In Petition Of Jb For Judicial Review Of A Decision By The Secretary Of State To Certify The Petitioners Asylum Claim
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Neutral Citation | [2007] CSOH 121 |
| Court | Court of Session |
| Published date | 10 July 2007 |
| Date | 10 July 2007 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 121 | |
| OPINION OF LADY PATON in the petition of JB for judicial review of a decision by the Secretary of State to certify the petitioner's asylum claim in terms of section 96(1)(a)-(c) of the Nationality, Immigration and Asylum Act 2002 (as amended) ________________ | |
Petitioner: Melvin Farr, Advocate; Allan McDougall, Solicitors
Respondent: Drummond, Advocate; Advocate General's Office
10 July 2007
Asylum-seeker using false identity: certification in terms of section 96 preventing further appeal[1] An asylum-seeker faced with a removal notice has a statutory right of appeal. In particular in the circumstances outlined in sections 82 and 92(4) of the Nationality, Immigration and Asylum Act 2002 as amended, the asylum-seeker may appeal to a tribunal. However, there are exceptions and limitations to the right of appeal, including that contained in section 96 of the 2002 Act, as follows:
"Earlier right of appeal
(1) 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 was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, 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 an appeal against the old decision."
[2] In this judicial review, the petitioner seeks reduction of a certification made in terms of section 96(1), which prevents her from appealing against a removal notice.
[3] The petitioner entered the United Kingdom illegally in January 2003, all as set out in paragraph 15 of the adjudicator's determination, referred to below. She claimed to be a Sudanese national named HL, and to be married to DA, a member of the Sudanese People's Liberation Army (SPLA). She sought asylum. Asylum was refused by letter dated 24 March 2004. The petitioner appealed to an adjudicator. She was unsuccessful. The adjudicator's determination promulgated on 21 June 2004 contained the following observations:
"21. It has been noted that the [petitioner] was asked nationality questions in her asylum interview and was unable to answer these. Because of this it is concluded that it is not accepted that she is Sudanese and her claim for asylum is refused on the basis that she is not Sudanese. If at an appeal the adjudicator concludes that she is not Sudanese, the respondent will seek to remove her to a country or territory to which she can be removed pursuant to the appropriate legislation ...
45. Because of [inter alia the languages spoken by the petitioner, namely Lusoga and Swahili, neither being a language of Sudan; and also the petitioner's lack of knowledge of Sudan, as detailed in paragraph 44] I concluded, even taking into account to the relatively low standard of proof, that the [petitioner] was not Sudanese. I came to this conclusion notwithstanding the fact that the [petitioner] was not well educated and also that she claimed to be somewhat confused mentally at the present time. In this connection, I did not find the [petitioner] in any way confused or unable to understand or answer questions at the hearing.
46. In the light of my finding that the [petitioner] was not Sudanese, she does not have a well-founded fear of persecution in Sudan and her asylum claim fails ..."
[4] The petitioner then sought leave to appeal to the Immigration Appeal Tribunal. On 30 October 2004, leave was refused.
[5] Thereafter by letter dated 13 April 2005 the petitioner was invited to attend the Glasgow Enforcement Unit (a unit responsible for enforcing returns to other countries) for further interview about her circumstances. The petitioner attended on 19 April 2005. In the course of the interview, she advised the immigration officer that she was not in fact HL from Sudan, but was JB from Uganda. She also stated that her ex-partner was DW from Uganda. She then explained why she was reluctant to return to Uganda. She was invited to lodge fresh representations. That invitation was confirmed in writing by letter dated 6 May 2005 from the Secretary of State for the Home Department (the respondent) in reply to the petitioner's solicitors' request for an extension of time to prepare a fresh asylum claim.
[6] By letter dated 22 July 2005, the petitioner's solicitors sent the respondent a statement from the petitioner and a medical report relating to her. The petitioner's statement explained why the petitioner was reluctant to return to Uganda, in particular her fear of female genital mutilation. The statement contained the following final paragraph:
"I was brought to DW's house who I knew from Uganda through my husband. He promised to help us with the asylum process. He said we should say we are his family from Sudan. After he got his leave to remain in this country he started getting abusive and violent towards us. He used to beat me, kick me, lock me and my daughter outside, throw our food in the bin and frequently threatened to kill us and throw our bodies in the sea. I eventually found a church which helped me to find accommodation for myself and daughter."
[7] The respondent decided to treat the letter, statement, and medical report as a fresh claim in terms of Rule 353 of the Immigration Rules. He considered the merits of the fresh claim. By letter dated 2 September 2005 he intimated to the petitioner's solicitors (1) that the petitioner's fresh claim was refused; (2) that the petitioner would be removed from the United Kingdom; and (3) that the petitioner was not entitled to appeal because the respondent had made a certification in terms of section 96(1) - and not, it should be noted, in terms of section 94, quoted in paragraph [13] below.
[8] In particular, the letter dated 2 September 2005 stated:
"Dear Sirs,
Re: Ms JB ... Uganda
Your client has applied for leave to remain in the United Kingdom on the basis that her removal from the United Kingdom would place the United Kingdom in breach of her Human Rights. For the reasons stated below this application has been refused.
Your application has not been considered by the Secretary of State personally, but by an official acting on his behalf.
Your client claimed asylum on 11/02/04 in the name of HL, a Sudanese national. Her asylum claim was refused on 30/03/04 and she appealed against this decision. Your client attended the hearing of her appeal before an Adjudicator at Hatton Cross on 10/06/04. The appeal was dismissed by way of the Adjudicator's determination promulgated on 21 June 2004. Your client's subsequent application for permission to appeal to the Immigration Appeal Tribunal was also refused on 9 November 2004.
On 19/04/05 your client attended an interview with an Immigration Officer in Glasgow. During the course of this interview, your client claimed that she is not HL, a Sudanese national, but that she is, in fact, JB, a national of Uganda ...
...Your client has admitted that she has previously lied about her identity and her original claim to asylum. At the hearing of her appeal before an adjudicator on 10 June 2004 she had every opportunity to tell the truth about her claim for asylum, but she continued to give false evidence. In his determination, the adjudicator did not find your client's evidence to be credible, neither did he believe your client's claim to be Sudanese. Your client's original statement and the statement now submitted by your client dated 22 July 2005 are indeed very different ... [The respondent then considered the merits of the fresh claim, and refused it.]
... Careful consideration has been given to whether your client should be given discretionary leave in the United Kingdom, but in view of the findings above, this has been refused.
As previously mentioned, your client was previously given every opportunity to give full and credible evidence regarding her asylum claim but chose not to do so. Your client's application for Leave to Remain on the basis of your representations, in which you claimed that returning your client to Uganda would breach her human rights, is refused and is hereby recorded as being determined on 25 August 2005. A decision has been made to refuse your client's human rights claim and remove her from the United Kingdom.
In accordance with section 96(1) of the Nationality, Immigration and Asylum Act 2002 (as amended) the Secretary of State...
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A.a.s. For Judicial Review Of A Decision Dated 25 May 2007 By The Secretary Of State For The Home Department
...I should perhaps add that counsel for the petitioner also kindly provided me with a copy of Lady Paton's decision in the petition of JB [2007] CSOH 121 - which he said was "for information only". Mr Forrest did not advance any argument based on section 94 of the 2002 Act. He accepted that t......