Mehmood v Secretary of State for the Home Department

This is an application for permission to appeal from the decision of Mr Stephen Morris QC sitting in the Administrative Court by an applicant whom I will refer to as TM. It is unfortunate that I now propose to give permission to appeal in a case where the applicant has been in the United Kingdom for over 10 years.

He arrived on 20 September 1998 and claimed asylum on 29 September on the grounds that, if returned, he would suffer persecution in Pakistan because of his Ahmadi faith. His application for asylum was refused on 22 September 2000 and an appeal was rejected in April 2001. In December 2001 a separate human rights claim was refused. On 3 December 2003, however, the Immigration Appeal Tribunal allowed his appeal and remitted his case to a full hearing. On 2 February 2004 that appeal was dismissed by the adjudicator on the grounds that the applicant could relocate to a place called Rabwah because, as the adjudicator thought, there were a majority of Ahmadis in that city.

The applicant applied for permission to appeal to the IAT but that was refused on 27 April 2004. Between June 2004 and February 2006 the applicant made further representations to the Secretary of State which he said amounted to a new claim, but those representations were refused on 10 March 2006. He instituted judicial review proceedings promptly enough on 13 March 2006, and Mr Goudie QC sitting in the Administrative Court refused that application on the papers on 1 June 2006. The applicant renewed that application, as he was entitled to do, and asked for an oral hearing. That renewal was adjourned on 30 October 2006 pending a decision in a country guidance case relating to persons with the Ahmadi faith. That decision was promulgated under the name of IA ([2007] UKAIT 00088) by the Asylum and Immigration Tribunal on 17 October 2007, and that decided that Rabwah was not necessarily safe for any Ahmadi and thus cut the ground from the original adjudicator’s decision. There was, however, a further decision by the Asylum and Immigration Tribunal on 4 April 2008 in the case of MJ and ZM (Ahmadis – risk) (Pakistan) [2008] UKAIT 00033 which decided, to put it extremely briefly, that usually Ahmadis can go to any other place in Pakistan than the place where they originally suffered persecution because, unless there were special reasons, there was in general terms no such persecution of Ahmadis as would justify seeking the protection of the international community.

In the light of those decisions and also the Court of Appeal decision relating to the decision in IA [2008] EWCA Civ 580, Walker J granted permission to the applicant to bring judicial review proceedings, and in the light of all the events that had happened further representations were made to the Secretary of State on 4 August 2008; the Secretary of State refused to treat those representations as a fresh claim on 27 November 2008, and it was effectively that refusal which Mr Stephen Morris was considering on the judicial review application.

There is no compliant by Mr Gill of the way in which the learned deputy judge set out the law at the beginning of his judgment, but Mr Gill does submit that, having set out the law satisfactorily, the learned judge was not faithful to the decision of R (WM) (DRC)) v SSHD [2006] EWCA Civ 1495, the head note of which Mr Gill has taken me to this morning, in which that court held that the Secretary of State was required to ask himself not whether he himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an immigration judge (applying the rule of anxious scrutiny) thinking that the claimant will be exposed to a real risk of persecution on return. He -- that is, the Secretary of State -- also had to satisfy the requirements of anxious scrutiny. The court’s task was not to make the primary decision for itself but to assess the Secretary of State’s decision on Wednesbury grounds. If the court cannot be satisfied that both requirements have been met, it will have to grant an application for judicial review of the Secretary of State’s decision.

Mr Gill submits that the decision of the Secretary of State recorded in the letter of 27 November 2008 is itself not faithful to the holding in WM because the Secretary of State engaged in detail with the facts of the case and concluded in paragraph 16 of the letter, “It is not accepted that your client is such an exception that he is at risk in Pakistan as a whole”, and then says in paragraph 17:

“…for the reasons set out above, the Secretary of State is of the view that there is no realistic prospect that your client’s submissions will, when taken together with all the previous considered material, lead an immigration judge to decide that your client should be allowed to stay in the United Kingdom…”

Mr Gill wishes to submit that that is a wrong approach, that it is for the Secretary of State adopting anxious scrutiny to decide merely the question whether it is possible that an immigration judge would reach a different decision from the previous immigration judge; he or she should not engage in the facts and decide that in fact the decision was right, and then say that it is not possible that another decision could be reached. That, he submits, is not only unsatisfactory but an unlawful process of reasoning. He submits that the judge conducting the judicial review really fell into the same error in that up to paragraph 56 of the judgment he is considering in detail the facts of the matter and concludes that the adjudicator was correct, and then in paragraph 57 makes the same, as Mr Gill put it, ‘leap’, to saying that for that reason no other immigration judge would come to any different decision.

It does seem to me that Mr Gill’s submission on that is at least arguable in the light of the way the learned judge has phrased his judgment, so I do propose to give permission to appeal without giving Mr Gill any encouragement to think that that ultimately the court will in fact reverse the decision of the deputy judge. The court is not unnaturally concerned to find this ground of appeal surfacing for the first time today, in the sense that Mr Gill’s skeleton argument in which he sets out this ground is dated yesterday and only came to my attention half an hour before coming into court this morning. That is Ground 1, as set out in his skeleton.

Grounds 2 and 3 are further elaborations of Ground 1 on particular aspects of the case, so I propose to give permission on those three grounds but on condition that Mr Gill files a fresh document headed “Grounds of Appeal”, setting out shortly what those three grounds are in one or two sentences each.

On that basis I will grant permission to appeal and I will say that there should be a court of three, one of which can be a High Court judge if that High Court judge has Administrative Court experience.