R (Atkinson) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,Lord Justice Wall,Lord Justice Thorpe |
| Judgment Date | 01 July 2004 |
| Neutral Citation | [2004] EWCA Civ 846 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2003/2327 |
| Date | 01 July 2004 |
[2004] EWCA Civ 846
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Michael Supperstone Q.C, sitting
as a Deputy High Court Judge)
Royal Courts of Justice
Strand
London, WC2A 2LL
The Right Honourable Lord Justice Thorpe
The Right Honourable Lord Justice Scott Baker
The Right Honourable Lord Justice Wall
Case No: C2/2003/2327
Richard Drabble Q.C and David Jones (instructed by Irving & Co) for the Appellant
Michael Fordham and Kate Gallafent (instructed by Treasury Solicitor) for the Respondent
This appeal is brought with the leave of Laws L.J against the decision of Mr Michael Supperstone Q.C. sitting as a Deputy High Court Judge in the Administrative Court on 10 October 2003 when he refused the appellant's application for judicial review.
The appellant arrived in the United Kingdom from Jamaica on 21 February 200He was admitted as a visitor for six months. He was declined an extension of time to remain. He overstayed. On 2 April 2003 he presented himself to the police and claimed asylum.
He claimed that if returned to Jamaica he would face mistreatment or persecution due to his imputed political opinion because of being perceived as an informer for the People's National Party (PNP). He also claimed he would face persecution as a perceived homosexual because he had worked with a homosexual. His claim was also, in due course, framed under the Human Rights Convention.
The Secretary of State rejected both his asylum and human rights claims and certified under section 94 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") that both claims were clearly unfounded. The effect of such certification is to deprive an applicant of a right of appeal to an adjudicator whilst remaining in this country. The appellant applied for judicial review of the Secretary of State's decision but the judge upheld the certification. Before us the appeal has been directed solely at the Human Rights Convention, and in particular Article 3 which provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Section 94 of the 2002 Act is headed: "Appeal from within United Kingdom: unfounded human rights or asylum claim." It provides:
"(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(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.
………….
(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that –
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention."
The Secretary of State has added Jamaica to the list of States in subsection (4).
The appellant's case is that the certification was unlawful because the appellant's claim was not "clearly unfounded." In consequence he has been wrongly deprived of his in-country right of appeal. The judge rejected the appellant's arguments and declined to interfere with the Secretary of State's decision.
There is not, I think, any dispute about the "clearly unfounded" test to be applied. The issue is as to its application. The judge directed himself in these terms at paragraph 8:
"The question for the court on an application for judicial review is whether the Secretary of State was entitled to be satisfied that the claims were clearly unfounded. The Court of Appeal has recently given guidance on the approach to be adopted when considering this question. In R (on the application of L and another) v Secretary of State for the Home Department [2003] 1 ALL ER 1062 Lord Phillips of Worth Matravers MR said:
'[In considering s115] 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 refugee convention. If the answers are such that the claim cannot on any legitimate view succeed, than the claim is clearly unfounded; if not, not." (para 57)."
The meaning of "manifestly unfounded" within section 72(2)(a) of the Immigration and Asylum Act 1999 was considered by the House of Lords in R v Secretary of State for the Home Department, ex p Thangarasa, ex p Yogathas [2002] 3WLR 1276. Lord Bingham said:
"Before certifying as "manifestly unfounded" an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether a deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail" (at p1283)".
The judge went on to say that there is no material difference between "clearly unfounded" and "manifestly unfounded." I agree. Furthermore, in my view the passage I have recited from the judge's judgment accurately states the law.
The purpose of the "clearly unfounded" test is to try and ensure that the appellate system in the asylum and immigration field does not remain swamped with wholly unmeritorious appeals, as has been the case in the past.
The Secretary of State's decision letter, written on his behalf by Mr Harrison, of the Integrated Casework Directorate, is dated 15 April 2003. It runs to six pages and sets out clearly the basis for rejecting the appellant's claims and granting certificates under section 94. It says that there were really three questions under consideration. These were (i) the truth or otherwise of the basic facts as recounted by the appellant that caused him to leave Jamaica. For present purposes there is no dispute; they can be taken as described in the decision letter; (ii) the availability of state protection; (iii) the availability of relocation.
I recite the facts as described in the decision letter.
(a) You live in a Jamaican labour party (JLP) dominated area and your brother had a relationship with the sister of the JLP leader of your area, but the quality of their relationship deteriorated. About four years ago you got drawn into their problems and as a result you were, attacked by five JLP people, and the seriousness of your injuries required you to remain in hospital for three months. The police came to the hospital to investigate the attack but you told them that you did not know who had attacked you.
(b) 3–4 years ago your friend's drinks van was robbed. He told the police that you would be able to help them with their enquiries and they came to your home to question you. The police were seen outside your home by your neighbours, and even though you told the police that you could not help them, the robbers (who were members of the JLP) labelled you as being an informer and a supporter of the government (SEF q48, q60). You have said, however, that you are not a member of any political party. Also, that you were accused by JLP members of informing on them with regard to the murder of a local youth a week later (statement para 9).
(c) Whilst standing at your gate in January 2002 you overheard and saw approximately 25 people who were members of the JLP planning a revenge killing against members of the People's National Party (SEF, q5,6). You did not report this to the police because you suspect that they work in league with the JLP (SEF q16), but after the killings (which included two children) you spoke out with your friend about your disapproval of the killings and he told members of the JLP of your views (SEF q13). Also, because your 5 year old daughter had been a classmate of one of the children who had been killed, you bought a wreath for the funeral of one of the children (Further Questions, q21). As a result of your actions, members of the JLP again suspected that you were an informer for the PNP (SEF q18). After your friend told the JLP of your views, four men including the local leader came to your house to speak to you and asked you to "come down the lane." You resisted and suffered jaw, head and rib injuries (SEF q27, q31). They ran away when your sister appeared shouting for help (SEF q33).
(d) You spent 7–8 days in hospital on this occasion and the day after you were discharged you witnessed the...
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