QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF P|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT|
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Miss S Broadfoot (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"The fact that your client failed to inform the BIA of her application in either Belgium or Cyprus undermines her credibility. It is also noted that your client claims to have entered Ireland where she could also have approached the authorities for protection."
The letter continued to refer to the conditions in Cyprus. Again, it was pointed out that Cyprus is an advanced European democracy where the rule of law applies. It was stated in paragraph 8 that the defendant had no reason to believe that Cyprus in any way condones unlawful acts and, when they are brought to the attention of the Cypriot authorities, stringent investigations take place and all necessary disciplinary action or criminal prosecutions are sought. The paragraph ends thus:
"The Secretary of State is satisfied that Cyprus takes its obligation towards asylum seekers very seriously and anyone seeking to perpetrate unlawful acts against asylum seekers is pursued and sufficient action is taken by the Cypriot courts."
"For the above reasons, having considered the report from the POPPY project, the Border and Immigration Agency remains satisfied that your client's Article 3 ECHR rights will not be breached upon her return to Cyprus and the 'clearly unfounded' certificate dated 10th July 2007 should be maintained. Further, the reasons set out in the Border and Immigration Agency's previous letter to you dated 10th July 2007 still stand and your client remains properly removable to Cyprus under the Dublin Regulation."
In light of that, amended grounds upon which judicial review was sought were filed with the court. On 16th April 2008 Sir George Newman, sitting as a Deputy High Court Judge, gave permission to pursue the claim.
"(1) This paragraph applies for the purpose of the determination by any person, tribunal or court whether a person who has made an asylum claim or human rights claim may be removed --
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) The state to which this part applies shall be treated, insofar as relevant to the question mentioned in subparagraph (1), as a place --
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and
(b) from which a person will not be sent to another State in contravention of his Convention rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention."
The reference to Convention rights in paragraph 3(2)(b) is to the rights guaranteed by the European Convention on Human Rights and identified as Convention rights by section 1 of the Human Rights Act 1998.
"I consider that in a case where there is a challenge to a certificate under section 72(2)(a) the court must subject the decision of the Secretary of State to a rigorous examination, but the examination must be on the basis and against the background that, as I have earlier stated, the extent of the consideration which the Secretary of State will have given to the issue will have depended on the nature and details of the argument and the factual background presented to him by the applicant."
"The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not."
Then at paragraph 60 the Master of the Rolls continues:
"As we shall explain, an issue of credibility arose in this case in relation to ZL. The Secretary of State gave her the benefit of the doubt and his decision did not turn on credibility. Where an applicant's case does turn on an issue of credibility, the fact that the interviewer does not believe the applicant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases, findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the applicant's story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone."
"It has long been established, however, that Article 3 implies in addition an obligation on the part of the contracting state not to expel someone from its territory (whether by extradition, deportation or any other form of removal and for whatever reasons) where substantial grounds are shown for believing that upon such expulsion he will face a real risk of being subjected to treatment contrary to Article 3 in the receiving country . . .
Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute Article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of Article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts."
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case . . . .
And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. 'It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy'. The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance."
Lord Clyde was there referring to guidance given by Stuart-Smith LJ in the Court of Appeal. That case concerned the Convention and Protocol relating to the status of refugees, but it is not in dispute that the same considerations apply where European Convention rights are in issue.