Parmer v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Davis |
| Judgment Date | 27 January 2014 |
| Neutral Citation | [2014] EWHC 1204 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2014 |
| Docket Number | CO/8855/2012 |
[2014] EWHC 1204 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
His Honour Judge W Davis QC
(Sitting as a Judge of the High Court)
CO/8855/2012
Mr A Mahmood appeared on behalf of the Claimant
Miss Fernandes appeared on behalf of the Defendant
The claimant in this case, a Mr Mike Parmer, came to the United Kingdom in January 2008. He is a Malawian national. He entered with a valid visa, granted to him as the dependent of his wife, also a Malawian national, who is one of the interested parties to this case. She had a valid student visa. As well as Mr and Mrs Parmer there was a young child, K, similarly a Malawian national.
The visa on which they all entered was valid until 31st December 2011. Whilst they were in this country a second child was born, the last of the three of the interested parties. Not long before the expiry of this visa Mr Parmer on 1st December 2011 requested an appointment to attend the Asylum Screening Unit. He attended on 3rd January 2012. The result of that screening interview is in the original bundle at pages A45 and following.
During the screening interview the claimant disclosed that he had HIV (as he described it). It had been diagnosed in June of 2010. He identified the medication he was taking for it. He also suffered from high blood pressure or hypertension and was also taking medication for that condition.
When asked what his reason for coming to the United Kingdom was he gave two reasons. First, it was so that his wife could study. Second he explained "also we ran away from our relatives, her uncles". He went on to say that they ran for the safety of his child and the mother, namely his wife. He explained that she was from a Muslim background whereas he was from a Christian background. Her family had wanted an arranged marriage for her but she did not want it and had instead married the claimant. He said that prior to their marriage: "They would come and start throwing stones at my place". He alleged that when his wife was pregnant with their child her family had beaten her up on one occasion. He said that the two of them had decided that once K was born they would run away from the country. He was in fact born in 2005. He went on to say that he would not be able to see his family if he went back home. He said "they", presumably his wife's family "do not like me. They could kill me". He explained that the people he feared were his wife's two uncles. The problems had started in 2004. He had thought it would stop but it got worse and worse. He was asked what he told the immigration officer on arrival for his reasons for coming and he said this: "I did not tell the immigration officer anything." The process continued with at least one further interview, the detail of which I do not have but I am going to assume it is not material. He also provided a written statement which begins at A40 of the main bundle and sets out in slightly more detail that which he said in interview.
On 17th May 2012 the Secretary of State issued her decision. It was a detailed decision set out in a 12-page letter which begins at page A27 of the main bundle. The decision was to refuse both the asylum and human rights claim of the claimant. I do not at this point rehearse any part of the letter in detail. In relation to risk of persecution, no specific assessment was made. But the letter went on to consider the sufficiency in the country of origin of protection from persecution, as required in the case of Horvath v Secretary of State for the Home Department [2000] UKHL 37. The letter discussed the possibility of relocation within Malawi. It referred to the claimant's medical condition and cited what was by then the European Court of Human Rights decision in N v United Kingdom [2008] ECHR 453. In the context of his medical condition the letter discussed the evidence of available medical treatment in Malawi. In relation to all of those matters the letter set out a consideration of the Article 8 rights of the claimant and also discussed the interests of his children by reference to section 55 of the Borders, Citizenship and Immigration Act 2009 and subsequent discussion in case law of that section, in particular ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.
Finally, beginning at paragraph 56, having rejected both the asylum claim and the human rights claim, the letter went on to say this:
"In addition, your asylum claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your claim is clearly unfounded unless she is satisfied it is not clearly unfounded. After consideration of all the evidence available it has been decided that your claim is clearly unfounded and therefore it is hereby certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that your claim is clearly unfounded."
At paragraph 57 precisely the same words were set out in relation to the human rights claim. Therefore at paragraph 58 the letter concluded:
"As your asylum and human rights claims have been certified as clearly unfounded you may not appeal while in the United Kingdom."
It is that decision, namely the certifying of the asylum claim and the human rights claim as clearly unfounded which is the subject of this application for judicial review. Permission was granted for the claimant to apply for judicial review by His Honour Judge McKenna on 10th October 2012. The learned judge observed that:
"It is at least arguable that the decision to refuse the claimant's asylum claim and to certify was unlawful on the facts of this case."
As now presented I do not identify that the claimant is arguing that the decision to refuse asylum in itself is a decision which is susceptible to judicial review on the facts of this case. The decision which it is said should be subject to judicial review and should be quashed is the decision to certify the claim for asylum and the claim under the Human Rights Act as clearly unfounded. The claimant's argument plainly will succeed whether he succeeds in relation to both or only one of those claims.
The relevant tests are agreed as set out in the case of L v Secretary of State for the Home Department [2003] 1 WLR 1230, in particular paragraphs 56 and 57 of the judgment in that case. The case dealt with a previous section but the change of section does not alter the position so far as this case is concerned. The relevant parts of those two paragraphs of the judgment are as follows:
"Section 115(1) empowers – but does not require – the Home Secretary to certify any claim 'which is clearly unfounded'. The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
How, if at all, does the test in s.115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states [Malawi is undoubtedly a listed State] 'unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as s.115(1) calls for. Here the decision-maker will –
i) consider the factual substance and detail of the claim
ii) consider how it stands with the known background data
iii) consider whether in the round it is capable of belief
iv) if not, consider whether some part of it is capable of belief
v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.
If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not."
The judgment in that case was plainly concerned purely with an asylum claim but the principles equally apply to a human rights claim.
These proceedings having been commenced and leave having been given the Secretary of State issued a further Decision Letter. That was as a result of an order made by this court on 18th July 2013. The letter is dated 30th September 2013 and both parties agree that it is relevant to consider the lawfulness of the decision first made in May 2012 by reference to this letter. It reflected further material provided by the claimant. The claimant accepts that the concluding sentence of the penultimate paragraph which reads.
"For the avoidance of doubt the certificate issued to your client on the 20th May 2012 remains in place"
should be taken as a further consideration of the relevant test, in the light of the new material and a confirmation that even that new material leads to the same conclusion.
It will be necessary to refer to some parts of the letter in detail but it dealt with, amongst other things, country of origin, information reports in relation to Malawi and the functions and viability of the police service there and the nature and extent of HIV treatment there. The letter also considered section 55 of the 2009 Act in slightly more detail than the previous letter and considered finally whether any of the matters that have been put forward were a fresh claim. The conclusion was that they were not. It is not being suggested in relation to this case that I shall be considering that issue in terms of deciding whether the Secretary of State acted unlawfully.
The claimant's case in essence is this: I, the claimant, have a medical condition. It is a very serious medical...
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