Asylum-seeker who feared religious persecution if returned to Nigeria successfully challenges decision to reject ‘fresh claim’

A Nigerian national whose application for asylum on the basis of her fear of persecution on account of her conversion from Islam to Christianity was rejected, has successfully challenged the Home Offices’s decision to refuse to accept her further submissions as a “fresh claim”.

 

A judge in the Court of Session upheld the petitioner’s challenge after ruling that the decision-maker failed to take into account the findings of a report which concluded that the applicant‘s suicide risk would be “exponentially increased” and that she would be “highly unlikely” to survive a return to her native country.

 

Lady Wolffe heard that the petitioner “BJ” claimed to have entered the UK in December 2006, but only came to the attention of the authorities in January 2014.

 

She claimed asylum based on her fear of persecution at the hands of her family and on account of her religion, but her asylum application was refused by the Secretary of State for the Home Department on 15 January 2015.  

 

The petitioner appealed to the First-tier Tribunal (FTT), where she also claimed that her poor mental health, including a risk of self-harm or suicide, meant that return to Nigeria would be a breach of her rights under articles 3 and 8 of the European Convention on Human Rights (ECHR).

 

The petitioner produced a medical report and a GP report, which noted her deteriorating mental health and risk of self-harm, but the FTT refused her appeal after concluding that her difficulties were “significantly exaggerated”.

 

In her submission in support of her fresh claim in terms of paragraph 353 of the Immigration Rules, the petitioner relied in particular on two psychological assessments made by a Dr Tagg concerning her mental health.

 

Dr Tagg concluded, among other things, that the petitioner suffered from Post-traumatic Stress Disorder (PDST) and an Emotionally Unstable Personality Disorder, which correlated with a “significantly higher level” of completed suicide, and that her “already enhanced risk” of suicide would be “exponentially increased is she could not remain in the UK.

 

It was also considered it was “highly unlikely” that the petitioner would survive a return to Nigeria.

 

However, the Home Secretary rejected the material as constituting a fresh claim and found that there were “no very significant obstacles” to the petitioner’s integration if returned to her native country.

 

The petitioner challenged that decision, arguing that there was a “want of anxious scrutiny” in that nowhere in the decision did the Home Secretary engage with the findings of the Dr Tagg’s reports, and that even if Home Secretary had undertaken anxious scrutiny, she failed to give “proper, intelligible and adequate reasons” for her conclusions on the evidence.  

 

Reducing the decision, the judge ruled that the failure to address the two critical conclusions in the psychological reports were “glaring omissions” which amounted to a “failure to exercise anxious scrutiny”.

 

In a written opinion, Lady Wolffe said: “The most significant of the findings in Dr Tagg’s second report, in my view, were her conclusions that the suicide risk of the petitioner would be ‘exponentially increased’ if she were told of a decision to deport her, and that it was ‘highly unlikely’ that the petitioner ‘would survive a return to her native country’. These are very serious factors but these are not addressed at any point in the decision. They are not even identified…In my view, there is nothing in the decision to demonstrate that the decision-taker moved beyond reiteration of, and reliance on, the FTT’s determination of the medical evidence, and which Dr Tagg’s more serious conclusions had superseded. 

 

“While there is reference to the petitioner’s ‘depression, anxiety and unstable personality disorder’, in the section dealing with ‘Exceptional Circumstances’, again, however, there is simply no mention of Dr Tagg’s two critical conclusions. There is a singular failure to address these. They are simply ignored. The tenor of the reasoning was to rely, essentially, on the earlier determination of the petitioner’s mental health issues by the FTT.”

 

She added: “The approach of the Secretary of State just identified, is also reflected in the section of the decision addressing the petitioner’s article 3 claim. In my view, this suffers from the same deficiencies identified in those parts of the decision already discussed. In short, nowhere in the decision is there any acknowledgement of Dr Tagg’s two critical conclusions and any engagement with the qualitatively more serious mental health risks she identified in relation to the petitioner, arising on deportation or in Nigeria.”

 

The petitioner’s challenge on the ground of “inadequate reasons” was also upheld.

 

“In my view,” Lady Wolffe said, “even taking all of the passages founded upon by [the respondent] together, and applying a benign interpretation, the decision does not meet the test of providing ‘proper, adequate or intelligible reasons’ to explain what the Secretary of State made of Dr Tagg’s reports or why her conclusions were (in effect) rejected, because they were ignored. It follows that the petitioner’s challenge succeeds and that the decision falls to be reduced.”