Sn V. Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Clark Of Calton,Lord McGhie |
| Neutral Citation | [2014] CSIH 7 |
| Date | 14 January 2014 |
| Docket Number | P912/12 |
| Court | Court of Session |
| Published date | 15 January 2014 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 7 | |
| Lady Paton Lady Clark of Calton Lord McGhie | P912/12 OPINION OF THE COURT delivered by LADY CLARK OF CALTON in the Petition of SN (AP) Petitioner and Reclaimer; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of the decision letters dated 2 April 2012 _______________ |
Alt: MacIver; Office of the Advocate General
14 January 2014
Procedural history
[1] By letter dated 2 April 2012, the respondent rejected various claims by the petitioner including a claim for asylum and a claim that moving the petitioner to South Africa or requiring him to leave the United Kingdom would be a breach of articles 2, 3 and 8 of the European Convention on Human Rights ("ECHR"). The respondent identified that in relation to the human rights claim, section 94(3) of the Nationality, Immigration and Asylum Act 2002 applied. She concluded that the petitioner's claim was clearly unfounded and certified the claim under section 94(2) of the 2002 Act. It was not disputed that the effect of the certification was that the petitioner had no right of appeal to the Asylum and Immigration Tribunal while he remained within the United Kingdom.
[2] The petitioner sought judicial review of the decision of the respondent. That was considered by the Lord Ordinary who issued an opinion and by interlocutor dated 22 March 2013, dismissed the petition.
[3] In this reclaiming motion, counsel for the petitioner invited the court to recall the interlocutor of the Lord Ordinary, and to reduce the certification under section 94(2) of the 2002 Act. The matters which were focused in the reclaiming motion related to claims by the petitioner that on return to South Africa he would face a real risk of behaviour to him by the police in breach of article 3 which would be contrary to the United Kingdom's obligations under the ECHR. It was not disputed that if the reclaiming motion was successful, the result would be that the reclaimer would be able to exercise an in country right of appeal to the First Tier Tribunal (Immigration and Asylum Chamber).
Immigration history
[4] The petitioner who is a South African national came to the United Kingdom legally with a working holidaymaker's visa, valid from 2 August 2003 until 2 August 2005. He overstayed this visa, but returned to South Africa in February 2008. Thereafter his attempt to obtain a visitor's visa to the United Kingdom failed. On 22 September 2008 he left South Africa and flew to Dublin and thereafter lived illegally in the UK where he was served with illegal entry papers in 2009. On 2 August 2011, the petitioner applied for voluntary return to South Africa but withdrew this application on 19 October 2011. On 20 January 2012 the petitioner contacted the Asylum Screening Unit in Croyden and scheduled an appointment for 9 March 2012 when he was interviewed in relation to his claims, some of which are not the subject of the reclaiming motion.
The statutory structure
Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
"Section 94(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.
(4) Those States are -
...
(w) South Africa, and
(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that -
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention. ..."
Article 3 ECHR
[5] Article 3 ECHR states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Submissions by counsel for the petitioner
[6] Senior counsel for the petitioner adopted the revised note of argument (23 of process) and it is unnecessary to summarise that. His oral submissions fell into two main chapters. The first chapter related to the nature of the statutory procedure, the meaning to be given to the legal test and the "presumption" to be drawn from past mistreatment in a case such as the present. He submitted that the alleged past mistreatment of the petitioner in South Africa was of such a nature and severity as to amount to a breach of article 3. In his second chapter, counsel criticised the reasons given by the Lord Ordinary for concluding that the statutory test was met in the circumstances of the present case.
[7] In dealing with his first chapter counsel characterised the statutory test as "the must fail" test. He accepted that the Lord Ordinary appeared to refer to the correct test. But various formulations were set out in paragraphs [12]-[14] of the opinion and this led to some uncertainty as to whether or not the Lord Ordinary had in mind the correct test. Counsel submitted that it was accepted in this case by counsel for the respondent that the past treatment at the hands of state agents, namely the police, described by the petitioner was, if true, a breach article 3 ECHR. This was not a case involving an applicant who, for various reasons, merely expressed concern that he might in the future be the subject of such treatment.
[8] Senior counsel explained that there had been a dispute before the Lord Ordinary as to whether it was appropriate to apply a "change of circumstance" test to consider the risk to the petitioner if he is returned to South Africa. That was the test supported by counsel on behalf of the petitioner. The contrary submission by counsel for the respondent was that the test which should be applied was to be found in the Council Directive on Minimum Standards (Council Directive 2004/83/EC of 29 April 2004) commonly known as "the Qualification Directive". Reference was made to article 4(4) which states:
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."
[9] Senior counsel submitted that whatever test was applied, on the facts and circumstances relating to the petitioner, it could not reasonably be concluded that the respondent was entitled to certify the claim of the petitioner as "clearly unfounded". Counsel prayed in aid Demirkaya v Secretary of State for the Home Department [1999] Imm AR 498 at 506 and MD (Guinea) v Secretary of State for the Home Department 2011 SC 237 at paragraphs 5 and 6.
[10] In relation to his second chapter, senior counsel submitted that there were two categories of error on the part of the respondent and these errors were also apparent in the opinion of the Lord Ordinary. Counsel submitted that in paragraphs [32] to [34] of his opinion, the Lord Ordinary discounted material which is relevant. In particular the Lord Ordinary failed to appreciate that it was the outstanding warrant which would make the petitioner a particular target with his history and would bring the petitioner back to the attention of the police. Counsel further submitted that the Lord Ordinary had taken into account matters which were speculative and unfounded in the evidence in paragraphs [32] and [34] of his opinion. There was no evidence before the Lord Ordinary that prominent individuals or political dissidents were the people in South Africa who were at risk of ill treatment by the police. The Lord Ordinary also speculated both about the identity of the police officers who may still be working as police officers and whether the petitioner would be likely to spend time in police custody. Counsel also criticised the reasoning of the Lord Ordinary in paragraph 35. He submitted that the mere passing by the legislature of the Police Investigative Directorate Act in 2011 did not assist the respondent's case in the absence of any information that there had been real and effective reform of police behaviour. He prayed in aid Kinuthia v Secretary of State for the Home Department [2002] INLR 133 and MD (Guinea) v Secretary of State for the Home Department 2011 SC 237.
Submissions by counsel for the respondent
[11] Counsel for the respondent provided a detailed note of argument (19 of process) and adopted this as part of his submission. Counsel submitted that the reasoning of the Lord Ordinary was not flawed and was well founded. In these circumstances, counsel invited the court to adhere to the interlocutor of the Lord Ordinary and refuse the reclaiming motion.
[12] In oral submissions counsel focused on four general chapters firstly, the test to be applied; secondly, information about the country background of South Africa; thirdly, the weight to be afforded to past ill-treatment and...
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