NCN v Secretary of State for the Home Department

This is an application for permission to appeal the order of HHJ Heaton QC made on 17 October 2014, sitting in the Queen’s Bench Division of the High Court as a deputy High Court judge. He dismissed the appellant’s judicial review proceedings against a series of decisions by the Secretary of State not to treat further representations by the appellant as fresh asylum or human rights claims after dismissal of her original asylum, humanitarian and human rights claim by the Immigration Judge in November 2011.

The judge refused permission to appeal. Beatson LJ considered a written application for permission to appeal and on 24 July last refused permission, giving, if I may say so, unusually detailed reasons for his conclusion that permission should be refused. This is the oral, further application for permission after that refusal on the papers.

The background facts are that the appellant is a 19-year-old woman from Uganda. She fled Uganda and entered the United Kingdom with a false passport on 22 June 2011 and then immediately brought an asylum and humanitarian protection claim in Glasgow. She had been trafficked to the United Kingdom and it is common ground that she had been sexually abused by her trafficker.

The Secretary of State refused her asylum claim in September 2011. The essence of her case for asylum was that from the age of 17 she had been sexually abused by her father. She had had a child by her father. He died in February 2011 by poison administered by her half-brother, when they discovered that her father was going to give the appellant some plots of land in Uganda and they were intent on killing her too. On the appellant’s appeal against the decision of the Secretary of State in November 2011 the Immigration Judge dismissed it and made findings that the case which she had advanced as her reason for having fled Uganda was a bogus story which he rejected in every material respect. The appellant did not challenge at that stage the decision of the Immigration Judge.

There then ensued a long procedural history, which I do not propose to take time setting out in this short judgment, which consisted in essence of attempts to make fresh asylum and human rights claims by the appellant leading to a series of rejections by the Secretary of State. The two most important were the decision of the Secretary of State on 26 November 2012 not to treat her further representations as giving rise to a fresh claim, and a further decision to the same effect in December 2013 not to treat yet further representations as doing so.

The two successive applications to make, in effect, fresh asylum claims may be distinguished in this sense, that the one made in 2012 did not, but the one made in 2013 did, also include a claim under Article 8 in addition to the main claim under Article 3. I will call those two decisions the 2012 decision and the 2013 decision. They were the principal subject of the judicial review challenge which came to be heard by HHJ Heaton.

The essence of the appellant’s case throughout for there being, as it were, a fresh chance to make a full asylum and human rights application has been based on evidence about her medical condition, which tends to show that at times she has had a fragile mental state arising from a moderate, or moderate to severe, depressive disorder and possibly residual symptoms of PTSD, leading her to have suicidal tendencies, such that the risk of suicide would be enhanced if she were forcibly returned to Uganda.

It is said, firstly, that her mental condition was not before the Immigration Judge in 2011 and that a reconsideration of the case which she had advanced afresh now in the light of her knowledge and understanding of her medical condition could stand a reasonable prospect of undermining the Immigration Judge’s view that she had put forward a bogus story. In substance, the point is that if she had then, or rather were now when advancing the same case, been treated as a vulnerable witness, there is a real prospect that her case would be in substance believed.

Secondly, the medical evidence and the medical case is said to give rise to a real prospect of success on a claim that, regardless of the reasons why she fled Uganda in the first place, to return her now in her current condition, or rather in the condition as assessed by the Secretary of State in 2012 and 2013, which are the decisions under challenge, would in any event infringe her Article 3 or Article 8 rights.

The judge rejected the judicial review claims in relation to both the 2012 and 2013 decisions of the Secretary of State. In relation to the 2012 decision, his reasons may be found in paragraphs 60 to 70 of his judgment and may be summarised as follows, namely (i) that the Secretary of State had been entitled to conclude that there was no fresh evidence which disclosed a real possibility that the findings of the Immigration Judge might be undermined if the matter was reheard before a fresh Immigration judge (ii) that the Secretary of State was entitled to conclude that, having regard to the very high threshold for article 3 claims, the material in front of the Secretary of State in 2012 and, in particular, of a report of Dr Turner, which was based upon a very recent examination of the appellant, fell short of satisfying that high threshold, so that there had been no reviewable error on the part of the Secretary of State in rejecting the fresh application.

As I have said, no Article 8 claim was made in connection with that application. In relation to the 2013 decision, the judge concluded that the further representations and fresh evidence upon which it had been based did not begin, as he said, to reach the high threshold required in respect of Article 3 or Article 8. He said that the psychiatric report, which included a further letter from Dr Turner, which had been prepared in March 2013, was based upon a much earlier examination of the appellant which was by then effectively out of date, bearing in mind that she had been out of detention for some time by then, and he said that there had been no further examination prior to Dr Turner’s letter of March 2013. He concluded:

“The other information as to the claimant’s medical condition is either old or from a non-medical source or, in some cases, both.”

Altogether he concluded that the Secretary of State was not merely entitled to conclude that the medical material and the fresh representations fell short of the standard for Article 3 or Article 8, but indeed right to have done so.

In the oral application today Ms Naik has in very helpful oral submissions, for which I gave her at least twice the usual time, really based her case under three main headings. The first is what I will call the vulnerable witness heading, namely that if the appellant’s case were re-examined by an Immigration Judge aware that she was, or could be said to be, a vulnerable witness, there is a real prospect that a different outcome would have ensued. Secondly, that the 2012 decision simply wrongly failed to reflect that the risk of suicide upon which Dr Turner had reported was sufficient to trigger Article 3. In relation to the 2013 decision, her main case was that the lower threshold, which she submitted was applicable under Article 8, was surmounted by the totality of the evidence then before the Secretary of State, including the earlier 2012 report of Dr Turner, which, she submitted, the Secretary of State had not fully taken into account.

I will take each of those main submissions in turn. I accept in principle that there may be occasions where the lack of an apprehension that a witness is vulnerable may undermine the basis upon which an Immigration judge decides that that person’s evidence lacks credibility; but in my judgment this was not one of those occasions and it is not seriously arguable that it was. It was common ground before the Immigration Judge that the appellant had been sexually abused while being trafficked to the United Kingdom, but it is fair to say that the Immigration Judge did not have in front of him anything like Dr Turner’s report about her medical condition. But, having carefully considered the reasoning of the Immigration Judge for rejecting the appellant’s evidential case as incredible, it does not seem to me that there is any kind of real prospect that his conclusion would be undermined by treating her in accordance with the Joint Presidential Guideline (number 2) of 2010 as a vulnerable witness.

I should start by saying that the hearing before the Immigration Judge was not one in which the appellant was cross-examined, whether in a hostile manner or otherwise. Her evidence consisted of a witness statement which she amplified during the hearing and it may have been further amplified by questions either from her own representative or from the tribunal.

The reasons why the Immigration Judge rejected her evidence as incredible were, firstly, that it was inherently incredible; it raised a large number of questions which the appellant had not been able to address in any way in her written or oral evidence. Secondly, it was based upon the Immigration Judge’s conclusion that supporting documents upon which the appellant relied, such as documents about land ownership and the reasons for her father’s death by alleged poisoning, were inherently suspicious in their appearance and looked as if they were contrived. Generally speaking, the Immigration Judge’s reasoning was based upon objective considerations about the incredibility of her case, rather than upon any subjective perception of whether she performed well or poorly in the witness box. So, for those reasons, I do not accept that Ms Naik’s first submission discloses a real prospect of success.

As to the 2012 decision, Ms Naik submitted that there would be cases where a risk of suicide could qualify, notwithstanding the very high threshold under Article 3, for example, where it could be shown that it was the removal itself which gave rise to the risk. But in this case a careful reading of Dr Turner’s report, which was before the Secretary of State when she made the 2012 decision, discloses a medical opinion not that her removal itself would have a dramatic effect on the risk in any direct sense, but that she had suicidal tendencies while in the United Kingdom; this may have been a relatively longstanding condition; it was a condition which Dr Turner expected would be likely to continue; and his reason for concluding that the risk would be increased if she were to be removed to Uganda was nothing to do with the removal itself but because of his perception that the care which she would receive in Uganda, whether direct medical care or care in the community, would be likely to be less efficacious than care for that same condition if provided in this country.

If analysed in that way, it is I think quite clear that the judge’s conclusion that the Secretary of State was entitled to conclude that Dr Turner’s evidence did not bring this case anywhere near the very high Article 3 threshold was one which the Secretary of State was entitled to come to without making any error of law or acting irrationally.

As for Ms Naik’s case in relation to the 2013 decision, again I accept that there may be cases where considerations of healthcare or care in the community may form part of a patchwork which, taken together, constitutes an established private or social life in the United Kingdom so as to give rise at least to the consideration of an Article 8 case. But where, as it seems to me here, the whole of the Article 8 case consists essentially of a perception that an applicant would either be deprived of care for a medical condition, or provided less adequately with care for a medical condition, in her country of origin rather than this country, it seems to me, for the reasons given by Beatson LJ in paragraph 3 of his written reasons for refusing permission, that this is not a case in which the additional reliance upon Article 8 really adds anything to the reliance upon Article 3. I shall not spell out Beatson’s LJ detailed reasons for that conclusion as they are in his written decision, save to say that having heard Ms Naik’s able submissions I have to say that I agree with them.