R (on the application of DE) v Secretary of State for the Home Department [2009] EWHC 2300 (Admin)
R (on the application of DE) v Secretary of State for the Home Department [2009] EWHC 2300 (Admin)
Immigration
The judgment is available at: [2009] EWHC 2300 (Admin)
The claimant was a 42-year old asylum seeker from Cameroon. He arrived in the United Kingdom in December 2002 and claimed asylum in January 2003 on the basis of his political opinion illustrated by his membership and support for the Social Democratic Front Party.
His claim was refused by the Secretary of State in March 2003 and his appeal against that refusal was dismissed at a remitted hearing in November 2004.
In September 2006, the claimant's solicitors submitted further representations and evidence on behalf of the claimant, namely, copies of documents comprising (i) a copy of a Cameroonian arrest warrant; and (ii) medical evidence to show that the claimant's physical and mental health had deteriorated since his appeal.
In October 2008, his solicitors submitted further representations on the claimant's behalf, seeking indefinite leave to remain on the basis of his length of residence in the UK.
In December 2008, the claimant's solicitors wrote to the Secretary of State, enclosing an updated report from the claimant's counsellor, along with the mailing envelope containing the arrest warrant.
The claimant's friend had told him about the existence of the arrest warrant and had sent a copy to him, as well as a letter from the claimant's wife outlining problems she was facing with the Cameroonian authorities due to the claimant's activities, and the fact that she had fled Cameroon to Ghana. The Red Cross had been able to trace her there.
In January 2009, the claimant's solicitors sent further medical evidence from his general practitioner regarding the claimant's medical condition.
The Secretary of State refused to acknowledge the further representations and evidence as a fresh claim. The claimant applied for judicial review of that refusal.
He submitted that the Secretary of State had erred in refusing to treat his further submission as a fresh claim in accordance with para 353 of the Immigration Rules.
He submitted that there was a real risk of persecution should he be returned to Cameroon and that the Secretary of State had failed correctly to apply the test of anxious scrutiny to the further representations.
The application would be allowed.
The Secretary of State was entitled to reject a document where there was good reason to consider that no immigration judge would accept it as genuine.
However, he had to be careful to avoid predetermining the genuineness of a document where there was a credible issue as to its authenticity (see [23] of the judgment).
In the instant case, there were plainly concerns as to the circumstances in which the purported arrest warrant had come to be sent to the claimant and as to when it was sent. Nevertheless, when that document was considered in conjunction with the terms of his wife's letter, there should have appeared to the decision maker of that there was raised new material which should have the anxious scrutiny of the immigration judge to consider whether or not it gave rise to a real risk that the claimant would be subjected to persecution if he were to be returned to Cameroon.
Whilst the Secretary of State had asked himself the right question in respect of the fresh material, in particular, the arrest warrant, in addressing that question he had not satisfied the requirement of anxious scrutiny. He had been wrong in the circumstances to have resolved the issue of genuineness himself.
He should have regarded the fresh material as a new claim and referred it to an immigration judge to consider whether it was genuine and whether the wife's letter lent any support to the genuineness of the warrant, and whether the letter itself gave rise to a real risk of prosecution (see [24]-[25] of the judgment).
WM (Democratic Republic of Congo) v Secretary of State for the Home Department; AR (Afghanistan) v Secretary of State for the Home Department [2006] All ER (D) 109 (Nov) considered; R (on the application of AK (Afghanistan)) v Secretary of State for the Home Department [2007] All ER (D) 173 (May) considered.