Asylum seeker’s ‘fresh claim’ challenge based on third party report dismissed

A judge in the Court of Session considered that the such an approach was “impermissible” and therefore ruled that the petitioner had failed to meet the threshold for permission to proceed in terms of section 27B of the Court of Session Act 1988, as she had not shown that her case had “reasonable prospects of success”.

Asylum application

Lady Wolffe heard that the petitioner “XY” lodged an application for judicial review of a decision of the respondent, the Secretary of State for the Home Department, not to treat the further submissions as a fresh claim for the purposes of rule 353 of the Immigration Rules.

The petitioner, a Chinese national, had her application for asylum refused following the expiry of her student visa.

She exercised, and exhausted, appeal rights to the First-tier Tribunal (FTT) and the Upper Tribunal (UT).

The gravamen of her application was the fact that she had, at that point, two children out of wedlock, and the anticipated difficulties she would face upon return to China in the light of its policies about children or about certificates of sterilisation from women with more than one child.

She made representations by letter dated 23 October 2017, which were not accepted as constituting a fresh claim, by decision communicated on 29 November 2017.

‘Fresh claim’

The petitioner raised these proceedings to challenge the decision, but the only new material included in her representations, apart from the fact that she now had a third child out of wedlock, was a copy of the recent decision of the Inner House in YZ v Secretary of State for the Home Department [2017] CSIH 41, in which the court considered the question of whether the UT was entitled to open up and reverse a finding in fact made by the FTT.

The finding related to the evidence of an expert about a requirement for a woman to undergo a forced sterilisation before her child or children could be registered for a “hokou”.

The FTT had accepted her evidence and, on that basis, departed from the country guidance case of AX (family planning scheme) China Country Guidance [2012] UT 00097 (IAC), but the court was not adjudicating on the merits of that evidence - only on the proper scope of the powers of the UT to interfere with a finding in fact by the FT.

The purpose in producing this case was, presumably, to rely on the few extracts of this expert’s report, quoted by the Inner House, in order to challenge the country guidance case of AX, but the Secretary of State rejected the petitioner’s representations.

The challenge in the petition was on the basis that the Secretary of State failed to apply “anxious scrutiny” or erred in declining to accept the material quoted in YZ in preference to her reliance on AX, and that it was not necessary for the petitioner to have to commission another “generic report” to vouch the points quoted in YZ.

‘No reasonable prospects of success’

Refusing permission to proceed, the judge observed that the petitioner’s challenge was not the first predicated on YZ as the basis for a fresh claim, adding that the purpose of this opinion, which was based on consideration of the papers only, was to bring these recent cases to the notice of those practicing in this field.

In a written opinion, Lady Wolffe said: “It is a well-established principle in immigration law that a third party report, that is a non-generic report prepared for a person other than the applicant, may not be used unless the author has agreed that it may be relied upon: Slimani v Secretary of State for the Home Department [2001] UKIAT 00009…The Slimani principle has been applied in Scotland in YH [2016] CSOH 72 and more recently by Lord Mulholland in XL v Secretary of State for the Home Department [2017] CSOH 41.

“In this case, the petitioner seeks simply to rely on extracts from the report quoted by the Inner House in YZ, in a manner indistinguishable from the petitioner in the recent case before Lord Tyre in YC v Secretary of State for the Home Department [2018] CSOH 40. Lord Tyre rejected that approach. I agree with his observation (at para 23) that it is difficult to see how any factfinder could base his decision on brief excerpts in an appellate judgment from the evidence of a witness in a different case.

“I would add that this is particularly so, where the appellate court was not adjudicating on the merits of that evidence, but addressing a procedural issue. I also agree with his observations that the attempt to rely on the extracts of a report in YC, as a means to challenge a country guidance case (such as AX, relied on by the Secretary of State in the Decision), is impermissible.

“It respectfully seems to me that those remarks apply with equal force to this case. For these reasons, I find that the petitioner in this case has failed to meet the threshold in 27B of the 1988 Act, and that it has not been shown that there are reasonable prospects of success.”