Petition Of A H C (ap) For Judicial Review Of A Decision By The Upper Tribunal (immigration And Asylum Chamber) Dated 12 August 2010 And Answers For T
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2012] CSOH 147 |
| Date | 11 September 2012 |
| Docket Number | P950/10 |
| Published date | 11 September 2012 |
| Court | Court of Session |
| Year | 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 147 | |
| P950/10 | OPINION OF LORD STEWART in the Petition of A H C (AP) Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) dated 12 August 2010 to refuse the petitioner leave to appeal and Answers for The Secretary of State for the Home Department Respondent: ________________ |
Petitioner: Winter, advocate; Drummond Miller LLP
Respondent: K Campbell QC; Office of the Solicitor for the Advocate General
11 September 2012
[1] Underlying this immigration judicial review is a substantive issue about the removal to Pakistan of Christian converts - apostates in the eyes of their former co‑religionists. There is also an issue about the limits of this Court's power, in the exercise of its common law supervisory jurisdiction, to review decisions of the Upper Tribunal in respect of which Parliament has excluded further appeals [Eba v Advocate General for Scotland 2011 SLT 768]. The decision which this petitioner seeks to bring under review is a decision of 12 August 2010 by a senior immigration judge of the Upper Tribunal (Immigration and Asylum Chamber) refusing the petitioner leave to appeal against, in a nutshell, a decision that he should be removed to Pakistan; and the petitioner, who is an illegal immigrant, now comes to this court to get another chance to argue that he should be allowed to stay in the United Kingdom.
[2] This is one of a number of judicial review petitions sisted to await the outcome of Eba v Advocate General for Scotland in the Supreme Court. Shortly after the sist expired, on 13 September 2011, the Lord Ordinary fixed a First Hearing for 18 January 2011. I presided at the First Hearing on that date and having heard submissions I made avizandum. I have decided that the petition must be granted. In coming to this decision I have exercised "anxious scrutiny" on the basis that, it is said, removal to Pakistan would involve extreme risk for the petitioner. The risk is said to be the risk of torture and inhuman or degrading treatment while in custody in Pakistan consequent on arrest for blasphemy.
[3] Although the issue of "persecution" flits in and out of the record as if this were, or might be, a "well-founded fear of persecution", 1951 Refugee Convention case, Mr Winter, counsel for the petitioner, clearly stated that this is an article 3, 1950 European Convention on Human Rights [ECHR], case (right not to be subject to torture or to inhuman or degrading treatment or punishment), and that is all it is. I do not have a view as to whether the petitioner should be given humanitarian protection and allowed to stay: my concern is that his case should be properly determined; and that if he is to be removed he should be removed on solid grounds. I have reached my conclusion without regard to the question whether the petitioner's position is a deserving one, a question on which, I dare say, there will be a range of opinions.
Background
[4] The petitioner is a national of Pakistan. He was born on 8 December 1974 and is now aged 37. On his account he entered the United Kingdom illegally in 1999. He came to the attention of United Kingdom Border Agency [UKBA] in 2007 when he was found working in a restaurant in Falkirk. He was served with removal papers, form IS151A. He then claimed asylum on article 8 ECHR grounds (right to respect for private and family life). This was on the basis of his relationship with a female British citizen, Ms IAS. On 24 November 2009 UKBA, acting for the Secretary of State, refused the application for leave to remain and affirmed the decision to remove the petitioner to Pakistan. The petitioner then appealed to the First-tier Tribunal (Immigration and Asylum Chamber).
[5] At this point I should mention the fact, a fact which has subsequently become central to the case, that, also in 2007, precise date unspecified, the petitioner converted from his ancestral faith, Islam, to Christianity. He was baptised in 2008. He is a practising Christian. He adheres to a pentecostal church in Falkirk. He assists with pastoral care and ministry for his church. He will be viewed by Muslims as an apostate. His apostasy is known to his family in Pakistan and he has been disowned. In order to obtain a national identity card for his return to Pakistan the petitioner will have to declare his religion. The immigration judge who presided at the First-tier Tribunal hearing accepted the evidence, which he described as "clear and credible", about the petitioner's Christianity. He found that the petitioner "lives out daily practice of his Christian faith".
[6] It ought to be appreciated that the evidence offered to the immigration judge about the petitioner's Christianity went unchallenged by UKBA on behalf of the Secretary of State. This is because UKBA chose not to be represented at the First-tier Tribunal hearing. (The indication to the contrary at paragraph 11 of the immigration judge's decision is a mistake.) Mr Winter's submission to me that the petitioner is a "genuine" Christian convert was also not contested by senior counsel for the Secretary of State who is now the respondent to this petition. This is important because it distinguishes the petitioner from the applicants in the two previous Christian-convert-Pakistan reported cases [AJ (Risk -Christian Convert) Pakistan CG [2003] UKIAT 00040, §§ 3, 5, 22, 28, 29; Rana, R (on the application of) v Upper Tribunal (Immigration & Asylum) & Anor [2010] EWHC 3558 (Admin), § 4, reported in the Supreme Court as R (MR (Pakistan)) with R (Cart) v Upper Tribunal [2011] 3 WLR 107 at §§ 5, 59].
[7] On 12 March 2010 Ms IAS withdrew her support for the petitioner's article 8 ECHR claim. The petitioner departed from his article 8 ECHR claim. His appeal to First-tier Tribunal was then presented solely on the new basis of threatened violation of his article 3 ECHR rights. The logic of the case was and is that, if removed to Pakistan, the petitioner would face a charge of blasphemy; that if charged he would be taken into custody; and that while in custody he would be tortured and subject to inhuman or degrading treatment. The immigration judge held that the argument presented on behalf of the petitioner was not supported by the background materials put before him, particularly in relation to the risk of torture and unacceptable conditions in prison. He found that the case law directly contradicted the argument. He refused the appeal holding that UKBA's determination "would not cause the United Kingdom to be in breach of the law or its obligations under the 1950 Convention". The immigration judge's determination was promulgated on 28 April 2010.
Applications for leave to appeal
[8] In terms of the Tribunals, Courts and Enforcement Act 2007 there is a so‑called right of appeal to the Upper Tribunal on a point of law arising from a decision made by a First-tier Tribunal. The right may be exercised only with the permission of the First-tier Tribunal or of the Upper Tribunal. The petitioner applied in turn to both the First-tier Tribunal and the Upper Tribunal, as he was entitled to do. The petitioner's application for permission to the First-tier Tribunal (Immigration and Asylum Chamber) was refused on 18 June 2010. The petitioner then, applied to the Upper Tribunal (Immigration and Asylum Chamber) for permission to appeal to the Upper Tribunal. By a decision issued on 12 August 2010 a senior immigration judge refused permission to appeal.
[9] Parliament has excluded any further appeal, so that the only way the petitioner can keep his claim alive is by invoking the common law supervisory jurisdiction of this Court. Traditionally this Court has exercised oversight of "inferior judicatories" to ensure that the rule of law is maintained. The supervisory jurisdiction has been extended in recent times to encompass all errors of law. [Tribunals, Courts and Enforcement Act 2007 ss. 11(4), 13(1) and (8)(c); West v Secretary of State for Scotland 1992 SC 385 at 395 per Lord President (Hope) delivering the Opinion of the Court; Eba v Advocate General for Scotland [2010] CSIH 78, §§ 34-42, 44-46 per Lord President (Hamilton) delivering the Opinion of the Court; Eba v Advocate General for Scotland 2011 SLT 768 at § 4 per Lord Hope of Craighead DPSC].
[10] The present petition seeks to have the decision of 12 August 2010 set aside, presumably so that the application for leave to appeal can be re-determined by the Upper Tribunal (Immigration and Asylum Chamber). The petitioner's complaints were, and are, that the immigration judge who made the original determination of 28 April 2010 failed to consider the case-law - including two "country guidance" cases - in the light of the up-to-date 2010 Country of Origin Information Report [COIR]; and that the immigration judge applied the wrong test for standard of proof. Essentially the current petition criticises the senior immigration judge who refused permission to appeal on 12 August 2010 for failing to address these complaints properly or at all. Altogether the petition claims that the decision by the senior immigration judge was "unreasonable et separatim irrational". As I read the petition, it specifies two errors of law on the part of the senior immigration judge.
[11] First, it is said, there was a failure of the senior immigration judge to have regard to the materials that were actually before the immigration judge and that this failure amounted to "a collapse of fair procedure". The petition points out, correctly, that paragraph 14(f) of the immigration judge's determination expressly states that an excerpt of the COIR, section 19, "Freedom of Religion", was placed before the immigration judge. In submissions, Mr Winter, counsel for the petitioner, told me that section 19 contains "90 per cent" of the relevant background material. I think this is a fair assessment, if not an underestimate, although the question may...
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