F.a. V. A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | C J MACAULAY, Q.C. |
| Neutral Citation | [2010] CSOH 159 |
| Docket Number | P790/09 |
| Date | 30 November 2010 |
| Court | Court of Session |
| Published date | 30 November 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 159 | |
| P790/09 | OPINION of C J MacAULAY QC (Sitting as a Temporary Judge) in the petition of F A Petitioner; against A decision of the Secretary of State for the Home Department Respondent; ________________ |
Petitioner: Caskie; Drummond Miller
Respondent: Lindsay; C Mullin
30 November 2010
Introduction
[1] The petitioner seeks Judicial Review of a decision of the Secretary of State for the Home Department ("the respondent") that certified his claim not to be removed from the United Kingdom as clearly unfounded. The petitioner claimed that his removal from the United Kingdom would constitute a breach of Article 8 of the European Convention of Human Rights ("the Convention"). By decision letter dated 5 May 2009 the respondent intimated her decision refusing the petitioner's application. Subsequently that decision was confirmed by letter dated 7 April 2010. That decision was to the effect that the petitioner's claim not to be removed from the United Kingdom was to be regarded as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("the 2004 Act").
[2] So far as the appropriate legal test applicable to a certification case under the 2004 Act was concerned, it was common ground between the parties it is as expounded by the House of Lords in Z T (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6. In that case Lord Phillips of Worth Matravers said at paragraph 23:
"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational".
Facts
[3] The petitioner is a citizen of Afghanistan, born on 8 April 1988. He first arrived in the United Kingdom when aged 13 in late 2001 and claimed asylum. He was granted leave to remain by the respondent for a period of 4 years. For the first 6 months of his stay in the United Kingdom the petitioner was accommodated at an under 16's Asylum Seekers Unit in Kent. Thereafter from mid-2002 he lived with a cousin in Glasgow. He attended an Academy in Glasgow and undertook standard grade examinations there.
[4] By letter dated 21 December 2005 from solicitors acting on behalf of the petitioner, and enclosing the relevant application form, the petitioner applied for Indefinite Leave to Remain in the United Kingdom. Apparently the petitioner received no decision from the Respondent on that application. By that time one of the petitioner's sisters had also come to live in the United Kingdom where she lived lawfully as a spouse. She has two young children.
[5] According to the petitioner, he returned to Afghanistan by lorry in 2008. He remained outwith the United Kingdom for some ten months or so until 7 April 2009 when he was discovered on a train travelling through the Euro tunnel from France. He had travelled by lorry to return to the United Kingdom but en route he encountered the Dutch police. In the Netherlands he was fingerprinted and claimed asylum. It was after that claim had been made that he returned to the United Kingdom.
[6] On his re-entry to the United Kingdom the petitioner was served with illegal entry papers. He was detained and interviewed. In the course of that interview the petitioner lied about his identity and connection with the United Kingdom. In particular he claimed that he had never been in the United Kingdom before and that he had no immediate family. However, his fingerprints were matched on the European fingerprint database and that revealed that he had made a claim for asylum in the Netherlands on 21 October 2008. His fingerprints were also matched on the United Kingdom Border Agency's immigration fingerprint database and that match revealed his previous claim for asylum in a different identity on 12 March 2002.
[7] Under Council Regulation (EC) No 343/2003 of 18 February 2003, a scheme known as the "Dublin 11 Regulations," provision is made for a hierarchy of responsibility should more than one state in the European Union have responsibility for determining a claim for refugee status. As the Petitioner had claimed asylum in the Netherlands, on 14 April 2009 the respondent asked the Dutch Immigration Authorities to accept responsibility for the determination of the petitioner's claim. On 21 April 2009 the Dutch Immigration Authorities accepted that they were the state responsible for determining the petitioner's claim for refugee status. It was not disputed that the Netherlands was at the top of the hierarchy of states responsible for determining the petitioner's claim.
[8] By letter dated 28 April and 1 May 2009, solicitors acting on behalf of the petitioner invited the respondent to determine the petitioner's claim to remain in the United Kingdom. Now the essence of the petitioner's claim was that removal would constitute a breach of Article 8 of ECHR. The petitioner was due to be removed to the Netherlands on 6 May 2009. The petitioner raised...
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