Petition Of M S K For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2012] CSOH 179 |
| Docket Number | P1168/11 |
| Date | 27 November 2012 |
| Published date | 27 November 2012 |
| Court | Court of Session |
| Year | 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 179 | |
| P1168/11 | OPINION OF LORD STEWART in the Petition of M S K Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 23 June 2011 denying the petitioner refugee status and Answers for The Secretary of State for the Home Department Respondent: ________________ |
Petitioner: Bovey QC, Byrne; Drummond Miller LLP
Respondent: MacGregor; Office of the Solicitor for the Advocate General
27 November 2012
[1] This case is about a 52-year old Ugandan visa overstayer who claims that his refugee status entitles him to asylum in the United Kingdom. He is the petitioner. The United Kingdom Border Agency [UKBA] acting on behalf of the Secretary of State for the Home Department, respondent to the petition, wants to remove him to Ghana where he lived for 21 years before coming to the United Kingdom. The main question is whether the petitioner benefits from article 32(1) the Geneva Convention relating to the status of refugees, 1951, as extended by the 1967 Protocol [the 1951 Convention]: "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order." There are a number of consequential issues which really amount to the question whether the petitioner is entitled to Francovich damages under Community Law and "just satisfaction" compensation in terms of the European Convention on Human Rights [ECHR] for the United Kingdom's alleged failure within a reasonable time to recognise the petitioner's claim for protection as a refugee within the United Kingdom with deprivation of the consequential benefits that recognition would have entailed. I heard submissions on 28 and 29 June 2012 and made avizandum.
[2] I have now decided that the petitioner is not "a refugee lawfully in the territory" of the United Kingdom for the purpose of the 1951 Convention art. 32(1) and that his petition, including the consequential claim for damages and compensation must be refused. I think that I can put the matter succinctly. All persons granted asylum in the United Kingdom are recognised as having refugee status: but not all refugees in the United Kingdom will necessarily be granted asylum; and among the refugees who will not necessarily be granted asylum in the United Kingdom are those who are not lawfully present in the United Kingdom and who can be removed to a safe third country. The logic of the petitioner's position, in contrast, is that refugee status once recognised anywhere in the world is a passport to asylum in the country of choice, at least in the 1951-Convention-signatory country of choice; and if that country does not live up to expectations then the refugee can go asylum-shopping elsewhere. I do not think that this is what is intended by the idea of "international protection" for refugees [MacDonald's Immigration Law and Practice, 7th edn (London, 2008), § 12.4; R(ST) v Secretary of State for the Home Department [2010] 1 WLR 2858 at 27, 52 per Stanley Burnton LJ with whom the other members of the Court of Appeal agreed].
[3] Whether, in this case, Ghana is a "safe third country" is a question perhaps not fully settled, the apprehension expressed at the bar on the petitioner's behalf being that, if the petitioner were to be returned to Ghana, he might just be at risk of refoulement, meaning return to his country of origin. Counsel for the respondent has given an undertaking on behalf of the Secretary of State that the petitioner will not be returned to Ghana until the respondent is satisfied that there is no risk of refoulement to the country of origin, namely Uganda. I understand the petitioner's counsel to be satisfied with this undertaking. On that understanding I have proceeded on the assumption that Ghana is a safe third country. I should also mention that there are issues in these proceedings about the interpretation of various Council Directives: but neither party wishes me to refer questions to the European Court of Justice for a preliminary ruling; and I do not conceive that I am bound to do so in this case ex proprio motu.
Background
[4] The following account of the background to the petition is derived almost exclusively from the petitioner's productions, principally the determination of Immigration Judge Jamieson dated 31 October 2008 and the UKBA decision letter dated 23 June 2011 which sets out the petitioner's immigration history. The petitioner is a refugee from Uganda. He was born in Uganda on 27 June 1960 and educated there to university level. As a student activist he was subject to political persecution in Uganda and fled to neighbouring Kenya in 1981. According to an email from the United Nations High Commissioner for Refugees [UNHCR], Nairobi, dated 14 August 2008, the petitioner applied for asylum in Kenya on 7 April 1981. He was accepted as a refugee by UNHCR, Kenya, on 8 October 1982. The petitioner claims that while staying in Kenya he continued to feel at risk of persecution by political elements in Uganda. On 12 October 1982 the petitioner was issued with a 1951 Convention travel document to travel to Ghana to pursue his studies. A fax from UNHCR dated 16 October 2008 advised that the petitioner obtained a visa in Ghana consistent with recognition of his refugee status there. In oral evidence to the immigration judge the petitioner stated that he had been granted asylum in Kenya and Ghana. The letter from the petitioner's solicitors to UKBA dated 23 February 2011 asserted that the petitioner was "a refugee in Ghana but not a settled resident".
[5] In fact, the petitioner lived in Ghana for 21 years from 1982 to 2003. He married at Accra, Ghana in November 2001. He and his wife have four children, all born in Ghana, a son born in June 1991, a son born in April 1993, a son born in April 1995, a son born in March 1998. The petitioner's wife and children still live in Ghana. In her letter dated 15 November 2011, the petitioner's wife states that she and her husband are still married and that they are not separated. She and the children look forward to being reunited with the petitioner. According to the petitioner's curriculum vitae [CV] dated 13 May 2011 he enrolled at the University of Science and Technology, Kumasi, Ghana in September 1982 and on, an undisclosed date, graduated with the degree of MSc (Hons) in electrical and electronic engineering. The CV describes his career as an electrical engineer and project manager for public infrastructure projects in Ghana from 1986 to 2005.
[6] The CV discloses that the petitioner was in the United Kingdom from May to June 2002 on a Department of Trade and Energy study tour. This is consistent with the immigration history which records that a six-month, multi-entry, United Kingdom visitor visa was issued to the petitioner, valid from 4 April to 4 October 2002. A second six-month, multi-entry, visitor visa was issued to the petitioner valid from 7 July 2003 to 7 January 2004. I was told by counsel for the respondent that the petitioner entered the United Kingdom, ostensibly for an 11-day business visit in September 2004. The CV bears to show that the petitioner continued to work as a project director in Accra until 1995. The CV also shows that from September 2003 to October 2004 the petitioner undertook a course at the Centre for Renewable Energy Systems Technologies [CREST] at Loughborough University, Leicestershire, and graduated MSc in renewable energy systems technology. His visa expired on 7 January 2004.
[7] The petitioner's CV states that from 2005 to 2008 he was employed by Cobham Advanced Composites Limited, Shepshed, Leicestershire. A letter from the company dated 2 October 2008 describes his position as "quality control inspector". He appears to have been on the payroll from 27 March 2006 to 6 May 2008. The letter from the company implies that before the petitioner was taken on to the permanent staff in 2006 he was employed for a period as an agency worker: but his time as an agency worker is not detailed. The CV gives the impression of a seamless transition from employment in Ghana to employment in the United Kingdom in 2005. An email from the company dated 29 November 2011 explains that the petitioner's employment was terminated on 6 May 2008 because the information then available evidenced that the petitioner did not have leave to remain in the United Kingdom. Three pays slips from the company show the petitioner using a national insurance number in the period 2006 to 2008. No one has explained how the petitioner acquired a national insurance number without having leave to remain and without a work permit.
[8] On 29 May 2008 the petitioner was served with form IS151A directions for removal as an overstayer. On 18 July 2008 he was placed in immigration detention. On 20 July 2008 he made a claim for asylum in the United Kingdom. He subsequently explained to the immigration judge that, when it became clear that he was to be removed from the United Kingdom, he claimed asylum in order to save his life. On 6 August 2008 the petitioner's asylum claim was refused by UKBA and the petitioner was issued with form IS151B directions for removal "to Uganda or Ghana". The petitioner lodged an appeal to the Asylum and Immigration Tribunal and was released from detention (presumably on immigration bail with reporting conditions). Following a hearing on 17 August 2008 Immigration Judge Jamieson issued his determination dated 31 October 2008 which decided as follows:
"45. The appeal on asylum grounds is allowed to the extent that the Appellant has established a well founded fear of persecution if the Respondent returns him to Uganda, but it is dismissed in respect of his claim that he has a well founded fear of persecution if returned by the Respondent to Ghana.
46. The appeal on humanitarian protection grounds is dismissed.
47. The appeal...
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