H.h. (ap) V. The Secretary Of State For The Home Department For Judicial Review

JurisdictionScotland
CourtCourt of Session
JudgeTemp Judge J. Beckett QC
Neutral Citation[2012] CSOH 83
Date16 May 2012
Publication Date16 May 2012
Docket NumberP1346/11

OUTER HOUSE, COURT OF SESSION

[2012] CSOH 83

P1346/11

OPINION OF J BECKETT QC

(Sitting as a Temporary Judge)

in Petition of

HH (AP)

Petitioner:

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

Judicial Review of a decision of the Secretary of State dated 24 October 2011

_______

Petitioner: Winters, Drummond Miller LLP

Respondent: Campbell QC, Office of the Solicitor to the Advocate General

16 May 2012

Introduction

[1] The petitioner is a 22 year old national of Nigeria. For reasons set out in a letter of 24 October 2011 the Secretary of State refused her claim for asylum, Humanitarian Protection and Discretionary Leave. The petitioner seeks reduction of the Secretary of State's decision to certify her claim under section 96 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The Secretary of State also decided to remove the petitioner from the United Kingdom. The decision to remove would ordinarily be appealable under section 82 (1) of the 2002 Act. However, certification deprived the petitioner of the opportunity of appealing. The case came before me in a first hearing in which Mr Winters, Advocate, appeared for the petitioner and Mr Campbell QC for the respondent.

The facts of the case

[2] The petitioner was born in Nigeria on 24 June 1989. She has three children who were born in the United Kingdom but who do not have British Citizenship; NMH (born 12.10.2006), NAH (born 26.10.2007) and NJH (born 2.12. 2009). NAH was born with neonatal hypoxic ischaemic encephalopathy and has spastic diplegia and developmental delay. She is prescribed baclofen, which offers some relief from but does not cure her condition. She has received a variety of treatments from a paediatric specialist, a physiotherapist, a speech and language therapist, an occupational therapist, and support from a social worker and staff at the day centre which she attends three times each week. By September 2011, she was no longer receiving regular physiotherapy.

[3] In October 2005, the petitioner was issued a six month visitor visa by the British High Commission in Abuja, valid from 28 October 2005. She entered the United Kingdom on 14 November 2005. She was granted a visa extension to 20 March 2008 on the basis of dependency on her husband, CH, who was already in this country. She had married CH in Nigeria on 23 February 2005.

[4] CH arrived in the United Kingdom on 2 January 2003 on a student visa and obtained an MBA in marketing from Abertay University in 2005. He was subsequently awarded a 'Fresh Talent' visa which expired on 20 March 2008 since when his presence, and that of the petitioner, in the United Kingdom has been unlawful. On 1 July 2010 CH made a claim for asylum which was rejected by the Secretary of State on 22 July 2010. His appeal against that decision was rejected by the First-tier Tribunal on 13 September 2010 and his appeal rights became exhausted on 29 September 2010.

[5] On 9 March 2011 the petitioner claimed asylum in her own right and her husband and her children were then dependents on her claim. Following interviews by her officials of the petitioner on 16 March and 21 September 2011, the Secretary of State made the decisions which I have narrated in paragraph [1] above.

The decision letter of 24 October 2011
[6] Mr Winters addressed me on the decision letter in some detail.
Paragraphs 17-62 can be summarised as follows: the petitioner's account that she was at risk from her uncle in Nigeria was rejected on grounds of credibility; it was not accepted that he was in the Nigerian Police Force; it was not accepted that he had arranged a marriage for her in Nigeria; it was not accepted that he had the resources or ability to find her anywhere in Nigeria; little weight was placed on an affidavit said to be from the petitioner's mother; her immigration history, particularly failure to mention sooner the matters now raised, and failures to apply for asylum earlier were viewed as damaging to the petitioner's credibility. It was considered that the petitioner could safely return to Nigeria. There was no reasonable degree of likelihood that she would be persecuted on return to Nigeria and the reason she claimed that she would be persecuted did not engage the 1951 Refugee Convention.

[7] The question of whether return to Nigeria would lead the petitioner to suffer treatment contrary to articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms, and whether her rights under article 3 may be breached on account of her daughter's health, was considered in paragraphs 63-69. It was concluded that the petitioner did not qualify for Humanitarian Protection.

[8] Between paragraphs 70 and 85 consideration was given to the petitioner's claim under article 8 of the Convention, under the heading "Discretionary Leave." This aspect of the claim was also rejected. At paragraphs 88-90 the effect of section 96(2) of the 2002 Act was considered and certification was made.

[9] There is a section of the letter in these terms:

"Credibility

Details of new asylum claim

17. As a relevant starting point, it is noted that you were a dependant on your husband's asylum claim dated 1 July 2010. This was refused and went to the First Tier Tribunal who refused your husband's asylum claim on all grounds.

18. During this process you were issued with One Stop Notices under Section 120 of the Nationality, Immigration and Asylum Act 2002 on 1 July 2010 and 22 July 2010. Your husband was issued with the same notice on 1 July 2010. These notices require you to provide a statement of all the grounds you wish to claim asylum in the United Kingdom. It is noted that at no time throughout your first asylum application (with your husband as the main applicant) did either of you mention that you feared a family member as you now claim.

19. It is also noted that you husband was provided with another One Stop warning on refusal of his asylum application (see SD151B dated 22 July 2010) which should be provided on the grounds of appeal form for the First Tier Tribunal. Again your husband made no reference to any claimed fear of a family member/in-law in Nigeria. It is also noted that you appeared as a witness at your husband's asylum hearing and no mention was made of your alleged problems with your uncle at this time."

After detailed reasoning, it was concluded that the petitioner did not qualify for refugee status or for Humanitarian protection. She was refused Discretionary Leave. Paragraph 86 of the letter deals with her claim being refused under paragraphs 336 and 339F of the Immigration Rules, before the letter continues:

"87. On the basis of the information you have provided, it has been concluded that removing you from the UK or requiring you to leave would not be contrary to the UK's obligation under the ECHR.

88. Section 96(2) of the Nationality, Immigration and Asylum Act 2002 has also been considered which states:

[the terms of section 96(2), which I reproduce in paragraph [11] below, are quoted.]

89. You were served with a One Stop Warning under Section 120 of the Nationality, Immigration and Asylum Act 2002, on 01 July 2010 and 22 July 2010 by virtue of your husband's asylum claim (on which you were a dependant). The matters raised as part of your new claim were not raised previously in a statement in response to that notice. The Secretary of State is satisfied that you were served with this notice and considers that there is no satisfactory reason for these matters not having been raised in response to this notice. As a result, your application for asylum has been certified under section 96 of the Nationality, Immigration and Asylum Act 2002.

[the emphasis is mine]

90. Therefore this decision does not attract a right of appeal under any section of the Nationality, Immigration and Asylum Act 2002."

[10] Whilst the terms of paragraph 89 might be open to the construction that it was only one part of the claim, asylum, which was being certified, the 'Decision Service Record' and 'Notice of Immigration Decision' which form part of no. 6/1 of process and attach to the decision letter of 24 October 2011, make it plain that the whole claim had been certified. It was not suggested in the argument before me that the decision to certify was limited in its effect.

Relevant statutory provisions

[11] Section 96(2) of the 2002 Act provides:

"(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

[12] Section 120 is in these terms:

"120 Requirement to state additional grounds for application

(1) This section applies to a person if-

(a) he has made an application to enter or remain in the United Kingdom, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state-

(a) his reasons for wishing to enter or remain in the United Kingdom,

(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c) any grounds on which he should not be removed from or required to leave the United Kingdom.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in-

(a) the...

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