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

This judgment relates to the second of two linked claims for Judicial Review brought by the claimant, a national of Iraq. I gave judgment in the first of them, CO/10561/2008, on 29 June 2011. The claimant’s immigration history, including his conviction for a serious criminal offence and subsequent detention under the Immigration Acts, is set out in the earlier judgment.

The claimant is the subject of a deportation order made on 1 October 2009. There had been a proposal for his removal to the area of the Kurdish Regional Government (KRG) in December 2009, but that was not in the end carried out.

Removals to Government-controlled Iraq (GCI) recommenced in about October 2009. I have been told of a charter flight then, and some others: there were two in June 2010. The defendant proposed to have the claimant removed on a scheduled flight on 1 August. Removal directions were issued dated 28 July. On 29 July this second Judicial Review claim was issued. The removal directions were deferred.

Other claimants had raised concerns about risks to those returned to GCI; and allegations were made about the treatment of individuals in the process of return. The Upper tribunal sought to address those issues (amongst others) in HM and others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC). Judgment was not handed down until 22 September 2010, after the date proposed for the claimant’s removal. The Upper Tribunal found that the removal of failed asylum seekers to GCI was not in general unlawful: there was no general risk of a breach of either Convention, nor were circumstances for that group of individuals such as to demand protection under the Qualification Directive 2004/83/EC.

The claimant asked for the matters raised in the second claim to be treated as an application to revoke the deportation order against him. That was done, and on 21 January 2011 the defendant refused to revoke the deportation order. That refusal was an ‘immigration decision’ within the meaning of s 82(2) of the Nationality, Immigration and Asylum Act 2002 so in principle carried a right of appeal; but the defendant also certified the claim under s 94 as clearly unfounded, with the effect that the claimant cannot appeal against it from within the United Kingdom. A primary reason for both aspects of the decision was the conclusions reached by the Upper Tribunal in HM.

The claimant responded on 15 March 2011, with amended grounds of challenge. They rely on new material as supporting a challenge to the defendant’s decision to rely on HM. The defendant says (and I see no reason to dispute this) that that new material was first served on her on 24 March 2011.

On 15 April the Court of Appeal gave permission to appeal against HM. On 18 April the defendant refused to treat the new material as a fresh claim, leaving the certification decision of 21 January intact. In its fully amended and updated form the claimant’s claim challenges both those decisions.

So far as concerns “fresh claims”, the starting point is in the Statement of Changes in Immigration Rules, HC395

“353 When a Human Rights or Asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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 been previously 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.

This paragraph does not apply to claims made overseas.

353A Consideration of further submissions should be subject to the procedures set out in these Rules. An applicant who has made further submission shall not be removed before the SSHD has considered the submissions under paragraph 353 or otherwise.

This paragraph does not apply to submissions made overseas.”

In R (WM (DRC)) v SSHD [2006] EWCA Civ 1495 the Court of Appeal considered both the Secretary of State’s process in considering further submissions and the standard of review if the Secretary of State’s decision was questioned in judicial proceedings. The question for the Secretary of State is whether there is a realistic prospect of success in an appeal to the Tribunal. In reaching her conclusion, she must apply the anxious scrutiny that governs all decisions on Asylum and Human Rights issues.

The task of the Court is to determine whether the Secretary of State has asked herself the right questions and applied anxious scrutiny to them. If so, her decision is amenable to challenge only on Wednesbury grounds, that is to say irrationality.

Following a number of cases in which it had been suggested that there was a role for the Judge in determining whether an appeal would have a realistic prospect of success, the Court of Appeal has now emphasised in R (TK) v SSHD [2010] EWCA Civ 1550, and MN (Tanzania) v SSHD [2011] EWCA Civ 193, that the test remains that set out in WM.

Section 94 of the Nationality, Immigration and Asylum Act 2002 allows and sometimes requires the Secretary of State to certify an Asylum or Human Rights claim on the ground that it is “clearly unfounded”. Certification has an effect on the availability of rights of appeal. The members of the House of Lords who decided ZT (Kosovo) v SSHD [2009] UKHL 6 appear to have agreed that a claim which was clearly unfounded was one which could not possibly succeed in the Tribunal. They differed on whether the test was essentially the same as that to be applied under paragraph 353, or whether it was more rigorous: that is to say, whether there might be cases of which it could not properly be said that they could not succeed, although there was no realistic prospect of success. But there is no doubt that, again, the role of the Court is to determine whether the Secretary of State, again applying anxious scrutiny, has reached a conclusion that she was entitled to reach.

In challenging the decisions reached in the present case, Mr Denholm relies on two strands of argument: the new material, which he says has or ought to have an impact on decision-making in relation to the claimant’s claim; and the challenge to HM by way of appeal, which he says ought to have an impact on the defendant’s reliance on it.

It is convenient to examine those two strands before looking at their impact on the decisions. I will deal first with the new material. It will be apparent from what I have already said that it was submitted after the decision to certify, but before the most recent rejection of the claimant’s submissions as a fresh claim. Mr Denholm relies principally on three sources, which I will consider in turn.

A. The Danish Immigration Service fact-finding Mission Report dated 10 September 2010. Although this report just predates the Tribunal’s decision in HM, it was not before the Tribunal, because the hearing was some weeks earlier. Mr Denholm points out that it comes from a source with which the Secretary of State has co-operated in the past. There is, he submits, no reason to regard it as unreliable. It reached conclusions that might be regarded as casting doubt on the conclusions in HM. “The number of civilian casualties has increased steadily and one cannot speak any longer of an improvement in security for Iraqis”, it says; and, in relation to Kirkuk in particular, “the situation is fragile”.

But, as Mr Dunlop points out, the use of the present tense is a little misleading. The report derives from two fact-finding missions in February-March and April 2010. The report contains a specific warning about this: “it should be noted that the report does not contain information other than that which was gathered up until mid-April 2010”. The information on which it is based is thus not more up-to date than that which was before the Tribunal at the hearing in the summer of 2010.

Further, the new report is simply one further piece of information in an assemblage that the Tribunal in HM recognised did not present a uniform picture. The Tribunal looked at 133 reports in all, about 50 of which were based on information as recent as or more recent than that in the Danish report. It scrutinised a larger range of evidence in much more detail than the authors of the Danish report do. It reached its conclusions on the evidence taken as a whole. There is in my judgment simply no basis for saying that this one report casts any doubt on the conclusions drawn in HM; and the Secretary of State was amply entitled to take the view that it did not.

B. News and other reports about the treatment of individuals returned to Iraq on a charter flight in 2010. A number of returnees claimed that they had suffered ill-treatment on return. They had told their stories to the media and to the UNHCR, and those reports were submitted as part of the new material. A measure of further heat, but not very much more light, has been generated on this issue by the defendant’s very late submission of the UKBA’s report on its own investigation of these claims.

Somewhat similar claims had been made in respect of earlier flights, and had been considered in HM. The Tribunal recognised that the evidence was ‘not entirely satisfactory’ but concluded that it did not establish that Iraqis returned to Iraq were generally at risk. Mr Denholm says that the new material helps to elucidate the position, and may also show that the pre-clearance process, by which documentation is or was issued in London, intended to ensure acceptance on arrival in Iraq, does not work (two of those with such documents were returned as non-Iraqi).

The latter point may be of some substance in the end, but is largely irrelevant to these proceedings. The Secretary of State does not presume to attempt to return people to countries where they will not be admitted owing to disputes about their nationality. The removal directions in the claimant’s case are deferred, and he has not established that in his case there is any reason to suppose that, if he is in the end issued with documents sufficient to establish his nationality, they will be rejected on his arrival in Iraq, or that he will be ill-treated as a result.

So far as concerns the general allegations of mistreatment, it does not appear that they take the matter any further than was the position in HM. The Tribunal treated such claims with scepticism, and the defendant is entitled to do the same. That is particularly the case because (whether or not the UKBA report is taken into account) the defendant had representatives on the plane and was thus able to take a view about the credibility of what was being said.

I have read the report, and the submissions of both parties on it. Although it emanates from within the Home Office, and so is not independent, it makes reference throughout to verifiable evidence in the form of videotape records, and contemporary records in the form of notes on the passengers’ meals and visits to the WC. It is clear that that evidence shows that what was said to the press and the UNHCR cannot be the truth. If that report is taken into account, as it would have to be in any further litigation on the issue, it seems to me that it is very unlikely indeed that anybody would take the view that those making the allegations were to be regarded as witnesses of truth.

In any event, for the reasons I have given, the defendant was entitled to take the view that those allegations did not cast doubt on the conclusions reached in HM.

C.The Judgment of the Supreme Administrative Court of Finland, in case KHO:2010:84, dated 30 December 2010. In that judgment, the court (Korkein Hallinto-Oikeus or KHO) endorsed a finding that an appellant from Iraq was entitled to protection under s 88(1) of the Aliens Act, which implements, in Finland, Article 15 of the Qualification Directive. The claimant says that this judgment shows that a senior court of an EU member state reached a contrary conclusion to that in HM after applying the same legal test.

Taken on its face, that submission might indeed show that a claimant appealing on the same basis to the First-tier Tribunal might succeed. But the truth of the matter is that the cases are very different. First, this was an appeal by the government from a first-instance judgment that the appellant was entitled to subsidiary protection. The KHO took the view that there was no good reason to depart from its conclusions ‘despite the fact that recent reports indicate positive developments’. That is very far from a conclusion that the situation at the date of the KHO’s judgment would have warranted a first-instance findingin the appellant’s favour.

Secondly, the appellant was a person who had presented credible evidence of having suffered in the past. He had shrapnel in his body, apparently from a grenade, and ‘his inner circle has personal and serious experience of indiscriminate violence’, which the lower court had apparently and correctly taken into account in reaching its decision on the appellant’s case.

Thirdly, and most important, this judgment does not purport to be a review of the country information of the scale undertaken in HM. The judgment runs, in translation, to a little over 20 pages. The section ‘Country information on Iraq’ occupies less than two of those pages, about a third of which space is devoted to partial summary of UNHCR guidance issued in April 2009.

I do not consider that the existence of this judgment, or anything in it, ought to give pause to a person making a decision on the basis of the much more wide-ranging and deeper analysis of a vastly greater and more up-to date body of material on an essentially first-instance basis in HM. Certainly the defendant was entitled to conclude that KHO:2010:84 did not show that the present claimant’s case might succeed before a Tribunal.

Mr Denholm referred to other new material but when finally dealing with this issue made no specific submissions on it. None of it in my judgment could advance the claimant’s case for challenging the defendant’s recent decisions.

Mr Denholm’s other strand of argument relates to the challenge to HM by way of appeal to the Court of Appeal. He says that given that HM was under challenge the defendant was not entitled to rely on its findings either on 21 January 2010 (when there was no permission to appeal to the Court of Appeal) or on 18 April (when there was). He submits that it was procedurally unfair to certify the claim and so remove a right of appeal, when in another similar case there was a pending appeal, and that the grant of permission to appeal in HM obliged the defendant to treat the new submissions as a fresh claim carrying a right of appeal if refused. In addressing this issue the parties raised a number of points, not all of which were very helpful.

In R (Nasire ) v SSHD [2010] EWHC 3359 (Admin), Elizabeth Laing QC sitting as a deputy judge of this court, had been referred to R (Lutete) v SSHD [2007] EWHC 2331 (Admin), in which Collins J granted a stay on the removal of the claimants on hearing that the Asylum and Immigration Tribunal was about to give country guidance. She said this at [92]:

“I do not deduce from Lutete any rule of law that the Defendant must always defer the removal of an individual to a country when there is a country guidance case pending in the tribunal relating to that country. In some cases it will be lawful, and in others, not. The lawfulness of a decision to remove will depend on the circumstances of the case, including the strength or otherwise of the claimant's case, the nature of his case, the state of the objective evidence, and the issues with which the tribunal is concerned in the pending country guidance case. The Defendant must, as Mr Poole accepts, in every case assess the claim and the objective evidence on a rational and fair basis. If the outcome of such an assessment is that there is evidence which, as in Lutete "might reasonably result in a different decision" on the Claimant's claim, and that evidence is to be evaluated, or is likely to be evaluated, by the tribunal in a pending country guidance case, then she should defer removal of any individual whose claim would be affected by that evidence. By "pending", I mean one which is part-heard, or in which the tribunal has completed any hearing, but not yet promulgated its determination.”

Despite Mr Denholm’s best efforts, I am unable to read that decision as an indication that the deputy judge intended that ‘pending’ should have a wider meaning than she specified for the purpose of her remarks, or that there is any authority at all that the Secretary of State is not entitled to make decisions, including removal and certification decisions, when country guidance that has already been given is being challenged.

Secondly, I do not derive any assistance from submissions about what Pill LJ may have thought or intended in granting permission in HM, or from speculation about what the outcome of the appeal to the Court of Appeal may be. There are many reasons why permission may be granted, one (albeit only one) of which is to allow a higher court to give its approval to a process or decision that has been challenged. And it is not unknown for challenges in the Court of Appeal to country guidance decisions to be successful solely in relation to the specific appellant, leaving the guidance itself essentially unimpaired. No substantive conclusion can be drawn from the grant of permission; but nor on the other hand can it be assumed, as Mr Dunlop would have it, that the only issues to be considered by the Court will be related to the Tribunal’s procedure.

The proposition that a decision endorsed as country guidance by the President of the Immigration and Asylum Chamber of the Upper Tribunal loses its force by being challenged, or even by permission to appeal it being granted, I regard as entirely unarguable. The Tribunal has reached a reasoned decision after a review of a mass of relevant evidence. That conclusion remains binding within the terms of the Practice Direction, unless or until it is overturned on appeal or replaced by other guidance. And even if that were not so, it remains in the highest degree relevant to the issues that a decision-maker (whether the Secretary of State, or a representative seeking to advise a claimant) needs to take into account. On many questions, there is no country guidance at all, but that does not prevent the Secretary of State taking decisions, including decisions rejecting fresh claims and imposing certification under s 94. A challenged country guidance decision cannot be worse than no guidance at all.

The country guidance system has been endorsed by Parliament in s 105 of the 2002 Act (as amended), and by the Court of Appeal, and appears to be regarded with the highest respect by the Courts in Strasbourg and Luxembourg. That is not to suggest that individual country guidance decisions are infallible, but it is a good reason for supposing that it would be undesirable to render it wholly ineffectual. But the claimant’s submission would, if accepted, have that effect. Whenever a decision was under challenge nobody would be entitled to rely on it, however reliable it might otherwise appear to be, until the challenge was resolved and (if necessary) further guidance had been given – which might itself be subject to challenge. That cannot be right: it is both unnecessary and wasteful of resources.

Mr Dunlop also points out that the submission that the challenge to HM makes certification unreasonable or procedurally unfair would create an obligation on the Secretary of State that is wholly unnecessary. If a claimant is threatened with removal in such circumstances he can apply for a stay on removal. That is what happened in Lutete, and a similar order was made by Bean J a few days ago in relation to a number of Iraqis threatened with removal. That is not needed in this case because the removal directions have been deferred; which is sufficient to assuage any fear the claimant might have about his return to Iraq at the moment.

But in any event, and whatever the formal status of HM, there is not in my judgment the slightest reason to suppose that the conclusions it reaches are wrong. I have declined to speculate on the outcome of the appeal to the Court of Appeal, but even if that appeal is successful it is unlikely that that Court would itself undertake the task of giving country guidance. If the appeal were remitted to the Upper Tribunal, the latter would look at the available evidence, including no doubt the new material now produced. For the reasons I have given, that material does not show that the guidance should be different.

I now integrate these observations into the specific challenges raised by the second claim and reach my conclusions on it.

First, in relation to the decision to certify, that decision was taken on 21 January 2011. Material submitted since that date does not even arguably render it unlawful. It might be said that at that date the defendant must have known there was a challenge to HM, but, if she did, the fact that the appellants in HM sought to appeal against the decision and therefore also against the country guidance in it does not require her to take a different view of the material before her in deciding whether a claim should properly be certified.

Secondly, in relation to the fresh claim decision, for the reasons I have given the new material did not arguably add anything of substance to the claimant’s case. There is therefore no proper basis for saying that that material required the defendant to take the view that an appeal would have a realistic prospect of success. The grant of permission to appeal to the Court of Appeal in HM made no difference, because the decision to grant permission, with or without the new material, cannot properly be said to advance the claimant’s case as it would be before the Tribunal. Both the decision to reject the latest submissions as a fresh claim, and the decision (if it was a decision) to continue the certification are therefore unassailable.

This second claim for Judicial Review is therefore unarguable and I shall refuse permission.