ST v Secretary of State for Home Department

No anonymity order has previously been applied for or made in this case. However, this judgment involves sensitive matters that have arisen in an application for permission to judicially review adverse fresh claim decisions in three related asylum claims. I am therefore making, on my own initiative, an anonymity order (Footnote: ¹) in the light of the sensitive nature of these claims. The claimant will, from the date of the handing down of this judgment, be known for all purposes connected with these proceedings as ST.

I will summarise the background facts by reference to ST’s claims in her three asylum and human rights claims. ST is a Pakistani national who initially arrived unlawfully at Heathrow on 17 October 2005 whilst travelling on a forged passport. She had arrived at Heathrow during what she intended to be her journey from Pakistan to Cananda where she intended to claim asylum. On arrival at Heathrow, she changed planes without passing through customs or security and flew to Schiphol airport in Holland, being a flight that she hoped would be a connecting flight for her transatlantic flight to Canada. However, she was stopped by Dutch officials and, because she was travelling on a forged passport, she was returned by them to the UK since she was an illegal entrant and the UK had been her first port of call within the EU. On arrival back at Heathrow on 18 October 2005, she immediately claimed asylum on the grounds that she had been the victim of significant and prolonged marital violence and had a genuine fear of continued life-threatening persecution. That claim was rejected by a decision-maker from the UK Border Agency on behalf of the defendant (“SSHD”) (Footnote: ²) on 27 October 2005. That decision carried with it a right of appeal. ST did not exercise her right of appeal against that rejection as a result of what she now maintains was poor legal advice from her then solicitor. She was eventually released from immigration detention on bail and then absconded.

ST went to live in Bradford and, she claims was converted from the Sunni to the Shi’a faith. She changed solicitors and her new solicitors served further representations on the SSHD dated 13 May 2009 claiming discretionary leave to remain. The SSHD rejected her claim in a decision letter dated 10 January 2011. It then considered those representations under paragraph 353 of the Immigration Rules (“paragraph 353”) and, having considered them, it decided that ST’s further representations did not amount to a fresh claim. ST then instructed a further firm of solicitors who served a second set of further representations dated 25 January 2011 claiming asylum. This application was also rejected in a decision letter dated 28 January 2011 that also decided that those representations did not amount to a fresh claim.

ST had no right of appeal from either refusal decision and would only have had one had the SSHD decided that either or both of her further representations amounted to a fresh claim. In consequence, ST filed this claim for judicial review on 3 February 2011 seeking to set aside both adverse fresh clam decisions. She was granted permission to apply on 24 February 2011. If ST succeeds in this claim, the SSHD’s adverse fresh claim decisions will be set aside and the SSHD will then have to reconsider whether either set of further representations were fresh claims and, if she succeeds in obtaining a decision that either or both are, she will then be able to appeal the SSHD’s rejection or rejections to the First-tier Tribunal (Immigration and Asylum) Chamber (“FtT”) (Footnote: ³).

I will summarise the factual background to this judicial review application from the facts asserted by ST, many of which are not accepted by the SSHD. Indeed, one of the two grounds relied on in refusing ST’s representations and deciding that they did not amount to fresh claims was that material parts of ST’s factual claims were not credible and should not be relied on.

ST was born on 14 March 1980 so that she is now aged 32. She was born into a conservative Sunni Muslim family in Gujrat, a city located some 75 miles north of Lahore and she has three siblings. When she was 16, on the instructions of her parents, she entered into a forced arranged marriage with a man whose father was very influential in politics and who was himself a politician who was, or who associated with, a Lahore District Nazim. ST went to live with her husband in Lahore. Within days of her marriage on 1 January 1997, she was subjected to the first of many regular beatings by her husband. These beatings continued after she became pregnant and she ceased to reside with him as his wife at a time when she was four months pregnant. The beatings were skilfully administered so as not to leave permanent marks and her only permanent mark was a scar on her right temple.

ST’s daughter was born on 30 December 1998. ST and her daughter continued to live in her husband’s family home in Lahore and in the next few years, her husband made three attempts to kill her and her daughter, once at home and twice when her daughter was at school. These threats were in part based on his resentment of his daughter arising from his wish for a male child. Her father-in-law left the Pakistan Muslim League (N) in public circumstances that were reported in the newspapers in March 2000 and joined the Pakistani Muslim League (Q) but soon afterwards he defected back to the Pakistan Muslim League (Q). As a result of his political prominence and activities, the house where ST was living was frequently visited by uniformed and ununiformed police officers but she did not report the domestic violence to them because she was scared that the police would inform her husband rather than helping her. ST finally, in order to save her daughter’s life, moved secretly with her daughter to Raiwind, a town 25 miles to the South of Lahore in early 2005. Soon after she had arrived in Raiwind, her husband called her by telephone and threatened her by telling her it would be easy for him to find her.

ST was, by then, so frightened by her situation and the threats to her and her daughter’s safety that she first moved to Rawalpindi with her daughter and then decided to leave Pakistan and establish a new life in Canada. She needed a passport and travel arrangements and, in order to obtain these, she sold all her jewellery, her only valuable possessions, in order to raise £7,000 which she paid to an arranger who obtained for her a forged passport in a false name and air tickets for her flights from Pakistan to Canada via Heathrow and Schiphol. ST left her daughter, then aged 6, in the care of her parents in Gujrat intending that she should join her in Canada as soon as possible. She had chosen Canada as the place she that she would claim asylum because she understood that she would be able to arrange for her daughter to join her soon after her arrival there and that that country would deal with her asylum application quickly.

The arranger travelled with her to Heathrow. They left Pakistan on 15 October 2005 and the arranger left her at Heathrow. ST changed planes and travelled alone to Schiphol and whilst waiting for her connecting flight to Canada, passport officials noticed that her passport was forged and she was arrested and was returned to Heathrow.

ST claimed asylum from an immigration official at Heathrow on 18 October 2005 as soon as she arrived back in the UK from Schiphol. She was given a screening interview on 19 October 2005 following which her case was allocated to the fast track and she was located in Yarl’s Wood Immigration Detention Centre. ST had a cousin living in the UK who had given ST the name of a firm of solicitors for use if she got into difficulties whilst travelling through Heathrow and when she was arrested and claimed asylum, she gave the arresting officer the name of that firm. On 20 October 2005, a SSHD representative noted on an internal file that he or she had called that particular firm of solicitors but had been told that they were not representing ST. The note added that the representative of the firm that had been spoken to would fax through notification to the SSHD that that firm was not representing ST and would also inform ST’s cousin of this.

As a result, it was arranged for another firm of solicitors to represent ST and for her to be visited by a representative of that firm on 26 October 2005. However, SSHD then arranged her statement of evidence interview for 26 October 2005. As a result, the SSHD then informed ST’s solicitors that the previously arranged legal visit with ST on 26 October 2005 would be deferred to the following Wednesday, 3 November 2005.

ST’s statement of evidence interview then took place. On 27 October 2005, ST’s legal representatives submitted a request to the SSHD to remove ST’s case from the fast track or to delay her asylum application decision. This request was rejected by return and the SSHD issued that refusal decision in a letter also dated 27 October 2005. This letter also informed ST that if she had not already taken advice, she was strongly advised to do so now and it enclosed notification of ST’s right of appeal to the FtT. Because her case had been allocated to the fast track, ST had only two days in which to serve a notice of appeal and none was served.

On 3 November 2005, ST and her legal representative met for the first and only time and discussed her situation and, immediately after that meeting, her legal representative informed the SSHD that ST would like to return to Pakistan as soon as possible because her daughter was seriously ill. ST stated that her legal representative had advised her that she should ask to be returned to Pakistan because she had no grounds for appealing the refusal decision and that if she was sent back after losing her appeal, she would be arrested on arrival in Pakistan and sent to prison whereas if she returned voluntarily, the Home Office would make her travel arrangements for her and she would not be arrested on her return.

From 3 November 2005 until at least early January 2006, the SSHD acted on the basis that ST wished to return to Pakistan to be with her ill daughter. It rejected ST’s solicitors’ request on 3 November 2005 for temporary admission and bail and arranged for her to have a travel documents interview. This was the first step in the application that it had to make to the Pakistan High Commission on her behalf for the issue to her of the travel documents that she needed to enable her to travel back to Pakistan. This interview took place on 23 November 2005 and the SSHD advised ST that it would take the Pakistan High Commission no more than 20 days to issue her with the necessary travel documents. However, these were not issued within that timescale as expected with the result that the SSHD moved ST into long term immigration detention on 29 December 2005.

On 9 January 2006, ST informed an SSHD representative that she was desperate to go home because her daughter was ill and she provided the representative with a copy of her daughter’s recent medical certificates to assist the SSHD in its attempts to persuade the High Commission to issue her with travel documents urgently. The SSHD faxed these certificates to the High Commission and repeated its request that ST’s travel documents should be issued as soon as possible.

No information was provided as to what then took place between 9 January 2006 and the service of removal directions on 18 July 2006 for SD’s removal to Pakistan. It is to be presumed that ST had finally been issued with travel documents by then but there was no evidence as to why it took so long for this to happen. ST’s solicitors filed a claim for the judicial review of the decision to issue these directions on 17 August 2006. ST did not explain what her grounds were for applying for judicial review or what had happened to cause her to change her mind about returning to Pakistan and staying in the UK save that she stated that her solicitors had advised her that they could submit a fresh asylum application for her if she had a fear of persecution and could represent her in that application. ST was released on bail from immigration detention 24 August 2006. On 7 September 2006, ST was refused permission to apply for judicial review. She then went to ground and absconder action was authorised on 18 October 2006.

ST stated that she had had no contact with her parents or siblings since she had entered the UK and that in August 2006, following her release on bail, she had started living in the house in Bradford of Najaf Abbas Shah who was the father of a good female friend who had introduced her to that household. This man is a devout Shi’a and he preached the Shi’a faith to her and she gradually became interested in that faith and studied it and she converted to it at the hands of the Imam of the Bargah or Mosque of the Hussainia Islamic Mission in Bradford. ST claimed that following her conversion, she was sufficiently imbued with the Shi’a faith that she became a devout door-to-door preacher who sought by study and door-to-door preaching to convert other Sunni believers to the Shi’a faith.

Her evidence was supported by two statements set out in letter-form. The first statement was from the President of her Mosque Mission in Bradford who certified that ST was a member of his Shi’a Community and was involved in the Mission as a helper, was very honest, a hard worker and trustworthy. The second statement was from Najaf Abbas Shah who stated in a letter that ST converted to being a Shi’a and attended all weekly, monthly and annual ceremonies and functions at his local mosque, the Hussainia Islamic Mission in Bradford. He considered ST to be a very respected member of the community who had learnt a vast amount about the Shi’a faith and had the great ability to preach to others from the knowledge that she has gained.

The SSHD heard nothing further of ST after her release from detention until, on 29 September 2008, ST’s third firm of solicitors (Footnote: ⁴) lodged a subject access request under the Data Protection Act 1998 with the SSHD for disclosure of its file relating to ST. This was provided under cover of a letter dated 10 March 2009. The solicitors then served further representations on the SSHD dated 10 March 2009 claiming discretionary leave to remain on compassionate grounds. Following several chasing letters from her solicitors, the SSHD sent a refusal letter dated 10 January 2011 and, on the same day, ST was detained. On the following day, ST was served with removal directions to take effect on 20 January 2011. ST then instructed her fourth firm of solicitors who wrote to the SSHD on 13 January 2011 contending that ST was entitled to an in-country right of appeal against the refusal of her representations. The SSHD replied on 18 January 2011 pointing out that ST had no right of appeal and that her representations had been considered in accordance with paragraph 353 and had been found not to amount to a fresh claim.

On 20 January 2011, ST refused to leave Yarl’s Wood for her removal and removal was reset for 7 February 2011. ST then instructed her fifth firm of solicitors who submitted a second set of further representations dated 25 January 2010 which claimed asylum, largely relying on her claimed conversion to the Shi’a faith and her consequent fear of persecution from members of the Sipah-e-Sahaba and Lashkar-e-Jangvi groups of fundamentalist Sunnis as well as from other Sunni fundamentalists if she was returned to Pakistan. The SSHD rejected ST’s second further representations in a letter dated 28 January 2011. ST’s solicitors then filed this judicial review claim on 3 February 2011 and ST was released from detention on bail. On 25 February 2011, ST’s removal directions were cancelled and on 11 March 2011, permission to apply for judicial review was granted.

ST’s subsequent statement contained this important passage:

“I converted to Shi’a faith … and devout myself to the teaching and preaching of my Shi’a faith. … I spent ten weeks in immigration removal centre and on 19 March 2011 the SSHD has granted me temporary admission. My [male] friend and mentor … took me back to his house at Bradford. I took a sigh of relief and resume my preaching activities. I decided to go door to door to preach my Shi’a faith to people who understand my language. I live at Bradford and most of my neighbours come from Pakistan. On 25 March 2011 while I was preaching door to door I came across a family who come from Gujrat Pakistan and known to me and my parents. The head of the family … informed me that he is maintaining contacts with my parents. He told me that my husband with the help of the Police took my daughter away from my parents. I then preached my faith to [him]. He got offensive and swore at me. He said he will inform my parents. He called me apostate and Shi’a Kafir. I ran away from his house.” (Footnote: ⁵)

This decision was promulgated nine days after ST arrived in the UK and claimed asylum. Her claim was made during her screening and statement of evidence interviews which she gave whilst in detention and without her having had any legal advice. ST had no observer present during the interviews and no interpreter assisted her. There was no evidence as to how good her command of English was at the time of her interviews but, if her statements are anything to go by, her English was not good. The contents of these interviews were not in evidence and it is not in evidence as to whether they were available to the decision-makers who decided that neither of her representations amounted to a fresh claim.

The initial decision considered ST’s claim as being both a claim for humanitarian protection under the 1951 UN Convention relating to the Status of Refugees, international protection under articles 2, 3 and 8 of the ECHR and as one that was based on her fear of persecution by her husband if returned to Pakistan. Since such her expressed fear was considered to be a non-UN Convention reason for claiming asylum, her claims were considered as claims for international protection as well as for protection from her well-grounded fear of persecution by reference to articles 2, 3 and 8 of the ECHR. The principal ground of the decision was that ST’s factual basis for her claims was not to be believed and was untrue. The decision also concluded, very much as a subsidiary ground, that it would be safe for her to return to Pakistan. The decision letter stated that consideration had been given to ST’s request to defer the decision to await the arrival of documents that she said would soon be arriving that would verify the dates of her marriage and the birth of her daughter but it then stated that, since it was considered that those documents would affect the outcome of her claims, that request had been rejected.

The decision concluded, therefore, that ST’s claims for asylum were rejected because the factual basis of her claims was neither credible nor true. Thus, her claims did not fall under the 1951 UN Convention, there would be no breach of articles 2 and 3 of the ECHR if she was returned to Pakistan and she had not established a well-founded fear of persecution.

The further representations dated13 May 2009 and the decision dated 10 January 2011

The further representations were sent in a 17-page letter from ST’s third firm of solicitors. On behalf of ST, they applied for discretionary leave to remain on compassionate grounds until such time as it would be safe for her to return to Pakistan. The basis of her claim was her well-founded fear of persecution if she was returned by reason of her being a woman, being one of the social groups protected by the ECHR, and because she was liable to suffer inhuman and degrading treatment and possibly death. These fears arose because she was the victim of domestic violence in Pakistan from her husband following her continuous mistreatment since her marriage and his threats to kill their daughter. 15 pages of the letter comprised copious extracts from the 2009 Pakistan Country of Origin Information (“COI”) report which, it was suggested, showed that women in Pakistan remained severely disadvantaged, that domestic and honour killings were widespread and that the State was wholly ineffective at preventing them or prosecuting the perpetrators.

The decision letter dated 10 January 2011 rejected the further representations. It stated that the further representations did not show that ST qualified for asylum or human protection or for limited leave to enter or remain in the UK in accordance with the Home Office Asylum Policy Instructions on Discretionary Leave. The letter enclosed a 7-page document setting out a detailed explanation for reaching this decision and the further decision that the representations did not amount to a fresh claim under paragraph 353 because they were not significantly different from the material previously considered.

The explanation for the decision was set out in three sections. Section 1 of the document dealt with submissions that had previously been considered. It set out the reasoning of the 2005 decision and the various grounds on which ST’s factual basis of claim was strongly believed to be not credible.

Section 2 of the document addressed the submissions that had not previously been considered. It stated that ST’s claim that she feared persecution because she was a woman was not credible since it had not previously been put forward. It also state that, if had been a truthful claim, ST would have included it in her previous claim and, in any event, it did not provide any new particular circumstances that she would face persecution on account of her gender. Furthermore, ST would be able to seek help and assistance from one of the 70 district-run shelter homes and 250 facilities referred to in the 2010 Pakistan COI report that were operating as ad hoc emergency shelters for women in distress. ST’s reliance on article 8 of the ECHR was misplaced because she had not produced any evidence of having established a family or private life in the UK in the five years she had been present here, being a period during which she had deliberately attempted to frustrate removal so as to prolong her stay in the UK. It was noted that ST’s original asylum claim had been rejected within 9 days of her first arrival here and that she had not exercised her right of appeal.

Section 3 of the document considered whether there were any compassionate circumstances that ST could rely on in support of her application for discretionary leave. It considered each of the factors set out in paragraph 395C of the IRs and concluded that ST had not advanced any valid reason why the decision to remove her from the UK should be set aside.

Overall, therefore, the decision was that the decision dated 27 October 2005 should not be reversed, the further representations should be rejected, the removal directions should not be set aside and the further representations did not amount to a fresh claim.

The second further representations dated25 January 2011 and the decision dated 28 January 2011

The second further representations dated 25 January 2011, which were called a fresh application, were clearly and succinctly based on paragraph 353. The basis of ST’s application for asylum or for leave to remain on human rights grounds was that ST had converted to the Shi’a faith and was actively practising and preaching her new religion and was actively involved with the Hussainia Islamic Mission (UK) as a helper. She belonged to a conservative Sunni family and her parents and siblings would turn against her if they learnt of her conversion and she feared persecution from Sipah-e-Sahaba and Lashkar-e-Jangvi and other fundamentalists. The representations then set out extracts from the 2011 COI report which set out the dangers faced by apostates from both Fatwas and apostasy reprisals.

The decision letter dated 28 January 2011 stated that the claim was considered as an imputed article 9 claim under the ECHR. The reasoning set out in the decision was that it was not accepted that ST had converted from the Sunni to the Shi’a faith due to the complete lack of corroborative evidence to support this claim or of the receipt of any threats or incidents of violence relating to this change of religion. The supporting evidence was not credible and this lack of credibility was reinforced by her failure to rely on this ground in the 2009 further representations. Moreover, the 2011 COI report suggested that those who changed from one belief to another within a single religion were not at risk of blasphemy or apostasy proceedings and, in any event, ST could safely relocate within Pakistan and live with likeminded individuals. Furthermore, ST could gain assistance and help on her return and could safely relocate within Pakistan. Moreover, there was no evidence that she was at risk from, or had a well-founded fear of, persecution from the named or other fundamentalist groups. Finally, returning ST to Pakistan would not, on the basis of the evidence that she had presented, breach the UK’s obligations under article 9 of the ECHR.

Overall, therefore, the decision was that the second further representations were rejected and did not amount to a fresh claim.

This judicial review claim has gone through four distinct stages. The claim form was issued on 3 February 2011. In it, ST sought orders requiring the SSHD to consider the representations of 13 May 2009 and 25 January 2011 as a fresh claim for asylum and appropriate orders quashing removal directions and prohibiting SD’s removal to Pakistan whilst her further representations were being considered. The grounds for challenging the decision that the 2009 further representations did not amount to a fresh claim were that she had not appealed the original rejection decision due to improper legal advice which SD was not to be held responsible or be punished for so that no adverse credibility inferences should be drawn about the SD and the veracity of her asylum claim.

The substantive ground of challenge was that the SSHD had not taken sufficient account of the evidence examined by the FtT and addressed on appeal by the UT in the Country Guidance case of KA and Others (domestic violence – risk on return) Pakistan CG (Footnote: ⁶).The grounds document suggested that it was only possible to conclude that there was sufficient protection available for the victims of domestic violence after a detailed consideration of the specific facts of each case since such protection was not uniformly available and it was not possible to generalise in the way that, it was suggested, the SSHD’s 2005 rejection decision had done.

The substantive ground for challenging the 2011 further representations was that since it was clear that the basis of the claim for asylum had not been considered previously. Moreover, the SSHD had not applied the relevant test properly, namely whether there was a realistic prospect that an Immigration Judge would take a different view of SD’s claim based on her apostasy, because no or insufficient weight had been given to the evidence of the risks that she would run of suffering harm from fundamentalist Sunni faith groups and the lack of protection she would receive from her family and those she would be likely to associate with.

The summary defence document contended, in relation to the first further representations, that they put forward no further evidence of ST’s personal position and they did not contend that her position had changed or worsened. Moreover, the claim had no realistic prospects of success since she had provided no evidence that she would not have access to sufficient protection and no further evidence that she remained at risk of being harmed by her husband. Further, ST provided no evidence that she had lost the benefit of an appeal through the fault of her then solicitors. In relation to the second further representations, it was contended that no weight should be attached to the evidence put forward in support of her alleged conversion and that the SSHD correctly applied the appropriate test when reaching that conclusion. Moreover, she had failed to provide any evidence that she would be at risk of being persecuted for her conversion on her return to Pakistan.

I was the permission judge who granted ST permission to apply for judicial review in a decision dated 11 March 2011. Permission was granted because the decision-maker of both rejection decisions had arguably not taken account of up to five of the seven risk factors arising in the case and that it was arguable that the adverse credibility findings made against ST were unsupportable. Furthermore, insufficient attention appeared to have been given to the relevant Country Guidance case – KA and others (Footnote: ⁷). A further reason for granting permission was that the SSHD decision-maker had arguably not considered the relevant questions with anxious scrutiny or by applying the correct approach to the consideration of whether ST had a realistic prospect of success in an appeal from the SSHD’s adverse decisions.

Following the receipt of the permission decision and in accordance with the accompanying directions, ST’s grounds document was amended. These added additional grounds as follows:

The detailed grounds of defence that were then served were very helpfully detailed and ran to 48 paragraphs. These essentially adopted and expanded on the summary defence document and the grounds still relied on may be summarised as follows:

ST’s asylum and human rights claims were, as presented by her by the time she served the second set of representations, based on a wide range of risk factors. These were, in summary:

Given these background risk factors, ST’s claim for asylum relies on these related grounds for the grant of asylum or discretionary leave to remain:

Paragraph 353. It is accepted by both parties that since both of the further representations were rejected by the SSHD, both had to be considered under paragraph 353 in order to determine whether they were fresh claims generating a right of appeal. The structure of paragraph 353 is now well-known and has been the subject of much judicial authority. It is necessary to set out and then consider in some detail its somewhat tortuous provisions before considering whether the two decisions in this fact-specific case are susceptible to judicial review since ST’s challenge to those decisions is, essentially, that each decision- maker did not apply those provisions properly when considering whether they were fresh claims.

Paragraph 353 reads:

“When a human rights or asylum claim has been rejected or withdrawn or treated as withdrawn under paragraph 353C 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 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.

This paragraph does not apply to claims made overseas.”

It can be seen that a decision-maker who has to decide a further asylum or human rights claim must do so by answering the five successive questions provided for in paragraph 353. These are:

In this case, there is no dispute that ST’s second further representations fulfilled the first four of these tests since it amounted to both a human rights and an asylum claim which had previously been rejected with no appeal pending, it was also rejected by the decision of 28 January 2011 and it was significantly different from the previously considered material. The first further representations only fulfilled the first three of these tests since it was rejected and was also considered by the decision-maker as not being significantly different from the previously considered material.

Context. In determining how paragraph 353 should be interpreted and applied, it is important to consider its context. Paragraph 353 is not part of a statute. It is a statement of policy that has been made with the authority of Parliament as to how the relevant provisions of the immigration legislation will be applied. The policy is intended to provide, in the sensitive and difficult area of asylum and where a refugee’s human rights are significantly endangered, the opportunity of making a second claim where the basis of that claim has not previously been considered. The policy is clearly not intended to apply to a claim for which the applicant has already had full access to the immigration appeal system but it is intended to apply to claims which have not previously been made, which have been rejected by the SSHD but which are not so hopeless that an appeal would have no prospect of success and would merely delay the inevitable at unacceptable cost and use of the state’s scarce resources. The policy must, therefore, be applied in a sensible, reasonable and sensitive way. These general principles are easy to state but are often very difficult to apply. This is certainly so where a claim falls within the penumbra of being similar but not identical to a previous claim or where it has been rejected by the decision-maker although it is a borderline case and the decision- maker must then change roles and consider whether an independent immigration judge might after a hearing take a more favourable view of the same claim.

Significantly different. The first stage in the two-part exercise of deciding whether the claim is a fresh one is the decision as to whether the claim is significantly different to the material that has previously been submitted, considered and rejected as an asylum or human rights claim. This stage is intended to filter out those submissions which are, on analysis, attempting to re-argue or re-present claims that have already been dealt and which are in reality second appeals or first appeals where the first right of appeal was never exercised or the proposed first appeal was withdrawn or was one which the IRs treat as having been withdrawn.

Realistic prospect of success - the hypothetical judge. In deciding whether the claim has a realistic prospect of success, the decision-maker must consider whether he or she considers that the claim has a reasonable prospect of persuading an immigration judge hearing an appeal to allow the appeal from the decision of the same decision-maker who has just rejected the fresh representations or submissions. As Carnworth LJ put it in YH v SSHD (Footnote: ⁹) in a passage which quoted a passage from the judgment of Buxton LJ in WM (Congo) (Footnote: ¹⁰) and then refined it:

“The WM (Congo) case has been treated as authority that, in deciding whether to treat a submission as a fresh claim, the Secretary of State should in effect put himself in the shoes of an adjudicator or immigration judge. The judge [at first instance in YH] quoted the following passage from the judgment of Buxton LJ:

‘… 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 [allowing the appeal]. 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 inquiry; but it is only a starting point in the consideration of a question that is a distinctly different one from the exercise of the Secretary of State making up his own mind.’

It was no doubt in deference to such guidance, that the decision letter of [the SSHD that was the subject-matter of the appeal in YH] spoke of the view to be expected from the ‘hypothetical judge’.

The concept of a ‘hypothetical judge’ deciding an appeal can be a helpful discipline, in so far as it makes clear that the Secretary of State is acting simply as the gate-keeper to a process leading to a possible appeal, and it emphasises the objectivity which that requires. However, it is no more than a guide, not a legal formula. In law, whether under the rules or the statute, the Secretary of State is standing in his or her own shoes in deciding this threshold question.”

Applying the test - general. How is it to be determined that the claim in question is just strong enough to be regarded as having a realistic prospect of success or is just too weak that it does not cross that threshold? In other words, where does the boundary lie between a claim that has a realistic prospect of success and one that is insufficiently cogent to have such a prospect? This consideration involves the decision-maker in the difficult exercise of determining whether there is a realistic prospect that an immigration judge will find that a claim that has already been rejected by that decision-maker has a realistic prospect of being accepted by the immigration judge when hearing an appeal from that initial adverse decision.

The test has been described as a “somewhat modest” one (Footnote: ¹¹). It must take account of the more detailed and rigorous decision-making process that an immigration judge will undertake compared to the often rudimentary process that the SSHD decision-maker is able to undertake. In particular, the immigration judge will hold an oral hearing, will be able to see and listen to the examination and cross-examination of the applicant and other witnesses and will have an opportunity to be provided with significantly more evidence and documents than was available to the decision-maker. The judge will also usually have the benefit of experienced representation and advocacy on behalf of the applicant which will be able to bring out an applicant’s case in its most favourable light. Moreover, documentary and witness evidence that was not available to the decision-maker, and whose absence contributed to the adverse decision that was taken, can be obtained and presented to the immigration judge. There is, in short, at least a possibility that a claim that is rejected by the SSHD decision-maker will be accepted by an immigration judge on appeal. This is borne out by the well-known statistic that a significant proportion of the appeals that are heard by an immigration judge from adverse decisions of the SSHD in asylum and other protection cases are successful.

Thus, in deciding whether the claim has a realistic prospect of success, the decision- maker must weigh up the chances of the claim being improved as a result of it being reheard at an oral hearing after the applicant has had an opportunity to repair any evidential gaps that were present when it was initially considered and to have had his or her credibility and any adverse credibility finding tested in open hearing and having given in written and oral form a full account of all the background facts supported, in many cases, by further witness and documentary evidence. In short, unless the claim is considered to be hopeless and as being incapable of succeeding at a second hearing before an independent professional specialist judge with all the additional benefits of such a hearing, it should ordinarily pass that modest threshold and be certified as a fresh claim.

The “a realistic prospect of success” test was helpfully elaborated upon by Buxton LJ when giving the leading judgment in WM as follows:

“That … judgement will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source. (Footnote: ¹²)”

Further general considerations. It is also clear that a decision-maker should apply anxious scrutiny in a way that resolves any doubt as to whether to certify the claim as a fresh claim so as to permit an appeal in favour of the applicant. Thus, in Thangeswararajah (Footnote: ¹³), Collins J made it clear that where credibility was in issue, it would often be the case that the only way of resolving such matters was by way of an oral hearing before an immigration judge and that a determination of that issue could not and should not be left to a paper decision of a decision-maker taking a decision on behalf of the SSHD. In that case, Collins J stated:

“Where there are no clear findings [of an adjudicator or immigration judge], the defendant is at risk of assuming more than a role of determining whether a new judge would realistically reach a decision favourable to the claimant. Uncertainties should be unravelled by evidence or an opportunity for evidence to be adduced. That is a consequence of the obligation of anxious scrutiny.” (Footnote: ¹⁴)

Cultural and sensitive nature of the claim. It is clear from both the guidance given to SSHD decision-makers when deciding asylum claims and in a number of judgments concerned with appeals and fresh claim decisions that every decision-maker concerned with an asylum claim must take account of, and give full and beneficial allowance for, the difficulties in presenting the full facts of an asylum claim by those, particularly women, who have been subjected to domestic or other sexual violence or other repression and by those who are young or vulnerable or who have led sheltered and culturally different lifestyles in the country that they have left. Moreover, asylum seekers when interviewed soon after their first arrival will usually be frightened, isolated and labouring under language and communication difficulties.

All these concerns applied to ST if her account of her previous life in Pakistan and her reasons for leaving it were true. She arrived in the UK in October 2005 as a frightened woman who was on her own, who had led a very sheltered life and had been subjected to a forced arranged marriage at the age of 16 to an older man who had, on her account, subjected her to domestic violence and threats to kill her throughout her short married life with him. Moreover, her command of English was uncertain and her cultural background and lifestyle were very different from those involved in interviewing and deciding her asylum claim.

Questions of credibility should, in that context, be approached with some caution and inconsistencies and omissions in ST’s answers in her asylum interview should not have been unduly harshly examined or castigated as being marks of untruthfulness. The fact-finders and the decision-makers in this case, particularly the first decision-maker in October 2005, needed to bear in mind the words of Blake J in Ngrincuti v SSHD (Footnote: ¹⁵):

“… most people who have experience of obtaining a narrative from asylum seekers from a different language or a different culture recognise that time, confidence in the interviewer and the interview process and some patience and some specific direction to pertinent questions is needed to adduce a comprehensive and adequate account. This is particularly the case where sexual assaults are alleged and all kind of cultural and gender sensitive issues may be in play as to why the full picture is not disclosed early on.”

Credibility. In assessing the reliability of the new material, the decision-maker will have regard to any relevantly probative finding as to ST’s honesty or reliability that was made by the first decision-maker when the first asylum or human rights claim was considered. This is for two reasons, firstly because the decision-maker will need to take account of and adopt any relevant finding of fact made by the first decision-maker and secondly because the second decision-maker will want to take into account any indication given or finding made as to the general credibility and reliability of the applicant. The overall finding in the first decision as to the applicant’s credibility will provide significant guidance as to how much of the second claim should be accepted since very often the decision-maker will have little additional evidence to supplement the applicant’s oral account of why he or she has a well-founded fear of persecution and will fall back on the extent to which the decision-maker is honest or dishonest.

For these reasons, the decision-making process in asylum and human rights claims is usually heavily focused on whether the applicant is or is not generally credible and as to whether or not the significant factual details grounding the claim as recounted by the applicant are credible or not. Since there was no appeal from the SSHD’s rejection of ST’s 2005 asylum claim, the decision-makers of the two decisions in January 2010 were fully entitled to take account of the first decision-maker’s credibility findings but only after a careful and anxious scrutiny of the findings, the reasons for those findings and the decision-making process that led to those findings.

There are three sources of guidance to SSHD decision-makers as to how to how to make and then use their findings as to an applicant’s credibility. These are found in section 8 of the Asylum & Immigration (Treatment of Claimants etc.) Act 2004, paragraph 339L of the IRs and Asylum Process Guidance issued by the SSHD which contains guidance intended to assist decision-makers in assessing credibility in asylum claims.

Section 8 of the AITCA. Section 8 of the AITCA provides that a deciding authority, such as the SSHD, in determining whether to believe a statement made by a person making an asylum claim :

“… shall take account as damaging [ST’s] credibility of any behaviour to which … this section [i.e. section 8] applies.”

The relevant behaviour referred to in section 8 was that set out in section 8(4) which refers to:

“… failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.”

SSHD determined that ST’s statements made to the SSHD officials who were involved in conducting her screening and statement of evidence interviews were not credible because she had:

“… failed to make a claim at the earliest opportunity, and as a result [her] credibility has been damaged under section 8 of the Asylum & Immigration Act (Treatment of Claimants etc.) Act 2004”

It is to be noted that the test applied by the decision-maker was more onerous than the applicable test provided for in section 8(4) that ST failed to make her asylum claim at the earliest opportunity (Footnote: ¹⁶). In fact, ST appears to have complied with both tests. However, the statutory adverse finding about ST’s timing of her asylum claim was clearly a significant factor in influencing the first decision-maker to make seven adverse credibility findings about particular aspects of her factual account of her previous history and of the persecution that she had been subjected to with the result that her asylum claim was rejected.

Paragraph 339L and SSHD Guidance. Paragraph 339L of the IRs provides that:

“339L It is the duty of the person to substantiate the asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim. Where aspects of the person's statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met:

(i)

the person has made a genuine effort to substantiate his asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim;

(ii)

all material factors at the person's disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;

(iii)

the person's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person's case;

(iv)

the person has made an asylum claim or sought to establish that he is a person eligible for humanitarian protection or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and

(v)

the general credibility of the person has been established.”

SSHD guidance (Footnote: ¹⁷) refers to and commends a passage from the judgment of I Deputy Judge Ockleton in SM (Iran) (Footnote: ¹⁸) as follows:

“It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence… Some parts of the evidence may shine with the light of credibility. The fact-finder must consider all these points together; and … although some matters may go against and some matters count in favour of credibility, it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole”.

Burden of proof. An asylum seeker has the burden of establishing that she has been persecuted in her country of origin and, as a result, she has a well-founded fear of being persecuted if she returns there. The burden placed on the applicant is a significantly lower one than the conventional balance of probabilities test. The Court of Appeal in MH (Iraq) (Footnote: ¹⁹)has stated that this burden is discharged by showing that there is a real as opposed to a fanciful risk that persecution will occur. In considering whether the past events relied on by the applicant as her foundation for her claim for asylum, the decision-maker should follow Brooke LJ and Sedley LJ’s advice in Karanakaran (Footnote: ²⁰).After a lengthy and scholarly review of the authorities including those from Canada and Australia, Brooke LJ adopted this summary of the approach that should be followed from the Australian case of Rajalingam v Minster for Immigration and Multicultural Affairs (Footnote: ²¹):

“(1)

There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant has a real substantial basis for his fear of future persecution. The decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring.

(2)

Although the civil standard of proof is not irrelevant to the fact-finding process, the decision-maker cannot simply apply that standard to all fact-finding. It frequently has to make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate, and who often do not understand either the process or the language spoken by the decision-maker/investigator. Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity.

(3)

In this context, when the decision-maker is uncertain as to whether an alleged event occurred, or finds that although the probabilities are against it, the event may have occurred, it may be necessary to take into account the possibility that the event took place in deciding the ultimate question (for which see (1) above). Similarly, if the non-occurrence of an event is important to the applicant's case, the possibility that that event did not occur may need to be considered by the decision-maker even though it considers that the disputed event probably did occur.

(4)

Although the "What if I am wrong?" terminology has gained currency, it is more accurate to see this requirement as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason.

(5)

There is no reason in principle to support a general rule that a decision-maker must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that its findings were correct. (In Guo, for instance, the High Court considered that it was enough that the tribunal appeared to have no doubt that the probability of error was insignificant).

(6)

If a fair reading of the decision-maker's reasons as a whole shows that it "had no real doubt" that claimed events did not occur, then there is no warrant for holding that it should have considered the possibility that its findings were wrong.” (Footnote: ²²)

Sedley LJ’s advice was as follows:

“Like Brooke LJ I find the Australian cases of the greatest assistance. I would put my own view, in summary, as follows. The question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in Ravichandran [1996] Imm AR 97, 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues. Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now.” (Footnote: ²³)

Sur place. A particular feature of this case is that the facts that ST relies on in support of her second further representations have all occurred since she arrived in the UK. In essence, she claims that her conversion to the Shi’a faith from the Sunni faith coupled with her active role as a preacher or missionary for her new faith in seeking to convert those of the Sunni faith to the Shi’a faith and her status as a divorced woman give rise to a genuine and real fear of being persecuted as an apostate by Sunni fundamentalists if she is returned to Pakistan, whether to the area she was living in or elsewhere. In short, in technical terms, ST presented herself in this claim as a proselyte who would be regarded by Sunnis as an apostate. If those facts are accepted or established, ST is entitled to claim asylum if it is also accepted that she has established a well-founded fear of persecution on her return which cannot reasonably be removed by her relocating to a different part of Pakistan. In considering that claim, the decision-maker must of course assess her credibility but this must be undertaken with particular care since her claim is based on her sur place activities. The authorities make it clear that an applicant who has been found to be lacking in credibility in relation to an original asylum claim may well be truthful in putting forward a sur place claim, particularly where it has arisen some time after the original claim was dismissed.

Anxious scrutiny. WM also held that the decision-maker, in considering whether representations constitute a fresh claim as defined in paragraph 353, had to examine the claimant’s account and any evidence advanced in support of it with anxious scrutiny. That test is one to which lip service is often paid but whose content is often not fully appreciated. Helpful guidance as to the nature of the added value to a fresh claim decision that should be provided by the anxious scrutiny test has been provided by Carnworth LJ in YH v SSHD (Footnote: ²⁴):

“As I suggested in the AS (Sri Lanka) case (Footnote: ²⁵), the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind; indeed, one might be thought an ‘axiomatic’ part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope, that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credibility towards those advancing stories which are manifestly contrived or riddled with inconsistencies.”

Separate decisions. The considerations that I have identified that should guide and shape the two-stage fresh claim test required by paragraph 353 are ones that the SSHD’s decision-maker must have in mind, in particular, in reaching the decision as to whether the claim has a realistic prospect of success. That decision must be taken separately from the initial decision as to whether the claim is accepted or rejected and it involves an exercise in mental gymnastics, particularly if that initial decision has been shaped by the decision-maker’s adverse views as to the credibility of the applicant since, in such a case, the decision-maker must, immediately after rejecting the claim because the applicant has not been believed, then decide whether that credibility decision is one that has a reasonable prospect of being overturned on an appeal to the FtT.

Wednesbury unreasonable test on judicial review. I must decide ST’s claim that the SSHD’s paragraph 353 decision as to her prospects of success should be set aside purely by applying Wednesbury principles. In other words, I must not substitute my decision for the decision-maker’s decision even if I disagree with it. I am confined to considering whether the decision suffers from serious procedural irregularity in taking into account significant matters that should not have been taken into account and vice versa, or from a misapplication of the law or from being perverse. Only then may I intervene and set aside the decision so as to allow it to be retaken correctly by the SSHD. The House of Lords in ZT (Kosovo) (Footnote: ²⁶) was held by the Court of Appeal in TK v SSHD (Footnote: ²⁷) to have decided that the ‘no realistic prospect of success’ test did not admit of only one answer and that the Wednesbury approach was apt for the court supervision of decisions taken under paragraph 353. This decision of the Court of Appeal was subsequently affirmed and upheld in MN (Tanzania) v SSHD (Footnote: ²⁸).

Requirement for reasons. A final consideration is that the decision-maker must separate the decision to reject the further representations entirely from the subsequent decision as to whether or not the rejected claim is a fresh claim. Each decision must be accompanied by reasons. The fresh claim decision should show that the decision-maker has asked himself or herself the right question, namely whether there is a realistic prospect of the FtT, following the exercise of anxious scrutiny, might find in favour of the applicant and whether, in addressing that question, the decision-maker himself or herself exercised anxious scrutiny. If, as part of that decision-making process, the decision-maker makes adverse credibility findings, reasons should be given as to why the applicant’s credibility has been doubted and, similarly, reasons should be given as to why, if this is the case, the decision-maker has relied on previous adverse findings of credibility in reaching a decision as to the applicant’s credibility in relation to the further representations. The reasons may, of course, be brief but they must be sufficient to enable the applicant to know why the decision-maker did not believe the material parts of the representations or why it was concluded that they did not amount to a fresh claim. Equally, they should show that the fresh claim decision was reached after it had been anxiously scrutinised. This requirement was explained in a paragraph 353 case in MP Sri-Lanka v SSHD (Footnote: ²⁹)and it is a well-known and frequently applied requirement in such cases. It is also of considerable importance that the reasons do not merely paraphrase, in a parrot-like fashion, that anxious scrutiny has been applied and that the twin tests of paragraph 353 applicable to fresh claim decisions have been considered. The decision-maker must tailor his or her reasons to the facts and considerations of each case so as to show how and why these various tests and considerations have been applied to the particular case.

Summary. I will now draw these strands together. A decision relating to representations or submissions concerning an asylum or human rights claim must be structured as follows:

ST did not exercise her right of appeal from the SSHD’s initial rejection decision but she now challenges the two subsequent decision-makers’ reliance on the adverse credibility findings made by the first decision-make in reaching their adverse decisions.

ST suggested in her witness statement (Footnote: ³¹) that she had not appealed the initial decision because her first legal representative had advised her that she didn’t have any merits and could not appeal against that rejection decision. Moreover, she asserted that that representative had also told her that she should request the Home Office to send her home with travel documents rather than appealing the rejection decision because, if she was sent back against her wishes, she would be detained and kept in prison in Pakistan when she arrived back. She gave no other details of the advice she had received.

The documents disclosed by the SSHD to ST’s third firm of solicitors pursuant to their Freedom of Information access request paint a different and more complex picture than the terse explanation given by her fifth firm of solicitors that the non-exercise of her right of appeal resulted from inadequate legal advice given to her by her first firm of solicitors. I must take account of the content of these documents since they have been brought to my attention as part of the material provided for this application for judicial review and I am required to consider that application with anxious scrutiny.

These documents reveal that ST first met her first legal representative seven days after she had received the first rejection decision and five days after her right of appeal against that decision had expired. ST had been in immigration detention since she had been detained on arrival at Heathrow and she was still in detention when she saw her legal representative. Immediately following that meeting, her legal representative informed Yarl’s Wood that she wanted to return immediately to Pakistan because her daughter was very ill. This evidence was corroborated when ST subsequently produced what appeared to be copies of her daughter’s medical certificates that showed that she had become seriously ill. These were forwarded by the SSHD to the Pakistan High Commission in support of ST’s application that she should be issued with her travel documents as a matter of urgency to enable her to return immediately to Pakistan to be with her sick daughter. For some unexplained reason, ST’s attempts to obtain travel documents appear to have ceased in January 2006. However, she remained in immigration detention for a further seven months before being released on reporting restrictions without apparently having been issued with travel or identity documents.

Given these incomplete and confusing details, it is not possible to conclude what legal advice ST had received from her legal representative. However, the independent evidence that appears from the SSHD documents disclosed following ST’s solicitors’ access request provides independent evidence that she had a good reason for not appealing the decision rejecting her asylum application and it is possible that her legal representative gave her the advice she has since stated that she received in the context of her wanting to return urgently to Pakistan without running the risk of being detained or otherwise delayed from seeing her daughter as soon as she arrived back there.

Because ST did not appeal that first decision, albeit for what appear to be good reasons, the first decision-maker’s adverse credibility findings about her first asylum claim remained unchallenged and untested in an appeal. On behalf of ST it was submitted that the second and third decision-makers should not have taken them into account because they had not been challenged in an appeal whereas on behalf of the SSHD it was submitted that it was entirely proper for the SSHD to have taken them into account when rejecting her further representations.

Section 8 of the 2004 Act required the paragraph 353 decision-makers in this case to take account of any adverse credibility findings made by the first decision-maker as a result of that section. They were also entitled to take account of any other adverse credibility findings made by the first decision-maker if they considered them to be relevant. However, the subsequent decision-makers had to scrutinise each adverse finding that he or she was minded to rely on anxiously and would not be entitled to take any of them into account that were demonstrably erroneous, based on legal error, obviously unfairly arrived at or it was otherwise unreasonable to do so. This would apply to both the statutory and the non-statutory adverse credibility findings because neither type of finding was binding on subsequent decision-makers. However, the weight to be given to a decision to rely on a statutory adverse credibility finding would, in the absence of legal or other error, be greater than the weight to be given to other non-statutory adverse credibility decisions that it was fair and reasonable to rely on.

The first further representations had claimed discretionary leave to remain on compassionate grounds. The representations were based on similar asylum and human rights claims to those that ST had made in her statement of evidence interview. The new material that the representations contained consisted of extensive extracts from the 2009 COI report. These provided general evidence of a number of matters relevant to a consideration of claims made by a wife that she had been subjected to domestic persecution, discrimination and other adverse treatment whilst living in Pakistan. These extracts focused on reports that the police often failed to protect female members of the public and, on occasion, detained women arbitrarily and sexually abused and tortured them whilst in custody. Other extracts referred to the lack of international standards in some Pakistani prisons, to the insufficiency of protection for women victims of violence notwithstanding the recent legal reforms enacted to protect women, to the severing of family ties for divorced women, to widespread domestic violence and the lack of protection for the victims of such violence, to the prevalence of honour killings particularly in the north of Pakistan and to the lack of protection for victims of rape. The last section of the COI extracts that were provided was concerned with the wholly inadequate provision of, and protection provided by, centres set up to assist women.

The decision rejected the claim on the same grounds as first asylum claim had been rejected. It set out the adverse credibility findings previously made about that claim and concluded that ST had not provided strong enough evidence in the current representations to lead the SSHD to detract from its original adverse credibility findings.

The decision then considered the submissions that had not previously been considered which it listed as being a claim that ST feared persecution on account of her being a woman in Pakistan. That claim was found not to be credible. It also rejected the claim by reference to the 2010 COI report which referred to the availability of centres to assist women who were the subject of domestic violence and a fear of persecution. However, the extracts from that report that were included in the decision did not appear to support, and indeed appeared to contradict, the conclusion such centres were available so that ST would not face persecution and had no reasonable fear of persecution on account of her gender.

The third part of the decision then considered ST’s article 8 claim and concluded that her human rights would not be breached by her being returned to Pakistan.

The decision. The fresh claim rejection decision was not accompanied by any reasons save the statement that these were set out in the accompanying Consideration of Submissions pro forma. These reasons set out the matters previously considered and the first decision-maker’s adverse credibility findings in relation to them and then stated that it had therefore been decided that the earlier decision would not be reversed and that the representations had been considered before and did not therefore amount to a fresh claim.

The decision then considered in a further section what submissions had been advanced which had not been considered previously but which did not create a realistic prospect of success. These new submissions were stated to be the claimant’s fear of persecution on account of her particular social group, namely being a woman in Pakistan. This was part of her claim was considered to have no prospect of success because ST had not made any reference to fearing persecution on account of her being a woman in her asylum interview. Thus, it was a claim which was not truthful and her account had, in any event, been found by the first decision-maker not to be credible. Further, ST had failed to appeal against the first decision. Finally, it was concluded that ST would not face persecution on account of her gender because the 2010 COI report showed that there was a sufficiency of centres to assist women in Pakistan.

Errors of law. This general approach to the second claim was flawed in three respects. Firstly, it did not properly consider whether the claim was a fresh claim. This was because the decision did not consider whether there were grounds to challenge the original adverse credibility findings that it recognised that if there were grounds available to challenge those earlier findings, such a challenge would give rise to a second claim that was significantly different from the previous one.

Secondly, the consideration did not address the further representations in the round when considering whether they amounted to a substantially different claim. Instead, the old parts of the claim were first considered and were found not to be significantly different from the original claim. The new claim was in consequence held to have failed the first limb of the fresh claim test. The new parts of the claim were only considered once the decision that the claim was not a fresh claim had been taken. Thus, strictly speaking, it was not necessary to consider the new parts at all. However, this approach was flawed since the decision as to whether the new claim was substantially different from the old claim had to be taken by considering both the old and the new parts together and considering whether the composite claim was substantially different from its predecessor.

Thirdly, no consideration was given to the possibility that a judge exercising anxious scrutiny at an appeal hearing following further disclosure, additional written evidence, cross-examination and oral submissions, might find that ST’s appeal was successful and that the second decision-maker’s rejection of the new claim should be overturned.

Erroneous reliance on a failure to appeal the first decision. The decision clearly placed considerable weight on what was described as ST’s failure to appeal the first decision. However, as is now known from a consideration of documents in the possession of the SSHD, it is at least arguable that ST decided not to appeal that decision for a good reason, namely because of the news that she had received immediately after receiving the rejection decision to the effect that her daughter had become very ill and her consequent wish, notwithstanding her fear of persecution, to return to be with her daughter at that time of crisis.

No anxious scrutiny. The decision, moreover, does not appear to have been taken following the exercise of anxious scrutiny. In particular, the possible shortcomings of the first decision were not considered. These included an apparent failure to adopt a modest Rajalingam test to the evidence or to make any allowances for ST’s vulnerable state. Moreover, the second decision-maker did not have regard to the apparent failure of the first-decision maker to consider ST’s claim in the round or to consider whether it was, as a whole, credible. The first-decision maker had, apparently, dismissed each significant component part of the claim separately and to “salami slice” from the facts relied on each individual fact that was not credible and then, having done so, to dismiss the remaining facts as not giving rise to a claim at all.

Claim not substantially different - credibility. The crucial finding that led to the rejection of ST’s claim was:

[Having set out verbatim the six critical credibility findings relating to specific factual features of ST’s claim]

“As the above findings demonstrate, it was not accepted during your initial asylum application that you had established there is a risk that you will face persecution on your return to Pakistan. Ultimately, you have been found to be a less than credible witness and it was not accepted during your initial asylum application that your account of domestic violence falls under the 1951 Convention relating to refugees. Nor was it accepted that returning you to Pakistan would breach your Human Rights under articles 2 and 3 of the ECHR.

It is further considered that you have not provided strong enough evidence in your current representations that would lead the SSHD to detract from the original findings made in your initial asylum application.”

That finding amounted to the rejection of ST’s claim and was also the reason why the second decision-maker concluded that the new claim was not significantly different to the original claim. In other words, since the previous decision had found that the core factual elements of ST’s claim were not credible and since the fresh representations do not provide any evidence to detract from those credibility conclusions, the further representations were rejected.

Anxious scrutiny. What the decision appears to lack is any consideration of the credibility findings with anxious scrutiny so that there was no consideration of whether the credibility findings in the first decision should be relied on and no consideration of whether a judge hearing an appeal would consider that the credibility findings were unreliable. The decision simply adopts the earlier credibility findings because, so it found, no new evidence was provided that would lead the SSHD to detract from the original findings. That conclusion was well within the ambit of the decision-making competence of the SSHD decision-maker but only if he or she had considered every possible point that could be discerned which might show that the original credibility findings were unreliable. This audit or monitoring of the original credibility findings was particularly important since there had been no appeal from the original decision and there was no evidence or obvious explanation for that absence which reflected adversely on ST.

The most significant of the adverse credibility findings was the section 8 finding set out in paragraph 29 of the first decision (Footnote: ³²). That finding was to the effect that ST had failed to make a claim for asylum at the earliest opportunity with the result that her credibility had been damaged under section 8. However, as ST’s claim made clear and as has now been confirmed by Yarl’s Wood’s internal log that was disclosed by the SSHD to ST’s third firm of solicitors, ST made her asylum claim at Heathrow at the earliest possible opportunity immediately after landing from Schiphol Airport when she had been sent back to there by the Dutch officials after they had discovered that she was attempting to travel to Canada on a forged passport. She had on the day before she claimed asylum travelled through Heathrow en route to Schiphol but it would appear that she was in transit at that time and neither entered the UK nor passed through customs or immigration control on that occasion. It follows that that statutory finding should never have been made.

Furthermore, the finding that was made was not in accordance with section 8 which requires an adverse credibility finding to be made and then taken into account by a decision-maker where the applicant had failed to take advantage of a reasonable opportunity to make an asylum or human rights claim while in a safe country. It is noteworthy that the first decision-maker’s finding applied the wrong test since it was to the effect that ST had failed to make her asylum claim at the earliest possible opportunity rather than failing to make it when she had had a reasonable opportunity to make it. However, the crucial fact is that ST did make her claim as soon as she could, immediately on arrival at Heathrow, so that she satisfied both tests.

On behalf of the Secretary of State, it was contended that the finding was directed to the first occasion that ST landed at Heathrow when she was in transit to Canada via Heathrow and not to the second occasion when she was brought back to Heathrow from Holland having been caught without a valid passport at Schiphol Airport. However, even on that basis, the Secretary of State now accepted that the use of section 8 was not permissible on the facts of this case but it was further contended that the finding, treated as a finding of fact and not a statutory finding, was in any event one that the decision-maker was entitled to make. I do not accept these submissions. Firstly, although ST was in transit when she first arrived at Heathrow and was, arguably, in a safe country and therefore in a situation to which section 8 applies, that section is not applicable to the United Kingdom which is not, in consequence a “safe country” for the purposes of section 8 (Footnote: ³³). Secondly, section 8 only applies where there has been a failure “to take advantage of a reasonable opportunity to make an asylum claim” while “in a safe country”. I do not accept that someone touching down at Heathrow to change planes in order to pass onto another country and who does not pass through immigration control or the scrutiny of UK Border officials at that port of entry has a “reasonable opportunity” to claim asylum or is “in a safe country” (supposing the UK had been defined as such by the AITCA). Thirdly, it is not open in this case for the Secretary of State now to contend that, in relation to ST’s two arrivals at Heathrow, she was someone who the decision-maker was entitled to make factual as opposed to statutory adverse credibility findings.

Dealing briefly with the other credibility findings and the failure to consider whether each would be relied on in a hypothetical appeal:

Realistic prospect of success. The decision-maker did not appear to consider whether there was any possibility that an immigration judge would take a different view of ST’s further representations or whether the judge, exercising anxious scrutiny and with all the added advantages of an oral hearing, might reach a different and more favourable view of ST’s new claim. Moreover, he or she did not consider any of the potential defects in the first decision, including but not limited to its adverse credibility findings and as a result did not consider whether it was possible that an immigration judge would decline to adopt the findings of that decision and decide that ST’s claim should succeed.

Conclusion. The first fresh claim rejection decision cannot stand. It asked the wrong questions, was not taken in accordance with the law, took into account significant matters that should not have been taken into account and failed to take into account significant matters that should not have been taken into account.

The decision. ST’s second further representations were sent on 25 January 2011 which claimed asylum, for the first time, on the basis of her sur place conversion from the Sunni to the Shi’a faith and her consequent exposal of her new faith as a door-to-door preacher. She claimed that, if returned to Pakistan, she would have a well-justified fear of persecution from two named and other unnamed groups of fundamentalists and as a result of her conservative Sunni family’s inevitable turning against her. The claim relied on the January 2011 COI report’s account of the current risk of being the subject of a Fatwa and from her being treated as and considered to be an apostate. The report quoted a FCO response dated 9 January 2009 which stated that people who changed their faith were regularly charged with blasphemy and insulting Islam and that that was usually when a conversion was made to an entirely separate religion. Arguably, the report continued, a Sunni becoming a Shi’a was a conversion of belief within a single religion and the FCO was not currently aware of examples of blasphemy proceedings against Shi’as by Sunnis but it also noted the risk of such occurring since the draft bill on apostasy which had received its first reading on 9 May 2007 had failed to emerge from Committee later in 2007 and there was no evidence of it being reintroduced. The COI report also reported that sectarian and religiously motivated violence was prevalent in large parts of rural north western Pakistan in and after 2009 and that they had killed hundreds of Shi’a civilians and had imposed a harsh, Taliban-style system of justice and had displaced Shi’a, Sikh, Hindu and other minority populations.

The decision, dated 28 January 2011, was made by a different decision-maker to the decision-maker of the first further representations rejection decision. The decision accepted that the matters raised had not previously been considered. The representations were rejected and were then considered to have no realistic prospect of success. The reasons for this decision, which in consequence rejected the second further representations as a fresh claim, were as follows:

General discussion of the decision. The second rejection decision accepted that the second further representations were different from the previously considered claims but it did not give any further consideration to the two previous rejection decisions. It stated that the decision-maker had decided not to reverse either of the previous decisions and that the current submissions had no reasonable prospects of success. This latter part of the decision was reached because the decision-maker concluded that ST’s claim was not corroborated and was not credible, particularly because it had not been raised in her recent previous claim. Furthermore and, in any event, it concluded that ST had no reasonable basis for her stated fear of persecution and the COI report showed that she could safely relocate. The decision-maker did not refer to the adverse credibility findings of the original claim nor to the need to consider the possibility that ST had been telling the truth about her sur place claim even if she had been untruthful in her previous claim. However, the decision was stated to have been taken by considering the new submissions, when taken with the previously considered material, had no reasonable prospect of success.

Credibility. The claim’s overall finding that ST’s sur place claim was not credible was based on three findings. Firstly, it was stated not to be corroborated. This finding overlooked the letter of support from Najaf Shah who had known her since 2006 and whose evidence was to the effect that she had converted to the Shi’a faith soon after wards (Footnote: ³⁴). It also dismissed the witness statement from Ghulam Abbas in the form of a faxed copy a letter from the Mission signed by him as “President” on whose contents no weight could be placed although the only basis for that finding was that since its date was as recent as 25 January 2011, it was a document obtained in an attempt to strengthen ST’s case, the letter was a photocopy and it had not been possible to get an answer from the Mission by calling the telephone number given in the letter. These reasons treat the letter is a witness statement purporting to contain the factual evidence of the President of the Mission that ST was a Shi’a community member of the Mission who was involved as a helper in the community on behalf of the Mission whose contents are either to be taken as true or false. It is not a “document” (such as an arrest warrant, a passport or an FIR), to which the Ahmed (Tanveer) (Footnote: ³⁵)principles apply but an item of factual evidence. On the basis of these considerations, the finding that the claim was not corroborated appears to be an unwarranted one, particularly given the need for anxious scrutiny of the potentially corroborating evidence which had not been considered at an oral hearing.

Secondly, the claim was not believed because it had not been referred to in ST’s previous claim. Although that would undoubtedly give rise to significant suspicion, no consideration was given to the possibility that the first further representations had failed to refer to the sur place claim due to poor legal advice from her solicitor dealing with the first further representations.

Thirdly, the claim was disregarded because ST had not stated when she converted to the Shi’a faith. This was an error since her statement dated 25 January 2011 stated that this conversion had occurred in August 2006.

These findings were, therefore a somewhat fragile basis for rejecting the new claim in its entirety. In addition to these grounds for concluding that the sur place claim was made up, the decision-maker’s perception that it was untrue was significantly and obviously influenced by the adverse credibility findings that had been made against her in the first decision since this second fresh claim rejection decision stated that it had rejected the new claim having considered the new material along with the previously considered material. For the reasons that I have already set out, it was not justified for the decision-maker to rely on those adverse credibility findings.

Realistic prospect of success. In addition to the disbelief of her claim based on her apostasy, the decision concluded that ST had not reported being attacked and had no reasonable basis for fearing reprisals from fundamentalists since she had never been involved with them. However, her fear was not stated to arise from past involvement with or attacks from members of the two named fundamentalist groups and other unnamed such groups but from a generalised fear of reprisals from such groups on her return on account of the known danger that all converted Shi’as faced from Sipah-e-Sahaba and Lashkar-e-Jangvi and other Sunni fundamentalists, particularly since she was not only an apostate but a preacher and a lone divorcée who had lived and been converted to the Shi’a faith in England and who might well be perceived to be an adulteress who had deserted her husband and child. Similarly, the additional finding that ST would find protection in a woman’s refuge did not take into consideration ST’s likely situation on her return. She would be unlikely, on the basis of the 2011 COI report, to find any available refuge. Moreover, even if she found one, it would seem that she would be unlikely to be accepted into it, certainly for any appreciable length of time, given her range of risk factors (Footnote: ³⁶), her lack of any support from family or friends and her lengthy absence abroad prior to her return.

Anxious scrutiny. The decision does not appear to have been taken after the decision-maker had exercised anxious scrutiny of both the sup place claim and the previous decisions. Had it done so, the decision would have taken into account at least some of the material considerations that I have been identified in relation to each of the three decisions since all of them are material in a consideration of whether ST’s sur place claim had a reasonable prospect of success

Conclusion. The second fresh claim rejection decision cannot stand. Like the first, it asked the wrong questions, was not taken in accordance with the law, took into account significant matters that should not have been taken into account and failed to take into account significant matters that should not have been taken into account.

Post-decision material. I have referred in this judgment to two short witness statements of ST’s and to a letter of Najaf Shah’s (Footnote: ³⁷). None of these documents were before the decision-maker of the second claim rejection. The two witness statements were made after that decision and they and the letter only became available when served with the claimant’s additional grounds document. It was contended on behalf of the Secretary of State that it was not permissible in those circumstances to take these documents into account since, unlike cases involving a consideration of the Secretary of State’s certification of a claim, when post-decision documentation may be taken into account in some situations (Footnote: ³⁸), such documentation may not be referred to when it is undertaking a Wednesbury review.

I referred to this documentation because I was conducting an anxious scrutiny of the whole case which, most unusually, was one which had not previously been considered by an independent court in relation to any of the three decisions taken by the Secretary of State. Moreover, the material was before me in the hearing bundle. It seemed to me that if I was to completely ignore this material, I should have been asked to rule at the outset of the hearing that it should be excluded from the hearing bundle as being inadmissible altogether but this was not contended for by either party and, indeed, on behalf of the Secretary of State it was contended that the material was “irrelevant” as opposed to inadmissible. I considered that on the particular facts of this case, I could and should take the material into account. This was because the documents had been placed before me without objection to their admissibility at a hearing in which I was conducting an anxious scrutiny of a case which had had no judicial scrutiny previously. Moreover, the new documents appeared to have materiality in circumstances where ST would be removed to Pakistan if she failed to have the Secretary of State’s two decisions set aside and where her life and well-being were possibly at grave risk if she was removed there which was a risk for which she was claiming asylum to avoid. I also considered that I would have reached the same decision that I have done without sight of these documents. Thus, I did not consider the wider question of principle as to whether as a general rule documents net seen by the decision maker may be taken into account by the Administrative Court considering a challenge to a paragraph 353 decision.

Counsel for the SSHD laid great stress, in support of the reasonableness of the two decisions being challenged and on their being within the margin of appreciation of their decision-makers, on the lack of evidence that ST had put forward in support of her claims and on the lateness and obvious opportunism of her sup place claim. However, forceful though these points are, they do not overcome the fact that the two decisions were, in the manner in which they were taken, Wednesbury unreasonable.

My decision is, and can only be, that the decision dated 10 January 2011 that the representations dated 13 May 2009 and the decision dated 28 January 2011 that the representations dated 25 January 2011 were not fresh claims should be set aside. The SSHD must now decide whether to recognise these representations as fresh claims without further consideration or whether to reconsider the decisions. If the decisions are to be reconsidered, ST should first decide whether to submit further representations and evidence in support of her contention that the representations amount to a fresh claim and the SSHD can then reconsider the decisions in the light of this judgment.