England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/01/2012

The Honourable Mr Justice Burnett :

1. The claimant is a 30 year old Pakistani national whose asylum and human rights claims were certified by the Secretary of State for the Home Department pursuant to section 94(2) of the Nationality, Immigration and Asylum act 2002 [" the 2002 Act"]. That decision has since been affirmed following the grant of permission to apply for judicial review.
2. The facts underlying the claim advanced by the claimant before the Secretary of State and in this court are these. The claimant lived with her brother-in-law, his wife (who is her sister) and their three children in Karachi in Pakistan. The claimant's brother-in-law, M U, is a Deputy Superintendent of Police in the CID in Karachi. He is involved in the detection and prosecution of terrorists in Pakistan. The claimant lived with him and his family since she was eight years old, when her own parents died. She has two other sisters who live in Peshawar. Her brothers live in Saudi Arabia.
3. Mr U has been receiving threats since 2009 connected with his work, in particular seeking to discourage him from giving evidence against terrorist suspects. He took part in an operation against terrorists on 11 September 2010 during which a number of suspected terrorists were killed and captured by the unit he commanded. The threats have become more intense since that operation. Despite these threats Mr U has continued to work in the same unit and give evidence in cases involving suspected terrorists. On 11 November 2010 there was a terrorist attack on the CID office where Mr U worked. He sustained injury. He had treatment in Pakistan and also in the United Kingdom. He was unable to work for about four weeks. The nature of those threats and the extent to which they involved his family members, including the claimant, were explained by her in the course of her asylum interview. The threats extended to herself and her sister telling them to stop him giving evidence. On a day in January 2011 somebody pressed the intercom to the family home and threatened the claimant indicating "we can come upstairs and do whatever we want to do" and "tell your brother in law not to become a witness otherwise we can do anything to you". Mr U received threats that if he continued to act as a witness something would be done to his family. After the threat received via the intercom the claimant rarely left the house. On 26 January 2011 the claimant's nephews were returning home from school when the car in which they were travelling was fired upon. In February 2011, the claimant took her niece to a medical centre because she had suffered an asthma attack. Two men approached her in the car park and said "we can do anything to you". Other people intervened and the two men ran away. On 5 March 2011 shots were fired at the house. On another occasion the claimant's sister suspected that she was being followed by people on a motorcycle. She was in her car. She pulled over near a police station and the people disappeared.
4. In the course of her asylum interview, the claimant said that her brother-in-law had not reported all of the incidents that she had recounted. He apparently did not want to make a fuss. She too has not reported them. But it appears that he has protection. This exchange took place in the course of the interview:

Question: I do not understand. If brother-in-law held such a high position within police and working in CID why you didn't have more protection and why he didn't report threats?

Answer: The protection was given to him but he just told us to stay inside.

5. A document dated 19 April 2011 suggests that Mr U made a written complaint to a magistrates court in Karachi which included an allegation that he had been receiving threatening calls since 10th of December 2010. They led him to believe that terrorists from banned organisations might cause him harm or harm his family. He asked for action to be taken. The claimant is not aware whether any report was made by him of the more serious incidents she has described. She has not sought the protection of the Pakistani police or any other official body.
6. The claimant left Pakistan with her brother-in-law, sister and their children on 29 May 2011. They arrived in the United Kingdom the next day. The claimant had a visitor's visa valid until October. Mr U came to the United Kingdom for further medical treatment for the injury he sustained in the bomb attack. He has since returned to Pakistan. It was always the collective intention of the adults that the claimant, her sister and their children would seek asylum in the United Kingdom. It is an important part of the argument advanced on behalf of the claimant that Mr U himself has taken the view that his family would be safer in the United Kingdom than if they remained in Pakistan. The claimant made her application for asylum on 12th of July 2011. Her sister, on her own behalf and on behalf of her three children, also made an application. The basis of the application advanced on behalf of the claimant was that she would be at risk of attack from terrorists (who for convenience I shall simply call the Taliban) on account of her connection with Mr U and the direct threats made to her and the family.
7. On 28 July 2011 the claim for asylum and humanitarian protection was refused by the Secretary of State and certified as being clearly unfounded. The Secretary of State recognised the widespread violence in Pakistan and terrorist activity but concluded that the claimant could seek the protection of the proper authorities in Pakistan should the need arise. The letter of refusal contained a reference to an analysis of the strength and capability of the police, the Armed Forces and other security forces in Pakistan. She noted the willingness of the claimant's brother-in-law to return to Pakistan. She referred to the senior position he held in the police. The Secretary of State recorded that there was no suggestion that the authorities had been asked to provide protection, but had failed to do so. The Secretary of State went on to consider the nature of the fear asserted by the claimant. It related to events in Karachi and threats directed at the claimant's brother-in-law. She concluded that the claimant could relocate to another part of Pakistan where she would be removed from the environment in which she feared danger. In particular, the claimant could go to either of her sisters in Peshawar. For these reasons the asylum claim and the claim for humanitarian protection failed. The Secretary of State went on to consider whether to grant discretionary leave to the claimant. In doing so she considered article 8 ECHR. The refusal letter noted that the claimant had been in the United Kingdom since May with an adult sibling. The Secretary of State considered that it would be reasonable for the claimant's sister to return to Pakistan with her husband, but in any event concluded that in all the circumstances, article 8 could not assist the claimant in resisting removal. The structure of the letter was entirely conventional. It was headed 'Reasons for Refusal'. It recounted the evidence put forward by the claimant and set out the basis for the claim for asylum and humanitarian protection. It drew upon published and independent sources on the security situation in Pakistan. It dealt with all the points advanced by the claimant in exhaustive detail concluding in paragraph 61 of the document that the claims should be refused. It continued in this way:

"62. In addition, after considering all the evidence available to [her], the Secretary of State has decided that your asylum claim is clearly unfounded and hereby certifies it as such under section 94(2) of the [2002 Act].

63. Furthermore, it is not considered on the information available that your removal would be contrary to the United Kingdom's obligations under the ECHR.

64. In addition, after considering all the evidence available to [her], the Secretary of State has decided that your human rights claim is clearly unfounded and hereby certifies it as such under section 94(2) of the [2002 Act]."

8. The certification of the asylum and human rights claim as clearly unfounded had the consequence of conferring on the claimant a right of appeal only from outside the country. The claimant's leave was curtailed. She was advised that if she did not leave voluntarily removal directions would be set. Those directions were set on 29 August 2011. The claimant was detained on 5 September 2011 with a view to removal on 9 September. The removal directions were cancelled. These proceedings were issued on 16 September. On 14 October permission to apply for judicial review was granted. The claimant was released from custody.
9. In the meantime, on 6 October 2011 further material was sent to the Secretary of State, prompted by the acknowledgment of service served in these proceedings. That material included a BBC news report of a car bomb attack on 19 September 2011 on the home of Chaudhry Aslam, the chief of the CID in Karachi. The report suggests that a number of officers assigned to guard the house were killed, and there were casualties amongst passers by. That same news report noted that Karachi's police force had been targeted by militants in the past and reminded its readers of the attack on the CID offices in the previous November, when 30 people had been killed. The point made on behalf of the claimant in a note covering this material was, in short, that the state was incapable of preventing these focused attacks on senior officials. The other point made on behalf of the claimant was that the Secretary of State had not addressed the issue that the application by the claimant's sister and her children was still pending. A letter of the same date advanced an argument that the security situation in Peshawar had changed with an increased risk of Taliban related incidents in that area. It also suggested that the claimant was like a daughter to her sister.
10. On 22 November 2011 the Secretary of State responded to the further submissions and reaffirmed her earlier decision. The letter considered the evidence of the attack on the home of the CID chief in Karachi. The Secretary of State concluded that the attack did nothing to undermine the point that, if sought, protection would be available from the Pakistani authorities. In particular she considered that the claimant had failed to provide evidence that protection would not be forthcoming. The Secretary of State went on to indicate that she did not consider that the claimant had shown that the Taliban would be interested in her in any other part of Pakistan, or indeed be interested in her at all. She considered the position in Peshawar, which she concluded showed nothing more than that terrorists were active in that part of Pakistan. She continued:

"It does not demonstrate any reluctance by the authorities to tackle the issue. When this issue is considered in light of the above considerations regarding your failure to show that you would be targeted and also your ability to relocate away from areas in which you felt you were in danger, it must be considered that you have failed to show that you would encounter a real risk of persecution on return to your country. Therefore little weight can be placed on your evidence and it is not considered that it would create a realistic prospect of success before an immigration judge."

11. The Secretary of State then revisited the article 8 claim. She noted that relationships between adult siblings do not ordinarily connote family life for the purposes of article 8. However, she considered the position in the light of the outstanding asylum application of the claimant's sister and children. In short, the conclusion was that the very brief facts of the family relationship placed before the Secretary of State did not get an article 8 claim off the ground. The overall conclusion was this:

"It remains the conclusion that if your claim was accepted at its highest you would have the opportunity to seek protection from the Pakistani authorities on your return. Alternatively, it is considered reasonable for you to relocate away from those that you fear and you have provided no evidence to suggest that the persons you fear would have the capability, resources or inclination to track you down elsewhere in the country. It is deemed that any fears you may have on return to Pakistan are clearly unfounded. Your removal to Pakistan would not amount to a breach of article 8 of the ECHR."

The Legal Principles

12. The legal principles which govern the application of section 94(2) of the 2002 Act are not in dispute. As material, section 94 provides:

"(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim or both.

(2) A person may not bring an appeal to which this section applies ... if the Secretary of State certifies that the claim or claims mentioned in subsection (1) are clearly unfounded."

The effect of certification pursuant to section 94(2) is to deprive an applicant for asylum of an in-country right of appeal.

13. In ZL v. SSHD & another [2003] 1 WLR 1230 the Court of Appeal considered the proper approach to the "clearly unfounded" test. Lord Phillips of Worth Matravers MR, in giving the judgement of the court, said this:

"… the decision maker will –

a) consider the factual substance in detail of the claim;

b) consider how it stands with the known background data;

c) consider whether in the round it is capable of belief;

d) if not, consider whether some of it is capable of belief;

e) 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."

14. In R (Bagdanavicius) v SSHD [2004] 1 WLR 1207 Auld LJ, with whom Lord Woolf and Arden LJ agreed, said this of the 'clearly unfounded' test:

"[It] is essentially the same test as that adopted by Lord Hope in Thangarasa v SSHD … at para 34, in applying the "manifestly unfounded" test in section 72(2)(a) of the [Immigration and Asylum Act] 1999 … namely that the claim 'is so wholly lacking in substance that the appeal would be bound to fail'."

In Thangarasa [2003] 1 AC 920 Lord Bingham said:

"No matter what the volume of material submitted or the sophistication of the arguments deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing the material, he is reasonably and conscientiously satisfied that the allegation must clearly fail." (paragraph 14)

Lord Hutton added:

"The essential question on judicial review is "whether the Secretary of State has adequately considered and resolved" the issue whether the applicant's claim that his human rights had been breached is manifestly unfounded. The court should also have regard to the onus which rests on the applicant to show that there are substantial grounds for believing that if he were removed from the United Kingdom he would face a real risk that he would be subjected to treatment contrary to article 3." (paragraph 74)

15. In ZT (Kosovo) v. SSHD [2009] 1 WLR 348, Lord Phillips said that if, on at least one legitimate view of the facts or the law the claim may succeed, that claim will not be clearly unfounded.
16. I gratefully adopt a summary of the principles applicable to sufficiency of protection and internal relocation from the judgement of Frances Paterson QC, sitting as a Deputy High Court Judge, in R (Umar) v. SSHD [2008] EWHC 2385 (Admin):

"19. 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, and the fear, however well founded, do not entitle him to the status of a refugee."

20. 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 judgment 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 police and courts to detect, prosecute and punish the offender."

21. 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 account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so……All must depend on fair assessment of the relevant facts."

22. Lord Hope at para 47 said:

"The question where the issue of internal relocation is raised can, then, be defined quite simply. As Linden JA put it in Thirunavukkarasu v Canada ( Minister of Employment and Immigration) (1993) 109 DLR (4^th) 682, 687, it is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words "unduly harsh" set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.""

Submissions

17. Miss Jegarajah submits that the facts outlined by the claimant in her asylum interview taken with the further material provided on 6 October show that through the activities of her brother-in-law the claimant is vulnerable to attack in Karachi. She submits that the prolific activity of the Taliban is such that the Pakistani authorities cannot provide protection, even if inclined to do so. The attack on the home of the chief of the CID shows their determination and illustrates the inability of the Pakistani authorities to provide proper protection. She submits that the latest Country of Origin Information Report on Pakistan ["the COI Report"] shows the nature and extent of the general terrorist problem, and questions the government's ability to contain the threat and protect the population. She submits that the nature of the threats uttered to the claimant mean that she is not safe anywhere in Pakistan. There is a risk that she would be sought out wherever she was. She further submits that the close bonds between the claimant and her sister are such that to remove her from the United Kingdom would, at least arguably, lead to a breach of her rights protected by article 8 ECHR. It is at least possible that an Immigration Judge might conclude that the asylum and human rights claim should succeed.
18. Discrete arguments that it was unlawful for the Secretary of State to determine the claimant's application in advance of her sister's and that her detention was unlawful were not pursued.
19. Miss Jegarajah submits that the original decision letter, which dealt with all of the facts and arguments advanced by the claimant, gave inadequate reasons for certifying the claim and was defective on that account.
20. Miss Apps submits that the Secretary of State's decision was correct on each count. The documentary evidence shows that the claimant's brother-in-law has reported problems. It is unclear whether the catalogue of incidents referred to by the claimant has been reported by her brother-in-law. However, the material referred to by the Secretary of State shows that the Pakistani authorities are capable of providing protection to those threatened by the Taliban. Mr U has returned to Pakistan and continued in his post. The claimant accepts that he has been provided with protection. The claimant has not begun to demonstrate an unwillingness or inability on the part of his employers or the authorities generally to provide such protection as may be required. Miss Apps further submits that the evidence does not begin to show that the Taliban has an interest in the claimant which could lead to elements of that organisation tracking her down in Peshawar were they somehow to discover that she was there.
21. On the article 8 claim, Miss Apps reminds me that it formed no part of the submission advanced on the claimant's behalf by her solicitors on 27 July 2011. The grounds in support of the claim make no mention of article 8. There is a passing reference to it in one sentence of the 'submission' contained in paragraph 14 of that document. The context in which the family was mentioned was an argument that the sister's claim should have been considered at the same time. That was true also of the response document of 6 October. The article 8 claim is, she submits, obviously bad. The claimant is an adult. The claim is based simply on the fact that she has lived since she was a child in her elder sister's home. No authority has been produced to support the contention that such, without more, could found an article 8 claim to resist removal.
22. The letter of 28 July makes it clear why the claims were rejected by the Secretary of State and set out all the factors which led her to conclude that they were clearly unfounded. There is no need to explain a second time, when certifying the claims, why they are thought to be untenable.

Discussion

23. The COI Report fully recognises that there is substantial terrorist activity in Pakistan. So much is clear to anyone paying attention to news reports. The Taliban related terrorist activity stretches across Pakistan and infects most of its major cities, including Karachi and Peshawar. The general risk of being a victim of violence in Pakistan does not give rise to valid asylum or human rights claims. The claimant relies upon the threats to Mr U and to her and her sister, as set out above, as founding her claim. There is, in my judgment, no basis for suggesting that the Pakistani authorities are unwilling to provide the claimant with such protection as may be necessary on account of her familial relationship with Mr U and the threats made to discourage him from pursuing his duty. The document dated 19 April 2011, to which I have referred, evidences the fact that Mr U has sought protection. Indeed, it would bizarre were he not to have drawn to the attention of his employer the full detail of any threats of which he was aware. The claimant herself spoke in her interview of protection being provided for her brother-in-law. The objective material referred to by the Secretary of State shows that the Pakistani authorities are able to provide protection. Ironically, the recent attack on the home of the CID chief demonstrates that. It was those providing protection who were killed and injured. No absolute guarantee of safety can be provided. The reality in the claimant's case is that it does not appear that the authorities have been asked to consider the security of Mr U's family. There is no basis for concluding that they would not do so if asked and take such steps as were necessary to provide protection, either by keeping the family unit together or suggesting temporary separation.
24. This is a non state-actor case, as discussed by Lord Hope in Horvath. The Secretary of State conscientiously reviewed the material in this case and was entitled, in my judgment, to conclude that the claim must fail because the Pakistani state was willing and able to provide protection to the claimant in the sense explained by Lord Hope.
25. It is no part of the claimant's case that she could not go to Peshawar to live with one or other of her sisters who reside there. Nor is it part of her case that it would be unreasonable for her to move there to secure a safe environment were it necessary to do so. Instead, the argument runs that living in Peshawar would not provide the necessary security because the Taliban operates across Pakistan and could seek her out and cause her harm. The claimant juxtaposes two strands of evidence. The first is that she received a direct threat when she answered the intercom at the family home in Karachi together with a threat in the car park at the hospital (see paragraph [3] above). The second is that the Taliban (a description covering a myriad of groups) are active in the Peshawar region. From that she suggests that it is at least arguable that there are serious grounds for believing that, were she to relocate to Peshawar, she would be sought out and harmed by someone wanting to intimidate her brother-in-law, whatever protection might be afforded by the authorities. The Secretary of State has considered this evidence, together with all that relating to the security situation in Pakistan, and concluded that there is no reason to suppose that there is any chance of the claimant being sought out in the way she suggests and for that reason, even if the general conclusion on state protection were wrong, the claimant could relocate to avoid the problems she has identified. That conclusion is, in my judgment, a lawful one.
26. The article 8 claim, at its highest, was advanced by Miss Jegarajah on the basis that the claimant was like a daughter to her sister (who I was told is eight years older) and that the family is a single unit. The way in which the article 8 claim has emerged suggests that it has always been something of a make-weight in support of the argument that the Secretary of State should have stayed her hand in seeking to remove the claimant until she had determined the claims of the claimant's sister and her children. Whilst it is right that all article 8 claims must be considered on their particular facts, there is nothing in the circumstances which could justify the unusual conclusion regarding a thirty year old sibling that article 8 could prevent removal.
27. For all these reasons, I conclude that the Secretary of State was entitled to certify the asylum and human rights claims advanced by the claimant.
28. The argument that the reasons given by the Secretary of State were inadequate was advanced without reference to authority. In this context, as in so many, the giving of reasons has the purpose of requiring the decision maker to focus on the issues raised before him and to go through the exercise of considering properly the main factors and arguments advanced. The reasons also enable the recipient to understand why she has failed in her application and to determine whether the decision is capable of challenge. Reasons must engage with the main points in issue. There is no complaint advanced by the claimant that the Secretary of State failed to deal with all of the evidence and arguments advanced. There is no suggestion that the claimant cannot see with clarity precisely why the Secretary of State refused to treat her as a refugee or to grant her humanitarian protection. The argument is that the Secretary of State should have expanded the section of the letter dealing with section 94(2) of the 2002 Act, and explained further why she considered the claims clearly unfounded. Such an exercise would, in my judgment, be sterile. The conclusion in any given case that a claim is clearly unfounded follows (or not) from the analysis of the evidence and arguments in the light of the additional material referred to in the decision letter which led to the rejection of the claim. It is no more necessary to expand on that analysis and the conclusions reached consequent upon it than it is for a judge in the Administrative Court to expand upon his reasons for refusing an application for permission when stating that a claim is wholly without merit.
29. In the result the claim for judicial review will be dismissed.