COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Goldring
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE SEDLEY
| ZL AND VL||Appellants|
|- and -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT and LORD CHANCELLOR'S DEPARTMENT||Respondents|
Miss Monica Carss-Frisk, QC and Miss Samantha Broadfoot (instructed by The Treasury Solicitor for the Respondents)
Crown Copyright ©
Lord Phillips, MR :
This is the judgment of the court to which all members have contributed.
The statutory framework
The Nationality, Immigration and Asylum Act 2002
"A person may not bring an appeal under section 65 or 69 of the Immigration and Asylum Act 1999 (human rights and asylum) while in the United Kingdom if-
(a) the Secretary of State certifies that the appeal relates to a human rights claim or an asylum claim which is clearly unfounded, and
(b) the person does not have another right of appeal while in the United Kingdom under Part IV of that Act."
These applications concern paragraph (a).
"Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal or raises a question under section 65, 69 or 77 of that Act while outside the United Kingdom, the appeal or question shall be considered as if he had not been removed from the United Kingdom."
"If the Secretary of State is satisfied that a person who makes a human rights claim or an asylum claim is entitled to reside in a State listed in subsection (7), he shall issue a certificate under subsection (1) unless satisfied that the claim is not clearly unfounded."
"The Secretary of State may by order add a State, or part of a State, to the list in subsection (7) 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."
i) their claims were processed, rejected and certified before the 2002 Act had been promulgated;
ii) the decisions were taken in the absence of procedural safeguards;
iii) the procedures to which the applicants were subjected were unfair;
iv) the decisions to certify were unsound.
The late promulgation of the 2002 Act
"As soon as a public bill has received the Royal Assent, a print of the Act in the form in which it was finally passed is prepared in the Public Bill Office of the House of Lords….
After examination of the text to ensure that it is correct, a proof copy … is certified by the Clerk of Public Bills in the House of Lords and sent to the Queen's Printer, and a request is sent to the Controller of the Stationery Office to issue instructions for its immediate publication." (p.571).
"Officers of the House take part in its proceedings principally by carrying out its orders, general or particular."
"That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."
It appears to us that this provision puts it beyond our jurisdiction to seek information about or to comment in any way upon the period of time between the giving of the Royal Assent to the Nationality, Immigration and Asylum Act 2002 and the transmission of the perfected text to the Queen's Printer. Our inquiry has therefore been limited to ascertaining when it was that the latter was in a position to print and publish the Act. By that date, everything in issue in this appeal had happened. The applicants had been interviewed on 11 November, four days after s.115 came into force, and had had their claims certified and been given notice of refusal on the 14th. Throughout that time no text of the Act was accessible.
Absence of procedural safeguards
Day O: The applicant arrives at Oakington.
Days 1 and 2: There is a scheduled consultation with an on site legal representative … or the opportunity to consult the applicant's own appointed outside representative. If any medical attention is required, this will be provided. Immediate medical appointments are available throughout the period of stay at Oakington.
Day 3 The asylum interview takes place. The applicant's legal representative and own interpreter, in addition to the interpreter provided by the Immigration and Nationality Directive, are entitled to attend. The applicant has the opportunity to consult privately with the legal representative before and after the interview. As soon as the interview is completed, a copy of the interview notes is provided both to the applicant and to the applicant's representative.
Day 4 and 5 These are set aside for the submission of any further evidence, information or representations. It is possible for the applicant to see a legal representative during this period.
Day 6 and 7 The decision is made and served, with the certificate and removal directions where applicable. The decision is served personally and the legal representative may be present. If for any reason the legal representative is unable to attend, the decision is faxed to the representative. There is an opportunity for further private consultation immediately after the decision has been served and at any point until the applicant is removed.
"Oakington will enable us to deal quickly with the straightforward asylum claims. It is in everyone's interest that both genuine and unfounded asylum seekers are quickly identified. Genuine asylum seekers can be given the support they need to integrate into society. And those with unfounded claims can be sent home quickly thereby sending a strong signal to others thinking of trying to exploit our asylum system."
"The intention is that, during a period of approximately seven days, the examination of an asylum seeker's claimed entitlement to enter or remain in the United Kingdom as a refugee should be conducted and completed, and a decision whether to grant or refuse leave to enter or remain on that basis made and communicated to him. If it is not possible to decide the claim within these timescales, the asylum seeker will usually either be granted temporary admission or moved to another place of detention.
In this way, the Oakington procedure is intended to help facilitate the entry into the United Kingdom of those who are entitled to do so, and to prevent the entry (and facilitate the removal) of those who are not entitled to enter and would be making an unauthorised entry.
Information suggests that approximately 91% of Applicants accepted into the Oakington process have their claims decided during their time at Oakington. The other 9% were released without a decision, their claims proving not to be straightforward. Of those whose claims were decided and refused, some 82% were certified, half of these as manifestly unfounded. The average stay is one of between seven and ten days. Approximately 80% of all Applicants accepted into the Oakington process have been released on temporary admission, with 20% further detained in secure accommodation.
I accept that detention at Oakington is not based on a fear of absconding. Rather, it is in the interests of speedily and effectively dealing with asylum claims, to facilitate the entry into the United Kingdom of those who are entitled to do so and the removal from the United Kingdom of those who are not. This is very much concerned with 'the prevention of unlawful immigration' and 'the prevention of unauthorised entry'."
What needs to be proved?
'the picture established by the IAT can be paraphrased as one of a nascent democracy in which the constitutional guarantees of proper treatment of citizens by the police are, despite the professed will and endeavours of the government, systematically or at least endemically violated'.
i) consider the factual substance and detail 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.
Conditions in the Czech Republic
"On the evidence before us, it cannot be said that it has been shown that the state is unable or unwilling to provide the level of protection which it is its duty to provide on the basis of the test laid down in the judgments in Horvath.
That there is some loose organisation of the skinheads we do not doubt but, bearing in mind the relative numbers of skinheads in comparison with the Roma population, the attacks are in general terms random, clearly frequently opportunistic and primarily carried out by strangers to the victim. It might be that an individual claimant who could show that he was being so targeted to the knowledge of the state authorities, and that they had failed in their specific duty to him… would be entitled to invoke the principle of surrogacy because of a failure in the state system specific to that claimant, but it is not, on the facts we have found, an argument which can be successfully advanced in putting forward a general claim to persecution as a class."
"In summary, we are satisfied that any claim that Czech Roma are by reason of their ethnicity alone entitled to refugee status is unsustainable and that each case must be looked at on its own facts to see whether those facts show to the relevant standard that the specific claimant has a well founded fear of persecution for a Convention reason. Following Horvath, it is likely that those who can succeed in showing such a fear on the basis of feared actions of non state actors will be the exception since there is currently in place in the Czech Republic a system of criminal law which offers effective protection to Czech citizens generally, including Czech Roma. Applying the appropriate test, none of the appellants succeeds in discharging the burden upon them and each of the appeals before us is dismissed."
"In a branch of jurisprudence which is fact-rich, it was very much a matter for this expert tribunal (which must be receiving many applications from unhappy Roma people of central Europe) to apply the principles they have been told to apply by the House of Lords in Horvath."
In that case the application of a Czech Roma national married to a Roma was dismissed.
"It is noted that in practice, Roma face discrimination in such areas as education, employment and housing. But positive steps are being taken to deal with the discrimination: see section 5 of the Report. However, we recognise that there is still an attitude of mind which results in discrimination against, and on occasions violence towards Roma (or those such as the appellant who are regarded as betraying their own race by living with a Rom) and that the government measures are not as effective as they should be. Nonetheless, the will is there and it is impossible ever to guarantee safety from attacks by individual elements. The same point may be made in respect of some parts of the United Kingdom where racial violence has manifested itself. The position in the Czech Republic is such that it will in our view be impossible for a Rom or anyone who has suffered as a result of discrimination against Roma to establish a well-founded fear of persecution. We recognise, of course, that the situation may change for the worse; if it does, any such change will be taken into account."
"To my knowledge this is not the only judicial comment to that effect. However, this is not the only view, or not the only arguable view, and in spite of growing confidence in judicial decisions and country information about the Czech authorities' ability to provide protection, the stage has not been reached where it can be said as a blanket rule of law or as an irrebuttable presumption that no claim raising well-founded fear of persecution or Article 3 on return could be made out. Indeed Adjudicators have found in favour of such claimants.
The Secretary of State is required to consider on an individual basis whether the claim is bound to fail…"
Dr Chirico's recent evidence
The applicants' experiences
"The reason was after the shock [of the deaths of her husband's relatives] we went home, but my children were growing up here during the puberty years, they were attending school here and they learnt to live among local people here. They felt safe here and they were growing up with a chance they will become someone. During the time they lived in this country they were not harmed. …."
"I want my children to have a good life. They are under threat there."
These are compelling reasons for Roma in the position of the applicants and their family to wish to live in this country rather than the Czech Republic. They are not, however, reasons which engage either the Refugee Convention or the Human Rights Convention.
Events after ZL's husband had left for England
Article 8 of the Convention