England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 December 2003

Mr Justice Beatson :

1. The Claimant, a citizen of Sudan, born on 16 July 1970 arrived in the United Kingdom on 24^th July 2001 and claimed asylum. On 12 September 2001 the Secretary of State refused to grant her asylum and, on 20 September 2001 gave directions for her removal. Her appeal to an Adjudicator on asylum and human rights grounds was dismissed on 25 March 2002, and on 3 May 2002 the Immigration Appeal Tribunal refused to grant her permission to appeal the Adjudicator's decision. The previous October, at the NASS office in London, she had met Thomas Kario, another Sudanese citizen who had claimed asylum. A relationship developed quickly; she travelled to see him and stayed with him for periods of a week at a time; and she became pregnant in or about February 2002. On 22 November 2002 the Claimant and Mr Kario's son was born. Mr Kario had been detained on 4 July 2002. On his release on 11 December the couple started living together. They were married on 31 January 2003.

(1) The history of these judicial review proceedings

2. Judicial Review proceedings in respect of the Immigration Appeal Tribunal's decision had been launched on 5 July 2002. Permission was refused on the papers on 3 September 2002. Following an oral hearing on 16 October 2002, permission was granted by Sir Richard Tucker. In December, after the Claimant's son was born, both parties agreed that the case be stayed for three months to allow Mr Kario's asylum application to be processed. The matter was adjourned for a further two months on 7 May 2003. It next came before the Court on 8 July 2003 when, by consent, Sullivan J adjourned it again to allow the Claimant to make further representations to the Defendant and the Defendant to make a further decision 28 days thereafter. The Claimant was also given permission to amend her grounds. The Claimant's advisors wrote to the Home Office asking that a fresh decision be made in view of the fact that the Claimant had established a family life in this country. They submitted her marriage certificate and the birth certificate of her child. This application was rejected in a letter dated 18 August 2003 in which the Secretary of State also certified her application under Section 96(2)(a) and (b) of the Nationality Immigration and Asylum Act 2002.
3. On 8 October 2003 the matter came before Richards J who directed that the Claimant serve all material relied on by 10 October, the Secretary of State serve a further decision letter by 31 October, and the Claimant file an amended claim form and skeleton argument by 14 November. A further decision letter dated 30 October was sent by the Home Office. The claim to remain on asylum and human rights grounds was rejected and was certified under Section 96(2) of the 2002 Act. In her amended claim form dated 13 November 2003, the Claimant challenges these two decisions as well as the decision of the Immigration Appeal Tribunal on 3 May 2002.
4. Mr Kario's appeal to an Adjudicator on Article 8 grounds was dismissed on 2 June 2003 and, on 18 August 2003 the Immigration Appeal Tribunal refused him permission to appeal that decision.

(2) The Adjudicator's Decision

5. The Adjudicator found that the Claimant, the child of a Christian father and a Muslim mother, left her home in a village in southern Sudan after a mob attacked their house, beat her father to death, beat her mother badly, and set fire to the house from which she but not her mother escaped. He found that she then wandered in the bush, was set on by men who knifed her and then lived from 1980-1991 as a beggar and working as a house girl. He accepted that thereafter she ended up in a refugee camp in Kenya although there was some doubt as to the date. While he doubted her account of being raped while in the refugee camp, he considered that in the appalling conditions which she lived the border between rape and the provision of sexual services to keep body and soul together was so tenuous that the point was not material.
6. He concluded that she left Sudan because in the end life became intolerable as a beggar or a house sitter in a village where poverty was extreme. He concluded that the incident involving the death of most of her family may have been visited upon them as a result of asserted ethnicity but was probably the result of a dispute between neighbours which got out of hand. This occurred many years ago and has since been overtaken by events. He concluded that she left her village because of persecution for a Convention reason but that she did not leave her country for the same reason (see paragraph 15 of his decision).
7. It appears from the Adjudicator's decision that the Claimant left Sudan in 1991, when she was 21. Mr Juss, however, opened his case on the basis that she has not been in Sudan since she was 10. The Home Office's decision letter of 30 October also states this. It is however clear from the Claimant's statements that, after she left her village, her time in the bush and as a beggar and house girl was spent in Sudan. She confirmed this in further instructions to Mr Juss. The Claimant's further representations to the Defendant and request for a new decision following the adjournment of the proceedings in July were not before the Court at the hearing. It is not clear whether the source of the error lay in those representations.
8. The Adjudicator accepted that on returning to the Sudan the Claimant would become one of many displaced people with no home, no relatives, and no support network from an extended family or tribe. Her conditions in the Sudan could well be very hard but he did not take the view that there was evidence enabling him to say that if she were returned to the Sudan she would be persecuted for a Convention reason. He stated "she would become one of many sadly displaced people who have suffered as a consequence of the civil war in the Sudan and or the poverty and internal upheaval that that country is undergoing." He stated that she would not in his view be persecuted because of her ethnicity (see paragraph 16 of his decision). He also concluded that the objective evidence did not show persecution of Christians per se in the Sudan and thus did not accept that being a Christian would prevent her from being returned (see paragraph 17 of his decision). His conclusion was that she did not leave her country for a Convention reason and that she would not, on return be persecuted because of her ethnicity or religion.
9. In relation to her appeal on the basis of Article 3 of the Human Rights Convention, the Adjudicator stated (paragraph 19) that she is in a position where she would be disadvantaged on return to Sudan. "She would be a single woman in a country about which she knows almost nothing and where….she has no support system". Notwithstanding the disadvantaged state of women in the Sudan, he, however, concluded that, while on return her life would undoubtedly be uncomfortable, indeed a life of poverty and hardship, her treatment would not be inhuman or degrading.

(3) The Challenge to the decision of the IAT

10. The challenge to the Immigration Appeal Tribunal's refusal of permission, and, through that, to the Adjudicator's decision is made on grounds that overlapped with those on which the Secretary of State's decision of 30 October is challenged.
11. Mr Juss's challenge to the decision of the Immigration Appeal Tribunal to refuse permission relies on an arguable error in the Adjudicator's decision. He submits that, given the Adjudicator's findings as to the position in which the Claimant would find herself if returned to the Sudan, it was arguable that Article 3 was engaged and accordingly permission to appeal should have been given by the Immigration Appeal Tribunal. He relies on the acceptance by the Adjudicator that she would be returned to a country of which she knows nothing, with no support system, and would have a life of poverty and hardship. Additionally the fact that she would be returning as a failed asylum seeker and refugee and as a Christian of Dinka ethnicity is said to expose her to the risk of treatment that violates Article 3.
12. It is submitted on behalf of the Claimant that, on the findings of the Adjudicator, she qualifies as a member of a social group, the group being "displaced southerners, including Christians, and large numbers of practitioners of traditional indigenous religions". As a member of this group, once it was accepted by the Adjudicator that the treatment to her before she left the Sudan took place, Mr Juss submits she qualified as a refugee.
13. Mr Juss also submits that in the light of the facts the Adjudicator found, he should have looked at the consequences of internal relocation in Khartoum in a more focused way. He relies on the approach in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 and R v Secretary of State for the Home Department, ex p. Robinson [1998] QB 929 to Article 1A(2) of the Refugee Convention which defines a refugee as any person who "…owing to well-founded fear of being persecuted [for a Convention reason] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country" (emphasis added). The approach in Robinson and Karanakaran's case was that a person should be regarded as unable to avail himself of the protection of his home country if it would be "unduly harsh" to expect him to relocate to another part of that country or to return there.
14. On behalf of the Secretary of State, Mr Kovats submits it is not open to the Claimant to rely on internal flight or the question of membership of a social group in relation to the decisions of the Immigration Appeal Tribunal or the Adjudicator. The decision of the Immigration Appeal Tribunal indicates that the grounds of appeal to the Tribunal related to credibility and the standard of proof. Neither the question of internal flight nor the question of membership of a social group was raised before the Adjudicator or the Appeal Tribunal. The Adjudicator considered ethnicity and religion as potential grounds for persecution within the Refugee Convention and rejected both. Mr Kovats, moreover, submits that the argument based on internal flight which is not in the Claimant's very recently amended grounds for judicial review is misconceived in the light of the decision of the Court of Appeal in AE and FE v Secretary of State for Home Department [2003] EWCA Civ 1032.
15. In AE and FE the Court of Appeal considered internal flight or relocation, whether the "unduly harsh" test applied in Karanakaran and Robinson's cases is the correct test and, if so, how it should be applied. Lord Phillips MR, giving the judgment of the Court, stated (at paragraph 38) that:

"When considering whether it is reasonable for an asylum seeker to relocate in a safe haven, in the sole context of considering whether he enjoys refugee status, we cannot see how the fact that he will not there enjoy the basic norms of civil, political and socio-economic human rights will normally be relevant."

His Lordship also stated:

"States may choose to permit to remain, rather than to send home, those whose countries do not afford these rights. If they do so, it seems to us that the reason should be recognised as humanity or, if it be the case, the obligations of the Human Rights Convention and not the obligations of the Refugee Convention".

16. After citing Lord Scott of Foscote's statement in R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; [2003] 1 AC 920 at paragraph 115 that it is arguable that the United Kingdom's approach to internal location is more liberal than is strictly required for compliance with the Refugee Convention, the Court in AE and FE's case stated (paragraph 64) that the "unduly harsh" test has been extended in practice to take into account factors which are not relevant to refugee status but which are very relevant to whether exceptional leave to remain should be granted having regard to human rights or other humanitarian considerations. At paragraph 67 the Court indicated that "unduly harsh" must relate to a Refugee Convention reason rather than to other factors.
17. I have concluded that it is not now open to the Claimant to put her case on a different basis to that put to the Tribunal and the Adjudicator. Neither ground satisfies the threshold required by the two limbs of the Robinson test; i.e. that there must be a strong prospect of success and the point must be readily discernible. The internal flight point is, moreover, not even in the Claimant's recently amended grounds for relief.
18. Notwithstanding this conclusion, I will briefly consider Mr Juss's argument based on the possibility of internal flight. I have concluded it does not raise an arguable error by the Immigration Appeal Tribunal or the Adjudicator. His argument based on membership of a social group is considered later in this judgment in the context of the Claimant's challenge to the Secretary of State's decision of 30 October 2003.
19. The submission on internal flight is that the uncertainty as to the plight of Christians in Khartoum meant that the Adjudicator should have considered whether it would, on the approach in Karanakaran's case be "unduly harsh" to require the Claimant to return to Khartoum. The Adjudicator considered the objective evidence and despite his finding that her conditions of life in the Sudan could well be very hard (paragraph 16 of his decision) concluded that her life would be one of poverty and hardship but no more. A copy of AE and FE v Secretary of State for Home Department [2003] EWCA Civ 1032 was not before the Court at the hearing on 28 November and I invited Mr Juss to make any submissions he wished to in response to Mr Kovats's argument in writing. He has done so and argues that the decision in AE and FE is contrary to what Lord Scott of Foscote stated in the House of Lords in R (Yogathas) v Secretary of State for the Home Department and, in any event, AE and FE's disapproval of the "unduly harsh" test only applied to the Refugee Convention and not to Human Rights claims such as those in the present case.
20. I have concluded that Mr Juss's internal flight argument does not raise an arguable error for the following reasons:-

(1) The consideration of immigration applications and appeals should distinguish clearly between the right to refugee status and the right to remain by reason of rights under the European Convention on Human Rights: AE and FE v Secretary of State for Home Department, paragraph 67.

(2) The jurisprudence on internal flight, including the decisions in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 and R v Secretary of State for the Home Department, ex p. Robinson [1998] QB 929, concerns the right to refugee status.

(3) In view of AE and FE v Secretary of State for Home Department any failure by the Adjudicator specifically to consider whether returning the claimant to Khartoum would be "unduly harsh" because it would expose her to the risk of treatment that violates Article 3 of the Human Rights Convention is not arguably wrong in relation to the contention that she qualified as a refugee.

(4) In the present case, the Adjudicator considered whether returning the Claimant to Sudan risked a breach of Article 3 of the Human Rights Convention. He thus considered whether she had a right to remain under the Human Rights Convention. He concluded that, although her life could well be very hard and might be a life of poverty and hardship, on the objective evidence and the evidence relating to her position, he did not consider that, were she returned to the Sudan, her treatment would be inhuman or degrading so that returning her would be a breach of Article 3. In the context of the consideration of the Claimant's rights under the Human Rights Convention, an omission to consider the specific approach based on the jurisprudence on internal flight is not arguably wrong. That jurisprudence is concerned with determining refugee status not rights under the Human Rights Convention.

Accordingly, I consider that, had this argument been open to the Claimant, it would not have exposed the Adjudicator's decision as arguably open to criticism on public law grounds..

21. The challenge to the Tribunal's refusal of permission and through it to the Adjudicator's decision also relies on Article 8. Mr Juss submits that even if the treatment of the Claimant on her return to Sudan would not reach the severity of Article 3 treatment there would be sufficient adverse effects on her physical and moral integrity to breach Article 8. In the context of the challenge to the decisions of the Tribunal and the Adjudicator he submits this involves the Claimant's position vis-à-vis Article 8 on a return to Sudan. In that context, however, a challenge on the basis of Article 8 adds nothing to the Article 3 challenge. Even if the Sudan does not respect Article 8 rights, removal to that country will, on the authorities, not infringe the Human Rights Act 1998 where the nature of the interference with the right to family life that is anticipated falls short of Article 3 ill treatment: R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770, paragraph 63-64.

(4) The Challenge to the Secretary of State's decision of 30 October 2003

22. I turn to the challenge to the Secretary of State's rejection on 30 October 2003 of the Claimant's purported fresh claim on asylum and human rights grounds.
23. In its decision letter the Home Office states that the Claimant's latest witness statement is considered to be a repetition of the account given previously to the Adjudicator and the Immigration and Nationality Directorate. The letter states that the Claimant's claim that she will be ill treated by the Sudanese authorities on her return is merely supposition since current Home Office policy is to return failed asylum seekers to Khartoum only. The letter also states that the Articles and Reports concerning the situation in Sudan are considered to make no difference to the likelihood of the Claimant's claim succeeding because they are general in nature, do not refer to her or her case and add little evidential weight.
24. The decision letter relies on a Danish Immigration Service fact-finding Mission in 2001 which concluded that "in general failed asylum seekers with proper travel documentation encounter no problems when returned to Sudan". That report also states that the Sudanese authorities do not have a specific policy on returning failed asylum seekers who are generally treated in the same say that other returning Sudanese nationals are. It states that it is not official government policy to harass or persecute returning failed asylum seekers on the basis that these individuals have applied for asylum abroad. The decision letter notes that the Claimant is not a convert from Islam and was born of Christian parents. It states that these facts and discrepancies in the Claimant's account undermined her argument about her fear of returning to Sudan on religious grounds. The letter states that, since it is the intention to remove the Claimant together with her child and husband as a family unit in the light of her husband's unsuccessful appeal to an Adjudicator and the Immigration Appeal Tribunal, it is not expected that she would be at any risk as a vulnerable single woman. It also states that no evidence has been adduced that the Sudanese authorities will separate the family on their return or to explain why the family, as Sudanese citizens, would be treated as refugees in their own country.
25. The decision letter states it has concluded that the claim advanced was not sufficiently different from the earlier claim and that it would not treat the representations as a fresh application for asylum. It also states that the Human Rights aspect of the Claimant's case had been fully considered by the Adjudicator and Tribunal and that no compelling reasons had been adduced in support of the argument that her removal would be in breach of the Human Rights Convention.
26. Mr Juss submits (a) the background evidence cannot be ignored in this case; (b) the Adjudicator's findings as to the Claimant's position on return engage Article 3, in particular because she would be being returned to a country of which she knows nothing and to a part of the country to which she has never been, because she has no support system, because of the hardship that the Adjudicator found she would endure in Sudan as a returning refugee; and (c) her religion and her ethnicity exposes her to the risk of Article 3 treatment.
27. He relies on a document purportedly issued by the Head of Security Services of the Sudan Government which had stated that any person of Sudanese nationality who has been abroad for a period of one year or more would be detained on return, a document that has been referred to in a number of decisions of the IAT, Azhari Ibrahim (19533), 7 September 1999; Ibrahim (17270), 17 June 1998, and Lufti (15440) 2 September 1997. He also relies on a UNHCR letter dated 24 June 2003 which states that the UNHCR's position on Sudan, stated in a letter dated 1 July 2002, is maintained in particular with relation to the returning of failed asylum seekers. Although this letter states that the "UNHCR is not opposed to the return of failed asylum seekers to Sudan", and advocates a fact sensitive approach, it also states that:

"… with regard to the safety of returnees where asylum claims have been unsuccessful, there are several sources of potential risk. An administrative decree of 28 February 1993 issued to border entry points, authorised the arrest of all returning Sudanese who left after the June 1989 coup and who have been away for more than a year. Such individuals are according to the decree subject to 'investigations' and 'necessary security measures'."

In reply Mr Juss pointed to the statement that:

"Further factors to be taken into account are the dangers opposed where Southern Sudanese who hail from the South are returned to Khartoum. Such persons may be placed in camps for the internally displaced and would likely be compelled to contend with harsh living conditions and physical insecurity".

28. With regard to the risks from ethnicity and religion, Mr Juss points me to the United Nations Economic and Social Council Report of 2002, the US State Department Report of March 4 2002, the United Nations Economic and Social Council Report, 12 April 2002, and an article in the Boston Globe dated 15 March 2003.
29. Mr Juss also relies on the fact that the Claimant is a member of a social group that would be at risk. He describes this group as "displaced southerners, including Christians and large numbers of practitioners of traditional indigenous relations". He invites me to take a broad view of what constitutes a social group, invoking the decision of High Court of Australia in A v MIMA (1997) 190 CLR 227, and in particular to the judgments of Gleeson CJ and Kirby J.
30. It can be seen that essentially, the challenge to the Secretary of State's recent decision is made on the same grounds as the Article 3 challenge to the Immigration Appeal Tribunal and the Adjudicator's decisions.
31. Mr Kovats's response on behalf of the Secretary of State is as follows. First, the Claimant is not at real risk of persecution on grounds of religion because, as her statement of 8 January 2002 states she is not a convert from Islam (see also paragraph 4 of the Claimant's skeleton argument). The issue of apostasy does not arise and no reason has been advanced as to why the Sudanese authorities should suspect her of being a convert. Mr Kovats relies on the fact that the UN special rapporteur for Sudan has stated that there is no persecution of Christians in Sudan: CIPU Report April 2003, paragraph 5.17. Moreover, even if there was persecution of Christians in Sudan, in view of the decision in Ullah, where the Human Rights Convention is invoked on the sole ground of treatment to which a person refused the right to enter or remain in the United Kingdom is likely to be subjected by the receiving state, unless that treatment is sufficiently severe to engage Article 3, the English Court is not required to recognise that any other Article of the Convention is or may be engaged: [2002] EWCA Civ 1856; [2003] 1 WLR 770 at paragraph 64.
32. As for the arguments based on the risks to the Claimant as a failed asylum seeker, Mr Kovats submits that the Secretary of State's view is that the 1993 Order relied on by Mr Juss is not genuine. He relies on the April 2003 CIPU Report paragraph 5.42 which states "in general, Sudanese nationals who have been abroad for some time can enter Sudan without any problems provided they have valid travel documentation. There is no written decree regulation or law in force issued to border guards stating that Sudanese nationals who have been abroad for more than one year should be arrested and detained for questioning." (emphasis added) The sources for these statements in the CIPU Report are the Danish Immigration Service fact-finding Mission Report on Sudan "Human Rights, conscription and entry to and exit from Sudan" 2001 and a letter dated 10 June 2002 from the British Embassy in Khartoum about the existence of a written decree relating to returning Sudanese nationals. Mr Kovats notes that, apart from the UNHCR's document, no other report relies on this alleged order and comments that the decisions of the Immigration Appeal Tribunal referring to it pre-date the investigation by the British Embassy in Khartoum in 2002.
33. In relation to the argument that the Claimant is at risk as a member of a particular social group, Mr Kovats submits there is no objective evidence for this in the claim. The only support given is an extract from the US State Department Report on Sudan for 2002 which is in a section headed Freedom of Religion and is describing the demolition of religious buildings and squatter dwellings around Khartoum which were largely populated by "displaced southerners, including Christians and large numbers of practitioners of traditional indigenous religions". The CIPU Report paragraph 5.15 states that are between 1 and 2 million southerners in Northern Sudan and, paragraph 5.63, that Sudan's population is a very diverse multi-ethnic mix. He submits that this evidence affords no basis for the existence of the putative social group described or for a real risk of persecution of such people.
34. Mr Kovats submits that, for these reasons, the Secretary of State's letter of 30 October 2003 is not susceptible to challenge on public law grounds and the Claimant's purported fresh claim for asylum has no realistic prospect of success.
35. With regard to the further representations on Human Rights grounds he submits that if she has no realistic prospect of succeeding in her purported fresh claim for asylum, she cannot on the material now produced, succeed under Article 3 of the European Convention on Human Rights either. He argues that the Claimant is of no interest to the Sudanese authorities, faces no real risk of persecution on grounds of race or religion, and that the general hardship resulting from the long civil war in Sudan and the situation that she is likely to find herself in on return do not found a claim under Article 3.
36. A bridge between the Article 3 and the Article 8 submissions concerns the likelihood that the Claimant would be separated from her husband in Sudan. Mr Kovats submits that there is no evidence to support the Claimant's assertion (paragraph 8 of the amended claim form grounds) that she would be separated from her husband. Mr Juss relies on a sentence in the US State Department's Report for Sudan for 2001 "gender separation is common in social settings" which also appears in paragraph 5.57 of the April 2003 CIPU Report. Mr Kovats responds that it is, however, clear from the context of both reports that the comment is not referring to domestic arrangements whether in a home or in a camp. Accordingly, the Claimant's case under the Human Rights Convention falls to be considered on the premise stated in the Secretary of State's letter, that she will be returning to Sudan with her husband and child and not as a single woman. Mr Kovats submits that the Secretary of State was entitled to take into account the fact that an Adjudicator rejected Mr Kario's appeal on the ground, inter alia that Mr Kario could enjoy family life in Sudan with his wife, the Claimant, and his child. In these circumstances the Secretary of State was entitled to conclude that removing the Claimant to Sudan will not amount to an interference with her right to respect for family life within the meaning of Article 8(1).
37. Even if the Claimant would be hindered in her ability to pursue family life in Sudan, Mr Kovats submits that this would be a matter between the Claimant and the authorities in Sudan and would not raise an issue under Article 8 of the Convention in this country. He cites R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770 at paragraphs 46-47 and 62-64, already considered in this judgment, and Abdulaziz v United Kingdom (1985) 7 EHRR paragraph 67-69, in which the Strasburg Court stated that "the duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country".
38. Finally, Mr Kovats submits that any interference with the Claimant's right to respect for family life is justified under Article 8(2) applying the approach in R (Mahmood) v Home Secretary [2001] 1 WLR paragraph 55. This is because the family has not been long established in the United Kingdom; and the Claimant and Mr Kario entered upon their relationship in the knowledge that their claims for asylum had been rejected and they had no right to stay here. He submits that there are no insuperable obstacles to the family living together in Sudan even though this may involve hardship and the importance of immigration control, recognised in Abdulaziz v United Kingdom, makes the decision to remove the Claimant to Sudan a proportionate one in the circumstances.
39. I have concluded that Mr Kovats's submissions are well founded. The objective evidence does not support the Claimant's submissions on the risk of persecution on the grounds of religion or ethnicity or that she is a member of a social group at risk. The Secretary of State was entitled to conclude in the light of the CIPU Report and the investigation by the Embassy in Khartoum, as well as the Danish Immigration Service fact-finding Mission's report that the Claimant's assertion that she will be ill treated by the Sudanese authorities on her return is merely supposition.
40. With regard to her Human Rights grounds, those in relation to Article 3 stand or fall with the asylum claim. With regard to Article 8, on either the Ullah ground or the Mahmood ground, there is no realistic prospect of the Claimant succeeding.

(5) The Challenge to the Certificate

41. I turn to the challenge to the Secretary of State's certification of the claim, under Section 96(2) of the Nationality, Immigration and Asylum Act 2002. By section 96(2):-

"An appeal under section 82(1) against an immigration decision in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies that the immigration decision relates to an application or claim which relies on a ground which the person-

(a) raised on an appeal under that section against another immigration decision,

(b) should have included in a statement which he was required to make under section 120 in relation to another immigration decision, or

(c) would have been permitted or required to raise on an appeal against another immigration decision in respect of which he chose not to exercise a right of appeal."

The amended claim form and Mr Juss's skeleton argument mistakenly address Section 96(1) which is not of relevance. In his oral submissions Mr Juss submits that with regard to facts that have emerged since the Adjudication and appeal to the Tribunal, in particular the change in the Claimant's personal situation it is not possible to say that the case was manifestly unarguable. He also relies on the facts found by the Adjudicator concerning the Claimant's position on any return to Sudan because she was a southerner who did not speak the language, who would be displaced and in Khartoum a part of the country of which she knew nothing, and the fact that the earlier claim had not been certified.

42. Mr Juss submits that the Danish Immigration Service fact-finding Mission Report by the Secretary of State, relied on for the first time on 30 October 2003, is inconsistent with the UNHRC letter from which I have quoted at paragraph [27] of this judgment and this in itself shows that it was wrong to certify the decision. Paragraph 30 of his skeleton argument refers to inconsistency with the US State Department Report of 2002. He submits that it is only right that an Adjudicator should be given the chance to consider how the two reports impact on the Claimant. Some of these submissions appear to relate to what is in the amended claim form and to the thrust of his skeleton argument, which as I have indicated, mistakenly addresses Section 96(1).
43. Mr Kovats submits that the claims that the Claimant was at risk as a Christian, and as a vulnerable woman were all rejected by the Adjudicator and the Immigration Appeal Tribunal. I accept his argument that these fall squarely within Section 96(2)(a). With regard to the material produced by the Claimant since the decision, Mr Kovats notes that there has been no material deterioration in Sudan since 2001; indeed, if anything, there has been an improvement. In any event, I consider the further material relating to conditions in Sudan could have been put before the Adjudicator and should have been.
44. With regard to the material concerning family life, Mr Kovats recognised that at first sight it might be said to be straining section 96(2)(b) to say this should have been raised before the Special Adjudicator and the Tribunal, but nevertheless he does so. He submits that the chronology shows that the couple met in October 2001, well before the decisions of the Adjudicator in March 2002 and of the Tribunal in May 2002. The Claimant's third witness statement notes that they bonded quickly and that she stayed with him for a week at a time. By February 2002 a child was conceived. Mr Kovats submits that there was a subsisting relationship which should have been raised before the Special Adjudicator and in the appeal to the Tribunal and was not. Accordingly, the matter falls within Section 96(2)(b). He notes that these matters have been considered in Mr Kario's appeal and rejected by the Adjudicator and the Appeal Tribunal. He submits the Secretary of State was entitled to take account of that decision in deciding to certify this Claimant's application. Mr Juss submits that until the couple began cohabiting on Mr Kario's release from detention in December 2002 it was not correct to say that the Claimant should have raised the relationship and that her failure to do so was a ground for certifying her claim under section 96(2)(b). I consider that while it might have been excusable not to mention the relationship at the time of the hearing before the Adjudicator in the first month of the pregnancy, it was not excusable to fail to raise it in the appeal to the Tribunal.
45. The consequences of certification are to exclude the Claimant from the appeal process. Mr Juss submits that there should only be certification in a manifestly unfounded claim, which this is not. But that is not what certification under section 92(2) is about. I have concluded that the Secretary of State's decision to certify the claim under section 92(2) is justified. Moreover, in reaching his certification decision, the Secretary of State was entitled to take account of the fact that the Article 8 matters concerning the family life of the Claimant, Mr Kario and their child had been fully considered by an Adjudicator in Mr Kario's appeal and rejected, and that his appeal from that decision to the Tribunal had been rejected. Accordingly this application is dismissed.
- - - - - - - - - - - - - - - - - - - - -

MR JUSTICE BEATSON: In this case I am grateful to both of you for your submissions about the draft. I have accepted all of your corrections and I have made a deletion from paragraph 17 and an addition to paragraph 27. The deletion just relates to the way the argument was put on flight and the addition is just an additional section from the letter that Mr Juss relied on in the response. I thought it was right to set that out. So, for the reasons given in the judgment which I hand down, the application is dismissed.

MR JUSS: My Lord, I make an application for permission to appeal on two bases. The first, my Lord, is this: as you will see from your own judgment at paragraph 19, now that the case of AE and FE has been introduced to the argument, the position is this, that the last time that the House of Lords looked at this in Yogathas, it was of the view, as I have said in my responses to your Lordship's directions in relation to AE and FE and I quote from my paragraph 12 where Lord Scott said, my Lord:

"This is not a question of interpretation of information but a question of a judgment as reasonable in all the circumstances of the evidence ..."

My Lord, all I say in this regard is, as I understand it, the case of AE and FE has a reputation at the House of Lords. It is very likely that permission will be given. But it may be that what we have here is the Court of Appeal speaking with two voices. You have Robinson and Karanakaran on the one hand, you have AE and FE on the other, and you have Yogathas and what Lord Scott says in that case.

It is significant, my Lord, that if one looks at his Lordship's judgment in AE and FE, just before paragraph 67, he talks in terms of developing jurisprudence now that the Human Rights Act has been produced, he talks about the British practice and he says, in that context, that it may well be right to posit the position that he has posited. My Lord, it is plain from that context that he is constructing this argument in the context of developing jurisprudence. All I say, my Lord, is that a position on internal relocation will have to be resolved on way or the other. It may be resolved by the Court of Appeal or, likely, by the House of Lords when permission is given in AE and FE. Given that is the case, my Lord, I do venture to suggest that it would be appropriate for permission to be given on that basis.

My Lord, my second point is that even in the context of AE and FE, as your Lordship has said at page 12 of the judgment in paragraph 20(4), what AE and FE says is that under the new position that the House of Lords posits, which is if one is looking at the refugee convention, the question of relocation does not transpire in relation to a person in this position in England and a person back in Sudan. It only transpires when one is looking at the human rights argument. Only then can you begin to apply the argument that return would be unduly harsh, given the comparison is between this applicant in Sunderland and the position in Khartoum. My Lord, plainly on the basis of what you have found, set out at paragraph 8, which was that she would be a displaced person with no home, no relatives, no support, it is highly arguable that the human rights argument under Article 3 is kicked into effect. The term, on that basis, is going to be quite plainly disproportionate.

I will just say, in ending, your Lordship has said in your Lordship's judgment that the decision that was reached by the Adjudicator was plainly open to the Adjudicator. Your Lordship was the first to recognise that, not only as jurisdiction but as an act of scrutiny, but the Wednesbury principle does not apply in the context of human rights. It is proportionality when one is looking at the human rights argument.

MR JUSTICE BEATSON: What I meant was that it was open to him on the appropriate daily standard.

MR JUSS: My Lord, if the Adjudicator had not found what he did find then, of course, one might well have taken the position that your Lordship has taken and the Adjudicator has taken. What we say is that it ill befits him to have made a finding that she is returning to no home and that the UNHCR matter, in fact, concludes that she is very likely to be in that position. What we say is simply that --

MR JUSTICE BEATSON: That is the argument that you mounted the judicial review on.

MR JUSS: Yes, my Lord. Those are my submissions.

MR KOVATS: My Lord, the Secretary of State opposes permission to appeal on three grounds. First, while it is correct that the appellants in AE and FE have petitioned the House of Lords, it is pure speculation as to whether or not permission would be granted and (Inaudible) and the fact that somebody has put in a petition to the Lords does not amount to it being granted.

Secondly, and more fundamentally, internal relocation simply does not arise on the facts of this case, as your Lordship has found. This was not the way the case was put before the Adjudicator and your Lordship has found it was too late for the case to be changed at this late stage. Thirdly, it does not arise on the facts, for further reason, that AE and FE is only concerned with the refugee convention. The only live claim by this appellant is in relation to Article 3 of the European Convention on Human Rights, on which AE and FE has no bearing. For those three reasons, we say, it would be wholly inappropriate to allow further time to be strung out on a case that has already been delayed far too long.

MR JUSTICE BEATSON: I am grateful.

MR JUSS: My Lord, can I just come back very briefly to that. Internal relocation was, my Lord, brought as an argument following the directions of Sullivan J on 8th July. It is set out in the witness statement under the heading "feasibility return" which focuses entirely on return to Khartoum. Of course, as I say, the word legal test of undue harshness is not used. It is plain that one is looking at relocation to Khartoum and one is arguing against that relocation to Khartoum.

MR JUSTICE BEATSON: Well, the witness statement was with the representations to the Home Secretary.

MR JUSS: That is right. It was the form of representations and, of course, the skeleton argument also talked about why return to Khartoum might not be feasible. The second point, if my learned friend says that AE and FE was only concerned with the refugee convention, that is all the more reason why permission should be granted because this is a case not just to do with the refugee convention, it is to do with (Inaudible). That is a point that has not been considered in AE and FE and permission should now be given on this case as a fresh pursuit.

MR JUSTICE BEATSON: I am very grateful. Mr Juss applies for permission to appeal my dismissal of the judicial review proceedings. I am going to refuse permission. You will have to go to the Court of Appeal and I will just, in the interests of transparency, although you will not see it, on the form I shall state, first of all, that the ground of appeal has to do with the internal relocation argument which I found it was too late to raise, and that what is said about AE and FE is not necessary to my judgment. In any event, it is for the Court of Appeal to decide whether they want to revisit any difference between AE and FE and Robinson and the other cases.

MR JUSS: I am grateful. It only remains for me to apply for the normal Legal Aid --

MR JUSTICE BEATSON: Yes, you are entitled to that. I am grateful.