R (J) (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Stadlen |
| Judgment Date | 02 April 2009 |
| Neutral Citation | [2009] EWHC 705 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7641/2006 |
| Date | 02 April 2009 |
[2009] EWHC 705 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : THE HONOURABLE MR JUSTICE STADLEN
Case No: CO/7641/2006
MS LAURA DUBINSKY (instructed by Birnberg Peirce) for the CLAIMANT
MR JAMES STRACHAN (instructed by Treasury Solicitors) for the DEFENDANT
Hearing dates: 17, 18, 23 and 24 June 2008
The Honourable Mr Justice Stadlen:
This is an application for judicial review of a decision made by the Secretary of State for the Home Department on 15 June 2006 to certify the Claimant's asylum and human rights claims under Section 96 of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) on the grounds that they relied on matters which could have been raised in the Claimant's appeal against an earlier decision to refuse entry and should have been raised in a statement made in response to an earlier one stop notice and that in the opinion of the Secretary of State there was no satisfactory reason for those matters not having been raised in the earlier appeal or in response to the one stop notice.
The effect of the decision to certify the Claimant's claims under Section 96 of the 2002 Act in the form in which it was in force at the time the decision was made was to preclude the right which the Claimant would otherwise have had by virtue of Section 82 to appeal against the Secretary of State's decision, also made on 15 June 2006, to reject the Claimant's application for permission to remain in the United Kingdom on asylum and human rights grounds. Central to the issues arising on this application is the fact that at the same time as and notwithstanding certifying the Claimant's claims under Section 96, the Secretary of State also accepted that they amounted to fresh claims pursuant to Paragraph 353 of the Immigration Rules.
The application raises important general questions on the relationship between section 96 of the 2002 Act and paragraph 353 of the Immigration Rules as amended which defines a fresh claim as submissions whose content had not already been considered and, taken together with the previously considered material, created a realistic prospect of success notwithstanding its rejection by the decision maker. In particular in what circumstances if any is it lawful for a claim to be certified and for the right of appeal to be precluded in respect of submissions which the Secretary of State has determined amount to a fresh claim and thus created a realistic prospect of success?
The Facts
The claimant is a Sri Lankan national who was born on 18 May 1980 and is thus now 28 years old. He arrived in the UK on 30 June 2001 and claimed asylum immediately at the airport. He was served with a one stop notice pursuant to section 74 of the Immigration and Asylum act 1999,(“The 1999 Act”), the precursor of section 120 of the 2002 Act. The notice required the Claimant to state any additional grounds which he might have for wishing to enter or remain in the United Kingdom. In particular it stated that he should then put forward any human rights arguments he might have and warned him that if he raised additional grounds after the period allowed he might lose the chance to have any decision on them reviewed by an independent adjudicator, and that it might be concluded that they were put forward late to delay his removal from the United Kingdom.
On 7 July 2001 the Claimant was requested to complete and return within ten working days a Statement of Evidence Form in support of his application for asylum. By a letter dated 24 July 2001 the Claimant's then solicitor sent a statement of additional grounds together with a Statement of Evidence Form. However this was not received until 6 August 2001.
On 31 July 2001 the Secretary of State refused the Claimant's application for asylum. The Statement of Evidence Form not having been received in time the Secretary of State found that the Claimant had failed to establish his claim and concluded in the light of all the evidence available to him (of which there did not appear to be any) that he had not established a well-founded fear of persecution and did not qualify for asylum. His application was refused under paragraphs 336 and 340 of the Immigration Rules (as amended) and was recorded as determined on 31 July 2001. The Secretary of State also indicated that he was not satisfied on the information available that the Claimant qualified under any of the articles of the European Convention on Human Rights (“ECHR”).
The Claimant was served with a further one stop notice and required to state any additional reasons for staying in the United Kingdom not previously disclosed in a statement of additional grounds which was attached to a Notice of Appeal form served on him. On 12 August 2001 the Secretary of State formally refused the Claimant leave to enter the United Kingdom and notified him of his right to appeal on the ground that his removal would be contrary to the United Kingdom's obligations under the 1951 United Nations Convention Relating to the Status of Refugees (“The Geneva Convention”), notice of which appeal had to be received by 1 September 2001.
On 6 August 2001 the Secretary of State received a completed one stop notice and Statement of Evidence Form. The former submitted that in addition to seeking leave to enter as a Geneva Convention refugee the Claimant had been tortured by the state authorities in Sri Lanka which was evident from photographs filed with the Statement of Evidence Form and that removal directions would breach Article 3 of the ECHR. The latter contained declarations both by the Claimant and by his then solicitors, Ratna and Co. The Claimant declared that the information he gave was complete and true to the best of his knowledge. His solicitor declared that she had assisted the Claimant in completing the form, that the responses provided were all based on information provided to her by the Claimant and that the completed form had been read to the Claimant in his native language for verification before he signed his declaration in her presence.
In the Statement of Evidence form the Claimant applied for asylum on the basis that he feared persecution if returned to Sri Lanka by reason of his race ethnic origin or nationality and political opinions. This was supported by the account he gave in his signed statement of his alleged involvement in the LTTE (Liberation Tigers of Tamil Eelam (“the Tamil Tigers”)).
In his statement the Claimant alleged that he and his elder brother had been forced by the Tamil Tigers through the use of continued harassment and pressure to work for them. In May 1995 he stated that his elder brother had been pressurised by the Tamil Tigers to work for them. The Claimant and his parents tried unsuccessfully to locate his elder brother to persuade him to return home but were unsuccessful. In January 1998 during a Tamil Tiger attack on a government camp in Puliamkulam the Claimant's brother was killed. The Claimant and his parents were informed of this via the Voice of Tigers, a radio operated by the Tamil Tigers. The Claimant and his parents were requested to contact and leave their address with the National Heroes Office which they later did. They were then visited by some Tamil Tigers who said that the elder brother's body had been taken by the Sri Lankan authorities. A remembrance stone for his brother was planted at the National Heroes Resting House, a large space allocated for planting remembrance stones for those who died in the war with the Sri Lankan authorities.
On 30 December 1999 the Claimant stated that he was arrested in a night-time raid on his parents' house by the Sri Lankan army. The arresting soldiers said they had confirmed information that the Claimant's father was sheltering sons who had close links with the Tamil Tigers and asked for details of the Claimant's elder brother. They disbelieved his father's claim that he had died six months earlier and that the family had no contacts with him. They asserted that the elder brother was still alive and working for the Tamil Tigers. As soon as they arrived at the house and spotted the Claimant they shouted “Koddiya”, a Sinhalease word for Tiger. While doing so they pointed their guns at the Claimant and an officer said “Shoot! Shoot!”.
Having kicked the Claimant's father with their boots the soldiers dragged the Claimant into a van and took him to a Sri Lankan army base where he saw a human skull as he was led in. At the camp the Claimant said that he was interrogated to reveal his brother's whereabouts and tortured. He said that he was held upside down and beaten on his feet with heavy boots and sharp weapons. He was also beaten on the forehead with sharp weapons. Later they tied a shopping bag soaked with petrol over his head and beat him again. In the course of interrogation he was asked to identify Tamil Tigers who attended his brother's funeral but did not do so. He was also taken to a sentry point and asked to identify Tamil Tigers who passed it. When he failed to do so the interrogator said he must be a Tamil Tiger himself.
After being held in the army camp for many days the Claimant said that it was overrun by Tamil Tigers whom he told that he was being held by the Sri Lankan army as a Tamil Tiger. He claimed that he was dragged by the Tamil Tigers out of the camp and driven to a Tamil Tiger camp and thence to Vanni where he was investigated by the Tamil Tigers. He...
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