Mrs. F.n.g. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Judgment Date | 06 February 2008 |
| Neutral Citation | [2008] CSOH 22 |
| Court | Court of Session |
| Published date | 06 February 2008 |
| Docket Number | P2086/07 |
| Date | 06 February 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 22 | |
| P2086/07 | OPINION OF LORD HODGE in the petition of MR F.N.G. (AP) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department to certify her decision to refuse the Petitioner's application on human rights grounds to remain in the United Kingdom, in terms of Section 94(2) of the Nationality, Immigration and Asylum Act 2002, and to decide to remove the Petitioner from the United Kingdom ________________ |
Petitioner: Caskie, Advocate; Drummond Miller, LLP
Respondent: A F Stewart, Advocate; C Mullin
6 February 2008
Background
[1] The petitioner is a citizen of Liberia. He is aged twenty-three. He is deaf. He entered the United Kingdom illegally on 1 January 2007, having travelled through several African states, Spain and France. On 27 February 2007 he sought asylum under the Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol ("the Refugee Convention"). He also submitted that an order removing him from the United Kingdom would if implemented be a breach of articles 3, 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR").
[2] By letter dated 24 July 2007 ("the decision letter") an official on behalf of the Secretary of State for the Home Department refused his application for asylum and concluded that his removal would not be contrary to the United Kingdom's obligations under the ECHR. The official also certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") that both the asylum claim and the human rights claim were clearly unfounded. This certification has the effect that the petitioner cannot appeal the Secretary of State's decision through the statutory appeal framework while remaining in the United Kingdom.
[3] In this application the petitioner seeks to challenge the certification in relation to his ECHR claim and thereby open his right of appeal to the Asylum and Immigration Tribunal ("AIT"). He accepts the certification that his claim under the Refugee Convention is clearly unfounded. His submission is that the certification that his ECHR case was clearly unfounded was unreasonable in the Wednesbury sense.
The Petitioner's submissions
[4] Mr Caskie, on behalf of the petitioner, supported his submission that the Secretary of State's decision was unreasonable by four arguments. First, he submitted that the statutory test for certification was a high one and required that before certifying the claim as clearly unfounded the Secretary of State should put herself into the mind of an immigration judge who might take an unusually generous view of the facts provided that that view was not perverse. Unless the Secretary of State could be satisfied that the unusually generous immigration judge would necessarily find against the claimant, the claim could not be certified as clearly unfounded. Had the Secretary of State considered the matter in this way, she would not have certified the claim as clearly unfounded.
[5] Secondly he submitted that in the context of returning a person to another country a claim under article 8 of ECHR should have regard to the physical and moral integrity of the claimant and that circumstances which did not amount to a breach of article 3 could nonetheless be a breach of article 8: R (Bernard) v London Borough of Enfield [2002] EWHC 2282 (Admin).
[6] Thirdly Mr Caskie submitted that the Secretary of State had erred in failing to treat a country guidance case on Liberia by the Immigration Appeal Tribunal ("IAT"), namely LB (Article 3- Monrovia - Security) Liberia CG [2004] UKIAT 00299, as the starting point in her consideration of the state of affairs in Liberia. He submitted that the case revealed that conditions in Liberia, and in particular in Monrovia, in the aftermath of the civil war were such that it might amount to a breach of article 3 or article 8 of ECHR if a deaf person were to be returned there. If proper regard were had to the country guidance case, it was possible that a generous Immigration Judge might conclude that there was a breach of one or other of those articles.
[7] Finally he submitted that the decision to certify was vitiated by the absence of a proper basis in fact for the Secretary of State's findings of fact about the activities in Liberia of certain non-governmental organisations ("NGOs") whose activities included the provision of assistance to deaf people.
Discussion
The test
[8] Section 94(2) of the 2002 Act provides:
"A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."
The statutory test for certification is that the Secretary of State must be satisfied that the claim is clearly unfounded. That is a high threshold.
[9] In several cases, judges have commented on the statutory words and have paraphrased them. In R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230, Lord Phillips of Worth Matravers stated (para 57) that if the claim cannot on any legitimate view succeed it is clearly unfounded. In R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 Lord Carswell stated that the Secretary of State must be reasonably and conscientiously satisfied that the application must fail (para 69). In R (Yogathas and Thangarasa) v Secretary of State for the Home Department [2003] 1 AC 920, (which concerned the test of "manifestly unfounded" which is substantially the same test) Lord Bingham of Cornhill said that the Secretary of State is entitled to certify "if he is reasonably and conscientiously satisfied that the allegation must clearly fail" (para 14), Lord Hope of Craighead said that the threshold for certification is that the claim "is so clearly without substance that the appeal would be bound to fail" (para 34), Lord Hutton said that an allegation was manifestly unfounded "if it is plain that there is nothing of substance in the allegation" (para 72) and Lord Scott of Foscote posed the question whether the claim was "arguable" (para 117).
[10] The focus of the statutory test is primarily on the quality of the claim rather than the prospects of success on an appeal. That is the also the focus of the judicial paraphrases. The claim must be "clearly" unfounded for the Secretary of State to certify. Thus if the Secretary of State came to the view that a claim fell to be rejected only on a fine balance of considerations, she would not be in a position to say that it was clearly unfounded.
[11] In deciding whether a claim is "clearly unfounded", the Secretary of State has to allow for possible differences of opinion as she must take account of all legitimate views of the law and the facts: R (L) Lord Phillips (para 58). The House of Lords in Razgar held, in particular in the judgment of Lord Bingham (paras 16 to 20), that the judicial review court in addressing a challenge to certification should ask itself the questions which the immigration judge would have to answer. Thus in answering, for example, the question whether the removal of an applicant would have consequences of such gravity as potentially to engage the operation of article 8, the reviewing court would ask whether the answer, which an immigration judge had to give, would or should be negative. In answering the relevant questions in a way in which an immigration judge would or might properly answer them, the court allows for possible differences in opinion so long as the opinion is not perverse. Lord Carswell in that case (at para 77) said that in the light of the information before the judicial review court it must ask whether the case is so clearly in favour of upholding the decision to remove the applicant that no reasonable immigration judge could hold otherwise. So indeed must the Secretary of State when considering certification.
[12] Mr Stewart on behalf of the respondent submitted that the issue for the court in a judicial review is whether, on the material before her, the Secretary of State was entitled to be satisfied that the claim was bound to fail: MK v Secretary of State for the Home Department [2007] CSOH 128, Lord MacFadyen at paragraph 22. I accept that submission subject to a qualification which is not relevant to the present case which I discuss in the next paragraph. Mr Stewart's formulation is consistent with the traditional role of the court in judicial review. But so stating the issue does not preclude the court in the context of an ECHR challenge from subjecting the impugned decision to careful scrutiny in the course of that review. The court as a public authority has a legal duty to act to avert or rectify a violation of an ECHR right: Huang v Secretary of State for the Home Department [2007] 2 AC 167 (para 8).
[13] The qualification to which I referred arises out of the...
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