R (Gedara) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 2006 |
| Neutral Citation | [2006] EWHC 1690 (Admin) |
| Docket Number | Case No: CO/3231/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2006 |
[2006] EWHC 1690 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Newan
Case No: CO/3231/2005
Mr Ranjiv Khubber (instructed by Luqmani Thompson) for the claimant
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the defendant
Mr Justice Newman:
The claimant challenges a decision of the Secretary of State dated 17 th May 2005 which certified his claim for asylum in accordance with section 94 of the Nationality Immigration Appeals Act 2002 (the 2002 Act). Bean J. granted permission on renewal of the application on 17 th August 2005 and thereafter further representations were made, in particular by the supply of an expert report of Professor Anthony Good dated 14 th October 2005 which became the subject matter of a confirming decision of the Secretary of State dated 3 rd March 2006.
Section 94 of the 2002 Act permits the Secretary of State to certify a claim as "clearly unfounded". Further, this is a case in which the claimant resists return to Sri Lanka, which is a State listed in subsection (4) in accordance with subsection (3) of the 2002 Act.
The correct legal approach on judicial review of a decision to certify a claim as "clearly unfounded" has received detailed guidance both in the Court of Appeal and the House of Lords and the law is well settled. It follows that the following material propositions are common ground:
(1) A claim is only "clearly unfounded" if it is "bound to fail before an adjudicator" [now an immigration judge]. R (Razgar) v Secretary of State for the Home Department (CA) [2003] EWCA Civ 840 or, on an alternative formulation if it "cannot on any legitimate view succeed", R (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ 25.
(2) The determination of whether or not a claim is "clearly unfounded" involves an objective test, "which a court can readily re-apply once it has the materials which the Home Secretary had" ( R (ZL and VL) v Secretary of State for the Home Department).
(3) The test is plainly a high one and will be applied with "the degree of careful scrutiny appropriate to the seriousness of the subject matter".
(4) Assessment for certification is a "screening process". However, if the claim must clearly fail, certification is lawful "no matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation". ( R (Yogathas) v Secretary of State for the Home Department [2003] 1AC 920).
The Factual Basis of the Claimant's Claim
The claimant is a national of Sri Lanka (date of birth 21 st May 1966). He joined the Sri Lankan Police Force in 1986. He originally worked as a constable until he was promoted to Intelligence Officer with a rank of police sergeant in the Intelligence Unit of the Police Force. His duties included gathering intelligence in the war against the LTTE.
Whilst on service in 1990, the police station to which he was attached was attacked by the LTTE and the claimant was seriously injured. After recovery from his injuries, including hospital treatment, he returned to the police station and was put back on duty with the Intelligence Unit.
As a result of his duties, he gathered intelligence on the operations of the LTTE and was responsible for arrests of over 100 members of the LTTE. The LTTE began to retaliate against intelligence officers and the claimant requested a transfer from Trincomale to Matale. This was granted and he remained there for four years.
He was then ordered to Jaffna and he spent a year there, but was ordered to return to duties in Matale in March 2000. He continued with his duties in Matale until 2002 when he was transferred to the Kandy district. He was then there for a short time before being transferred back to Jaffna.
The claimant was particularly successful in investigations against the LTTE. He became well known among the leadership of the LTTE and they regarded him as a serious threat to their operations. He was told by informers that his life was in danger as the LTTE wanted to kill him.
Because of his concerns, he approached his superiors and requested protection. They gave him a pistol and a hand grenade, but he was told that outside the high security zone of the police station he could not be offered protection. The claimant's senior officer advised him to leave the country temporarily and to return only after the situation calmed down. The material before the court includes a statement dated 2 nd May 2004 from the Headquarters Chief Inspector at the police station at Jaffna. The statement confirms that the claimant was one of the main intelligence operatives and a highly valuable individual to the police security force in Sri Lanka and goes on to state that he:
"had to leave his service and take off from Sri Lanka due to the current security situation in the country where many of his team members were killed by unidentified gunmen and who was categorized as a high risk operative".
Immigration History
The claimant arrived in the United Kingdom on 19 th May 2004 on a six months' visitor visa and was granted leave to enter accordingly. It is not disputed that at this date he was still a serving police officer in Sri Lanka and that he has not, at any time, resigned his commission. After four months he consulted a solicitor and he was advised to wait until the situation in Sri Lanka had calmed down to see whether he could go back. Two months after his visa expired the situation in Sri Lanka had not improved and he applied for asylum. He was interviewed at length by an immigration officer on 9 th May 2005, representations were made on 10 th May 2005 on his behalf, which representations included objective material available from reports in the public domain, a medical report in respect of injuries and a copy of the letter to which I have referred from the Chief Inspector at the police station in Jaffna.
The representations were advanced upon the basis that the claimant had a well founded fear of persecution under the Refugee Convention and that there were substantial grounds for considering he would face a risk of breach of his rights under the ECHR if he were returned to Sri Lanka. It was alleged that there was an insufficiency of protection available to the claimant and that internal relocation was not a viable option. So far as the Refugee Convention was concerned, he maintained that the relevant Convention reason was his membership of a particular social group, namely an intelligence officer in the Sri Lanka police. As I have indicated, both claims were certified as clearly unfounded pursuant to section 94(2) of the 2002 Act.
The Issues
The Secretary of State submits that the claimant's claims could not, on any legitimate view, succeed before an immigration judge, for the following reasons:
(1) As to the asylum claim, as a matter of established principle, there is no entitlement to refugee status because of risks arising out of service in the security forces, whether against an external or internal enemy;
(2) As to the ECHR claim, that the above principle should be held to be equally applicable to the facts constituting his human rights claim;
(3) As to both the asylum and human rights claims, the content of the claimant's case is insufficient to demonstrate a real risk of harm. It is submitted that the claimant does not have any arguable case that the Sri Lankan authorities would fail to meet its obligations to protect its citizens;
(4) The claimant has failed to put forward any good reason why he could not safely relocate internally within Sri Lanka.
The contentions at (1) and (2) above depend upon the true effect of the decision of the Court of Appeal in the case of Fadli [2000] EWCA Civ 297.
The Case of Fadli
The appellant Fadli was an Algerian who had sought asylum in this country. His application was refused by the Secretary of State and his appeal to a special adjudicator was unsuccessful. He was also refused leave to appeal to the Immigration Appeal Tribunal. He applied for judicial review and Munby J. dismissed the claim, but gave him permission to appeal to the Court of Appeal. The only ground argued in the Court of Appeal turned on his legal obligation, since he was an Algerian citizen, to do military service in Algeria. He alleged that if he refused to do it, he would be subjected to a term of imprisonment and that, if he did it, his life and his family's life would be at risk from the Groupe Islamique Arme (GIA) because he would be perceived by the GIA as being opposed to its aims and objects. His case was that he, along with others who do military service in Algeria, are at risk from GIA both whilst they are serving soldiers and thereafter.
The special adjudicator held that objection to military service was only capable of amounting to a Convention reason if either (i) it was on conscientious grounds or (ii) the punishment for refusal would itself, for some Convention reason, be excessively severe. The Court of Appeal had to consider whether the special adjudicator had addressed the correct question and, in particular, the...
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