Petition Of Jss (ap) For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2016] CSOH 158 |
| Date | 08 November 2016 |
| Docket Number | P270/15 |
| Court | Court of Session |
| Published date | 08 November 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 158
P270/15
OPINION OF LORD KINCLAVEN
In the petition of
JSS (AP)
Petitioner;
for
Judicial Review of a decision by the Secretary of State for the Home Department to certify the petitioner’s claim to remain in the United Kingdom on asylum and human rights grounds as clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002 and to remove the petitioner from the United Kingdom
Respondent:
Petitioner: McGuire; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
8 November 2016
Introduction and Overview
[1] This is a petition for judicial review of a decision by the Secretary of State for the Home Department (“the SSHD”) to certify the petitioner’s claim to remain in the United Kingdom on asylum and human rights grounds as clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002 and to remove the petitioner from the United Kingdom.
[2] The case came before me for a first hearing.
[3] Mr McGuire appeared for the petitioner. He invited me to sustain the petitioner’s first plea‑in‑law; to repel the second and third pleas‑in‑law for the respondent; to find that the certification of the petitioner’s claim was unlawful; and to reduce the decision of the respondent.
[4] Mr Pirie appeared for the respondent. He invited me to sustain the second and third pleas‑in‑law for the respondent; to repel the petitioner’s pleas‑in‑law and to refuse the orders sought in the petition. He contended that the decision was not vitiated by any material error in law. Further, the petitioner had not been substantially prejudiced by any failure to give adequate reasons.
[5] Having considered the submission of both parties, and the documents produced, I have reached the conclusion (for the reasons outlined below) that the respondent’s submissions are well founded.
[6] Accordingly, I shall sustain the respondent’s second and third pleas‑in‑law, repel the petitioner’s pleas‑in‑law and refuse the orders sought in the petition.
[7] I shall reserve meantime the question of expenses.
[8] I would outline the background and my reasons as follows.
The productions
[9] The productions for the petitioner were:
- 6/1 Screening Interview dated 1 July 2014
- 6/2 Asylum Interview Record dated 12 November 2014
- 6/3 Decision Letter dated 10 December 2014
- 6/4 Pre-action Protocol Letter dated 31 December 2014
- 6/5 Notice of Immigration Decision dated 5 January 2015
- 6/6 Letter from Home Office dated 7 January 2015
[10] The productions for the respondents were:
- 7/1 Appendix FM
- 7/2 Immigration Rule 276DE
Authorities
[11] At the first hearing, the authorities for the petitioner were as follows:
(i) Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 349;
(ii) R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 92 at page 934E-F;
(iii) MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC) at paragraphs 4, 12, 146, 149, 152 to 154, and 174 at sub-paragraphs c, e, and f;
(iv) MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 at paragraphs 40 to 43;
(v) SN (South Africa) v Secretary of State for the Home Department [2014] CSIH 7 at paragraph 17; and
(vi) Khan v The Advocate General for Scotland [2015] CSIH 29 at paragraphs [11] and [14].
[12] The authorities for the respondent were:
(1) AAA, Petr [2015] CSOH 37 at paragraphs [35] and [42];
(2) Ashiq v Secretary of State for the Home Department [2015] CSIH 31 at paragraphs [5], [23], and [24];
(3) BM v Secretary of State for the Home Department 2011 SC 726 at paragraphs [20] and [27];
(4) Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paragraphs 16, 18, 19, and 20;
(5) King v East Ayrshire Council 1998 SC 182;
(6) MD (same-sex orientated males: risk) India CG [2014] UKUT 65 (IAC)
(7) MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064;
(8) MS v Secretary of State for the Home Department [2013] CSIH 52 at paragraphs [5], [7], [18], [27], [28], [30], [32] to [34], and [37];
(9) R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at paragraph 28;
(10) R (EM (Eritrea)) v Secretary of State for the Home Department [2014] 1 AC 1321 at paragraphs 5, and 6;
(11) SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387 paragraphs 2, 15 to 17, and 29;
(12) South Bucks District Council v Porter (No. 2) [2004] WLR 1953 at paragraph 36; and
(13) TA (Turkey), Petr [2013] CSOH 122 at paragraph [40].
[13] There was also reference to:
(a) AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678;
(b) Hovarth v Secretary of State for the Home Department [2001] 1 AC 489; and
(c) MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544;
[14] In the subsequent written submissions parties referred to inter alia:
- Butt, Petitioner [2015]CSIH 72; and
- Muhammad Irfan Khan, Petitioner [2015] CSIH 29.
The Petitioner’s position
The background to the petition
[15] The petitioner is Mr JSS. He lives in Scotland. The respondent is the Advocate General for Scotland, on behalf of the Secretary of State.
[16] In a letter of 10 December 2014 which was sent to and received by the petitioner’s agents by fax on 23 December 2014 (“the Decision”) the respondent refused the petitioner’s asylum and human rights claims and certified those claims as being clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). On 5 January 2015 the respondent issued a Notice of Immigration decision informing the petitioner that he was liable to be removed from the United Kingdom. In a “pre-action protocol” letter of 31 December 2014, the petitioner’s agents informed the respondent that they had instructions to raise judicial review proceedings against the certification of the petitioner’s claims. That by letter of 7 January 2015 the respondent informed the petitioner’s agent that it would not depart from the Decision.
[17] The petitioner seeks reduction of the Decision to certify the petitioner’s claims under section 94(3) of the Nationality, Immigration and Asylum Act 2002.
The facts upon which the petitioner relied
[18] The petitioner relied on the information contained in his “screening interview” of 1 July 2014 and his “asylum interview record” of 12 November 2014 both of which are lodged in process.
[19] The petitioner is a national of India who arrived in the United Kingdom for the first time on 30 August 2009 on a student visa valid until 11 October 2010.
[20] The petitioner made an application for further leave to remain in the United Kingdom which was refused on 9 November 2010.
[21] The petitioner’s family continue to reside in India.
[22] Around December 2010 the petitioner entered into a sexual relationship with Mr MSA (Mr A”), who had himself recently arrived in the United Kingdom from India.
[23] The petitioner continues in his relationship with Mr A.
[24] That prior to commencing his relationship with Mr A, the petitioner did not realise that he was interested in males in a sexual way.
[25] The petitioner’s parents have a friend, Mr Paramjeet Singh, who lives in the same city in Scotland. The petitioner’s father and Mr Singh had ‘agreed’ that the petitioner should be married to Mr Singh’s daughter, Ms Harveen Kaur.
[26] On or around 13 April 2014 the petitioner informed Ms Kaur that he could not marry her because he was homosexual. Ms Kaur informed her parents of this. Ms Kaur’s parents then informed the petitioner’s father that he (the petitioner) was homosexual.
[27] On discovering the news of his son’s sexuality, the petitioner’s father telephoned the petitioner and shouted and swore at him. The petitioner confessed to his father that he was homosexual. The petitioner then informed Mr A of the situation and he (Mr A) became very worried and upset because he believed that the petitioner’s parents would inform his own parents of his sexuality.
[28] Mr A has made his own application to remain in the United Kingdom on asylum and human rights grounds.
[29] Mr A’s parents are now aware of their son’s relationship with the petitioner.
The legal basis of the petitioner’s claim
[30] The petitioner outlined the legal basis of his claim along the following line.
[31] Section 94 of the 2002 Act (as amended) provides, so far as relevant:
“94 Appeal from within United Kingdom: unfounded human rights or
protection claim
(1) The Secretary of State may certify a protection claim or human rights claim as clearly unfounded. …
(3) If the Secretary of State is satisfied that a claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded (emphasis added).
(4) Those States (include) - …. (y) India.”
[32] Section 92 of the 2002 Act provides, so far as relevant:
“92 Place from which an appeal may be brought or continued
(1) This section applied to determine the place from which an appeal under section 82(1) may be brought or continued.
(2) In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if –
(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country), or
(b) paragraph 5(3)(a), 10(3), 15(3) or 19(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe third country) applies.
Otherwise, the appeal must be brought from within the United Kingdom.
(3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—
(a) the claim to...
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