R Sayyad v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] EWHC 1660 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9302/2012 |
| Date | 02 May 2014 |
[2014] EWHC 1660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Elisabeth Laing
CO/9302/2012
Ms Catherine Robinson (instructed by Wilsons Solicitors LLP) appeared on behalf of the Claimant
Mr Tom Poole (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is my decision on the claimant's application for judicial review. Permission to apply for judicial review was granted at an oral renewal hearing by Mr Robin Purchas QC, sitting as a Deputy Judge of the High Court, on 15 February 2013. The claimant has successfully challenged several decisions of the Secretary of State: 1) the 20 August 2012 decision initially to certify her asylum human rights claim as clearly unfounded; 2) a decision on 19 October 2012 issuing removal directions for India; 3) a decision on 25 October 2012 that her further submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules HC395 as amended; 4) a decision of 29 October 2012 maintaining the certificate; 5) a decision of 3 March 2014 that further submissions did not amount to a fresh claim under paragraph 353; and finally, a decision of 7 March 2014 that the further submissions which had been made about internal relocation did not amount to a fresh claim, and a decision to maintain the certificate on that date.
In her excellent oral submissions yesterday, Ms Robinson, who represented the claimant, concentrated on grounds 1 and 2 and 5 and 6 in her skeleton argument, as I will explain in a moment.
The facts
The claimant is a national of India. Her family are Sunni Muslims. She has a university degree, an MA in Finance and Accounts, and her current husband is well-educated. He is from Pakistan, but is now living in Malaysia. The claimant has previously supported herself in India, according to answers given in her asylum interview. She had an internship and was then offered a permanent post. She claims that she is the victim of a forced marriage. When she tried to complain to the police, they would not help her and her father beat her. She ran away, but her family found her and her father beat her again. Her first husband divorced her.
She secretly applied for a student visa to come to the United Kingdom. She arrived on 29 September 2009. She met her second husband here, and on 23 March she married him. He is a Shi'a Muslim. Her parents did not know that she was coming here. They had threatened her on the telephone. She says she has shamed them because her first marriage ended in divorce and because she has married a Shi'a Muslim. She believes that her family will find her in India and that the police will not protect her.
This claim was issued initially challenging the certification of the claimant's claim. The grounds relied on then are not persisted in, and I have not seen them as they are not in the bundle. The claimant then instructed new solicitors and they submitted detailed representations and an expert report on 24 October 2012. The defendant maintained the certificate on 25 October 2012. After the grant of permission to apply for judicial review, the claimant served amended grounds. On 29 October the defendant served detailed grounds of defence and a further decision dealing with Article 8 and paragraph 353B of the Immigration Rules. There have been several iterations of the claimant's claim.
The claimant's solicitors made further submissions on 27 January 2014, relying on the claimant's deteriorating mental health and on a report from a consultant clinical psychologist, Dr Thomas. In short, Dr Thomas diagnosed a major depressive episode which was severe, with psychotic features, post-traumatic stress disorder, and an emotionally unstable personality disorder. Dr Thomas's opinion was that the claimant would become considerably less well if she was returned to India and that there was a risk of suicide.
A hearing in this case was listed for 5 March 2014. It was adjourned by Lewis J to enable the defendant to serve a further decision dealing with the issue of internal relocation. The defendant had in the meantime made a further decision dated 3 March, and on 7 March the final decision in this case was made.
The current claims
In a very clear skeleton argument, which she amplified orally, Ms Robinson relied on six grounds. She focussed on four in argument, as I have already said. The first challenged the decision of 20 August 2012. The claimant argues that the initial certificate was unlawful. The claim was certified under section 94(2) of the Immigration, Asylum and Nationality Act 2002 ("the 2002 Act") on the grounds that it was clearly unfounded. The claim was also certified under section 94(3) of the 2002 Act on the grounds that India, the country to which the claimant would be returned, was in the list of countries set out in section 94(4), and the Secretary of State was not satisfied that the claim was not clearly unfounded.
The claimant relies on the following seven arguments. 1) the court must conduct a rolling review of the certificate and, applying anxious scrutiny, decide by reference to the most up-to-date evidence whether the certified claim was clearly unfounded. This is an argument which applied to the subsequent reconsiderations of the further submissions. 2) the question in relation to the certificate is whether an appeal could on any legitimate view succeed; or, the other side of the coin, whether it is bound to fail (see paragraph 22 of ZT (Kosovo)). Mr Poole, for the defendant, adds by reference to Thangarasa that the Secretary of State is bound to consider the claim carefully, but this is not a full-blown merits review, it is, rather, a screening process. 4) The defendant has considered the claimant's case expressly on the basis that the defendant accepts the claimant's factual account. 5) The fifth argument is that this is contradicted by the fact that the Secretary of State has said that the claimant's claim is speculative and subjective. 6) But the claim is not, because the claimant has been physically abused by her father and he was able to track her down in India. Ms Robinson accepts that that was in Mumbai where the claimant's parents live. The claimant had not at that stage tried to move anywhere else in India. 7) The defendant's consideration of the in-country evidence in the 20 August decision is partial and the conclusions reached in it are irrational.
So, was the defendant entitled to certify the claim on 20 August? Ms Robinson reminds me that the threshold for certification is a high one precisely because the certificate deprives a person of an in-country appeal to a specialist tribunal. The decision of 20 August is long and thorough. It considers the immigration history, the law, the evidence, and the submissions made by the claimant. In the light of the claimant's challenges to the two further decisions which were made in March 2014, and which are a response to a new case raising for the first time the question of the claimant's deteriorating mental health, it is particularly important to bear in mind that the August decision contains a thorough and correct step-by-step analysis of potential claims under the Refugee Convention and under Article 3, and, in particular, an analysis which is not challenged, of the principles which apply to the internal relocation. That analysis does not anticipate and could not have anticipated an argument based on the claimant's mental health, but it provides the analytical framework for the later consideration of the issues raised by the claimant's deteriorating mental health in the decisions which were made in March 2014.
I accept Mr Poole's submission for the defendant that the decision maker was not obliged to refer to every piece of in-country evidence in the decision. The decision letter is 68 paragraphs, and some 20 pages, long. There is a full review of the in-country evidence. Not every item is referred to, but it is, in my judgment, a fair summary of that evidence. Moreover, it is apparent from the decision that the Secretary of State has consulted the relevant passages of the Country of Origin ("COI") report. There is no obligation on the defendant to reproduce all the relevant material; the relevant material is about 37 pages long.
The defendant accepts in the decision that the claimant is a member of a particular social group and considers her claim on that basis. In relation to the claimant's claim that her parents would kill her if she were to return to India, the defendant noted that, in the asylum interview, she said that she had continued to live with them after she had split up from her first husband, and that they had supported her while she continued studying and got a job. She had her own personal bank account and her salary was paid into it. She had unlimited freedom, access to a passport and was able to apply to the British High Commission for a visa in her own name. She left home on the day of her departure with no apparent problems.
The decision maker accepted that the claimant's parents were not happy with her choice of husband, but went on to say that the claimant had failed to show a real risk or reasonable likelihood of persecution by her parents. Though she claimed that her parents had threatened to kill her, she was still in contact with them. Her fear was not objectively well founded; it was speculative and subjective. The...
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