R Manjeet Kaur v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE STEPHEN DAVIES |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWHC 3565 (Admin) |
| Date | 19 December 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7158/2011 |
[2011] EWHC 3565 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT (MANCHESTER)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M3 3EL
His Honour Judge Stephen Davies
(Sitting as a Judge of the High Court)
CO/7158/2011
Ms L Hirst (instructed by Latitude Law) appeared on behalf of the Claimant
Mr S Karim (instructed by Treasury Solicitor) appeared on behalf of the Defendant
(As Approved)
In this case the claimant, Manjeet Kaur, seeks to challenge the decision of the defendant, the Secretary of State for the Home Department, to certify her asylum and human rights claim as clearly unfounded, the effect of which is to deprive her of an in-country right of appeal against the rejection of her claim.
Permission to bring this claim was granted by His Honour Judge Pelling QC on 20th September 2001, limited to the challenge to the defendant's conclusion as to the sufficiency of protection available to the claimant in India, being the country in which she resided immediately before she arrived in the UK, and where she says she would be subject either to persecution or to torture, inhuman or degrading treatment or punishment if she was to be returned.
I should begin this judgment by setting out the relevant legal principles, which are not in dispute between the parties. First, it is well established that the defendant is only entitled to certify the claimant's claim as clearly unfounded if she can be satisfied, looking at the matter carefully and objectively, that on any legitimate view of the facts or of the law the claim can not succeed. That is the test which was enunciated by Lord Phillips, the then Master of the Rolls, in VL and ZL v Secretary of State for the Home Department [2003] EWCA Civ 25: see paragraphs 56 to 58 inclusive, to which I was taken by Ms Hirst, counsel for the claimant.
Second, it is also well established that the function of the court in a case like this remains one of judicial review of the decision of the defendant. Nonetheless the court will have to consider essentially the same questions as would have to be considered by an immigration judge conducting an appeal from such a decision. This appears from a number of decisions of the Court of Appeal, culminating in MN(Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193.
Third, as Mr Karim, counsel for the defendant, has reminded me, because India is a designated country, included in the list of such countries appearing in section 94(4) of the Nationality Immigration and Asylum Act 2002, the Secretary of State must certify any rejected fresh claim under the 1951 Geneva Convention or the European Convention of Human Rights as clearly unfounded, unless she is not satisfied that the claim is clearly unfounded. In other words, there is a reversal of the usual position, which is that the Secretary of State must be satisfied that a claim is clearly unfounded before she can so certify.
Mr Karim also submitted, I have no doubt correctly, that the very fact that India is on this list is a recognition of the view which the Secretary of State takes of the stability of the organs of the state in that country, which is of course a democracy. Nonetheless, the presence of India on that list does not detract, in my judgment, from the careful scrutiny which the court must apply when performing the task which it must undertake in a case such as this.
So far as the asylum claim is concerned, the question in the present case is whether or not the claimant has a well founded fear of being persecuted for reasons connected with the political opinion of her husband if she was returned to India. Where, as in this case, it is not submitted that persecution overtly emanates from the organs of the State, the crucial question is whether the organs of the state are either unable or unwilling to offer sufficient protection against that persecution. This is, of course, the test established by the House of Lords in the case of Horvath v the Secretary of State Home Department [2000] 3 WLR 379.
So far as the claim under Article 3 ECHR is concerned, the question is whether or not the claimant can show strong grounds for believing that she would, if returned, face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. In the case of Bagdanavicius v Secretary of State for the Home Department [2003] EWCA Civ 1605, the Court of Appeal conducted a detailed review of the authorities in relation to the question of sufficiency of state protection, in relation both to asylum claims and Article 3 claims, and provided an extremely helpful summary of its conclusions in relation to that issue, both as to asylum and Article 3 claims.
That summary, which so far as I am aware has not been criticised or doubted in any way, authoritatively therefore sets out, in a convenient summary form, in paragraphs 1 through to 16 of its judgment, the relevant principles which I am required to and do apply in this case. I need not lengthen this judgment by reading out that extract in this case.
It must be recognised, as it was by the Court of Appeal in Bagdanavicius, that in all cases it is necessary to consider very carefully the particular circumstances of the individual claim. It would be wrong, in my judgment, to focus solely on the issue of the sufficiency of state protection which is generally available in the particular country in question. Instead, I must consider the issue of the sufficiency of state protection in the particular circumstances of the individual case. I consider that this must involve a careful assessment of the nature of the persecution which the claimant claims to fear if returned, and the sufficiency of protection which she could reasonably expect to receive in such circumstances. That is a point which, as appears from paragraph 12.59 of Macdonald's Immigration Law & Practice 8th edition, was emphasised by the Court of Appeal in the case of Noune v Secretary of State for the Home Department [2000] All Er (D) 2163. It is also true that in many cases in which such questions have to be answered acute issues as to the credibility of the claimant's account arise. The instant case is not one however where the defendant has contended, or could sensibly contend on current evidence, that the claimant is or should be treated as someone whose account of events is not credible for present purposes. That is something which, if it is raised as an issue in this case, can only be determined by an immigration judge after a full hearing. For present purposes I must proceed on the basis that the claimant has a real prospect of establishing the relevant facts upon which she relies in support of her claim.
Without further delay I turn to those relevant facts. The claimant was born in Kabul, Afghanistan in 1979. She and her family are Sikhs. She suffered polio in childhood, and must now use a wheelchair. Initially she lived in Afghanistan with her family. At some stage her mother and siblings relocated to Delhi to avoid the conflict in Afghanistan, but she remained there with her father until 2003 when, shortly after her father's death, she moved to Delhi. However her relationship with her family was poor, and they eventually disowned her after she married a man called Amit Bhatt, a non-Sikh software engineer, journalist and political activist.
According to the claimant articles and comments published by him, particularly in relation to governmental activity in the state of Jammu and Kashmir, attracted negative attention from political leaders, and the couple fled to the UK in 2005, returning to India in 2008 after the situation had as they perceived it calmed down.
In 2009 and in January 2011, Mr Bhatt published two books accusing the Indian government of human rights abuses and corruption, particularly in relation to Kashmir. In June 2010 he told the claimant that he had been the subject of threats and attacks, and that although he had reported the incidents to the police, they did nothing about them.
When the claimant was asked about this in interview, she said that he had attributed the attacks to people connected with the police, but when he had complained to the police no action had been taken. She said that on other occasions he had said that if he was to report these attacks it would only make the attacks more violent due to the connection between the people committing them and the police, and therefore he did not do so.
The first direct involvement of the claimant on her account was on 25th January 2011, when she says she was travelling in a car with her husband and his friend, Sanjay, when they were attacked by people on a motorcycle who stopped the car, got her husband and his friend out, grabbed her husband's throat and told him to stop what he was doing or worse things would happen to him. She says that he reported that attack to the police, but they did not take a statement from her, and when her husband returned to follow up his complaint he was told simply that they did not know what had happened or who had done it.
On 5th February 2001 the claimant says that her husband left for work but did not return later that day or afterwards. She tried to contact him by telephone, but it was and remained switched off. She spoke to her husband's friend after a couple of days. He advised her not to contact the police, because they would not do anything and it might cause more trouble. She was...
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