Koimon, R (on the application of) v Secretary of State for the Home Department

THE DEPUTY JUDGE: This is an application for judicial review of a decision by the Secretary of State for the Home Department ("SSHD"), by a decision letter dated 22 February 2007, to reject the claimant's further representations in support of a failed claim for asylum by solicitors' letter dated 12 December 2006, and in particular her refusal to accept them as constituting a fresh claim. The primarily relevant enclosure with that letter was a medical report on the claimant by Dr Virginia Leggatt, which though undated was based on examinations in February of 2006. The application is brought by permission of King J, given at an oral hearing on 12 June 2007, permission having previously been refused on paper by Burton J on 9 March 2007.

Rule 353 of HC 395 provides:

As the facts underlying this matter are old, I should mention that the current Rule 353 came into force on 18 October 2004, just over six months before the relevant decision of the immigration judge on 4 May 2005, and therefore the old requirement under the deleted rule 346 to show that the material relied on as constituting a fresh claim was previously unavailable is of no application. For this reason, it has not been necessary to go into the somewhat unsatisfactory circumstances (not reflecting ill on the claimant, I should add) in which the medical report of Dr Leggatt, which was demonstrably in existence by March 2006, was not put before the Secretary of State for another nine months. The Secretary of State has not disputed that the report of Dr Leggatt satisfies the first limb of rule 353; the question in dispute before me centres on the second limb.

Mr Sarabjit Singh, appearing on behalf of the SSHD, rightly submits that there are in principle three issues for the court on such an application: first, whether the Secretary of State has asked herself the right question; second, whether the Secretary of State has (a) considered matters in the round, and (b) in doing so, applied anxious scrutiny; and third, whether she has nevertheless arrived at an irrational decision.

As to what is the right question for the Secretary of State to address, it is well established that the SSHD should not approach the matter by asking what alterations to particular findings of the immigration judge might result from adding the new material to the evidence to be considered, but rather should approach the matter by asking what findings might result from a fresh consideration of the matter taking into account all the evidence, old and new, by a notional immigration judge: see for example Mibanga v SSHD [2005] EWCA Civ 367. In AK (Afghanistan) v SSHD [2007] EWCA Civ 535 para 23 Toulson LJ expressed the position as follows:

So when considering the claimant’s prospects of success at a fresh consideration, the key word is not "would", but is "might": see also Kurtaj v SSHD [2007] EWHC 221 Admin para 67. The thrust of the submissions made in writing and orally by Mr Jan Doerfel, appearing on behalf of the claimant, is that the SSHD erred in her consideration and evaluation of the significance of the medical report of Dr Leggatt. He says she set too high a test for the report, in that such a report can afford material corroborative support to a claim for asylum even if its conclusions amount to a finding of consistency between symptoms and underlying allegations, rather than a diagnostic finding to the effect that the only credible explanation for the symptoms is that the underlying allegations are true. He submits that this erroneous approach to Dr Leggatt’s medical report evinces a failure to attribute the correct standard of proof to the claimant, which is not that of making out his case on the balance of probabilities, but the lesser test of making it out as a reasonable likelihood. It is common ground that the latter is the true standard, and that it applies not only to the ultimate assessment of what risk a claimant faces, but also to establishing the underlying facts relied on by the claimant as giving rise to that risk: see Kaja v SSHD [1994] UKIAT 11038, especially at paragraphs 25 to 33.

Mr Doerfel further submits that SSHD treated the report of Dr Leggatt as an “add on”, and took some of the adverse findings of the immigration judge as a "given" when assessing it. He submits that the SSHD has treated the report of Dr Leggatt as worthless, whereas it does have some corroborative weight, and that once that is established, it necessarily follows that there is at least a possibility of an immigration judge, on a fresh consideration, reaching a different view on credibility and hence as to the ultimate outcome. Thus Mr Doerfel's submissions go primarily to the first and third of the three questions I have identified, in that he submits that the SSHD's erroneous approach to the medical report demonstrates that she has not asked herself the right question, being that formulated by Toulson LJ in the AK (Afghanistan) case, as well as indicating that she has reached a conclusion which no reasonable decision-maker could.

Mr Sarabjit Singh, appearing for the SSHD, supports her approach to the medical report, in particular referring to the judgment of Sir Mark Potter (President of the Family Division) in SA v SSHD [2006] EWCA Civ 1302. He submits that while it is right that the report does have some weight, it is, on a proper analysis, relatively slight. Importantly he further submits, challenging Mr Doerfel's approach, that just because there is some new material of some corroborative weight, it does not always follow that there will inevitably be a realistic prospect that an immigration judge, considering the matter afresh, might come down in favour of the claimant's asylum or human rights claim.

I accept that further submission, and, therefore, although it is accepted that Dr Leggatt's report satisfies the first limb of rule 353 and that it does have at least some corroborative weight, it does not necessarily follow that the claimant is entitled to succeed in any event. Mr Singh also makes a further alternative submission, which I shall briefly deal with later.

The claimant, Mr Armand Marcel Koimon, was born on 13 June 1973. He is a national of Cameroon and his first language is French. It is common ground that at some time he was a police officer in Cameroon, apparently based in Loum. According to his own statement of April 2005, to which I shall come, he is the son of a nurse and a housewife, who obtained a certificate of primary education from the Notre Dame Catholic Primary School, obtained a Baccalaureate from the Technical Lycee of Bangangte, Cameroon, and started studying building and construction at university, before abandoning that course in favour of joining the police. He obtained the appropriate qualification over the period 1998 to 2000, and started work as a properly qualified police officer at the end of that period. He married, and has one daughter born in November 1998.

He claims to have entered the United Kingdom using a French passport belonging to someone else, provided to him for the purpose in Cameroon, on 3 April 2005, and then to have returned it to the provider in Cameroon by post. He claimed asylum in the United Kingdom 11 days later on 14 April 2005. He made a written statement in support of his claim on 19 April 2005 with the assistance of solicitors, who in the event did not go on to represent him. It may be found at page 134 of the primary bundle, and is an important document.

He was subsequently subject to a lengthy interview on 22 April 2005, although when it came to the hearing in front of an immigration judge, he chose not to adopt the notes of that interview as part of his evidence-in-chief because (he said) they had not been read back to him in his first language, French, either by the Home Office or by his own solicitors. The notes of the interview do not form part of the bundle before me. The Secretary of State refused his asylum claim on 25 April 2005 by a decision letter at page 142. His subsequent appeal was dismissed by an immigration judge on 4 May 2005.

Notwithstanding what I have said as to the correct approach under rule 353, the decision letter of the immigration judge is a convenient document to which to refer for a summary of the history of the matter, as well as, of course, for an indication of the conclusions, and reasons for them, which the immigration judge reached at that time on the material which was then available. The judge, Mr Pullig, sets out a summary of the claimant's case, which clearly draws on the written statement to which I have made reference, although it picks up on a number of points from the interview which were subsequently incorporated into the Secretary of State's decision letter rejecting the asylum claim. It includes a number of passages which deal with answers given to him by the claimant, including a number of questions unsurprisingly directed at the claimant's original evidence as to how he made the journey from Cameroon to the United Kingdom. It is right that I should set out the concluding paragraphs of the decision letter, which I take from paragraph 37 onwards:

The Tribunal subsequently rejected the claimant's request for a further appeal. In February of the following year, 2006, the claimant was seen twice by Dr Virginia Leggatt of the Medical Foundation for the Care of Victims of Torture. The result was the production of a report which I have at pages 116 and following in the primary bundle, which, as will be apparent from what I have already said, is an extremely important document in the context of this hearing. I shall make reference, as selectively as I can, to passages from that report later in my judgment.

The letter of further representations lodged on the claimant's behalf was dated 12 December 2006 and sent by his present solicitors, Messrs O'Keeffe. A copy is in the primary bundle at pages 71 and following. It has a number of enclosures, but in the event that which proved to be the important one is Dr Leggatt's report. By her decision letter dated 22 February 2007 (primary bundle page 27) the SSHD rejected those further submissions both on their merits and as constituting a fresh claim. She has very recently, by letter dated 27 October 2008, sent a supplemental letter confirming expressly what one might have thought was obviously implicit in any event.

Dr Leggatt, like any doctor, has to base her report on a combination of symptoms which she is able observe for herself, and matters which are reported to her by her patient. Her report sets out a number of such matters, and perfectly properly so. However, in the context of this case, it is right that I should record what the claimant said about those related matters in his witness statement of 19 April 2005, a document which it appears Dr Leggatt did not see, which was as follows (see primary bundle page 134):

Dr Leggatt records, of course, a number of the matters of fact recounted to her by the claimant. There are some which equally I should record:

Thus, facts reported to Dr Leggatt materially differed from those put before the immigration judge, in particular as to whether or not the claimant was beaten during the two months he allegedly spent in prison in Edea, and whether or not he bore any scars on his buttocks in consequence of being beaten with a rubber whip or matraque in either Douala or Edea.

I make the following preliminary observations as to what is a proper or reasonable approach to assessing the report of Dr Leggatt:

So what primary or direct evidence of the claimant does or could Dr Leggatt's report corroborate? As to scars on his buttocks, on his first version of events there were none. His second version of events is set out in paragraph 19 of Dr Leggatt’s report, which I have just quoted. It acknowledges two possible causes of scars, in particular the round scars being the ones on his buttocks. As to these, Dr Leggatt's conclusion may be found in paragraph 24 of her report, which is that they "are consistent with the explanations he offers for them". The doctor's use of the plural "explanations" makes it clear beyond doubt that she is in no sense making any choice or expressing any preference or degree of likelihood between the two possible causes which the claimant himself has recorded as having acknowledged in paragraph 19. She does not deal with the inconsistency with his earlier statement, although the probable explanation for this is the fact that, unhappily, his earlier statement does not appear amongst the documents listed as having been seen by her.

As to the scars on the claimant's legs, none such were mentioned in his April 2005 statement. In the doctor's report, they are dealt with in the same paragraphs which I have just mentioned, in equivalent terms. As to scarring on his feet, in his April 2005 statement he asserted that there were scars on his feet which resulted from insect bites sustained in, to summarise, an infested cell: see page 139 of the primary bundle. It seems that this was not specifically mentioned to Dr Leggatt, although the claimant did describe to her, as she recorded in paragraph 8 of her report (which I have already quoted), that one of the two methods by which he was beaten involved the application of a matraque to the soles of his feet. Having been told that, the doctor's observations are again to be found in paragraph 24 of her report:

As to abdominal pain, the report conveniently deals with that entirely within a single paragraph:

So far as the claimant's eyes are concerned, in his statement of 2005, paragraph 20, he said: "My eyesight has suffered because of being in distress and in poor light". When seen by Dr Leggatt, he told her that:

The doctor's conclusions on this topic are at paragraph 21 of her report, where she states:

Here, therefore, it is clear that Dr Leggatt was unable to observe any relevant findings on her own examination of the claimant, and therefore, firstly, what she says is entirely dependent on what her patient reported to her, and secondly, in the event she does not appear able to support what the claimant stated in the short passage from paragraph 20 of his April 2005 witness statement which I have quoted.

The topic of depression is dealt with shortly in paragraph 22 of Dr Leggatt's report:

Finally, with regard to the scarring on a finger, which was mentioned in paragraph 16 of the witness statement of April 2005 (which again I have already quoted), it may be noted that the immigration judge, implicitly accepting the existence of that injury, said in paragraph 39 of his decision letter that "the injury to his finger and mosquito bites do not show that he was detained". That, on the face of it, would be not only a reasonable but almost an inevitable conclusion, as stated. That matter is not taken materially further by Dr Leggatt, although she does deal with alleged scarring on the dorsal surface of the claimant's hands which had not been mentioned or relied on in his early statement, and therefore was not dealt with by the immigration judge.

Having been through in detail, as it were condition by condition, the matters on which the doctor either did report or might have reported, what was available to her to act on, and what conclusions she felt able to express, I ought to quote the concluding summary paragraph of her report:

On any fair reading or assessment of Dr Leggatt’s report, it can be seen that the claimant, through his solicitors, in his letter of further representations of 12 December 2006 seriously overstated the position when saying (primary bundle page 72):

That overstatement of the claimant’s case may explain the SSHD's use of the adverb "completely" in paragraph 7 at page 28 of the primary bundle, which in the context I regard as meaningless in the sense that the adjective "inconclusive", in the context, means the same with or without the adverb "completely" put in front of it. It seems probable that the author of the decision letter desired to match the emphasis -- indeed overstatement -- in the claimant's letter. The relevant sentence reads:

Taking fully into account everything Dr Leggatt has said in her report, there are still, on any view, major credibility issues facing the claimant and his human rights and/or asylum claims which are in no way neutralised or explained away -- express it as one will -- by her report. This is not a question of taking any findings made by the immigration judge in 2005 as a "given"; rather, it is simply a recognition of the fact that, on a fresh consideration of this matter, taking into account all of the evidence, old and new, many of the points covered in the immigration judge's judgment of May 2005 would remain. In other words, on a notional fresh consideration, with all the evidence, old and new, before an immigration judge, although that judge would have to take full account of the new evidence and not discount it for the fact that it is new, equally he or she would not be required to put on blinkers and pretend that difficulties for the claimant which were there previously have gone away.

First, the claimant's case faces very serious difficulties with regard to the question of whether or not he was beaten during two months -- out of his total alleged detention of two months and three weeks -- in a prison in Edea. He has made flatly contradictory statements about that.

Second, the claimant's case faces serious difficulties with regard to his initial evidence that he flew direct from Douala to England by Air France, and the manner in which he modified that case when cross-examined before the immigration judge in 2005. The fact that he was himself a Francophone gentleman, and that Paris must on his (revised) account of matters have been the first stop, only emphasises the various points properly made by the immigration judge in 2005 about that.

Third, as is pointed out on behalf of the SSHD, in paragraph 30(a) of her detailed grounds and skeleton argument, there is the matter of the apparent inconsistency between the claimant's account of how he escaped from prison in Edea and his state of health, had his account of the conditions over the previous two months and three weeks been true. I adopt, simply as a matter of convenience and not because they are in any sense a “given”, the words in which the immigration judge dealt with this:

Fourth, there remains facing the claimant the difficulty posed by his change of evidence with regard to why he was unable to produce the summons which, on his account, set in train the series of events which led to his detention and severe ill-treatment. That too is dealt with in the immigration judge's decision.

Therefore, turning back to the three questions which have to be addressed, firstly the Secretary of State did, in my judgment, ask herself the right question. That is so on a fair reading of her decision letter of 22 February 2007, with or without the short supplement of 22 October 2008. In paragraph 4 of the decision letter, when dealing with rule 353, she expressly stated, in setting out the approach to be taken:

In paragraph 16 of the decision letter, she wrote:

Second, did the SSHD look at the matter in the round? In agreement with Burton J, giving his reasons for originally refusing permission to apply, I find that she clearly did. It is equally clear that she gave the matter anxious scrutiny. This is demonstrated by the terms of paragraphs 5 to 15 of the decision letter.

Third, did the SSHD reach an irrational, perverse or Wednesbury unreasonable conclusion? In my judgment, she did not. Indeed, she reached a conclusion which many, if not most, decision-makers would have made on this material.

In these circumstances, I need only revert very briefly to Mr Singh's alternative submission. Though he also dealt with it orally, it is convenient to refer to paragraphs 32 to 35 of his detailed grounds as summarising the same. The immigration judge at paragraph 41 of his decision said this:

In the circumstances, if I had concluded in the claimant's favour on the primary matter argued, it would, in my judgment, have given rise to a legitimate sense of grievance on the claimant's part had his application nevertheless been dismissed without an opportunity for a fresh hearing -- without being treated as a fresh claim, to express the same point in another way -- on the basis of Mr Singh's alternative ground. In my judgment, no reasonable decision-maker would have imposed that on the claimant in the face of such an express finding on the part of the immigration judge last time around.

For those reasons, if (which is not my conclusion) there was a realistic prospect that, on a fresh assessment, an immigration judge would have concluded that the claimant was genuinely at risk of a material period of detention in Cameroon, I would have considered him entitled to the opportunity to have the matter considered afresh in that fashion.

Conclusion

However, for the reasons that have occupied the vast majority of my judgment, that is not my conclusion, and therefore this application for judicial review will be dismissed.

MR SINGH: My Lord, I am grateful.

DEPUTY JUDGE: Firstly, I should say, and it is probably most politely done to Mr Doerfel first, that I am conscious that both of you -- this is not a criticism -- have to a considerable extent relied on your written submissions and been very economical in your oral development of them. Are there any submissions that you have made to me that you were concerned that I have not said anything about? Because if there are, it would be perfectly proper for you to point them out to me, and I may or may not choose to supplement my judgment accordingly. You are under no obligation to say anything, but is there any particular point you feel you have raised that I have not dealt with?

MR DOERFEL: My Lord, no.

DEPUTY JUDGE: Thank you. The same question to you, Mr Singh?

MR SINGH: No, my Lord.

DEPUTY JUDGE: Right. Now, you were going to say?

MR SINGH: My Lord, that does just leave the issue of costs. Now, ordinarily I would ask for the claimant to pay the Secretary of State's costs. The difficulty in this case, my Lord, is that I understand that the claimant is legally aided, so, my Lord, I would ask for the order to be made, but the order should also say, in my submission, that it is not to be enforced without leave of the court.

DEPUTY JUDGE: The usual legal aid restraint on enforcement -- that which was usual when legal aid was usual.

MR SINGH: Yes, my Lord.

DEPUTY JUDGE: Yes, that rings a bell. You will appreciate, sitting in this jurisdiction, one sees quite a lot of sets of papers per day, but it is right that you have the benefit of public funding, Mr Doerfel?

MR DOERFEL: That is right.

DEPUTY JUDGE: In which case it is clear that, if I make an order, that restraint will be on. Is there any reason why I should not, given the outcome?

MR DOERFEL: Because of late service of the grounds, which we have admitted, I would say --

DEPUTY JUDGE: You were very fair about that.

MR DOERFEL: Absolutely, so I think that may be well reflected in the question of costs, and also on the extent of that costs order. I know it is not going to be enforced, but I served the papers yesterday afternoon well after 2pm -- the grounds -- after a year of permission having been granted.

DEPUTY JUDGE: That is a very fair point. Yes, it would go to the extent of the order, I think. Mr Singh, I am highly sympathetic to that submission. One should not use costs, as it were, as some sort of headmaster operating a disciplinary jurisdiction, but equally the matter was dealt with desperately late and put the claimants in the position of having to move very, very quickly, which they did admirably in terms of the manner in which they turned it around and so forth, and you were frank enough this morning to say that you were unable to place any explanation for that before me. In those circumstances, the claimants have had to deal with part of the matter at high speed and at short notice, and I am attracted by the idea of specifying that you should have X per cent of your costs with the restraint on, to be assessed, rather than 100 per cent of yours costs as assessed, if it ever happens. It may or may not be academic in the circumstances, but I obviously must make an appropriate decision whether or not it is going to be academic, and I wonder about 80 per cent.

MR SINGH: My Lord, just very briefly in response to that, I understand, and of course it is regrettable that the detailed grounds were served so late, but, in my submission, that in itself did not cause any unnecessary costs to be incurred. If the detailed grounds had been served three or four months ago, my learned friend would still have drafted a response, and of course the Secretary of State has legitimately incurred costs all the way through this claim in acknowledging the claim, attending the permission hearing, and now of course attending the substantive hearing.

My Lord, in terms of a reduction, I suppose that would be in essence to express the court's disapproval that the detailed grounds were served so late. My Lord, in my submission, that would essentially be stepping into the shoes of the headmaster and punishing the Secretary of State. My Lord, I would submit that, in this kind of case, that probably is not appropriate because the reality of this matter, my Lord, is that the Secretary of State will probably not get her costs. In fact, it is very likely she will not get her costs, but if there was a realistic prospect of the Secretary of State recovering costs, then an order, for example, that she should only get 90 per cent would be a real sanction. But in this case, my Lord, it really is academic. So for those reasons, I would submit, my Lord, that the order I suggested first of all should be made.

DEPUTY JUDGE: The Secretary of State has plainly succeeded in this matter and in principle is entitled, therefore, as the successful party to an order as to costs. The order, as agreed on both sides, would be subject to the usual restraint on enforcement, applicable in cases where the claimant has the benefit of a public funding certificate, which this claimant has.

There remains one matter, perfectly properly and indeed graciously raised by Mr Doerfel, which is that the costs order, he submits, should reflect the inconvenience to the parties and the disapproval of the court to the fact that, in this case, the Secretary of State's detailed grounds, which were due 35 days after King J gave permission to apply, arrived a matter of days ago, very, very late, and -- albeit as an astute forensic approach -- were then promptly adopted as the skeleton argument as well, and the submission is that the costs order should in some way restrict the amount of the costs recoverable in the event that enforcement was to proceed. I find myself most sympathetic to that application.

I warn myself, as I said a moment ago to the Secretary of State's counsel, against the court setting itself up as in some sort of disciplinary or headmasterly role against the parties, and I have reflected on that carefully. I have considered whether to disallow the costs of the detailed grounds, which would be one way of approaching it, they having been served so absurdly late in circumstances, I should have said, for which this morning Mr Singh very frankly accepted there was no explanation he was able to put before me. However that strikes me as itself a bit artificial because the detailed grounds have played such an important part in the hearing, both in their own right and as a skeleton argument.

Overall, and having reflected on the matter, it does seem to me proper in these circumstances for the successful party's recovery of costs to be restricted to reflect the fact that a crucial document has, without any justification, been served so very late, and the fact that the claimant has adopted a realistic position in not objecting to the defendant being allowed to put that document in, lamentably out of time, should not affect that. So, for those reasons, I am going to order that the claimant do pay the defendant 80 per cent of her costs, assessed on the standard basis if not agreed, subject to the restraint on enforcement that I have already mentioned.

Mr Doerfel, are there any other orders you want?

MR DOERFEL: If I may ask for a detailed assessment and an LSC assessment?

DEPUTY JUDGE: You may, and you may have them.

MR DOERFEL: I am very grateful.