Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 144

 

P1406/15

OPINION OF LORD TURNBULL

In Petition of

HOSHANG MAMODI

Petitioner

against

SECRETARY OF STATE FOR SCOTLAND

Respondent

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

11 October 2016

Introduction
[1]        The appellant is a failed asylum seeker of Iranian nationality.  He arrived in the United Kingdom on 19 February 2013 and claimed asylum on the basis of his Kurdish ethnicity.  He claimed that he would be subject to persecution if returned to Iran on the basis of his family’s involvement with the Kurdish Democratic Party of Iran (“the KDPI”).

[2]        The appellant’s claim for asylum was rejected by the Secretary of State.  By a decision of the First-tier Tribunal dated 8 November 2013 his appeal against that decision was refused. 

[3]        By letter dated 3 September 2015 solicitors acting on behalf of the petitioner provided further information to the Secretary of State requesting that it be treated as a fresh claim for asylum under Immigration Rule 353.  On 10 September 2015 the Secretary of State replied explaining her decision that the information provided did not amount to a fresh claim.  The present petition seeks to challenge that decision.

 

The new application
[4]        The new application was presented upon two grounds.  First, information was given which was said to demonstrate that the petitioner was an active member of the KDPI in the United Kingdom.  Secondly, two documents were provided, a photo copy of the petitioner’s birth certificate and a photocopy of his mother’s death certificate. Each was said to be tendered in order to contradict findings which had been made by the Immigration Judge.

[5]        In rejecting the material as a fresh claim the Secretary of State explained that the documentation demonstrating the petitioner’s presence at various demonstrations and meetings in the United Kingdom in support of the KDPI had been considered in line with the guidance given in the case of BA (demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC).  

[6]        The Secretary of State explained that the information provided did not establish that the Iranian authorities would be able to identify the petitioner on return.  Although photographs were provided of the petitioner attending demonstrations, she said that these did not imply that he was a high-ranking member of the KDPI.  She stated that there was no evidence to suggest that these demonstrations were monitored by the Iranian authorities and that his presence did not mean that he had been identified by the Iranian government.  It was therefore not considered that he would be at risk of persecution on account of his involvement with the KDPI in the United Kingdom.

[7]        In considering the photocopy documents tendered, the Secretary of State noted that before the First-tier Tribunal the petitioner had relied upon an ID card in support of his claim to be a minor but that the Immigration Judge had concluded that this was a forgery.  The Secretary of State observed that the photocopy birth certificate did not confirm the validity of the ID card relied upon.  She noted that the quality of the photocopy birth certificate was questionable and that no information had been provided as to why this was not submitted with the initial claim, or how it now came to be in the possession of the petitioner. 

[8]        In relation to the photocopy death certificate, the Secretary of State noted that the Immigration Judge had rejected the submission advanced on the petitioner’s behalf to the effect that his family was involved with political activities in Iran.  She observed that the submission now made was to the effect that since the cause of death was given as unknown on the death certificate, and that this was common for people killed by the authorities in Iran, this provided support for the original contention that the petitioner’s family was linked to the KDPI.  The Secretary of State noted that this document was again a photocopy and that again no explanation had been provided as to how it came to be in the petitioner’s possession.

 

Submissions on behalf of the petitioner
[9]        On behalf of the petitioner, Mr Forrest submitted that the Secretary of State’s decision could be challenged on two separate grounds.  First, he submitted that the correct test had not been applied by the Secretary of State, and second, he submitted that even if the correct test could be said to have been identified by the Secretary of State she had not applied it in the correct manner.

[10]      In support of the first ground advanced Mr Forrest submitted that the Secretary of State required to apply the test provided for in Immigration Rule 353.  He acknowledged that in terms of the Rule submissions would amount to a fresh claim only if they were significantly different from the material previously considered.  Submissions would be treated as being significantly different only if they had not already been considered and if, taken together with the previously considered material, they created a reasonable prospect of success.  Mr Forrest argued that the Secretary of State had failed to appreciate that in applying these considerations it was not her own view as to whether the submissions created a reasonable prospect of success which mattered.  What she required to do was to put herself into the shoes of another decision maker and ask herself whether there were realistic prospects of success before another Immigration Judge.  He relied on the decision in the case of WM (DRC) v Secretary of State for the Home Department (2007) Imm AR 337. 

[11]      In support of his second ground Mr Forrest argued that one of the main reasons why the First-tier Tribunal judge had disbelieved the petitioner’s claim that he and other members of his family were associated with the KDPI was because of the conclusion which the judge reached concerning the identity card.  Having concluded that this was a false document the judge then took an adverse view as to the petitioner’s credibility.  Mr Forrest submitted that the birth certificate now available might permit the petitioner to establish his credibility before a different Immigration Judge, since the information it contained as to date of birth was consistent with that on the earlier document.  The death certificate, he argued, lent support to the claim that the petitioner’s family had been persecuted in Iran. He also argued that the information now available in relation to the petitioner’s activities in the United Kingdom went some way towards demonstrating that the petitioner might be identified as a protester if he returned and that question to some extent depended upon whether the original conclusion that he was not a KDPI sympathiser was safely made.

[12]      In these circumstances Mr Forrest submitted that there were reasonable prospects of success in front of a different Immigration Judge.  It could not be said that the prospects of success based upon the new evidence was fanciful.  The Secretary of State ought to have appreciated this and, even assuming she had identified the correct test, she had failed to apply that test correctly in refusing to treat the submission as a fresh claim for asylum.

 

Submissions on behalf of the respondent
[13]      On behalf of the respondent, Mr Komorowski submitted that it was clear from the way in which the Secretary of State’s decision letter of 10 September 2015 had been framed that she had identified the correct test.  He pointed out that on page 5 she drew attention to the material which had been submitted on the petitioner’s behalf identifying it as the:

“… protection based submissions that have not previously been considered, but that taken together with the previously considered material, do not create a realistic prospect of success before an             Immigration Judge.”

 

[14]      He further drew attention to the way in which the content of the petitioner’s submissions had been examined by the Secretary of State on pages 6 and 7 of the letter before she set out her conclusion that:

“Although your submissions have been subjected to anxious scrutiny, it is not accepted that they would have a realistic prospect of success before an Immigration Judge in light of the reasons set out above, …”

 

[15]      Lastly, in relation to this point, Mr Komorowski identified the way in which the Secretary of State had concluded her letter on page 10 by stating:

“I have concluded that your submissions do not meet the requirements of Paragraph 353 of the Immigration Rules and do not amount to a fresh claim.  The new submissions taken together with the previously considered material do not create a realistic prospect of success.  This means that it is not accepted that should this material be considered by an Immigration Judge, that this could result in a decision to grant you asylum, Humanitarian Protection, limited leave to remain on the basis of your family and private life or Discretionary Leave for the reasons set out above.”

 

[16]      Mr Komorowski then submitted that applying the guidance given in the case of BA (demonstrators in Britain – risk on return) Iran to the material which was presented the Secretary of State was entitled to arrive at the view which she did concerning the absence of any realistic prospect of success.  There was no suggestion that the petitioner’s activities in the United Kingdom had been highlighted in the media.  There was no implication that the petitioner was a high ranking member of the KDPI. 

[17]      In considering the photocopy documents lodged it was submitted that the purported copy birth certificate had no bearing on the petitioner’s claim that his family was associated with the KDPI and was of no relevance to the decision made by the First-tier Tribunal judge’s credibility decision. It did not support the authenticity of the ID card to any extent. The purported copy death certificate did not give a cause of death.  This, it was submitted, did not advance the petitioner’s claim that his mother had been detained.

[18]      Furthermore, Mr Komorowski referred to the Home Office Country of Origin Information Report of 26 September 2013 and submitted that forged or fraudulent documents are commonplace in Iran.  Relying on the case of Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 00439 he submitted that there was no presumption that such documents were to be taken at face value.  He observed that no explanation had been provided as to how these documents were obtained and this was of importance given the petitioner’s position at his asylum appeal, which was that he had no contact with anybody in Iran.

 

Discussion
[19]      Looking to the passages identified by Mr Komorowski in the Secretary of State’s letter of 10 September 2015 it is clear, in my view, that she has identified the correct test to be applied in the circumstances of this application.  She required to consider whether the claim would have reasonable prospects of success before another Immigration Judge.  Looking to the passages quoted above from pages 5, 7 and 10 of her letter, it is clear that this is precisely what she has done.

[20]      In considering the information presented in relation to the petitioner’s association with the KDPI in the United Kingdom there was nothing to suggest that his activity had been highlighted in the media.  The Secretary of State was bound to take account of the guidance given by the Upper Tribunal in the Country Guidance case of BA (demonstrators in Britain – risk on return) Iran.  At paragraph 66 of that decision the Upper Tribunal said the following:

“As regards identification of risk back in Iran, it would appear that the ability of the Iranian regime to identify all returnees who have attended demonstrations, particularly given the number of those who             do, on return, remains limited by the lack of facial recognition technology and the haphazard nature of the checks at the airport.  …  We conclude therefore that for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of consequent ill-treatment, on return.”

 

[21]      In light of this guidance it seems to me that the Secretary of State was correct to conclude that the material concerning the petitioner’s activities in the United Kingdom did not create a realistic prospect of success in a second asylum appeal.  On any view it was a decision which she was entitled to arrive at.

[22]      The question of what value the photocopy documents provided were capable of having has to be seen in the light of the findings made by the First-tier Tribunal judge.  The petitioner was found to have dishonestly claimed that his family were associated with the KDPI, he was held to have passed off as genuine a forged ID card and to have dishonestly claimed to be of a younger age. 

[23]      As Mr Komorowski submitted, the case of Devaseelan v Secretary of State for the Home Department [2002] UKIAT 000702 provides guidance as to how a second Immigration Judge should approach the determination of another Immigration Judge who has heard an appeal by the same appellant.  It provides that in a second asylum appeal the judge ought to treat the findings in the first asylum appeal as a starting point, treat new facts relied on, which were relevant to the first asylum appeal but not raised in this appeal, with the greatest circumspection and make findings in line with those made in the first asylum appeal in so far as the same facts were relied upon, where the evidence led in support of those facts was available in the first asylum appeal.

[24]      No explanation has been provided to explain why neither document was provided to the First-tier Tribunal hearing the petitioner’s appeal.  It was, as submitted, for the petitioner to establish that the documents could be relied upon.  No explanation has been provided as to how they came to be in the petitioner’s possession.  This is particularly important given the petitioner’s position at the original hearing, which was that he had no contact with anyone in Iran.  In these circumstances, and bearing in mind the guidance in Devaseelan, it is clear that the mere provision of photocopy documents purporting to be a birth certificate and a death certificate is of very limited value.  In any event it is clear that the purported copy birth certificate has no bearing on the petitioner’s claim that his family was associated with the KDPI and that the purported copy death certificate does not advance his claim that his mother had been detained. The fact that the photocopy birth certificate has the same date of birth as the ID card previously relied upon does not undermine the Immigration Judge’s decision that this document was a forgery.

[25]      In light of this analysis I agree with the submission made on behalf of the respondent that the Secretary of State was both entitled and bound to find that the photocopy documents did not create any realistic prospect of success for a second asylum claim made by the petitioner before another Immigration Judge.

 

Decision
[26]      In refusing to treat the submissions made on behalf of the petitioner as a fresh asylum claim the Secretary of State applied the correct test to paragraph 353 of the Immigration Rules and arrived at a decision which she was entitled to make.  I shall therefore repel the plea in law for the petitioner and sustain the two pleas in law for the respondent.  The petition is therefore refused.  I will reserve meantime the question of expenses.