Foreign criminal wins review of Home Secretary’s decision over ‘fresh claim’ for asylum

The petitioner’s original claim that he was a homosexual and that he would be at risk of persecution if deported to the Gambia had been dismissed by an immigration judge, but he submitted a medical report in support of a second application.

The Secretary of State for the Home Department found that the further evidence did not amount to a “fresh claim”, but a judge in the Court of Session ruled that the respondent failed to provide adequate reasons for her decision.

Mandatory deportation

Temporary Judge Robert Weir QC heard that the petitioner JMG, 36, became an overstayer in February 2014 after entering the UK on a visitors’ visa to attend a lecture which he failed to attend.

In December 2014 he liable to mandatory deportation under section 32 of the UK Borders Act 2007 after he was sentenced imprisonment for one year, having been convicted at Edinburgh Sheriff Court of being concerned in the supply of controlled drugs.

After being served with a decision to deport letter, the petitioner claimed asylum and appealed to the First Tier Tribunal (FTT), arguing that he was a homosexual who had suffered physical harm in the Gambia by reason of his sexuality, and that would be at risk of persecution if he were now returned to the Gambia.

However, the FTT refused the petitioner’s appeal on each of his asylum, humanitarian protection and human rights grounds.

The immigration judge did not believe the petitioner’s central argument, namely that he was a homosexual and that, accordingly, he would be persecuted if deported to the Gambia, adding that he was a “foreign criminal who should be deported”.

Following refusal of permission to appeal to the Upper Tribunal the petitioner lodged a petition with the Court of Session seeking review of that refusal, but permission for the petition to proceed was refused in June 2016.

‘Fresh claim’

Meantime, in March 2016 the petitioner’s solicitors had written to the respondent intimating a fresh claim for asylum, humanitarian protection and breach of Article 3 of the European Convention on Human Rights, relying on what was contended to be new evidence in the form of a detailed medical report by Dr Katharine Wrigley which, it was submitted, contained compelling evidence supportive of his account of persecution in the Gambia.

By her decision letter dated 22 March 2016 the respondent decided that the further representations did not amount to a fresh claim in terms of paragraph 353 of the Immigration Rules, but the petitioner argued that the respondent “erred in law” in and that she failed to provide adequate reasoning for her decision.

In particular, the medical report recorded scarring to the petitioner “consistent with, highly consistent with and typical of him having suffered” violent injury as he had claimed and as a result of his sexuality.

The fresh submissions also included a legal analysis of the significance of the medical evidence by reference to the ECtHR decision in the 2010 case of RC v Sweden.

‘Realistic prospect of success’

Counsel for the petitioner, Alan Caskie, argued that taken together these material elements created a “realistic prospect of success” that an immigration judge could reach a “different view” to the FTT on the petitioner’s credibility.

It was also submitted that the material presented now created a realistic prospect of the petitioner being recognised as a refugee under the Refugee Convention, or a person in need of humanitarian protection in terms of ECHR Article 3.

While on the face of the decision letter, the Secretary of State had asked herself the correct question – whether there was a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution if returned to the Gambia – it was argued that the terms of the letter demonstrated that she had not satisfied the requirement of anxious scrutiny in respect that she had left out of account material factors which could conceivably have been regarded as favourable to the petitioner.

On behalf of the respondent, Graham Maciver submitted that the decision letter had set out the Home Secretary’s conclusion by reference to what findings an immigration judge would make, taking into consideration both the issue of the petitioner’s credibility and the findings of Dr Wrigley, adding that the petition amounted to “no more than a disagreement with the conclusions of the respondent”.

‘Inadequate reasoning’

However, the court ruled that the respondent’s decision that the further representations did not amount to a fresh claim should be reduced.

In a written opinion, Temporary Judge Weir said: “I consider the submissions of the petitioner to be well founded in their criticism of the adequacy of the reasons given for the respondent’s conclusion that the further submissions did not create a realistic prospect of success before an immigration judge applying the rule of anxious scrutiny.

“The tenor of the decision letter is that, since the petitioner’s account of being a homosexual had been disbelieved, and the injuries present were explicable by other reasons for infliction, those injuries should be disregarded for the purposes of a fresh claim. In my view, in the circumstances disclosed in the FTT decision and decision letter, such reasoning is inadequate.”

He added: “In the final analysis, the decision letter must disclose that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence…In my opinion the decision letter has not done so.

“I agree with Mr Caskie that a second immigration judge…while he would have to take the FTT’s credibility findings into account, would not be bound by them if he considered that the report of Dr Wrigley’s findings justified a re-appraisal. The decision letter is flawed in that it offers no reasoned assessment of the weight such an immigration judge, treating the medical report as an integral part of the process of reassessment of the petitioner’s credibility, might attach to Dr Wrigley’s findings.”