Anr For Judicial Review Of Decisions Of The Secretary Of State For The Home Department

JurisdictionScotland
JudgeLord Jones
Neutral Citation[2013] CSOH 107
Published date28 June 2013
Docket NumberP892/12
CourtCourt of Session
Date28 June 2013

OUTER HOUSE, COURT OF SESSION

[2013] CSOH 107

P892/12

OPINION OF LORD JONES

in Petition of

ANR (Pakistan)

Petitioner;

for

Judicial Review of decisions of the Secretary of State for the Home Department (i) dated 15 August 2012 to remove the petitioner from the UK on Tuesday 28 August 2012 and (ii) dated 31 August 2012.

________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: MacGregor; Scottish Government Legal Directorate

28 June 2013

Introduction

[1] The petitioner avers that he is 31 years of age, and a national of Pakistan. According to his averments, on or about 19 January 1998, the petitioner entered the United Kingdom. He claimed asylum, but that claim was rejected in May 2000. He continued to reside in London, where he was required to report regularly to the immigration authorities. He did so until September 2003, when he disappeared. He was traced by the immigration authorities in July 2004, and new reporting instructions were issued, requiring the petitioner to report regularly to a different local immigration detention centre.

[2] In March 2010, the petitioner was imprisoned, having been convicted of certain motoring offences. On his discharge, he was transferred to immigration detention under the control of the respondent. On 16 August 2010, directions were issued for his removal from the United Kingdom, to be effected on 2 September 2010. On 25 August 2010, solicitors who were then acting for the petitioner wrote to the United Kingdom Border Agency, claiming, amongst other things, that his removal from the United Kingdom would disproportionately interfere with his right to a private life, in terms of article 8 of the European Convention on Human Rights. It is averred that these solicitors were unaware of any facts or circumstances which might give rise to any other claim. Following receipt of the letter of 25 August 2010, the respondent cancelled the removal directions, and the petitioner was released from detention. By letter, dated 1 September 2010, the respondent rejected the petitioner's article 8 claim, and issued a notice in terms of section 120 of the Nationality Immigration and Asylum Act 2002 ("the Act'), requiring him to make "a formal statement about any reasons why (he thought that he) should be allowed to stay in this country". (6/4 of process) The petitioner appealed the refusal of his claim and, in due course, his appeal was dismissed. His rights of appeal were exhausted as at 12 January 2011.

[3] On or about 2 March 2011, the petitioner was again detained. Directions were issued for his removal from the United Kingdom on 9 March 2011. On 4 March 2011, his present solicitors wrote to the respondent, intimating a fresh claim for asylum, on the ground that the petitioner feared persecution if returned to Pakistan, because he had converted to the Ahmadi religion in April 2008. (6/5 of process) On 8 March 2011, the respondent rejected his claim, and certified that, in terms of section 96(2) of the Act, there was no satisfactory reason why a claim that he would be persecuted on account of his religion was not raised earlier. (6/6 of process) The effect of such certification is to exclude an appeal against an immigration decision which would otherwise lie under section 82(1) of the Act.

[4] On 7 March 2011, a petition was lodged in this court on behalf of the petitioner, seeking judicial review of the respondent's decision to remove him from the United Kingdom on 9 March 2011. (6/7 and 6/8 of process) First orders were granted, the removal directions were suspended, and a first hearing was fixed for 9 June 2011. At the conclusion of the first hearing, the Lord Ordinary made avizandum. On 29 June 2011, the respondent withdrew the letter of 8 March 2011, and indicated that the petitioner's claim would be reconsidered. Thereafter, the petition was dismissed, of consent.

[5] On 12 October 2011, the respondent issued a new decision letter in place of the one dated 8 March 2011. (6/2 of process) She rejected the fresh claim for asylum which had been submitted on behalf of the petitioner, and she again certified his claim in terms of section 96(2) of the Act. She also certified his claim in terms of section 96(1) which has the same effect as a section 96(2) certificate. (6/2 of process) The respondent's decision to certify in terms of section 96(1) and 96(2) is the subject of challenge in this application for judicial review.

[6] On 15 August 2012 the petitioner was detained by the immigration authorities and sent to Dungavel House, Immigration Detention Centre, Strathaven. On the same day, the respondent issued a decision to remove the petitioner from the United Kingdom on Tuesday 28 August 2012, and, by letter dated 15 August 2012, the petitioner was advised that his removal would be suspended only on "the Order or Direction of the court." (6/1 of process)

The present application

[7] Following his detention, the petitioner's solicitors raised fresh proceedings for judicial review ("the second petition"), challenging the respondent's decision of 15 August 2012 to remove the petitioner from the United Kingdom on 28 August 2012, and the section 96(1) and (2) certifications of 12 October 2011. On 24 August 2012, the Lord Ordinary granted first orders, and an order suspending the removal directions ad interim. On 31 August 2012, the respondent issued a fresh decision letter which, once again, contained section 96(1) and (2) certifications. (6/10 of process) She stated in this letter that it replaced previous decision letters (including her letter dated 12 October 2011).

[8] Following receipt of the letter of 31 August 2012 (to which I shall henceforth refer as" the decision letter"), the second petition was amended. The matter came before me for a first hearing on 28 November 2012.

The decision letter

[9] The relevant parts of the decision letter are in the following terms:

"11. It is not accepted that your client has genuinely converted to the Ahmadi faith. Your client had an appeal hearing on 12 November 2010, represented by Counsel, where he failed to mention that he had changed his religion. It is understood that your client's explanation for his failure to mention his conversion at that appeal hearing is that 'at no time was (he) advised in any appeal marked against the decision of the respondent dated 1st September 2010 to state any additional grounds. His solicitors did not advise him to do so.'

12. Whilst that explanation is very far from a satisfactory one for the purposes of s 96, it is also considered to be one which significantly detracts from his credibility. Firstly, he is already a failed asylum seeker who can be taken to have at least some knowledge of seeking international protection and what asylum means. On that basis it cannot be said that he was unaware of the possibility of seeking international protection due to a fear of persecution in his own country.

13. Secondly, he is a citizen of Pakistan and would plainly be aware of the significance of converting from one of the two main strands of Islam to the Ahmadi faith. Your own objective evidence provided with your letter of 16 August 2012 sets out some of the problems experienced by practitioners of that faith. Given that he converted over 2 years prior to his human rights claim and appeal it is simply inconceivable that he would not have thought that this was of significance to his claim to remain in the UK. Neither is it at all clear why he would have thought that he would needed to have been asked about it by his solicitors before disclosing his conversion. Moreover, his statement, made in connection with his claim of 4 March 2011, clearly shows an awareness of the significance of his claimed conversion and the risk that this might put him under generally and if he preaches that faith on return to Pakistan. On that basis, and in the absence of any sensible explanation from your client, it is considered entirely reasonable that he would have been aware of the significance of his conversion in November 2010 when he had his human rights appeal. His failure to mention it until just before his removal in March 2011 is considered to detract from his credibility.

14. Thirdly, your client's human rights claim was made on the basis of both a family and private life established in the UK. For neither of those limbs of Article 8 can it be said that his conversion to the Ahmadi faith was irrelevant. For example, as our letter of 12 October 2011 sets out, your client now avers that his claimed conversion to the Ahmadi faith has put him at risk from various family members who object to it. In your client's witness statement for his appeal in November 2010 he sets out in relative detail information about his family in Pakistan. That statement refers to the concern of his family for his safety following the death of his brother due to political violence in Pakistan. It is striking that nowhere in that statement does your client express a fear of his family despite the fact that, by that stage, he had allegedly converted to the Ahmadi faith about 21/2 years ago. It has not been claimed that they only recently became aware of his conversion. The absence of any reference in that statement to problems that he might have experienced with his family following his conversion to the Ahmadi faith, is also considered to significantly detract from the credibility of his claim. This is particularly so as it is now claimed that they would be one of the potential agents of persecution in his latest claim.

15. Furthermore it is noted that your client in his witness statement states that he would be unable to relocate in Pakistan because his cousin ... has added his name to the list of the most wanted persons [at Lahore Airport]. This would lead to his arrest on arrival back in Pakistan. In light of what is said above about the inconsistent evidence (or lack of evidence at various times) about his family's...

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