Umar, R v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MISS FRANCES PATTERSON QC |
| Judgment Date | 10 October 2008 |
| Neutral Citation | [2008] EWHC 2385 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10050/2007 |
| Date | 10 October 2008 |
[2008] EWHC 2385 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Frances Patterson QC
(Sitting as a Deputy High Court Judge)
Case No: CO/10050/2007
Miss Gita Patel (instructed by Miles HutchinsonLithgow) for the Claimant
Mr David Blundell (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 1 st October 2008
The Deputy Judge:
Introduction
The Claimant is a Nigerian national. She is Muslim of Fulani ethnicitywas born in Sokoto. She arrived in the UK with her husband Umar Tukur on a visitor visa on the 23 rd of March 2005. She has two children both born in the United Kingdom after her arrival in 2005.
Her husband claimed asylum on the 16 th February 2006the Claimant applied for asylum as a dependent on his claim. In so doing she claimed to be a Sudanese national. She says that was because someone told her husband that people from Nigeria could not get asylum. Her husband's claim for asylum was refusedcertified under S94 (3) of the Nationality, ImmigrationAsylum Act 2002 (“the 2002 Act”). There has been no challenge to that decision
The Claimant later claimed asylum in her own right on the basis that she was fearful of persecution on return to Nigeria from her husband's family towards herselfher sons. The application was refusedcertified by the Secretary of State as clearly unfounded on the 13 th of August 2007 pursuant to s 94(2) of the 2002 Act. Permission was granted to bring judicial review proceedings to challenge the certification claim on the 19 th February 2008.
Counsel for the Claimantthe Defendant were agreed that the principal issues in the case were :
i) was there sufficiency of protection for Mrs Umar in her country of origin, Nigeria?
ii) was there a possibility of internal relocation within Mrs Umar's country of origin?
The Facts
The Claimant was born on the 1 st of January 1984 in Sokotu State, Nigeria. Her father's father was born in Sudan so that her father was considered to be a Sudanese national event though he was born in Nigeria. The Claimant accepts that neither she nor her father has any right to claim Sudanese nationality now.
The Claimant has a good level of educationstudied to be a midwife for 5 months. When she was studying she met her future husband, Umar Tukur. He was from the Hausa ethnic groupthe Yauri royal family. His family did not like the Claimant. They said that she was a bad girl who had had other boyfriendswho came from a servant family. Her grandfather was a servant to the Emir of Birnin Kebbi where his job was to look after the Emir's horses. Likewise, the Claimant's future husband's family did not like the fact that her mother worked as a cleaner in a hospital. They told Umar that he could not marry the Claimant.
The ClaimantUmar married on the 9 th of October 2004. The marriage was registered in the Kaduna State. Umar had planned to return to finish his studies to be a pilot in South Africa. He decided that it would not be safe to leave the Claimant at her father's who was in poor health. The couple could not live near to Umar's family as the family did not like the Claimant. They went to live in Kaduna state (about 6 hours by road from the husband's family.)
Umar's family came looking for the coupletold the Claimant's parents that they wanted to kill the Claimant. Her parents did not tell them where the newly married couple were living. Somehow the family found outat the end of October, when her husband was away, his family arrived at the couple's house in Kaduna. The Claimant was asked whether she was pregnantupon confirming that she was she was beatenkicked. She lost consciousness, bled heavilylost the unborn child that she was carrying.
The Claimant was asked in the Home Office screening interview how she knew that those who assaulted her were Umar's family. She did not know their names but replied that they told her that they were member of Umar's family. They looked like him, were tallhad the same complexion.
The incident was not reported to the police or to any non government organisation (NGO). The Claimant says that “Umar's family have powerpeople in important jobs including the policejustice workthe authorities would favour them over us.” Beyond saying in interview that one was a justice called Sani Adumu she did not identify the positions held by her husband's family or identify them by name. She simply said that her parents cannot take a stand against that type of person.
The Claimanther husband then made steps to leave Nigeria which they did on the 23 rd of March 2005arrived in the United Kingdom. As they knew nothing about claiming asylum they arrived on visitor visas.
Since leaving Nigeria the Claimant has spoken to her family who have reported that members of her husband's family have come to their house at least 3 timesthreatened to kill the Claimanther son. Her husband's family have been to where the Claimant's mother worksmade similar threats to the welfare of the Claimant to her. The family have not been violent on these visits.
In November 2005 Umar had a telephone call from an unidentified member of his family who said that his family knew that he had a sonthat they did not want the son to live.
No evidence was produced from the Claimant's husband as part of her claim.
Legal Framework
When a person makes an asylum and/or human rights claim, the Secretary of State for the Home Department may certify that claim as clearly unfounded under s 94 (2) of the 2002 Act.
The effect of a certificate under s 94 is that a claimant may not appeal under s 82(1) of the 2002 Act while he/she is within the United Kingdom: see sections 92( 1), s92(4)(a),s94( 2) 2002 Act.
The meaning of 'clearly unfounded' was considered by the Court of Appeal in ZLVL v Secretary of State for the Home DepartmentAnother [2003] EWCA Civ 18. That decision was in the context of transitional provisions in s 115 of the 2002 Act which are not different in any material particular to s94.
Lord Phillips MR held at paras 5657 that the test as to whether a claim was clearly unfounded was an objective one which depended not on the Home Secretary's view but upon a criterion that the court can readily re-apply once it has the material before it which the Home Secretary had.
Lord Phillips MR said
“The decision maker will –
i) consider the factual substancedetail of the claim
ii) consider how it stands with the known background data
iii) consider whether in the round it is capable of belief
iv) if not, consider whether some part of it is capable of belief
v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.
If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not”.
That is essentially the same test as adopted by Lord Hope in Thangarasa v Secretary of State [2002] EWHC UKHL 36 at para 34 in applying the manifestly unfounded test in section 72(2)(a) of the 1999 Act, namely, that the claim “ is so lacking in substance that the appeal would be bound to fail.” Lord Hope emphasised that the issue “must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR”. Thus as Lord Phillips MR said in ZL at paras 4957 “an arguable case” or one that could “on any legitimate view succeed” would not qualify for certification. The question of whether a claim qualifies for certification is a narrow onethe threshold for certification is high.
The test for evaluating whether sufficiency of protection exists is that set out in Horvath v Secretary of State for the Home Department [2001] 1 AC 489. As Lord Hope said at p499 g-h:
“the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non state agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill treatment against which the state is unable or unwilling to provide protection. The applicant may have a well founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill treatment for a Convention reason which may be perpetrated against him. But the risk, however severe,the fear, however well founded, do not entitle him to the status of a refugee.”
Similarly, the level of protection in the home state is not such that it is expected to be absolute guaranteed immunity. As Lord Clyde said in Horvath at p 510 f “ that would be beyond any realistic practical expectation.” Lord Clyde adopted, at p 511 a-b, as a useful description of what is intended, the formulation set out by Stuart Smith LJ [2000] INLR 15 at para 22
“In my judgement there must be in force in the country in question a criminal law which makes violent attacks by the prosecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from protection of the law. There must be a reasonable willingness by the law enforcement agencies that it to say the policecourts to detect, prosecute punish the offender.”
As to the test for internal relocation Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at para 21 said :
“The decision maker, taking...
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