Yz (ap) V. The Secretary Of State For The Home Department For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Neutral Citation | [2014] CSOH 87 |
| Published date | 15 May 2014 |
| Year | 2014 |
| Court | Court of Session |
| Date | 15 May 2014 |
| Docket Number | P1029/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 87 | |
| P1029/13 | OPINION OF LORD McEWAN in the Petition YZ (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review ________________ |
Petitioner: Winter; Drummond Miller LLP
Respondent: Komorowski; Office of the Advocate General
15 May 2014
[1] In this case the petitioner seeks reduction of an immigration decision made against him, a section 96 certification made thereunder and reduction of two following related letters.
[2] In essence what has happened is this. He and his wife came to the UK on a visa. They overstayed and in 2012 they were arrested. The wife claimed asylum with the petitioner as her dependent. When her claim was refused he made a claim of his own. The difficulty which emerged was that his claim raised matters which could have been raised earlier in spite of having had a One Stop Notice served on him. When his claim was refused by the respondent she was of the opinion that there was no satisfactory reason for these new matters not having been raised before. She accordingly issued the certificate preventing further appeal.
[3] The record in statement and answer 4 asserts that in separate interviews in 2012 the petitioner failed to mention being suspected by the Chinese police of involvement in pro-Tibetan activities or of having been charged with or arrested for any offence. In April he was served with a One Stop Notice which stated:
"You must now make a formal statement about any reason why you think you should be allowed to stay in the United Kingdom ....If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused...."
The petitioner made no response to that. Statement 5 sets out the risks perceived by the petitioner and those relate to four matters, viz, membership of the China Democratic Party (CDP), a police visit to his family home looking for him, alleged illegal activities in relation to Tibet and him being charged with trying to break up China. The respondent claims that all of these matters were known prior to his interviews and the One Stop Notice.
[4] His claim was refused and statement and answer 6 make clear that was on the grounds of credibility with the consequent certification preventing any appeal to the FTT (Statement 7). Statement 8 argues for a particular construction of section 96 which is not wholly accepted by the respondent in her answer. Statement 9 sets out the four stage process for certification which for the present case is conceded by the respondent as correct. The refusal and protocol letters are there referred to (statements 10 to 12). Statement 13 refers to legal advice and what is called corroboration of a failure by solicitors. Statement 14 raises the issue of the apparent use made by the respondent of the decision in the wife's case, and statement 15 complains that no regard was had to the Country of Origin information report.
[5] All of the foregoing issues were argued before me.
[6] The Nationality, Immigration and Asylum Act 2002 provides inter alia:
"Section 96....
(2) 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 received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, 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 a statement made in response to that notice...."
"Section 120....
(1) This section applies to a person if -
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state -
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in -
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
The "Notice" is conveniently known as a "One Stop Warning".
[7] I was referred to the following authorities, viz:
R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin)
R (Adehisi) v SSHD [2011] EWHC 2471 (Admin)
AN v SSHD [2013] CSIH 111
Chicanza v SSHD [2002] UKIAT 01200
MJ (Iran) v SSHD [2008] EWCA Civ 564
Ocampo v SSHD [2007] Imm AR 225
(AA (Somalia) v SSHD (AA (Iran) v SSHD [2008] Imm AR 241
The following text book was referred to, viz:
MacDonald: Immigration Law and Practice (8th Edition)
[8] The argument for the petitioner was to this effect. His claim for asylum was based on the fact that his wife was a member of the China Democratic Party (CDP); that he was a wanted man and that he was thought to have provided support for Tibet. There would normally be an "in country" right of appeal but the section 96 certification has prevented that. That should be reduced along with related documents to allow the matter to be returned to the Secretary of State to either allow an internal appeal within the system or else to maintain the certification.
[9] In spite of the terms of section 96 of the Act there remained a discretion open to the Secretary of State which she had to exercise with "anxious scrutiny" when considering any additional grounds brought forward under section 170. It was accepted that the petitioner had not stated these until he had been served with a refusal of his wife's claim. Counsel referred in detail and at length to the case of J which, he said, showed that in spite of its terms section 96 was a four stage process. (I pause at this stage to observe that when challenged about the fourth and discretionary stage, counsel said that J had been followed in other cases. The matter is in any event academic as Mr Komorwski for the respondent accepted for the purposes of this case that there was a discretion and that the Minuter had correctly exercised it).
[10] Mr Winter continued by saying that the petitioner's case had been robustly rejected on narrow grounds without any detailed analysis. For example, the petitioner was interviewed about the police visit but had no chance to say anything about it until he got the section 120 notice. It was mentioned within four months and the explanation he gave was satisfactory, viz, the fault of his solicitor. By way of contrast, in J the delay was three years. The respondent had taken no account of the Country Information and had reached a very narrow view on credibility. A holistic view was required (McDonald at 12.28). He referred me to AN and to Chicanza.
[11] It was an error in law to use his wife's case against him. Her claim had been refused and used as an authority against him, in particular that part which related to the CDP. Counsel then took me to a series of cases where the matter of issue estoppel had been raised on identical but separate claims. Usually these involved members of the same family or people in a close relationship. He looked at MJ, Ocampo and AA (Somalia). The last case had laid out a very detailed analysis which should be followed. He ended by inviting me to reduce the protocol letters nos. 6/4 and 6/6 of process.
[12] In moving me to sustain his plea in law counsel for the respondent maintained that there was no error in law in what had happened or if there was it was not material. The decision, he said, was inevitable in view of the history of the matter. The petitioner had delayed to make any claim until his wife's claim had been rejected. He then put in a claim of his own on rejected facts and matters inconsistent with previous accounts given by him. To fulfil her duty under section 96(2)(c) the Minister only had to form an opinion on what was before her. It was not for the court to see if it was a good explanation. That was why the history was crucial and for the purposes of this case the Minister had accepted the discretionary fourth test even though it was not written in the statute. It was in her letter. There was a last residual possibility that she may not choose to apply section 96 but when all three enacted statutory tests were passed there would have to be something to make her not act.
[13] Counsel then took me to the history of the case which he examined in great detail. I do not intend to set out what he said here but only to summarise the main points. I will later look at and acknowledge the details.
[14] Having entered the UK on a visa on 25 December 2010 the petitioner alleged that by March 2011 the police had been to his home in China and questioned his parents about his Tibet connections. Yet there was no claim for asylum then or later that year when he claimed his parents had been taken in for questioning. When he and his wife were arrested in March 2012 she claimed asylum and he was interviewed yet he made no mention of Tibet or being accused of trying to break up the country. In his second interview he said he had no wish to claim on his own, had never been arrested or charged or made no mention of being wanted by the authorities. In April 2012 he got the One Stop Notice; that should have warned him of the risks of a certification. However, he did nothing even in...
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