In The Petition Of M.k. V. The Secretary Of State For The Home Department For Judicial Review Of A Decision Dated 9 October 2006
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Neutral Citation | [2007] CSOH 128 |
| Published date | 12 July 2007 |
| Date | 12 July 2007 |
| Court | Court of Session |
| Docket Number | P2844/06 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 128 | |
| P2844/06 | OPINION OF LORD MACFADYEN in the Petition of M K Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of a decision dated 9 October 2006 ________________ |
Petitioner: Forrest; Drummond Miller LLP.
Respondent: Carmichael; Office of the Solicitor to the Advocate General.
12 July 2007
Introduction[1] The petitioner is a twenty four year old national of Turkey, who fled from Turkey on 1 August 2006 and arrived in Glasgow on or about 8 August 2006. On the following day he claimed asylum in the United Kingdom. By letter dated 9 October 2006 ("the decision letter") the respondent rejected the petitioner's asylum claim as well as his related human rights claim, and certified them in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002 ("the Act") as clearly unfounded. In this petition the petitioner seeks judicial review of that certification.
Certification[2] The process of certification under section 94(2) must be seen in the context of other legislative provisions contained in Part V of the Act regulating rights of appeal against immigration decisions. Section 82(1) makes the general provision that:
"Where an immigration decision is made in respect of a person he may appeal to the [Asylum and Immigration] Tribunal".
Section 92(1), however, provides that:
"A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies."
Section 92(4) provides that"
| "This section also applies to an appeal against an immigration decision if the appellant ― | ||
| (a) | has made an asylum claim, or a human rights claim, while in the United Kingdom, ..." |
Section 94 provides inter alia as follows:
| "(1) | This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both). | |
| (2) | A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded." |
[3] The effect of these provisions is that the right of appeal which the petitioner would otherwise have had under sections 82(1) by virtue of section 92(4) against the decision of 9 October 2006 to refuse his asylum and human claims is excluded by the respondent's certification of those claims as clearly unfounded. With a view to opening up a right of appeal to the Tribunal, the petitioner seeks in this petition to challenge the validity of the certification. He seeks reduction of paragraphs 64 and 66 of the decision letter, in which the certification was expressed.
The circumstances
[4] The circumstances founded upon by the petitioner in presenting his claims are set out in the decision letter at paragraph 6. Since I did not understand Mr Forrest, who appeared for the petitioner, to take issue with that narrative, it is convenient to use it as the basis of the following summary.
[5] The petitioner was born in Gaziantep, Turkey. He is a Sunni Muslim. He attended local schools, and then, between the ages of 15 and 18 the Anadolu Hotel and Tourism School, where he obtained a diploma. In February 2004 he met a girl named AB ("A"), who lived close to his sister. They communicated by letter because her family had very strict traditional values. A suggested that the petitioner's family formally request a meeting between her and the petitioner. He did not take action on that suggestion because he realised that her family was Kurdish, and he was Turkish. He was also aware that they had a tradition of marrying their daughters to a relative within the family. At the end of April 2004 the petitioner found an opportunity to be alone with A when her family were attending a wedding. They spent five or six hours together and talked about their futures. She told him that a cousin was expected formally to propose to her. A and the petitioner had sexual intercourse on that occasion.
[6] A continued to suggest that the petitioner's family should formally approach hers, and in mid May the petitioner and his father visited A's family and formally asked permission for A to marry the petitioner. A's father replied that their tradition did not allow his daughter to marry outside the family and that they did not wish her to marry a Turkish man.
[7] In July 2004 A's family discovered that she and the petitioner had been together. The petitioner, while on holiday, received a telephone call from his sister informing him that A had been killed. She warned him that he should move away because A's family had already inquired as to his whereabouts. The petitioner believes that A died as a result of an "honour killing" within her family.
[8] In these circumstances the petitioner did not return home, because he believed his own life was in danger. He contacted a student friend, who allowed him to hide in a house in Alanya until the end of January 2005. He was too frightened to leave the immediate vicinity of the house. By keeping in touch with his family by mobile telephone, he learned that members of A's family had visited his sister two or three times in the months after her death, but not thereafter. At the end of January 2005 the petitioner travelled to Rize because he felt the need to run away from A's family. He stayed there for nine or ten months with a maternal uncle, confining himself to the house and garden. In September 2005 he moved to the Sultanbeyli area of Istanbul, where he stayed with an aunt.
[9] The petitioner did not go to the police because he believed that, if he did, members of A's family would be able to find him.
[10] Because he was still living in fear, the petitioner decided to leave Turkey. Arrangements were made by his father for him to travel to the United Kingdom, where he finally arrived in Glasgow on or about 8 August 2006 and was picked up by a friend of his father.
[11] The petitioner believes that if he returned to Turkey he would be found and killed by A's family.
The decision letter
[12] The petitioner's claim for asylum was based on the assertion that he had a well-founded fear of persecution under the terms of the 1951 United Nations Convention relating to the Status of Refugees ("the Refugee Convention"). In paragraph 8 of the decision letter, that claim was rejected in the following terms:
"The reason you have given for claiming well-founded fear of persecution under the terms of [the Refugee Convention] is not one that engages the United Kingdom's obligation under the Convention. Your claim is not based on a fear of persecution in Turkey because of race, religion, nationality, membership of a particular social group or political opinion."
[13] Without prejudice to that conclusion, the decision letter went on (in paragraphs 9 et seq.) to consider whether, if the persecution feared by the petitioner had been for a Convention reason, he would be able to seek the protection of the authorities in Turkey should he encounter further problems with A's family on his return to Turkey. In paragraph 10 it was pointed out that, in order to bring himself within the scope of the Refugee Convention he would have to show that the incidents were not merely the random actions of individuals but were a sustained pattern or campaign of persecution directed against him which was "knowingly tolerated by the authorities, or that the authorities were unable or unwilling, to offer him effective protection". The decision letter went on to consider in paragraphs 12 to 21 a considerable body of objective evidence on the question of the willingness of the Turkish authorities to protect against "honour killings". In paragraph 22 the following conclusion was reached:
"It is clear, from the sources mentioned above, that the Turkish authorities are committed to stopping "honour killings" in their territory. The criminalisation of such violent acts has been enshrined in legislation and offers protection not only to the female victims of such situations but also to men who, like yourself, have been accused of bringing "dishonour" to a family. Consequently it is clear that the state authorities in Turkey would be willing to offer you protection if you asked for assistance."
[14] Having reached that conclusion on the willingness of the Turkish authorities to afford protection against "honour killing", the decision letter went on, in paragraphs 23 to 28, to address objective evidence on their ability to provide sufficient such protection. At paragraph 29 the following conclusion was expressed:
"It is therefore considered that the Turkish authorities would be able to offer you protection if you sought their aid. However if individual officers were unwilling to offer you help then there are avenues of redress available you could approach to obtain protection."
Objective evidence on that matter was discussed in paragraphs 30 to 34, and in paragraph 35 the following conclusion was expressed:
"It is therefore concluded that if a local police constable was unwilling to aid you could approach higher ranking members of the Turkish police force or other police stations. It is therefore considered that redress is available for any localised failing to offer you assistance."
The discussion continued in paragraphs 36 to 46, and in paragraph 47 it was concluded that there were other bodies besides the police from whom protection might be sought in the event of localised failure to help.
[15] In paragraph 48 of the decision letter it was stated:
"Without prejudice to the above, it is noted that you did not at any time call on the protection or assistance of the authorities even though you claim that you lived in constant fear ... As you have failed to approach the police you have failed to establish that they would be unwilling or unable to protect you."
At paragraph 49 the...
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