This decision involves judicial review, asylum seeking, fresh claims, certification and the politically plagued postcolonial country of the Republic of Congo (Congo-Brazzaville). In testing times for judicial review, especially in the field of immigration law, this case demonstrates that resilient people can still win against the odds.
The instant court recalled that this judicial review claim was brought with Moore-Bick LJ’s permission after an oral hearing as regards renewal. HHJ Jeremy Richardson QC prefaced his extempore judgment with the history of the application: prior to permission being granted, Sir Stanley Burnton refused permission on the papers in the Court of Appeal; similarly Wilkie J refused permission on the papers in the Administrative Court and HHJ Langan QC did the same at an oral hearing.
At paras 4 – 5 of the present judgment, describing the claimant (SN) and his lawyers as people “of some tenacity”, HHJ Richardson remarked that:
This litigation has a prolonged and tortuous history. I trust it will be brought to an end as soon as may be.
Moreover, preferring SN’s arguments to those advanced by the Secretary of State for the Home Department (SSHD) “by some margin” (para 2), the court described Congo as a country “with a deeply troubled history” and “a deeply troubled present” (para 6). SN’s challenge attacked the SSHD’s mid-2013 decision to reject his fresh claim and certify it as clearly unfounded. HHJ Richardson observed at para 4 that SN’s claim as regards asylum and humanitarian protection had not only been looked into by the SSHD but also by:
… at least three immigration judges, including on appeal and even prior to the recent foray to the Court of Appeal as a paper application for permission to appeal and an oral hearing upon a renewal in November 2011 in the Court of Appeal.
After the above challenges failed, the fresh claim (with which the court was concerned) followed and at para 5 the court noted that:
Even then there was something of a false start because a fresh decision had to be made following the agreement of the Secretary of State to withdraw an earlier decision.
A married man with many children and a doctorate in economics, SN arrived in the UK in August 2009 and claimed asylum a month later. The claim was refused soon afterwards; SN’s appeal failed in both tiers of the tribunal and permission to appeal to the Court of Appeal was subsequently refused. SN was a consultant to the government in Congo. However, he simultaneously became the economics editor of Le Temp newspaper. He claimed that President Pascal Lissouba owned the paper and when President Cecil Sassou-Nguesso deposed Lissouba, trouble began for SN who retreated to the life of a university lecturer because of death threats. He moved around and worked for a company. Subsequently, he went to a refugee camp and returned to Brazzaville to resume government work but no longer associated with Le Temp.
The rest of SN’s story is what some people would describe as sketchy: SN claimed to have been threatened, handcuffed and taken to an unknown house by soldiers; he said that he witnessed his sister-in-law and wife being raped. But thereafter he was taken to a military officer and received some money and made his way to Kinshasa, then to France and ultimately to Cameroon where he claimed Le Temp journalists known to him were killed. Noting that some of the claims SN made about the threats he received in Cameroon seemed “far-fetched”, the court explained that:
11. … Africa is a continent where on occasion the far-fetched, as it seems to western eyes, is actually the norm. That, however, will be a matter for an Immigration Judge in the future to determine in all likelihood.
As regards fresh claims, HHJ Richardson emphasised that (i) there needs to be genuinely new material which is significantly different to the material that has already been considered and (ii) when taken as a whole, the SSHD needs to ask whether there is a realistic prospect of success if the matter should be re-judged by an Immigration Judge (IJ). The existence of new material was undisputed in SN’s case. Applying the case of WM (DRC) v SSHD  EWCA Civ 1495, the court explained that the SSHD needed to:
- Evaluate if there is a realistic prospect of success that an IJ would think that there is a real risk of SN being persecuted on his return;
- Answer the above question with the old and the new material in mind; and
- Afford anxious scrutiny to all the material before her.
The court said that without anxious scrutiny the decision would be irrational. Equally, the SSHD’s own view about the material did not really count because the question that needs answering is whether there is a realistic prospect an IJ applying anxious scrutiny would think that there is a real risk of persecution. Although HHJ Richardson clarified at para 17 that the new material made “powerful reading”, he nevertheless refrained from setting it out in detail because he wanted to avoid misinterpretation and did not want to “raise false hope of success”. The court reiterated that in light of the expert evidence:
18. … The real issue is whether that aspect of the matter has received anxious scrutiny and whether that new material, viewed in the way I have described, has the potential for an immigration judge to take a different course than that adopted heretofore.
Rather than SN’s claim being clearly unfounded, in light of fresh claims jurisprudence, it was clear to the court that the SSHD had erred. Therefore, the SSHD’s questionable decision that SN’s claim was clearly unfounded was quashed. She had failed to fully engage with LM (Risks on Return Republic of Congo-Brazzaville) CG  UKIAT 00064 which left open the possibility that danger to some opponents of the regime still remains and the test as regards continued risk continues to turn on a person’s background and profile; the extent of political involvement; and whether s/he has or is likely to come to the authorities’ attention.
Overall, the court was not persuaded that anxious scrutiny had been given by the SSHD to the old and new material and therefore HHJ Richardson held that an IJ might reach a different conclusion in light of all of the circumstances – especially the extent of SN’s involvement in President Pascal Lissouba’s deposed regime.
Given that a judge as elevated and erudite as Sir Stanley Burnton erred in refusing permission on the papers in this case, the only lesson to learn is that even in impossible cases resilience and tenacity do reap rewards.