Wilfred Zonzi, R (on the application of) v The Secretary of State for the Department

(1) Introduction

1. The applicant is a citizen of Congo (Brazzaville) who came to the United Kingdom in 2008 and claimed asylum. He said that in 2007 he had been persuaded to transport to Brazzaville a group of fighters associated with a rebel leader named Pastor N’tumi. As a result, the applicant had been detained by the authorities and would be of serious adverse interest to them, if returned. The respondent refused the asylum claim and decided to remove the applicant from the United Kingdom by way of directions. The applicant’s appeal against that decision was dismissed in October 2008 by Immigration Judge Cruthers, following a hearing in Manchester, at which the applicant appeared in person. Following an unsuccessful application for permission to appeal the determination of the Immigration Judge, the applicant became appeal rights exhausted in March 2009.

2. Beginning on 6 March 2009, the applicant has, through his present solicitors Lawrence Lupin, made a number of submissions, accompanied by relevant documentary material, which he has requested the respondent to treat as fresh claims to be in need of international protection. They are as follows:- (a) By letter of 6 March 2009 the applicant submitted copies of a writ of summons, with translation; a search warrant, with translation; and an arrest warrant, with translation. The respondent responded to these submissions by letter dated 12 March 2009. (b) By letter dated 23 October 2009 the applicant submitted an EMS post express envelope received from the DRC, sent to the applicant; what were said to be the originals of an arrest warrant dated 1 October 2008 (with English translation); a search warrant dated 10 December 2008 (with English translation); an arrest warrant dated 22 December 2008 (with English translation); a search warrant dated 31 March 2009 (with English translation); a summons dated 3 March 2009 (with English translation); an arrest warrant dated 2 April 2009 (with English translation); and a manuscript letter dated 17 April 2009, said to be from the applicant’s sister (with English translation). These submissions were addressed by the respondent in a letter of 5 March 2010. (c) By letter dated 31 March 2010 Lawrence Lupin Solicitors provided, on instruction, information from the applicant concerning the arrest warrant of 1 October 2008, the search warrant of 10 December 2008 and the arrest warrant of 22 December 2008. The applicant said that these were brought by hand from Congo by an individual who had travelled to Paris and then posted them to a friend of the applicant. The applicant further stated that a government official had served the warrants at the home occupied by the applicant’s parents. The summons of 3 March 2009, search warrant of 31 March 2009, arrest warrant of 2 April 2009 and letter of 17 April 2009 were said to have been sent by the applicant’s cousin/extended family member to the applicant’s friend in the United Kingdom. (d) By letter dated 17 February 2012 Lawrence Lupin Solicitors enclosed a statement of evidence signed by the applicant and dated 17 February 2012; letters of 16 January 2012 and 22 January 2012 from David Diangouaye, written from Paris (with English translations); a letter dated 25 November 2011 from the applicant’s sister (with English translation); a death certificate dated 25 October 2011 relating to the applicant’s father (with English translation); and a further letter from Mr Diangouaye dated 26 October 2009 (with English translation), together with a copy of his passport and his mother’s status in France (with copy envelope). His last letter is, in fact, described as an “honour certificate”. These materials were considered by the respondent in a letter dated 13 April 2012. (e) On 23 May 2012 the applicant submitted a “report of special illness or condition” compiled in Morton Hall IRC, in accordance with rule 35 of the Detention Centre Rules 2001 in which it was recorded that the applicant had told a member of staff that he had been tortured in 1998 and again in 2007. The report recorded the applicant as having “faded scars to foot and back”. The respondent considered this report in a letter of 24 May 2011.

3. Judicial review proceedings were brought by the applicant against a decision of the respondent taken in respect of the applicant in March 2009. Following the grant of permission, a substantive hearing took before His Honour Judge Alan Gore QC, sitting as a Deputy High Court Judge, on 22 March 2012. On that day, the respondent accepted not to detain or remove the applicant until seven days after she had served him with “a further decision letter on the issue of whether the [applicant] has a fresh claim for asylum in respect of the [applicant’s] representations dated 17 February 2012”. On that basis, the applicant was given leave to withdraw the claim. I shall have more to say about those proceedings in due course, since they feature as one of the grounds accompanying the present application (see paragraphs 51 to 53 below).

4. The present application originally sought to challenge the respondent’s decisions of 5 March 2010, 20 December 2010, 20 February 2012, 13 April 2012 and 25 May 2012. Permission to bring judicial review proceedings was granted by an Upper Tribunal judge on 31 May 2012. Her grant of permission did not address the fact that the challenge to the two decisions of 2010 and that of 20 February 2012 were brought outside the three month time limit prescribed both by the CPR and the Tribunal Procedure (Upper Tribunal) Rules 2008. By consent, the hearing before me proceeded on the basis that the only two decisions directly challenged were those of 13 April 2012 and 25 May 2012; but there was also common ground that, in determining the legality or otherwise of those decisions, regard needed to be had to earlier decisions of the respondent, including those I have just mentioned. (2) Legal principles

5. The correct test to be applied in considering whether the respondent’s decisions are unlawful is perhaps best set out in the judgment of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495:- “First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: ………... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.” [11]

6. It is at this point convenient to deal with ground 2 of the applicant’s grounds of challenge in the present case. This asserts that the respondent adopted a legally erroneous approach to the documentation submitted by the applicant and said to emanate from Congo (Brazzaville), comprising such things as the summons and arrest warrant.

7. In this regard, reliance is placed upon the judgment of Collins J in Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin) . In that case, an appellant, who had lost an appeal before an adjudicator (who did not find him credible) subsequently submitted what was said to be the original of a newspaper report from Afghanistan, together with the opinion of an expert, Dr Giustozzi, who said that the newspaper “could well be genuine” [6].

8. Having cited what were then considered to be the leading authorities on the issue of fresh claims, Collins J considered the submission that the issue in a fresh claim case under paragraph 353 of the Immigration Rules “is whether the material creates a realistic prospect of success and that being so, it must be for the Secretary of State properly to decide whether the evidence is, in his view, evidence which should be believed. It is only if his view is an irrational view that a fresh claim can be entertained” [17].

9. At [18] Collins J considered that this submission “put it too high against an applicant”: “18. … I think it would be difficult to justify an approach which enabled the Secretary of State to find a matter of fact against a new claim which otherwise would succeed because the material had not already been considered; and there was good reason, as it happens in this case, for that, because it did not exist until after the relevant decision of the adjudicator.

19. Of course, if it is intrinsically incredible, or if when one looks at the whole of the case, it is possible to say that no person could reasonably believe this evidence, it should be rejected. If it is, on the face of it, credible and if, despite the feeling that it might be disbelieved, it is not possible to say that it could not reasonably be believed, then, as it seems to me, the decision ought to be based upon that state of affairs. The Secretary of State would be wrong to say ‘I don’t believe it and therefore I am not going to regard this as a fresh claim’.

20. In those circumstances, as it seems to me, this claim is entitled to succeed. That means, of course, no more than that the claimant will be given a fresh right of appeal, if he wishes to exercise it, and it may well be that that appeal will not succeed. But further enquiries can no doubt then be made on both sides into the authenticity of this newspaper report. The Secretary of State after all is just as capable, one would have thought, of finding out from the publishers of this document whether it is indeed genuine, and equally no doubt the claimant, for his part, will be able to make further enquiries.”

10. As Mr Jafar points out, the judgment of Collins J in Rahimi was specifically upheld by the Court of Appeal in WM (DRC) (it was a conjoined appeal with that of WM). I consider, however, that the applicant in the present case is wrongly seeking to extract from Rahimi a legal proposition which, particularly in the light of the judgments in WM (DRC) , does not in reality exist. It is plain from [17] to [19] of the judgment of Collins J that he was, in effect, rejecting the proposition that the Secretary of State’s own view of fresh documentation submitted on behalf of an applicant should be determinative of the issue of a fresh claim. In the light of WM (DRC) such a proposition is plainly incorrect. 11. However, it seems to me to be equally plain that Rahimi is not to be regarded as authority for the proposition that, where an applicant submits documentation which he or she says comes from a third party source (such as the government of another State), that documentation must (unless “intrinsically incredible”) give rise to a fresh claim, unless no reasonable judicial fact-finder could believe this evidence, or, to put it another way, treat it as reliable. 12. Such an approach would run counter to the holistic exercise described in WM (DRC) . It would also, in effect, involve re-writing paragraph 353, in cases of this kind, by ignoring the word “realistic” in the phrase “realistic prospect of success”. What I consider to be the correct position is articulated in the judgement of John Howell QC, sitting as a Deputy Judge of the High Court, in Muhammed Yameen v Secretary of State for the Home Department [2011] EWHC 2250 (Admin): “40. … In my judgment it is not necessary for the Secretary of State to be able to conclude that something is itself incredible or incapable of belief for her to be entitled to conclude that there is no realistic prospect that a Tribunal would treat it as reliable. Whether a Tribunal could reasonably treat something as reliable is to be answered in the context of the evidence as a whole and in that connection it may be important to consider what evidence there is which explains how any document came into existence or any statement came to be made and which supports its reliability… 41. Even if new representations are based wholly or in part on material that is reliable or, at least, on that which an Immigration Judge might realistically treat as reliable, however, that does not necessarily mean that they will amount to a fresh claim. The Secretary of State still has to make a judgment about whether there is a realistic prospect of a successful outcome in the Tribunal proceedings based on such material giving it anxious scrutiny …”

13. What the respondent has to do in cases of this kind is to consider the fresh material, against the background of the earlier judicial findings in respect of the applicant, in order to determine, in all the circumstances, whether the applicant has a realistic prospect of success before a future hypothetical judge. The fact that the applicant may have been disbelieved already in a judicial context is not determinative; nor is the Secretary of State’s own view of the new material and the present credibility of the applicant. I shall consider the detailed criticisms levelled against the respondent’s approach in the present case in due course. For the present, however, I find that the respondent did not err in law in refusing to treat the applicant’s submissions as a fresh claim merely because, although there was not a realistic prospect of success, a judicial fact-finder might rationally have regarded the material as reliable and have allowed the appeal on that basis. (3) The applicant’s specific challenges: by issue

14. It is convenient to consider the applicant’s remaining grounds under the following generic headings. (a) Failing to appreciate that the Immigration Judge had accepted part of the applicant’s account of his experiences in Congo (Brazzaville)

15. Ground 3 asserts that the Immigration Judge, in his 2008 determination, found “that as a result of [the applicant’s] political activities [he] had been detained as claimed, the only aspect of his claim that was rejected was that he was tortured and that he had to escape. The IJ found that [the applicant] was officially released.”

16. It is plain from a reading of the judge’s determination that ground 3 is misconceived. It completely ignores this vital paragraph:- “34. On the evidence overall I do not believe that the appellant was caught up at all in the events of 10 September 2007. It is much more likely in my judgment that the appellant has fabricated an account around an event that is well known in Congo (Brazzaville). My reasons for that conclusion are set out in the paragraphs below.”

17. I agree with the respondent that [34] of the determination makes it manifest that the Immigration Judge did not believe any aspect of the applicant’s account. That includes his being detained as a direct result of participation in the events of 10 September 2007, when Pastor N’Tumi attempted to return to Brazzaville. If any support were needed for this, it is to be found at [35], where the judge said this:- “35. I am not prepared, even on the reasonable likelihood standard, to accept the core of the appellant’s evidence at face value because I find that evidence to be very unreliable. Specifically, I do not accept the appellant’s claim that on or around 10 September 2007 he was required by some rebels/Pastor N’Tumi supporters to transport them on his lorry. I do not believe that the appellant was in consequence arrested and detained as he claims …”