S.t.n. V. Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2013] CSOH 47 |
| Court | Court of Session |
| Docket Number | P912/12 |
| Published date | 22 March 2013 |
| Date | 22 March 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 47 | |
| P912/12 | OPINION OF LORD BOYD OF DUNCANSBY in the Petition of STN Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________ |
Petitioner: Winter; Drummond Miller LLP
Respondent: McIver, Office of the Advocate General for Scotland
22 March 2013
[1] This is the petition of STN for judicial review of a decision by the Secretary of State for the Home Department to certify the petitioner's human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) in letters headed "Determination of Asylum Claim" and "Reasons for Refusal" and "Notice of Immigration Decision" all dated 2 April 2012.
[2] The petitioner is a South African National. He has made a human rights claim to the respondent. The Immigration decision which he seeks to reduce is a notice to remove the petitioner from the United Kingdom. If he does not do so voluntarily directions will be given for his removal from the United Kingdom to South Africa.
[3] Under section 94(3) of the 2002 Act if the Secretary of State is satisfied that an asylum or human rights claimant is entitled to reside in a State listed in section 94(4) of the Act she shall certify the claim under section 94(2) unless satisfied that it is not clearly unfounded. South Africa is a State listed under section 94(4) of the Act.
[4] According to the Reasons for Refusal the petitioner was issued with a Working Holidaymaker's Visa by the British Embassy (I suspect this should read (High Commission) in Pretoria which was valid from 2 August 2003 until 2 August 2005. He overstayed this visa, remaining in the UK until February 2008 when he returned to South Africa. On 21 February 2008 he was refused entry to the UK as he had previously overstayed his visa. He applied for a visitors' visa to the United Kingdom from the British Embassy (sic) in Pretoria on 28 May 2008. This was refused on the ground that the petitioner had previously overstayed his visa. On 22 September 2008 he left South Africa and flew to Dublin via Abu Dhabi arriving in Dublin the following day. He was issued with a two week visitor visa. He then flew from Dublin to Edinburgh where he remained living illegally. On 29 January 2009 the petitioner was encountered by the UK Border Agency Enforcement and served with illegal entry papers. 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 Croydon and scheduled an appointment for 9 March 2012 when he was interviewed in relation to his human rights claim.
[5] The background to the human rights claim is set out in the Reasons for Refusal. They are as follows. The petitioner comes from the Ivory Park Township on the outskirts of Johannesburg. On 29 April 2008 he was involved in an incident that led to him being accused of beating five police officers, interfering with police duties and breaking their state car. This arose out of an incident which happened at his brother's tavern when police officers arrived and were searching people in the tavern. The petitioner approached one of the officers wearing a uniform identified as Inspector Mahlangu, and asked him what was happening. An altercation then ensued as a result of which he was told that he was going to be arrested. He was allowed to go and collect a sweater. When he returned he saw police officers beating his brother. He pushed one of them who fell over landing on bricks. Inspector Mahlangu then approached him, sprayed him with pepper spray and beat him with his baton. He was then handcuffed, beaten and taken to the police car.
[6] He was then taken to the Ivory Park Police Station where he was taken to a small room, insulted and slapped. Other members of his family had also been arrested. He was then taken to a larger cell with other inmates before, in the early hours of the morning being taken into a room and beaten this time by six officers. He was returned to the larger cell but during the next two nights was taken out to the smaller cell and beaten. On the third morning he was charged with beating a police officer and then released. After his release he went to a private hospital as he wanted a written statement but they refused to become involved. He then went to a public hospital where he was checked over and given painkillers and ointment.
[7] He appeared in court the following Monday but the hearing was postponed in total, according to the petitioner, 16 times. He claims that he was intimidated and threatened by members of the Ivory Police Forum.
[8] At the end of August 2008 the petitioner claims that he was shot at near to the gate of his house. He did not know who shot at him. He was not hit but whoever shot at him missed and hit the lamppost. He reported this to the police who told him that it could have been anybody and he should be glad that he was not hit. So far as the proceedings in court were concerned, he said that he was not allowed to say what had happened to him at the hands of the police. The petitioner did not give evidence in court because of the threats.
[9] He said that he wrote a letter of complaint to the CID, which the respondent presumes to be a reference to the ICD, the Independent Complaints Directorate, but received no response. He also sent an email to a TV station but also received no response. He left South Africa in September 2008.
[10] After the petitioner left South Africa he said that his brother had told him that the police were looking for him and had a warrant for his arrest. They had been to his father's house. So far as the charges against him were concerned he did not know whether or not they had been dropped.
The legislative background
[11] The petitioner has a right of appeal against the decision of the respondent under section 82(1) of the 2002 Act. However, where the respondent is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in section 94(4) of the 2002 Act she shall certify the claim under section 94(2) unless satisfied that it is not clearly unfounded. South Africa is a State listed in section 94(4). The effect of such certification is to provide that the right of appeal cannot be exercised while the petitioner remains within the United Kingdom (see sections 94(1A) and 92(2) of the 2002 Act. The reason for those provisions can be found within section 94(5) which provides that the Secretary of State may by order add a State to the list in section 94(4) if satisfied that there is in general in that State no serious risk of persecution of persons entitled to reside in that State and removal to that State of persons entitled to reside there will not in general contravene the United Kingdom's obligation under the Human Rights Convention. The appearance of South Africa on the list indicates that the respondent is satisfied that these conditions are met in South Africa.
The test
[12] Parties were in broad agreement as to the test to be applied determining a judicial review of the respondent's decision in the circumstances of this case. The test is whether or not there are no prospects of success. It is an objective one. It does not depend on the view of the respondent but upon the criteria that a court can readily apply once it has the materials that the Home Secretary had: R(L and Another) v Secretary of State for the Home Department (2003) 1 WLR 1230 per Lord Phillips of Worth Matravers at p 1245H (para 56). If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. A case which is clearly unfounded is one which with no prospects of success or so clearly without substance that the appeal would be bound to fail; R (AK) (Sri Lanka) v Secretary of State for the Home Department (2010) 1WLR 855 at 869, para 34. An arguable case is one that could on any legitimate view succeed. Such a case would not qualify for certification, R Bagdanavicius v The Home Secretary 2004 1 WLR 1207 per Auld LJ at para 58.
[13] Mr Winter in his submissions on this point suggested that even if the prospects of success were fanciful then the court should grant the prayer of the petition. For the respondent, Mr McIver took issue with the submission that even if the prospects of success were fanciful the petition was entitled to succeed. He submitted that if the court concluded that a claim was not "clearly unfounded" or had a realistic prospect of success then the petitioner was entitled to succeed: ZT (Kosovo) v Secretary of State for the Home Department (2009) 1 WLR 348 per Lord Phillips at paras 22 and 23 and Lord Neuberger at para 83.
[14] I reject the view that even the fanciful prospect of success is sufficient to pass the test. If that were true, all that would be needed for success in this process would be to state the claim. In my opinion the claim must have some substance. It must have some realistic prospect of success: ZT (Kosovo) para 23 per Lord Phillips and para 83 per Lord Neuberger. The proper recourse for the court is to assess the material objectively taking the case at its highest for the claimant and giving the most generous interpretation to the facts that they can credibly bear. To state that the prospects of success must be realistic is to say no more than that a judge properly applying his mind to the appeal under section 82(1) would be properly entitled to uphold the claim.
[15] In determining this matter on previous occasions the court has made their own assessment of how an immigration judge might have decided the matter on the basis of the material available to the Secretary of State: see for example Morag Wise, QC (as she then was) sitting as a temporary judge in MN 2011 CSOH 121 and Lord Malcolm in JS, Petitioner 2010 CSOH 75 at para 30. I shall follow the same course.
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