T.w. For Judicial Review Of Decisions Of The Secretary Of State For The Home Department Dated 14 April 2010
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2011] CSOH 88 |
| Date | 24 May 2011 |
| Docket Number | P737/10 |
| Court | Court of Session |
| Published date | 24 May 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 88 | |
| P737/10 | OPINION OF LORD BRODIE in the Petition of TW Petitioner: against Judicial Review of Decisions of the Secretary of State for the Home Department dated 14 April 2010 ________________ |
Petitioner: Komorowski; McGill & Co.
Respondent: John MacGregor; Office of the Solicitor to the Advocate General
24 May 2011
Introduction
[1] This is an application for judicial review of decisions of the respondent, the Secretary of State for the Home Department, as intimated by notice of decision to refuse to revoke a deportation order dated 14 April 2010 (the "notice") and letter giving reasons to revoke a deportation order, also dated 14 April 2010 (the "decision letter").
[2] The petitioner is a national of Eritrea. He has been taken to have been born on 16 January 1982, although he has not given consistent evidence as to his age. He has what counsel who appeared on his behalf described as an unattractive immigration history displaying a flagrant disregard for border controls. Consideration of the petition (in its un-amended and amended form) and the decision letter confirms the accuracy of counsel's description. The history contains features that section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 requires to be taken into account as damaging the petitioner's credibility in relation to any statement made by him in connection with an asylum or human rights claim on his behalf.
[3] On 11 December 2006 the petitioner entered the United Kingdom. He claimed asylum. That claim was refused on 24 January 2007 on the basis that he was not entitled to asylum. The petitioner appealed the decision. By determination dated 15 March 2007 and promulgated on 2 April 2007 the appeal was dismissed. The petitioner was found not to have given a credible account of the events which caused him to leave Eritrea and accordingly the Tribunal did not accept that he had left Eritrea contrary to Eritrean law, a point which came to assume central importance for reasons to which I shall return. The petitioner claimed asylum again on 20 July 2007, this time in the name of Aton Kahsay, purporting to be a minor. That claim was withdrawn. The petitioner was convicted on 13 December 2007 and again on 7 April 2008 in respect of possession of false identity documents and on 9 March 2010 for assault. On 7 December 2009 he left the United Kingdom in breach of bail conditions and went to the Republic of Ireland.
[4] On 8 July 2008 the respondent made an order for the deportation of the petitioner from the United Kingdom. That was appealed. By determination dated 9 October 2008 and promulgated 13 October 2008 the appeal was dismissed. On 21 August 2009 further representations were made on behalf of the petitioner, relying on the decision of the Asylum and Immigration Tribunal in MA (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT 00059 (which I shall refer to as MA (Eritrea))and seeking revocation of the order.
[5] In terms of the notice and the decision letter the respondent decided not to revoke the deportation order. In paragraphs 29 to 30 of the decision letter she certified the petitioner's asylum claim (under the Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol) and his human rights claim (under the European Convention on Human Rights) as "clearly unfounded" in terms of the Nationality Immigration and Asylum Act 2002 section 94 (2). Whereas the decision not to revoke a deportation order triggers a statutory right of appeal in terms of section 82 of the 2002 Act, the effect of certification is that the petitioner's right of appeal cannot be exercised while he is in the United Kingdom.
[6] The respondent proposes to deport the petitioner from the United Kingdom to Eritrea which is his country of nationality and former residence. The petitioner has no right to remain in the United Kingdom other than what flows from his asylum claim and his human rights claim. He would wish to rely on these claims in an appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) in terms of section 82 (1) and (2) (k) of the Nationality, Immigration and Asylum Act 2002. As I have already noted, the petitioner retains a right of appeal and no point is taken by the respondent as to whether he might properly be regarded as a refugee for the purposes of the Geneva Convention, but certification of his claims as "clearly unfounded" disentitles the petitioner from pursuing a section 82 appeal against the respondent's refusal to revoke the deportation order from within the United Kingdom: 2002 Act section 94 (2). The Note of Argument for the petitioner understandably (because in practice it will be very difficult to pursue) describes the possibility of appeal from outside the United Kingdom as "scant consolation": L [2003] 1 WLR 1230 at para 54 and "fairly useless": Venediktov [2005] EWHC 2460 (Admin) at para 14; hence the petitioner's wish to reduce the certification through this application for judicial review.
[7] The application came before me for a First Hearing on 10 February 2011, a previous First Hearing fixed for 27 October 2010 having been discharged. Mr Komorowski appeared for the petitioner. Mr MacGregor appeared for the respondent. Argument was not completed on 10 February 2011 or the succeeding day and therefore the hearing was continued to 14 March 2011 when it was concluded. Prior to the hearing before me, parties had lodged Notes of Argument. The Note of Argument for the petitioner is number 15 of process. The Note of Argument for the respondent is number 14 of process. In the course of the hearing there was lodged a Supplementary Note of Argument for the petitioner, number 17 of process. These Notes of Argument were detailed. They were of very considerable assistance. I would gratefully refer to them as statements of the parties' respective submissions.
Country guidance
[8] Put very shortly, it is the petitioner's position that he served for some years as a soldier in Eritrea, that he was granted leave and that he took the opportunity afforded by his leave to cross the border into Sudan from where he travelled onward to Europe and, eventually, to the United Kingdom. The critical feature of his account was that he left illegally, in other words without an exit visa issued by the Eritrean government. That is of importance because of the ill-treatment which is likely to be afforded to an Eritrean national who has left the country illegally and then returns. That someone in that category is at real risk of being subject to punishment which is persecutory and amounts to serious harm and ill-treatment can be taken as established for present purposes by the decision in MA (Eritrea).
[9] As the initials "CG" which form part of its full citation indicate, MA (Eritrea) is a "country guidance" case. As Lord Hodge notes in FNG Petitioner 2009 SC 373 at para 25, the practice of the AIT and its statutory predecessor of giving "country guidance" in order to avoid multiple examinations of the political and general circumstances in a country at any particular time and to achieve consistent decision-making was discussed in R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535. The Court of Appeal there held that, where an appeal related to the country guidance issue in question and depended upon the same or similar evidence, it would be an error of law to fail to apply an extant country guidance decision unless there was a good reason, explicitly stated, for not doing so. The error of law would be that the Tribunal would have failed to take a relevant consideration into account. The country guidance cases did not have the status of factual precedents but provided at least a starting point for consideration of the background. As is observed by Lord Uist in CPO Petitioner [2011] CSOH 12 at para 11, the matter is now the subject of a Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal Practice Direction dated 10 February 2010. Para 12.2 of the Practice Direction (quoted in the Note of Argument for the petitioner) states:
"A reported determination of the Tribunal, the AIT or the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-
(a) relates to the country guidance issue in question: and
(b) depends upon the same or similar evidence."
As the Note of Argument for the petitioner has it, put shortly, in the absence of significant new material about the country of origin, general findings made in a country guidance case must be followed in subsequent cases.
[10] Understandably, in his submissions Mr Komorowski took some time in leading me through the judgment in MA (Eritrea) with a view to demonstrating the effect of the country guidance there contained. It is a long judgment but its salient features emerge from the operative guidance quoted in the Note of Argument for the petitioner:
"1. A person who is reasonably likely to have left Eritrea illegally will in general be at real risk on return if he or she is of draft age, even if the evidence shows that he or she has completed Active National Service ...By leaving illegally while still subject to National Service (which liability in general continues until the person ceases to be of draft age), that person is reasonably likely to be regarded by the authorities of Eritrea as a deserter and subjected to punishment which is persecutory and amounts to serious harm and...
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