S.k. For Judicial Review Of A Certification Decision By The United Kingdom Borders Agency
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2014] CSOH 52 |
| Date | 18 March 2014 |
| Docket Number | P1104/13 |
| Court | Court of Session |
| Published date | 18 March 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 52 | |
| P1104/13 | OPINION OF LORD STEWART in the Petition SK Petitioner; for Judicial Review of a certification decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 27 February 2013 in terms of the Nationality, Immigration and Asylum Act 2002 s. 96(2) etcetera, and Answers for The Secretary of State for the Home Department Respondent: ________________ |
Petitioner: Forrest; Drummond Miller LLP
Respondent: Komorowski; Office of the Advocate General
18 March 2014
[1] This is a "last gasp" petition according to counsel for the respondent, Mr Komorowski. The petitioner is an adult male national of Namibia of uncertain age. He has been in the United Kingdom for almost ten years. He is a visa overstayer. He arrived on 12 August 2004. Since 29 August 2006, that is, for the last seven and a half years, he has been in the United Kingdom without leave. In the period up to 2012 he made three unsuccessful applications for leave. He became rights-of-appeal-exhausted at the end of 2012. Then, on 28 January 2013, he made a claim for asylum. He had never previously claimed asylum. By decision letter dated 27 February 2013 the United Kingdom Border Agency [UKBA] on behalf of the Home Secretary refused the petitioner's asylum claim and certified the petitioner's application in terms of section 96(2) of the Nationality, Immigration and Asylum Act 2002.
[2] The refusal of the petitioner's asylum claim is "an immigration decision" in terms of section 82(1) of the 2002 Act. As a rule immigration decisions can be appealed to an immigration judge of the First Tier Tribunal (Immigration and Asylum Chamber). The effect of certification in terms of section 96(2) is to deny the applicant the right otherwise available of appeal to an immigration judge with potential further appeal rights from the decision of the immigration judge. By this petition for judicial review lodged with the court on 29 October 2013 the petitioner seeks to have the UKBA decision of 27 February 2013 set aside. Mr Forrest who appeared for the petitioner at the first hearing on 28 February 2014 restricts his application to having the certification decision set aside. The effect of reducing the certification decision, according to Mr Forrest, would be to allow the question of certification to be re-decided with the possible result that the petitioner will get his appeal to a fact-finding hearing before an immigration judge. (An alternative view might be that reducing the certification decision opens up the immediate possibility of an appeal.)
[3] Having heard submissions from Mr Forrest, counsel for the petitioner, and Mr Komorowski, counsel for the respondent, on 28 February 2014 I decided there and then that the petition should be refused. Mr Forrest has asked me to provide reasons in writing which I now do.
The statutory framework
[4] Section 96(2) of the Nationality, Immigration and Asylum Act 2002 provides as follows:
"(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."
As is explained below the Home Secretary accepts that in addition to the criteria (a), (b) and (c), a fourth-stage test is implied.
The decision of 27 February 2013
[5] Paragraph 117 of the decision of 27 February 2013 states:
"For the reasons given at paragraphs 64―70, it is not considered that you have given satisfactory reasons for the matters raised in your current claim not having been raised in response to the notice served on 29 August 2006."
Paragraphs 64―70 are part of the section headed "Immigration history and related issues". The whole section consists of paragraphs 58―70. The "related issues" include credibility. The credibility issues dealt with in paragraphs 58―63 are, first, the fact that the petitioner employed deception to obtain his original visa and, secondly, that despite service of the "One Stop Warning" notice in terms of section 120 of the 2002 Act on 29 August 2006, three previous applications for leave in 2006, 2010 and 2012, one previous appeal in 2012, one previous immigration arrest in 2012, and service of a notice of liability to removal in 2012, it was not until the petitioner became rights-of-appeal exhausted at the end of 2012 and was again subject to immigration arrest that he for the first time made his current asylum application. This is the background to paragraphs 64 - 70.
[6] Paragraphs 64 and 65 in turn rehearse the terms the 2002 Act s. 120 and the content of the "One Stop Warning" notice served on the petitioner in terms of section 120. I should highlight three of the bullet points in the notice:
"* You must now make a formal statement about any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.
[...]
* If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.
[...]
* If you later apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused."
[7] Paragraph 66 of the decision records that at no point prior to 28 January 2013 did the petitioner put forward a completed statement of additional grounds or raise the asylum issues now raised "despite having had ample opportunity to do so, and despite having been advised of your obligation to do so". Paragraph 67 assesses the reasons given by the petitioner for raising asylum issues for the first time in 2013. The petitioner blames his solicitors in England for giving him the wrong advice. The UKBA decision maker rejects the explanations as incredible. The decision maker also notes that the petitioner's account does not explain the failure of the petitioner to raise the asylum issues after he came to Scotland in 2008 and got a new solicitor. Paragraph 70 concludes this section of the decision in the following terms:
"It is therefore not considered that you have reasonably explained your failure to raise the issues on which you now seek to rely at an earlier point, despite your having more than reasonable opportunity to do so. The credibility of your claim is therefore considered to have sustained the most grave damage."
Submissions
[8] Mr Forrest submits that there are two errors in the certification decision of 27 February 2013, namely (1) the absence of a proper basis for the UKBA decision maker's finding that there is "no satisfactory reason" in terms of the 2002 Act s. 96(2)(c) for the petitioner not having raised the asylum matter previously; and (2) the failure of the decision maker to "have regard to all relevant factors" in making the certification decision. Mr Forrest looks for support to the case of R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) citing paragraphs 1 - 3, 38, 39, 63, 68, 69, 102 - 114 although I am not sure that all of these references are relevant.
[9] As regards the first supposed error, the argument runs as follows. Paragraphs 64 to 70 are referred to in support of the "no satisfactory reason" determination. Paragraph 70 offers a conclusion from what has gone before. Paragraph 70, rightly or wrongly, makes a negative assessment of the credibility of the petitioner's claim for asylum. The question whether a claim could or could not reasonably have been raised earlier should not be determined by the UKBA decision maker's view of the credibility of the substantive underlying claim. Even if the decision maker did assess the asylum claim to be incredible, that cannot amount to the statutory absence of a satisfactory reason such as would justify excluding the right of appeal. Precisely the opposite. If there be a question as to the credibility of the claim, that is a question fit to be determined on appeal to a fact-finding immigration judge of the First Tier Tribunal. The tribunal will hear oral evidence subject to cross-examination.
[10] The second alleged error assumes that in addition to the three stages (a), (b) and (c) of the statutory section 96(2) certification process there is a fourth stage. The fourth stage is the stage identified by Stadlen J in R (J) [at § 106]: "Fourth [the Home Secretary] must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification." The UKBA decision maker acknowledges, quoting from R (J), the existence of the fourth-stage; and using Stadlen J's formula the decision maker exercises the Secretary of State's discretion at paragraph 118 in the following terms:
"Having considered all relevant factors, it is considered appropriate to exercise the Secretary of State's discretion in favour of certification. As a result, your application has been certified under Section 96 of the Nationality, Asylum and Immigration Act 2002."
This is what Mr Forrest says should be done. Mr Forrest's complaint is that this is only a purported exercise of the discretion. In a situation in which an applicant may face persecution if returned, reasons should be given for excluding the right of appeal.
[11]...
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