QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PETER MBA ETAME
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
ASYLUM AND IMMIGRATION TRIBUNAL
|BANSLEM ONUJITE ANIRAH
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr. R. Husain and Ms. R. Kotak (instructed by Turpin & Miller) for Anirah
Ms. E. Laing QC (instructed by the Treasury Solicitor) for the Defendants
Hearing date: 18th April 2008
Crown Copyright ©
Mr. Justice Blake
The case of Anirah
The case of Etame
The right of appeal
Appeal from within the United Kingdom
"This section also applies to an appeal against an immigration decision if the appellant-
(a) has made an asylum claim or a human rights claim, while in the United Kingdom, or
(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
"Where a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim person. The submission will amount to a fresh claim if significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
i. had not already been considered; and
ii. taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection".
"A person may not bring an appeal to which this section applies (in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."
Issue 1: In country right of appeal
" Has made a claim"
i. An in-country appeal would follow where a historic asylum or human rights claim had been made even though the subsequent immigration decision may not be in response to a claim to such issues.
ii. An in-country right of appeal would follow even if the previous human rights/asylum claim had been made in the distant past on a previous visit to the UK as there was nothing in the statutory language to cut down the reach of such a historic claim.
i. reading the meaning of the statutory term claim to asylum in the light of the immigration rules defining fresh claim, and
ii. ascribing a meaning to the language of the 2002 Act that was only spelt out in the 2006 Act that had yet to be brought into force.
i. Where the right of appeal had been afforded by Parliament it formed an important right of access to the court by the individual and such a right protected by common law principles of construction was not to be cut down or diminished unless ambiguous words compelled that conclusion: R v SSHD ex p Saleem  1 WLR 443 at 449D, 452B, and 457H.
ii. If the plain meaning of the words was liable to give peculiar results and the potential for abuse in the form of repeated applications, it was not for the court to read down the words or read in limitations but it was for Parliament to legislate to prevent such abuse in the light of the consequences as revealed by judicial interpretation R (Kariharan) v SSHD  QB 933 at paragraph 30 and 36.
iii. In any event in the 2002 Act Parliament had provided for substantial powers in s. 94 (2) for the Secretary of State to certify a human rights or asylum claim as manifestly unfounded and thus prevent an appeal being pursued in country. There is a corresponding match between the breadth of s. 92(4)(a) and the precise power to certify certain appeals that rely on it as abusive under s. 94(2).
i. The words should be construed in the context of the scheme of the statute as a whole.
ii. If the consequences of adopting a literal construction were so peculiar as to be characterised as absurd, then principles of statutory construction required the court to read the words to avoid the absurdity.
iii. In identifying the context of the statute and the mischief to be guarded against it is permissible to have regard to the notes on clauses.
"an asylum claim or a human rights claim"
"I am not sure that this is right as a matter of law …but it is plain if the Secretary of State certifies that the human rights claim is clearly unfounded, as he may do under s. 94 of the 2002 Act then there is no in-country appeal"
The learned editors of Macdonald "Immigration law and Practice" (7th Edition) (2008) at 18.25 note this observation and the AIT decision in ST Turkey and prophetically anticipate that "further litigation can be anticipated" without offering their own opinions on how it should be decided.
"(1) Member States shall ensure that applicants for asylum have the right to an effective remedy before a court of tribunal against the following.
(c) not to further examine the subsequent application pursuant to Article 32.
(3)Member States shall where appropriate provide for rules in accordance with their international obligations dealing with:
(a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;
(b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing the applicants to remain".
"The acid test must always be whether comparing the new claim with that earlier rejected and excluding material on which the claimant could reasonably have been expected to rely ion the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim".
i. This is not a case of the Immigration Rules defining the statute. It is a case of the drafters of the statute being content to adopt and leave alone the judicial interpretation of the same words in an earlier statute.
ii. No assistance can be gained in favour of the claimants' interpretation by the fact that in the 2006 Act the draftsman did expressly define claim to asylum by a reference back to the immigration rules that inter alia explain when a claim is a fresh claim. In this light the 2006 statute was removing ambiguity and clarifying the law but not seeking to change it. For a recent example of such an approach in the context of immigration and asylum see R (Khadir) v SSHD  1 AC 207 at  and .
"In my judgment the process required by the 2002 Act and the Immigration Rules where an application has been rejected and then renewed is essentially the following. First, under §353, the Home Secretary needs to consider whether she now accepts the claim: it is clear from the wording and structure of §353 that this does not depend on its being a fresh claim within the meaning of the rule: the option of acceptance is untrammelled. If the renewed claim is rejected but contains enough new material to create a realistic prospect of success on appeal, the Home Secretary must so decide and her refusal, being a refusal of a fresh claim, can then be appealed. If, however, the Home Secretary lawfully decides that it is not a fresh claim, she does not need to consider whether, having rejected it, she should also certify it as clearly unfounded; for, not being a fresh claim, its rejection is not appealable at all, whether in-country or out. It is only, therefore, to a first claim that the process of certification is relevant. This will, however, include a certified claim which has been varied or added to by a further application while an appeal against refusal is still open or pending. §353 does not apply to such a claim, and it is accordingly here alone that the question of lifting an extant s. 94 certificate can arise.
Thus, far from a renewed claim such as the present one going straight into the s. 94 process, its proper destination is §353. Applying this rule, the Home Secretary should have decided whether now to accept the claim and, if she decided to reject it, whether it was nevertheless a fresh and therefore appealable claim. If it was, the claimant would have secured what he wanted, which was an in-country right of appeal. If it was not, he had no further recourse: his original claim had been certified; he would now have nothing further to appeal; and the Home Secretary would have nothing further to certify".
For reasons already noted no one suggests that there is no right of appeal at all in these cases, but the reasoning is powerful support for the proposition that what determines whether there is an in country right of appeal is whether there is a fresh claim or not.
Second Issue Fresh Claim in Etame
i. There is a full statement from the claimant detailing anal rape in Douala prison and sexual torture including the use of a flick knife to the anus by fellow prisoners. He says he was too embarrassed and traumatised by the nature of the injuries to spell out the specifically sexual nature of the ill treatment he suffered in Douala prison in Cameroon.
ii. There is a statement from a GP who is a forensic medical examiner with considerable experience in medico-legal aspects of asylum claims. She found evidence of 3 distinct unsutured scars one above the groin and two immediately above the applicant's anus. She says "in my opinion the scars above his anus are highly consistent with injury by a thin sharp knife. They are injuries for which it is difficult to give any causation other than assault by another person. The lack of permanent evidence of direct trauma to the anus is still consistent with the injuries described". She further points out the well-recognised reticence that male rape victims may have in describing sexual assaults to others he is not familiar with.
iii. There is an expert report from a social anthropologist with special expertise in Cameroon who gives expert evidence of sexual abuse of prisoners in prison by guards and inmates, with those known to be homosexual at particular risk. The expert further gives evidence of the practice of sending prisoners on work gangs to places outside the prison (which is how the claimant says he managed to escape) and the practice of remanding those suspected of sodomy charges in custody. He responds to the information from the High Commission by the observation that the fact that many of these cases do not come to trial disguises a higher profile where successful prosecution and sentence might have been noticed. He confirms the supporting contemporary evidence of systemic discrimination throughout Cameroon against those who are homosexual.
i. As to the evidence of rape he could complain to the police about this and receive adequate state protection.
ii. It is not unreasonable to expect the claimant to relocate to one of the bigger cities in the Cameroon such as Douala or Yaoundé and behave discreetly there so as not to attract police attention.
iii. There is no evidence that societal prejudice against homosexuals has resulted in numerous actual prosecutions of homosexuals although there is some evidence of detention of those accused of sodomy.
i. Delay in making a claim has little weight if there is an assessment that the claimant has indeed been persecuted and/or severely ill treated before coming to the UK as claimed.
ii. Other doubts about credibility were made in the absence of objective material that suggests the claimant's case is consistent with known country conditions as to the treatment of homosexuals in Cameroon, and that his inflated accounts of daily torture may have been a way of avoiding the embarrassment of explaining the regular rape and sexual torture he claims to have experienced that he objectively supported by medical findings.
iii. The characterisation of the claimant's problems as a local difficulty would not be sustainable if it transpired that he had been raped and sexually tortured in state facilities in one of the principal cities of the country Douala.
iv. If the claimant might well have had difficulties resulting in an affair with the local police chief's son and had been remanded in custody in suspicion of sodomy and had been sexually tortured there by officials and prisoners with official impunity, he would be significantly worse off than the generality of men of homosexual orientation who had come to no adverse attention outside their local community.
"the fact that and applicant has already been subjected to persecution or serious harm …is a serious indication of the applicant's well- founded fear of persecution or real risk of suffering harm unless there are good reasons to consider that such persecution or serious harm will not be repeated".
they do not address any of the above considerations. In my judgement the material presented was of sufficient coherence and relevance to undermining the previous appellate consideration that it required these consequences to be addressed. Further the Secretary of State's own response to the evidence of anal rape would be wholly inadequate if directed to the core allegation that he was raped in a state institution with at least state connivance in sexual torture of homosexuals. If this might have happened sufficiency of state protection would not be an answer to the claim.
i. The test of exceptionality applied in Mr Anirah's appeal has now been generally disapproved by the House of Lords in Huang v SSHD  2 AC 167. The issue is whether continued deportation is a fair balance between the competing interests.
ii. Exceptionality was a particularly inappropriate test to apply in a case of deportation of someone who had been admitted for permanent settlement in the UK, and has some considerable measure of integration here. This is not a case about departing from the policy of the rules as to who should be admitted into the UK in the first place. The Immigration Rules relating to deportation HC 394 (at paragraph 364) make clear that where human rights principles do not themselves require the deportation order to be revoked, it will only be in an exceptional case than a purely domestic balance of those liable to deportation will come down in their favour.
iii. The policy of seeking the deportation of those who have committed serious crimes is a relevant starting point in the balance, but the content of Article 8 rights is more deep- rooted than the current state of Ministerial policy. Family life entered into with leave and that cannot be replicated and relocated elsewhere should be respected and not interfered with unless a proportionate response to a pressing social need justifies it. Despite the particular iniquities of drug trafficking Strasbourg decisions since the land mark case of Boultif v Switzerland (2001) 33 EHRR 1179 have demonstrated that where there is no longer a risk of re-offending respect for the family life of drug offenders may weigh more heavily than the public interest in a deterrent policy, see for example Amrollahi v Denmark 11th July 2002
iii. The passage of time in a revocation case is of particular importance in Article 8 cases. A number of decisions from Strasbourg have stressed that even where deportation is appropriate in principle it may be disproportionate if it is open ended and of indefinite duration.