he accepted that it would be the proper result in this case.

Looking to the future, I am concerned at the time that has already passed. Admittedly, the Secretary of State has been faced with extra instalments of material from the appellant’s side, but he has now had two or three bites at the cherry in responding to the appellant’s claim and has failed to do so properly. I am conscious that the Home Office is deluged with “fresh claims”, and that case workers are not only under great pressure but can become case-hardened. In this particular case, reasons have been put forward for not treating it as a fresh claim which were unsatisfactory, and then were replaced or supplemented by others which have also been less than satisfactory.

I find it hard to see how a decision maker addressing himself to the right question on the particular facts of this case, in which there had been a favourable credibility finding, would have failed to accept that there was a new claim. It does not of course follow that the finding of credibility will necessarily stand after any further hearing before an immigration judge; but that is some distance away.

That said, there remains the question of relief. The application for judicial review sought a mandatory order that the matter be referred back to an Immigration Appeal Tribunal. I am not persuaded that that would be an appropriate form of order because the Secretary of State might on reconsideration accept the asylum claim, as Mr Patel has pointed out. Moreover, Mr Juss on his side has today sought to place before the court additional material of a general nature, to which it has not been necessary to refer, but which the Secretary of State will certainly have to consider.

In all the circumstances, I would simply allow the appeal and quash the decision of the Secretary of State refusing to treat the appellant’s representations as a new claim.

I agree.

I also agree.