Patel v (on the application of Patel) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 2010 |
| Neutral Citation | [2010] EWHC 1087 (Admin) |
| Date | 06 May 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6951/2009 |
[2010] EWHC 1087 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Frances Patterson QC
(Sitting as a Deputy High Court Judge)
CO/6951/2009
MR ALPER RIZA Q.C. (instructed by KING solicitors) (MR PETERSON for judgement) appeared on behalf of the Claimant
MISS J ANDERSON (instructed by TREASURY SOLICITORS) appeared on behalf of the Defendant
(As approved)
THE DEPUTY JUDGE: This is a claim for judicial review of a decision made by the defendant on 25 June 2009 to refuse the claimant's asylum and human rights claims and to certify them as clearly unfounded under Section 94(2) of the Nationality, Immigration and Asylum Act 2002. There is a challenge also to the removal directions issued by the defendant to remove the claimant back to India.
In summary the claimant submits that the claimant has: (i) failed to give anxious scrutiny to the claimant's asylum and human rights claims; (ii) failed to consider whether childless women are capable of being a particular social group; (iii) failed to take into account information provided by the claimant as to her personal circumstances that demonstrates a breach of Articles 3, 8 and 12 of the European Convention of Human Rights, and (iv) failed to apply the correct legal principles to the issue of whether the claim should be certified as clearly unfounded.
At the outset of the hearing Mr Alper Riza QC, for the claimant, clarified the scope of her case. He accepted that he had no evidence to show that India was as a matter of law wrongly identified as a country within the list of compiled under Section 94(4) of the Nationality, Immigration and Asylum Act 2002. As a result, he withdrew the claim that the inclusion of India in the list, as far as the claims by women were concerned, should be quashed. The case proceeded on that basis.
Factual Background.
The claimant and her husband are nationals of India. The claimant was born in Gujarat on 27 January 1988. She was educated until the age of 19. She married Ravidrakumar Patel on 16 February 1996. His date of birth is 28 August 1971. After the wedding the claimant and her husband lived with his family in Petlad, Gujarat. The claimant was not able to conceive, and so began fertility treatment in March 1999. She took tablets for 3 years, but still failed to conceive. Tests revealed that “some tubes were blocked.” For three years the claimant experienced taunts from members of her husband's family, and exclusion from certain community events because of her inability to have a child.
In February 2002 the claimant made an unsuccessful attempt at suicide. Arguments with her parents in law continued, and culminated in an incident on 30 April 2004 when her mother in law doused the claimant in kerosene and tried to set fire to her. The claimant jumped out of a window to escape and took refuge at a neighbour's home until her husband returned from work. The incident was reported by the claimant to the police who asked for further evidence to be able to progress the investigation. After a few days elsewhere, the claimant and her husband had to return to his parent's home, as they had nowhere else to live. But, as a result of the incident, the claimant and her husband decided to leave India. An agent helped them to obtain visas.
On 11 July 2004 the claimant and her husband lawfully entered the United Kingdom with valid leave to remain on visitors visas until 28 December 2004. The claimant and her husband remained in the United Kingdom until they were arrested on 23 February 2009. They had stayed with people from Petlad for whom they each did domestic and related work in return for not being charged for accommodation. During their time in the United Kingdom both the claimant and her husband remained in contact with the husband's family.
The husband's claim for asylum was made on 26 February 2009. His claim was refused and certified as clearly under founded on 15 May 2009.
The claimant's fear is that if she is returned to India she will continue to be taunted and may be killed by her parents in law.
The Legal Framework.
The relevant parts of the Section 94 of the Nationality, Immigration and Asylum Act are:
“(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) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.
(4) Those States are—…
(y) India.”
India is a 'designated country' included in the list of countries in Section 94(4) of the Nationality Immigration, and Asylum Act 2002. As a result, the Secretary of State must normally certify any removal to India where there is no breach of the 1951 Geneva Convention or the European Convention of Human Rights as being clearly unfounded. Thus, the presence of a country on the designated countries list alters the designated test for certification from the Secretary of State being satisfied that the claim is clearly unfounded to one of certification being required unless the Secretary of State is “not satisfied” that the decision is clearly unfounded.
In each instance the Secretary of State has to consider the individual circumstances of the case. The effect of certifying a claim as clearly unfounded is that an appeal against the refusal of the claim cannot be brought under Section 82(1) of the Nationality Immigration and Asylum Act whilst a claimant remains in the United Kingdom, although it can be pursued from outside the United Kingdom. The term “clearly unfounded” is to be given its natural meaning.
On an application for judicial review of an application by the Secretary of State to certify, the court is exercising a supervisory jurisdiction. It is one that involves such careful scrutiny as is called for where an irrevocable step potentially involving a breach of fundamental human rights is in contemplation : see Lord Bingham in the case of Razgar v Secretary of State for the Home Department [2004] UKHL 27 at paragraph 16.
In ZT(Kosovo) v the Secretary of State for the Home Department [2009] UKHL 6, Lord Phillips concluded of relevance to such an exercise at paragraph 23:
“Where, as here, there is no dispute of primary fact the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly under founded. It follows that to challenge the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success, when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.”
Argument and Decision.
Mr Riza QC, on behalf of the claimant, said that his argument focused on the decision by the Secretary of State to certify the claimant's claim as clearly unfounded. The reasons given by the Secretary of State in the decision letter of 25 June 2009 included the finding that the claim for asylum on the part of the claimant was based upon her fear that if returned she would face mistreatment due to a reason not covered by the Geneva Convention in that the fear was of discrimination as the claimant and her husband had been unable to have a child. Mr Riza submitted that, contrary to that view, the claimant was in fact a member of a particular social group, namely that of childless women in India, and that the Secretary of State had been wrong to hold otherwise. He emphasised that the unifying characteristic was the attitude of the State towards childlessness. In particular, he relied upon the case of Islam v the Secretary of State of the Home Department [1999] 2 Appeal Cases 629, and the judgment of Lord Hoffmann at page 651:
“In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect. The obvious examples, based on the experience of the persecutions in Europe which would have been in the minds of the delegates in 1951, were race, religion, nationality and political opinion. But the inclusion of “particular social group” recognised that there might be different criteria for discrimination, in pari materiae with discrimination on the other grounds, which would be equally offensive to principles of human rights. It is plausibly suggested that the delegates may have had in mind persecutions in Communist countries of people who were stigmatised as members of the bourgeoisie. But the concept of a social group is a general one and its meaning cannot be confined to those social groups which the...
To continue reading
Request your trial
- Patel v (on the application of Patel) v Secretary of State for the Home Department
-
Ahmadi v Secretary of State for the Home Department
...within a short time of each other, were not considered by this Court in the series of cases which culminated in Patel v Secretary of State for the Home Department [2012] EWCA Civ 741. All of those cases were conducted on behalf of the Appellants on the opposite premise: that the Secretary ......
-
R Manjeet Kaur v Secretary of State for the Home Department
...ill-treatment. He referred me to a decision of Ms Frances Patterson QC, sitting as a Deputy High Court judge, in Patel v Secretary of State for the Home Department [2010] EWHC 1087 (Admin). In that case there was an issue before the deputy judge as to the sufficiency of protection in India,......
-
R Hossacks (a firm of solicitors) v The Legal Services Commission
...decisions of the High Court namely JR Jones v LSC [2010] EWHC 3671 (Ch), Hoole and Co v LSC [2011] EWHC 886 (Admin), Harrow v LSC [2010] EWHC1087 (Admin) and R (All About Rights) v LSC [2010] EWHC 964 (Admin). It emerged that some of the evidence previously relied on by the Commission was o......