Outer House reduces three asylum decisions after finding Home Secretary misapplied legal tests

About this case:

• Citation:
  [2024] CSOH 88
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Petitioners A, B, and C, the latter aged seven at the time the petition was raised, argued that the respondent had conflated the relevant legal tests to determine whether their new submissions amounted to a fresh claim. The respondent argued that, if there was an error, it was not material in any case.

The petition was heard by Lord Lake in the Outer House of the Court of Session. D James, advocate, appeared for the petitioners and A McKinlay, advocate, for the respondent.

Necessary scrutiny

In September 2018, the second petitioner claimed asylum in the UK on the basis of a fear of forced female genital mutilation, with the first and third petitioners listed as dependants on that application. The application was refused and an appeal to the First-tier Tribunal was unsuccessful. On 31 July 2020, the second petitioner submitted further representations to the Secretary of State, claiming that they amounted to a fresh claim. On 28 July 2022, the Secretary of State determined that they did not.

After having sought to submit additional further representations on 11 August 2022 and having been told she must make an application to regularise her stay, on 7 October 2022 the second petitioner made such an application in respect of herself and the other petitioners. In the context of that application, she submitted the further representations she had previously sought to submit, which related to her daughter having started attendance at school and having an outpatient appointment at an ophthalmology clinic. These applications were refused by the respondent in October 2023.

It was agreed by the parties that the relevant legal tests were firstly to decide whether the application should be granted, and then if it was not whether the submissions amounted to a fresh claim. For the petitioner it was submitted that these two issues had been conflated. In respect of the second petitioner, it was argued that the decision was irrational in that it said there was no material that had not been considered before, even though it was accepted that there was.

In relation to the claim by the respondents that any error in this regard was not material, it was submitted that in not having regard to the additional material the respondent could not have approached the decision with the necessary anxious scrutiny and that it was speculation to attempt to determine what the decision might have been had the information been considered. It was possible in each case that another decision might have been reached, and all that the petitioners needed to do was show there was a reasonable chance of this.

Intended function

In his decision, Lord Lake began by noting: “As the additional material related to the third petitioner, the decision letter in respect of her is the logical place to start. There was no dispute before me as to whether reasons require to be given. Within the letter to the third petitioner, although there is reference to issues of education and healthcare, including the ophthalmology appointment, in the reasons for the decision to refuse leave to remain, there is no reasoning concerning whether the further information amounts to a fresh claim – i.e., whether there was a realistic prospect of success before an immigration judge.”

He continued: “The statement in the letters that the submissions do not amount to a fresh claim and the statement in two of the sets of reasons that there is no realistic prospect of success before an immigration judge are the conclusions reached on the key issues that were before the respondent. I agree with the submission for the respondent that the letters do indicate that the decision-maker had in mind the correct test for a fresh claim. However, the tests for each of the two issues differ with the test for leave to remain being more stringent.”

Addressing whether the letters indicated the basis for the respondent’s decisions, Lord Lake said: “The contents of the letters in respect of the first and second petitioners shed no light on how the test was applied and therefore how the stated conclusion was reached. Those letters identify the subsidiary conclusion that even with additional material the submission would have no realistic prospect of success before an immigration judge but do not state the basis for this conclusion. They therefore did not perform the function of reasons. The reasons underlying the decision might not be hard to divine, but it is not the function of the court to speculate or guess as to what they were.”

He concluded: “Requiring that there is an indication of how the conclusion was reached is not dictating how the letters should be written. It is merely requiring that they have basic content to perform their intended function. As they stand, not only do the letters for the first and second petitioners not meet the shortfall in the decision letter for the third petitioner, they do not provide adequate reasons for the decisions they record.”

The decisions in each of the letters accordingly fell to be reduced.