England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre Priory Courts, 33 Bull Street, Birmingham, B4 6DS
		27 November 2012

MR JUSTICE SILBER:

I. Introduction

1. Moinuddin Syed ("the claimant") seeks to judicially review the decision of the Secretary of State for the Home Department ("the Secretary of State") made on 13 December 2011 ("the decision letter") under section 94(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") in the words of the judicial review application form "to certify the asylum claim of the claimant and his dependents as unfounded".
2. On 1 June 2012, His Honour Judge Purle QC granted the claimant permission to apply for judicial review.
3. The claimant is a citizen of India who was born on 14 February 1968. He has three dependants all of whom are Indian Nationals and they are the Interested Parties in these proceedings. They are his wife Seema Sabahata, who was born on 6 January 1981, and his two sons Mustafa Anas Uddin Syed who was born on 22 October 2007, and Mustafa Mannan Uddin Syed, who was born on 2 June 2011. I will refer to the claimant's wife, Seema Sabahata, without any disrespect as "Seema" so as to distinguish her from the claimant's other wife Maria to whom I will refer in greater detail in paragraphs 22, 24 and 35 below.
4. The claimant applied for and received a visit visa for the UK and he used it to travel to the UK, which he visited in 2008. He applied for and received a further visa expiring on 8 December 2009. He arrived in the UK on 8 June 2009 and has not returned to India. So he was and has been an overstayer from 9 December 2009. I will explain when setting out the chronology, Seema's visits to the UK but she finally came here in January 2010 with her elder son as visitors and she has remained here since then. The claimant's second son was then born in the United Kingdom.
5. On 27 May 2011, the claimant was found working illegally in London. On 21 September 2011, he claimed asylum and on 17 November 2011, he was interviewed. On 13 December 2011, in the decision letter, the Secretary of State refused his asylum and human rights claims, which she certified as "clearly unfounded" and this decision is under challenge in these proceedings.
6. After the claimant's solicitor sent a pre-action protocol letter in respect of the Secretary of State's decision, the Secretary of State responded on 3 February 2012 and affirmed the earlier decision. Judicial Review proceedings were issued on 13 March 2012.
7. The claimant's grounds of challenge, which were pursued at the oral hearing, are that:-

(a) The Secretary of State's decision to certify his asylum claim in the decision letter as clearly unfounded is "plainly wrong" ("The Certification Issue"). This was the only relief claimed in the appropriate box on page 2 of the judicial review application form; and that

(b) The Secretary of State's decision is unlawful because it was made in breach of his duty under section 55 of the Borders, Citizen and Immigration Act 2009 ("the 2009 Act") ("The Section 55 Issue"). This was pursued at the oral hearing and it was not clear if the certification in the decision letter of the claimant's human rights claim was also being challenged. I have considered all these points although the claimant was probably not entitled to pursue them as they were not included in the judicial review application.

II. Ground 1 - The Certification Issue

(i) Introduction

8. The basis of the claimant's asylum claim is that he cannot return to India as he fears persecution from Seema's family and the Shia community because he as a Sunni married a Shia and that this would result in him and his sons being killed. His human rights claim is that as he has established a private life in the UK, his removal would infringe his rights under Article 8 ECHR. Mr. Abid Mahmood, counsel for the claimant, contends that in the light of the background evidence that honour killings are prevalent in India, the real risk for the claimant is that he and his family will be persecuted and so they require humanitarian protection. The basis of the challenge is that the certification was wrongly granted and should be set aside.
9. Mr Zane Malik, counsel for the Secretary of State, contends that the case of the claimant putting forward the asylum claim and the human rights claim are "clearly unfounded" and that the certification in the decision letter was unassailable. He submits first that the claimant's fear of Seema's parents or the Shia community cannot on any legitimate view be regarded as well-founded; second, that the assertion that there is inadequate State protection for the claimant and his family in India, also cannot on any legitimate view succeed; and third, that in any event, the claimant can successfully relocate in India. Mr. Malik's case is that the claims to the contrary also cannot on any legitimate view succeed. Reliance is placed by the Secretary of State on the objective evidence, which Mr Malik contends shows that there would be adequate protection and the claimant and his family, who could in any event safely relocate in India.
10. The response of the claimant is, as I will explain in paragraphs 44 ff below, to rely on the expert evidence of Dr Gill Daryn and some other objective evidence to show, among other matters the frequency of honour killings in India and the failings of the police forces in India in order to support the claims of the claimant. There was then a response by the Secretary of State in the form of comments on Dr Daryn's report by the United Kingdom Border Agency ("UKBA"). Mr. Mahmood submits that I should ignore these comments as they purport to be expert evidence but they are not supported by the requisite statement from an expert. I need not decide this point and I will not pay regard to these comments as I can, and do, reach my conclusions which are to accept the Secretary of State's case without needing to consider those comments in her response to Dr. Daryn's report.
11. The claimant's solicitors then asked Dr Daryn for her comments, but she explained that her workload prevented her from being able to assist any further. She explained in her letter that she stood by what she had previously written and that she totally disagreed with UKBA's remarks, but she then added that "while it is possible that further research into the matter would result in more supportive evidence to back up my report, it may equally uncover evidence that weakens the case". It therefore becomes necessary to set out the relevant legal principles before considering the evidence and then how the Secretary of State reached her decision.

(ii) The relevant legal principles

12. There is no serious dispute between the parties as to the approach to be adopted to a section 94(3) certificate and the principles to be applied in challenging the lawfulness of the Secretary of State's decision to certify the Claimant's applications as "clearly unfounded".
13. Part 5 of the 2002 Act sets out a comprehensive statutory code for dealing with immigration appeals. By section 82, a person may appeal to the First Tier Tribunal (Immigration and Asylum Chamber) against an "immigration decision". Section 82(2) sets out an exhaustive list of decisions that constitute an "immigration decision" and which, therefore, carry a right of appeal.
14. Section 92 states that an appeal shall only take place whilst the appellant is in the UK if it is of a kind to which the section applies: section 92(1). Section 92(2) sets out a limited number of immigration decisions from the exhaustive list in section 82(2) to which section 92 applies. By section 92(4)(a), the section also applies if the appellant has made an asylum claim or a human rights claim while in the UK.
15. The statutory power to certify an asylum claim as "clearly unfounded" is set out in section 94 of the 2002 Act, which provides that:-

"94 Appeal from within United Kingdom: unfounded human rights or asylum claim

(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).

(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e) or (ha) or in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.

(2) 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

(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded".

16. The list in section 94(4) includes India, which is a country in which the claimants as an Indian national is entitled to reside with the consequence that the Secretary of State shall certify unless she is "satisfied that it is not clearly unfounded".
17. Lord Hope of Craighead (with whom other members of the Appellate Committee agreed) explained in Yogathas and Another v Secretary of State for Home Department [2003] AC 920 at 934 that the proper approach to the words "manifestly unfounded", which was the wording in pervious legislation, was that: -

"34… By adopting the language of the international instruments Parliament has made it clear that the issue as to whether the allegation is manifestly unfounded must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR. The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is whether the allegation is so clearly without substance that the appeal would be bound to fail".

18. Lord Hope subsequently explained in ZT (Kosovo) - v - SSHD [2009] 1 WLR 345 that "52...the focus of the test in section 94 is primarily on the quality of the claim rather than the prospects of success on an appeal".
19. In R (Bagdanavicius) v Secretary of State [2004] 1 WLR 1207, Auld LJ (with whom Lord Woolf LCJ and Arden LJ agreed) observed in relation to the "clearly unfounded" test of the kind set out in section 94 that:-

[58] "[It] is essentially the same test as that adopted by Lord Hope in Thangarasa v Secretary of State [2002] UKHL 36 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".

20. The Court of Appeal in VL and VL v Secretary of State for Home Department [2003] 1 WLR 1230, was concerned with the transitional provisions in s115 of the 2002 Act and with the proper approach to certifying claims as "clearly unfounded". Lord Phillips of Worth Matravers M.R. giving the judgment of the Court stated that:-

"…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." [Paragraph 56]

…It is useful to start with the ordinary process, such as s115 (1) calls for. Here the decision-maker will —

i) consider the factual substance and detail of the claim

ii) consider how it stands with the known background data

iii) consider whether in the round it is capable of belief

iv) if not, consider whether some part of it is capable of belief

v) consider whether, if eventually believed in whole or in part, it is capable of coming within theConvention."

"If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not." [Paragraph 57]

21. All these points have to be considered against the background that as the claimant is entitled to reside in India, the position is that in respect of his asylum and human rights claims, such claims when considered separately should be certified unless the Secretary of State is satisfied that that the claim under consideration is "not clearly unfounded".

(iii) The Decision of the Secretary of State

22. In the decision letter, which is the subject of the claimant's challenge in these proceedings, the Secretary of State sets out the nature of the claimant's case explaining that the claimant had married a distant cousin called Maria in 2000 and that this was an arranged marriage. Together they had two children. In 2004, the claimant met his future wife, Seema and who, as I have explained, is an Interested Party on the present application. The claimant and Seema eventually started a relationship. After the relationship had been progressing for several months, the claimant informed Seema that he was a Sunni and that she was a Shia, but in spite of this, they decided to continue their relationship. By June 2005, the claimant and Seema decided to marry.
23. In September 2005, the claimant went to Seema's house to ask her family to accept him as her husband. When the claimant stated that he was a Sunni, her family became angry and her father was rude and abusive to the claimant and he informed the claimant that if he saw the claimant with Seema again, he would kill the claimant.
24. The claimant married Seema secretly on 26 December 2005, and later she returned to her family's home before leaving her home so as to stay at a friend's home with the claimant. Seema phoned her parents and when she told them that she had married the claimant, her father was rude and abusive and he disowned her. The claimant was during this period continuing to spend every night with Maria while telling Seema that he was attending his sick mother through the night. Eventually the claimant told Seema that he was married and she made the claimant vow that he would never leave her.
25. The claimant and Seema moved to Hyderabad and they remained there until 2006 when Seema's family discovered her address. The claimant gave an account of receiving threats to kill from her family, who came to their house. He said that members of the Shia community also came to their house and they threatened his wife telling her to divorce him. They also threatened to kill him using foul language, but the claimant did not know how they came to hear about his marriage. The claimant said that Seema's family had found out her address as her friends had told her family where she was; according to the claimant, those friends had passed on this information as they were jealous of Seema's marriage.
26. The claimant's evidence was that he had made a complaint to the police about Seema's family, who then went to the police station and the claimant thinks that they paid a bribe. According to the claimant, the police said that they were not registering the case and that no action would be taken. The police suggested that the claimant and Seema should move out of the City because of their inter-caste marriage.
27. The claimant said that he continued to receive threats from Seema's family and the Shia community with the result that they decided to leave. The claimant explained that he did not turn to the police because he said that the Shia community had phoned him and they had said that if the claimant ever went to the police, they would then kill him.
28. In December 2006, the claimant went with Seema to live in Gulbarga, which is a six-hour train journey away from Dilsukhnagar, but Seema's family found out where they had moved to as a result of information received from Seema's friends, after they had received photos and letters from Seema. The claimant said that they began receiving phone calls but that Seema's family did not visit the claimant's house. The Shia community also phoned and told Seema that they would not spare the claimant and that they would find him wherever he moved to.
29. According to the claimant, he did not complain to the Gulbarga police because he considered first that it would not serve any use to make a complaint, and second that he did not want to aggravate the situation further. He did acknowledge that no one in the Shia community in Gulbarga found out or objected to their marriage, as the claimant had not disclosed it to them.
30. The claimant's evidence was that he relocated to Delhi in early 2007 and that he changed his phone number, but that Seema's family approached the person looking after the claimant's pharmacy in order to obtain the claimant's phone number. According to the claimant, they beat him until they obtained the phone number, but they did not discover the claimant's address. About this time, Seema got pregnant.
31. She and the claimant decided to return to Hyderabad, as they knew the doctor there and as they could not afford to have their baby in Delhi. The claimant stayed with a friend in Hyderabad, while Seema gave birth, but he left two weeks after the baby was born. The claimant said he did not have any problems as he did not have a phone, but he and Seema then went to Bangalore where they remained until 2008. The claimant said that he had left Delhi for Bangalore because Seema's family had his telephone number in Delhi.
32. According to the claimant, Seema's family found out about her son and they had discovered Seema's phone number from her friends. They telephoned her and the claimant said that they threatened to kill Seema and their son. The claimant said that he did not tell the police because they would only tell him off and say that he had only received calls but that nobody had come to kill him.
33. The claimant said that by this stage, he and his wife were exhausted and they did not know what to do as they wanted to live their lives in peace without fear. So they decided to leave India and in March 2008, they duly applied for a visa to visit the United Kingdom. The claimant did not mention his son on the application form as they were told that if they did so, their visa application would be refused. They came to England as they believed that it would be a safe country and when they arrived on 3 May 2008, they intended to stay. As their son was still in Hyderabad, Seema went back to be with him and she lived there while the claimant worked in the United Kingdom.
34. A time came when Seema received news that her parents were ready to accept her and to accept the claimant as her husband. The evidence was that the claimant decided that he would prefer to live in India as a pharmacist and he therefore returned in February 2009. The claimant's case is that when they arrived in India, he was informed that his father-in-law actually wanted to kill him and his son, and that they would not accept him under any circumstances.
35. The claimant stated that he went to the house of Maria, when he returned to India. In order to explain his absence to her, he told her that he had a job as a press reporter, which explained why he had not returned to her between 2005 and 2009, but Maria had by then found out that the claimant had married and that he had had another child. According to the claimant, Maria demanded that the claimant should divorce Seema or that she, that is Maria, would "do black magic on her and kill her". The claimant's evidence was that Maria had transferred the claimant's property into her name, which meant that the claimant had nothing to go back to, but he did not tell the police about Maria because the police needed to be bribed to do anything.
36. Significantly, according to the claimant, between April and May 2009, he stayed with friends in Hyderabad and they did not have any problems, as they did not tell anyone anything. Nevertheless, according to the claimant, a time came when the claimant and Seema decided that it would not be safe to be in India as her family were hatching a plan to kill the claimant and his son. They therefore made a second visa application to enter the United Kingdom in December 2009 which was granted. It is noteworthy that Seema was in Hyderabad between July 2009 and January 2010 and during that time, the Shia community phoned her once and used foul language. According to the claimant, he and Seema came to this country in 2010 but one month later, Seema returned to India alone where she remained. She then made a further application to come to the United Kingdom with the claimant's son.
37. Since January 2010, Seema, the claimant and their first son have been living in England. The claimant's second son was born in 2011. The claimant contends that he cannot return to India, as he fears persecution from his wife's family and the Shia community because he married a Shia and that this persecution would result in the claimant and his sons being killed.
38. The Secretary of State explained that the threats that the claimant had received from Seema's family had been on the telephone apart from one occasion when they went to his house in Hyderabad and verbally abused her. It was noted by the Secretary of State that Seema's family knew their address for at least a month prior to January 2007 and that they did not come to her home. Therefore, the Secretary of State's conclusion was that whilst they threatened the claimant, they did not execute their threats, even when the opportunity was there and that they had not made any attempt to visit him in person.
39. The letter then stated that the claimant by his own actions has shown that his fear of Seema's family was not well founded, and that any fears related to what was said in the telephone calls, but that there had been no physical contact. It was pointed out that the claimant could not have considered the threats he had received to kill his son to be serious, because when the claimant went to the United Kingdom, he allowed his son to remain behind in Hyderabad and no threat was thereafter made to his son by his wife's family who knew their address. It was also noted in the letter that the claimant's fear of the Shias was limited only to those Shias in Hyderabad. There was no interest from the Shias elsewhere in the claimant. Thus, it was not accepted by the Secretary of State that the claimant had shown that his fear of Seema's parents or the Shia community was well-founded.
40. The Secretary of State then proceeded to consider whether if the claimant was to experience problems with Seema's family or the Shia community within India upon his return, he could then obtain protection from the State authorities. It was explained that India had a functioning police force, but that whilst it was accepted that there were concerns about aspects of its work, there was a security force available in India to protect the claimant. So the Secretary of State concluded that the claimant had failed to test the protection of the police force in other areas of India and it was expected that an individual would do so before seeking international protection.
41. It was also concluded first that the claimant could successfully relocate; second that he had been able to do so in the past until his wife had told people where they were; and third that in order to maintain secrecy relating to the claimant's location, Seema must simply not disclose this information.
42. The conclusion in paragraph 43 of the decision letter was that:-

"In conclusion it is considered that you have failed to put forward an account of persecution and you have failed to demonstrate a well founded fear. You have additionally failed to demonstrate that the police in India are unable to protect you since you did not make complaints about any but the first incident. You have failed to show why you could not go and live in a different part of India."

43. The decision letter dealt with the family's Article 8 rights of the claimant. Seema and their sons and the duties of the Secretary of State in respect of children. I will consider those matters in paragraphs 75ff below. In reply to the decision letter, the claimant's solicitors served a pre-action protocol, which essentially dealt with the article 8 rights and the position of the claimant's children. As I will explain in paragraph 52 below, the Secretary of State responded.

(iv) The Statement of Dr Gill Daryn

44. Dr Daryn explained in a report dated 16 February 2012 that she is an anthropologist, who had received a doctorate from the University of Cambridge in 2002 and who had expertise on the culture, society, history and politics of South Asia in general and of India and Nepal in general. She stated that she became professionally engaged with Indian asylum seekers and refugees while working in UNHCR's Kathmandu office as an Associate Durable Solutions Officer during 2008 and 2009. In that capacity, she went through UNHCR's archives and she became familiar with India's Country of Origin information. She is an expert and her report contained the requisite expert's declaration.
45. Dr Daryn explained that India has a number of significant human rights issues such as "impunity for abusive policing, honour killings, and torture" for which most perpetrators are never brought to justice. Her evidence was that alleged perpetrators use political influence, corruption and intimidation to obstruct investigations and to delay proceedings with the result that they ultimately escaped from prosecution with relative ease. She said that honour killings of women are still prevalent mostly in the Northern States of India.
46. Her report went on to explain that "manifold forms of torture" are perpetrated by the police with many crimes not being properly investigated. She considered one of the most neglected and least developed areas of life in India was its justice framework. Dr Daryn explained that the Indian police are considered as a body, which acts in breach of the law by often accepting bribes.
47. She proceeded to state that crimes against women are very common in India, and such crimes include molestatation, sexual harassment, and rape with so called "honour killings" being an ongoing problem particularly in Punjab and Haryana. She referred to one report which says that more than one thousand "honour killings" take place each year, but that many cases are not reported as the perpetrators are mostly immediate or extended members of the family of the victim. Statistics for honour killings were, she observed, difficult to verify because many killings were unreported or were explained as suicide or natural death by family members but the evidence indicates that they continue to be a problem especially in Punjab and Haryana which is where Delhi is situated.
48. Dr Daryn explained that there was one case in which a "love marriage" between a Sunni boy and a Shia girl took place against the wishes of the girl's family in 2008. The girl's husband and his brother were shot and later the girl's relatives were convicted. The Court then mentioned that these communities usually avoid inter-sect marriages because of the cultural differences.
49. Dr Daryn accepted that there was no legal prohibition of Shia and Sunni inter-marriages, but that there was a strong cultural boundary against such marriages. She referred to the Government's inability to provide protection against acts of violence in Punjab and Haryana. She also made reference to a Human Rights Watch report which mentioned that couples who ran away are tracked down or invited back home for a rapprochement but that they are later killed. The report noted that the police routinely failed to investigate apparent "honour" killings.
50. Dr Daryn proceeded to state that the relations between the Shia and Sunni groups within India are "reasonably good" but under the apparently harmonious state of affairs, many tensions existed with "quite a strong cultural bias against mixed Shia/Sunni marriages". She concluded (with my emphasis added) that:-

"I find it plausible the parents of the appellant's wife oppose the marriage and threatened to kill the couple…. I believe that the appellant and his family may face mortal damage if returned to India".

51. Dr Daryn goes on to consider the possibility of relocation within India and accepts that is an option and I will return in paragraph 61ff below to consider her evidence on this issue.
52. Her conclusions were first that the appellant's fear of being persecuted by his wife's family on return to India due to her breaking family traditions by choosing her own partner against the wishes of her parents were only "plausible", and second that the family of the claimant cannot rely on receiving much in terms of security and protection from the State.
53. UKBA then put in a response which was not signed and which, unlike Dr Daryn' s report, did not contain the usual declarations on expert evidence. As I have explained, I do not propose to attach any importance to its contents.
54. The claimant also seeks to rely on much background information, which I will obviously take into account and which has been summarized in a helpful schedule of the objective material. The claimant's background information includes, but is not limited to:-

(a) An article from the Hindu Star Times published on 11 July 2012 which showed that in the Moga district, the police had arrested seven people including the father and two brothers of a girl who was allegedly hacked to death with her husband after they got married against the wishes of their families about a year previously;

(b) A news report from BBC News India published on 9 May 2012 which showed that the authorities in the Indian state of Uttar Pradesh had ordered a fact- finding inquiry into an allegation that a senior police officer had advocated and supported honour killings;

(c) An article found on the website www.telegraph.co.uk published on 5 October 2012 which showed that five members of a family in India had been sentenced to death for the torture and brutal murder of a young couple from Delhi as part of a so-called "honour killing" two years earlier;

(d) An article produced by the Refugee Document Centre (Ireland) Legal Aid Board which had been compiled on 7 August 2012 relating to honour killings and the availability of police protection as well as information on revenge taken as a result of marriages to which the family of a participant had not consented;

(e) A statement in the Country Reports on Human Rights Practices for 2011 produced by the United States Department of State, Bureau Democracy, Human Rights and Labor which stated that the most significant human rights problems were "police and security force abuses, including extrajudicial killings, torture and rape; widespread corruption at all levels in government and separatist, insurgent and societal violence"; and

(f) The UKBA report document of 30 March 2012 entitled "India Country of Origin (COT) Information Report" which explained that the Immigration Refugee Board for Canada's response dated 9 January 2006 explained that the General Societal attitude towards inter-religious married couples in India is "not favourable". It was added that an Indian-based lawyer agreed that society in general disapproves of inter-religious marriages but added that the treatment of married couples with different religious backgrounds depends on their location and social levels and an associate professor of social and cultural anthropology added that "social attitudes often [cause people to] ostracise and discriminate against such unions".

(v) Discussion

55. It is convenient at this stage to deal with a point made by the claimant in paragraph 14 of his Grounds, which is that the Secretary of State erred because the reference in paragraph 14 of the decision letter to a Canadian report of 2006 is out of date because of the risks to a Sunni/Shia marriage are significant as explained by Dr Daryn. In fact, that paragraph 14 of the decision letter merely states that "inter-religious and inter-caste marriages are legal in India and are governed by the Special Marriage Act 1954". Dr Daryn does not disagree as she explains that, "there is no legal prohibition against Shia and Sunni marriages". I am therefore unable to accept the claimant's criticism of the decision letter on this issue, and in any event, it does not relate too many of the issues raised on this application.
56. There are three different strands to the claimant's main challenge to the section 94(2) certificate which relate to the Secretary of State's conclusions that first that the claimant does not have a well-founded fear of Seema's family or the Shia community, second that the claimant can relocate elsewhere in India and live there in safety; and third that there is adequate state protection for the claimant in areas of India even if he has a well-founded fear of persecution in his home area.
57. In order to decide whether the claimant's claim, in the words of Lord Phillips in VL "cannot in any legitimate view succeed", it is necessary to look at all the evidence that is now available and especially that adduced on behalf of the claimant. There is both the evidence of Dr Daryn and all the objective evidence relied on by Mr. Mahmood. There are no factual challenges to some of the information specifically relating to the details of the claimant's own case set out in the decision letter other than what is to be found in the more generalised contents of the evidence of Dr Daryn and of the objective evidence, which deals with the very important background to the claimant's case. I accept the submissions of Mr. Mahmood that Dr Daryn's expert reports complies with the duties under CPR, such as that she is independent and that she has the necessary experience and expertise required of an expert. For reasons that I have explained, I will not attach any importance to the document of 8 May 2012 in which UKBA seeks to adduce positive evidence in its comments on Dr Daryn's report.
58. Starting with the issue of whether the claimant has a well-founded fear of persecution if he returns to the parts of India where he had previously lived, the evidence shows that he has no such fear because of a number of factors. Those factors are in no particular order of importance that:-

(a) All the threats received by the claimant during his time when he was in India with Seema from September 2005 until May 2008 and from February 2009 until January 2010 were made on the phone and not in person, save for the occasions when the claimant went to the home of Seema's family in September 2005 to ask them to accept him as Seema's husband and also when they came to his house in Hyderabad sometime in 2006;

(b) No physical force was ever used by Seema's family or the Shia community or by Maria (the claimant's first wife) on the claimant or on Seema or on his children;

(c) The claimant's decision to repeatedly return to Hyderabad near Seema's family and the Shia community undermined the assertion by the claimant that he had a well-founded fear of those groups;

(d) The absence of any threats to the claimant on his return to Hyderabad in 2009 which he attributes to the fact that he did not have a phone;

(e) The decision and act of the claimant to depart for the UK leaving his son behind even after he had received threats to kill his son;

(f) The fact that that the claimant received no threats from the Shia communities in areas other than in Hyderabad and the claimant has not and could have any fear of them outside Hyderabad;

(g) No cogent evidence was filed by and on behalf of the claimant answering the specific points in the decision letter doubting the actual fear of persecution of the claimant; and

(h) The fact that Seema's family and the Shia community have taken no steps to locate the claimant, Seema and their sons other than when contacted by Seema or as a result of information relating to their location which originates from Seema and was passed on by her friends or from the manager of the claimant's shop which is now closed.

59. Against this, the claimant relies on the objective evidence and the evidence of Dr Daryn, which shows that there are many killings in India prompted by an association, or marriage, which infuriated the family of the assailants, but she did not analyse the evidence in this case relating specifically to the claimant but instead she provided a general background. Her evidence that "honour killings are an ongoing problem in India especially in Punjab and Haryana" shows that this is less of a problem in some areas than others. She does not say that in every case or that in most cases or indeed that in very many cases where a Sunni and a Shia Muslim married, the parents of the bride will inflict violence on the bridegroom. There are no figures given by her for the number of deaths or injuries caused by marriages of Shia to a Sunni. The information provided by, for example Dr Daryn shows that honour killings are a feature of Indian life and she puts the position no higher than that "it is plausible that [Seema's] parents opposed the marriage and threatened to kill the couple" and that "there is no legal prohibition against Shia and Sunni intermarriages". It is noteworthy that she accepts that relationships between the Shia and Sunni sects are "reasonably good".
60. It is important to bear in mind that the issue is whether this particular asylum applicant, namely the claimant, has a well-founded fear. That exercise entails focusing on the claimant to ascertain if he has the requisite level fear. The Secretary of State's decision letter even when considered together with Dr Daryn's evidence and with the other objective evidence adduced by the claimant constitutes a cogent and compelling case for showing that on any basis the claimant's case on risk "cannot in any legitimate view succeed". In consequence the Secretary of State's certificate cannot be impugned and this application for judicial review must be dismissed.
61. The next matter to be considered is whether the claimant could relocate somewhere else in India. In the decision letter, the Secretary of State concluded that the claimant could safely relocate. The claimant disputes this and it is necessary to bear in mind that Lord Bingham in Januzi v Secretary of State [2006] 2 AC 426 observed (with emphasis added) that:-

"[21] 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."

62. Lord Hope explained in that case (with emphasis added) that:-

"[47] 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."

63. Turning to the evidence, Dr Daryn, stated (with emphasis added) that:-

"Given India's size, relocation is clearly an option. However, it may be impossible to predict whether such relocation will indeed be successful. When family honour and shame are concerned, Muslims all over the world, and Indian Muslims are no exception, often show extreme levels of perseverance, and hence it is to be expected that the relatives of the Appellant's wife would be willing to go a long way to redeem the family's honour. In view of the ability of Indian police to locate almost anyone, it is quite plausible that the family will seek police assistance in finding their daughter and her family by filing an abduction complaint, which is a common mode of action in such cases. Alternatively, in view of the common manipulation of the police forces in India by influential individuals as mentioned above (paragraph 6), it could be expected that the Appellant's wife's relatives will use their influence to manipulate or bribe the police for assisting them in locating the family. In any of these scenarios, it is apparent that the Appellant's family cannot expect much in terms of State and police protection. "

64. The claimant said in his interview:-

"I can live in India but this time its difficult for me to live anywhere in India, it would be difficult to find a job or earn my livelihood. There is no help from the govt and I will be on my own"

65. In his interview, the claimant later referred to the prospect being killed or dying of starvation. The facts are that, as the Secretary of State has stated, the Indian Government allows freedom of movement and the claimant has lived in Bangalore, Delhi and Diksukhanagar where he has not starved or been killed. There is no evidence that Seema's family have taken any steps to locate the claimant, Seema and their sons other than when contacted by Seema or as a result of information relating to their location which originates from Seema or from the manager of his shop which is now closed. Maria has taken no steps to hurt, let alone kill the claimant and indeed any threats made by her to kill the claimant are undermined by the fact that her actions in forcing the claimant away from her house are inconsistent with this allegation.
66. Furthermore, Dr Daryn accepts as I have explained that the relationships between the Shia and the Sunni sects in India are "reasonably good". There is no cogent evidence filed explaining why he could not earn a living in other parts of India perhaps not as a pharmacist. Indeed, this point is fortified by the fact found by the Secretary of State that the claimant was able to find work in this county where the language and culture were different from his own and there is no reason why the same would not apply in India. I regard that as correct in the absence of any contrary cogent evidence from the claimant. In those circumstances, any argument to the contrary could not on any legitimate view succeed.
67. As to the claimant's lack of safety elsewhere in India, I accept the Secretary of State's conclusion that the claimant could successfully relocate and that they could live in safety until Seema disclosed their address to her friends, who passed this information to Seema's family.
68. In my opinion, the claimant could relocate in India and it would not be in the words of Lords Bingham and Hope set out respectively in paragraphs 61 and 62 above "unduly harsh to expect him to do so". The claimant's argument to the contrary "cannot on any legitimate view succeed".
69. This constitutes another reason why the challenge to the certificate must fail. In those circumstances, it is only of academic interest to decide the third issue which is whether there was inadequate state protection for the claimant in areas of India where the claimant has a well-founded fear of persecution. As I have explained that the claimant has no such well-founded fear of persecution, but for the purposes of this issue, I must assume that he has such a fear. Because this issue is only of academic interest, I will deal with this issue more briefly than I would otherwise have done.
70. The appropriate legal principles which are not in dispute for evaluating whether sufficiency of protection exists as set out in Horvath v Secretary of State [2000] UKHL 37 [2001] 1 AC 489, 499 in which Lord Hope said that:-

"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."

71. The level of protection in the home state is not such that it is expected to be absolute guaranteed immunity, because as Lord Clyde said in Horvath at page 510f "that would be beyond any realistic practical expectation". Lord Clyde adopted at page 511 the formulation set out by Stuart Smith LJ, which was that:-

"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."

72. The case for the Secretary of State is that India has a functioning police force and although there are concerns about aspects of its work, there is a security force available to protect the claimant. Additionally if the bribe paid by Seema's family meant that the claimant was unable to complain to the Hyderabad police, this would not have prevented the claimant from complaining to the police in any of the places in which he has lived because the police operate in isolation in different areas.
73. The claimant's evidence shows that there is much corruption in the police but the critical fact is that there is no evidence that the police outside Hyderabad would not assist the claimant. Indeed the evidence is first that the claimant did not tell the police at Gulbargar because he considered that it was useless to register a complaint and that this would make the situation worse, and second that the reason why the claimant did not communicate with the police in Bangalore was that they would tell him off stating that the claimant had only received calls and that nobody had come to kill him.
74. The stark fact is that the claimant has not sought police protection outside Hyderabad and in areas to which I have explained that he could relocate. In such areas, the claimant's family would not have had influence or the ability to influence the police. So my conclusion is that the police in India are neither unable nor unwilling to protect the claimant, who did not make complaints to them other than in relation to the first incident. The claimant's argument to the contrary "cannot on any legitimate view succeed".
75. For all those reasons, the challenge to the Secretary of State's certificate relating to the claimant's asylum claim must be rejected. The challenge to the asylum claim certification of the claimant's dependents, namely the Interested Parties, can only succeed if the claimant's challenge succeeds and as I have explained, it must be rejected and so the claimant's dependent's claims must also fail. I should add that until now, I have been approaching this issue on the basis that the claimant cannot show that the claimant's asylum claim is not "clearly unfounded" for the reasons I have set out above. If the legal position was that the Secretary of State had to show that the claimant's case was "clearly unfounded", she would have been able to discharge that burden in that it could not on any legitimate view succeed on any of the three issues to which I have referred.

III. Ground 2 – The Section 55 Issue

(i) Introduction

76. Mr Mahmood contends that the Secretary of State's decision to certify ought to be quashed because it has failed to take into account relevant matters and it was procedurally improper as there had been no best interests assessment by way of evaluation carried out by the Secretary of State. Mr Malik submits that the Secretary of State complied with her statutory duties. The starting point is section 55 of the 2009 Act 2009 which provides that:-

"(1) The Secretary of State must make arrangements ensuring that –

a. [Her immigration, asylum and/or nationality functions]…are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom…."

(ii) The Decision Letter

77. The nature of the claimant's attack on the decision taken by the Secretary of State requires me to set out in some detail the reasoning in the decision letter in which she noted that the claimant's children had no medical conditions while the claimant had a back problem for which he had been prescribed painkillers and ointments but that he had not been given a diagnosis. The claimant's wife had a Borthonial Cyst for which antibiotics had been prescribed, but no reference to such a cyst had been found in the medical material available on the internet.
78. The Secretary of State considered whether the removal of the claimant from the United Kingdom would expose him to inhuman or degrading treatment in violation of article 3 or whether such removal would violate his right to a private right under article 8.
79. On the issue of a possible violation of article 3, the Secretary of State had regard to the availability of medical care in India and the COIS report for India dated 26 August 2011, which noted that local medical facilities were not comparable to those in the United Kingdom especially in the more remote areas. In addition, the US Department of State, Bureau of Consulate Affairs, Consular Information Sheet for India accessed on 30 July 2011 noted that the quality of medical care in India varied considerably with medical care which occasionally met western standards being available in major population centres while adequate medical care was very limited or unavailable in the rural areas.
80. The Secretary of State concluded in the light of this and other reliable information first that there was medical help available to the claimant and his wife in India and second although the availability of such help might decrease in rural areas, the claimant's family would not be denied all medical assistance for their conditions. In those circumstances, the rights of the claimant and his wife under article 3 and article 8 of the ECHR with regard to their medical conditions "will not be breached upon your return and so you did not qualify for discretionary leave on that basis".
81. The Secretary of State noted that the claimant's family had requested to be afforded discretionary leave in the United Kingdom on the basis of their family life. It was noted the claimant had no family in the United Kingdom other than with Seema and their two sons. It was expected that Seema and the children would accompany the claimant when returned to India with the result that his family life would not be interrupted by his removal. Therefore it was concluded that the claimant did not qualify for discretionary leave on the basis of his family life in the United Kingdom.
82. The Secretary of State then considered the article 8 claim of the claimant in respect of his private life in the United Kingdom. It was noted first, that the claimant accepted that he had spent time in the United Kingdom working illegally; second, that he had ceased to work; and third, that he had dropped his child at school and had picked him up. He also went to prayers in the Mosque but he had no specific role there. The Secretary of State did not accept that those activities constituted "private life" for the purposes of article 8, but that in any event if the claimant had established a private life, this would have been established in the knowledge that his immigration status was precarious and that his visa was only valid for six months until 8 December 2010.
83. The Secretary of State took the view that the claimant could establish a private life upon return with his family to India. It was also noted that in order to protect the wider interests and the rights of the public, it was vital to maintain effective immigration control with the result that in pursuance of that aim and having weighed up the claimant's interests, it was believed that any interference with his private life would be legitimate, necessary and proportionate and in accordance with the law. It was also noted that this was not a "truly exceptional case" and so the removal from the United Kingdom of the claimant would not amount to a breach of his article 8 rights.
84. Turning to the position relating to Seema, her time in the United Kingdom had been largely taken up with caring for his two sons. This aspect of her life would remain intact if her family were removed from the United Kingdom. In any event, the private life of Seema has been developed while her immigration status was precarious with her visitor's visa having expired on 15 July 2010. For these same reasons, as applied to the claimant, it was regarded that her removal would not amount to a breach of her article 8 rights. In the cases of the claimant and Seema, the Secretary of State considered that any claim based on their human rights would be and was "clearly unfounded".
85. The decision letter then went on to consider the cases of the claimant's sons. His first son Mustafa Anas Uddin Syed, who was born on 22 October 2007, attended a school in this country. He had friends in the school and in the neighbourhood with his first language being Urdu. The Secretary of State had regard to the welfare of this boy and E.A (Article 8 Best Interests of a Child) Nigeria [2011] UK00315 (IAC) in which it was explained that children at that age are not expected to have formed any deep, strong friendships outside the family, but that from the age of birth to about 4, a child will be primarily focused on him or herself and his or her caring parents or guardians but that long residence after that age is likely to have greater impact on the wellbeing of the child.
86. Mustafa Anas was just over four years of age at the time of the decision letter and he would not have developed a strong private life outside his home for the reasons set out in the last sentence of the last paragraph. In the case of both boys, it is not considered that being removed from the United Kingdom as part of a family unit would infringe their rights under article 8 especially as Mustafa's first language is Urdu and so his private life in this country has been hampered by his lack of ability to speak English but that there would be no such obstacle for him upon his return to India.
87. Consideration was given to the education available to the claimant's sons in India and in particular to the Country of Origin Information Service Report of 26 August 2011 which showed that schooling would be available to both the claimant's children appropriate to their age in India. Their return to India would not disrupt their education since they would be able to start again in India when they are old enough. In addition, the education in India would be in his own language and culture.
88. It was considered that the best interests of Mustafa Anas would be served by returning to India with his immediate family in order to be schooled in a country where his family is residing within his own language, culture and background. The same conclusion would be reached in respect of his brother, Mustafa Mannan, who was only five months old at the time of the decision. No particular welfare issues had been identified and therefore they do not qualify for discretionary leave. In reaching the conclusion that the Article 8 rights of neither of the claimant's sons would be infringed by their removal to India, the Secretary of State had had regard to the statutory guidance issued to UKBA on making arrangements to safeguard the welfare of children "Every Child Matters: Change for Children" issued under section 55 of the 2009 Act.
89. It was therefore decided that the asylum and human rights claims fell within section 94(3) of the 2002 Act which required the Secretary of State to certify their claims are clearly unfounded unless she was satisfied that they were not clearly unfounded. The Secretary of State determined in the case of both the asylum and the human rights claims that the claims of the claimant were "clearly unfounded and were so certified".
90. The Secretary of State concluded that removing the claimant from the United Kingdom or requiring him to leave would not be contrary to the obligations of the United Kingdom under ECHR. She then considered whether under paragraph 395C (in paragraphs 365-368 for family members) of the Immigration Rules the decision to remove should be made and concluded that the removal of the claimant and his family from the United Kingdom would be appropriate.
91. A pre-action protocol letter was sent by the claimant's solicitors to the Secretary of State on 20 December 2011 in which it was said that the Secretary of State had failed to take into consideration section 55 of the 2009 Act and reference was made to a number of authorities.
92. The Secretary of State responded on 3 February 2012 in which she explained that the claimant and his wife would be able to assist their children in integrating into the Indian society bearing in mind that both the children at the ages of 4 and 8 months would not have established independent private lives in the United Kingdom. It was explained that contrary to the position in Chikwamba v Secretary of State [2008] 1 WLR 420, the family of the claimant would return to India as a unit and that there would therefore be no interference with their private life.
93. It was stressed with regard to the education system in India that the background documentation shows education is accessible in India and free for children between 6 and 14 with the result that neither of the claimant's children would be disadvantaged in terms of their education by their removal to India. It was repeated first that the claimant's children were being raised by Indian parents whose primary language was Urdu and second that therefore they would be accustomed to some of the aspects of India and would not have to learn a new language on their return. In addition, both parents of the claimant's children would be able to assist their children with integrating into Indian society and bearing in mind the well-regarded principle that children whenever possible should remain with their parents, it was considered to be in the best interests of the claimant's children to return to India with their parents.

(iii) The Claimant's Case

94. The case for the claimant is that the Secretary of State did not consider properly the interests of the claimant's children as specified in section 55 of the 2009 Act.
95. The approach to be adopted is that set out by Baroness Hale in ZH (Tanzania) v Secretary of State [2011] AC 166 at paragraph 29 which she stated that:-

"Applying, therefore, the approach in Wan to the assessment of proportionality under article 8(2), together with the factors identified in Strasbourg, what is encompassed in the "best interests of the child"? As the UNHCR says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away."

96. The significance of the best interest of the child was authoritatively explained by Baroness Hale in HH v Deputy Prosecutor Italy & Others [2012] 3 WLR 90 when she stated that:-

"15 However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the child's best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents' case."

97. Baroness Hale also explained in her judgment why the interests of the children are important and must be a primary consideration but not the primary consideration. It is necessary to bear those principles in mind and I will do so. Those principles in relation to a claim for extradition are that:-

"33…The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Children's Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child".

98. It therefore now becomes necessary to see whether the Secretary of State complied with those duties in this case against this background explained in Baroness Hale's words in EM (Lebanon) v Secretary of State [2008] 1 AC 1198, 1221 when she said that:-

"49…It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents…"

99. The claimant contends that the Secretary of State could not have complied with her statutory duties because of the dangers, which the claimant's children would face in India because of the hostility of the Shia community and their mother's family to her marriage to the claimant because he is a Sunni. I have already explained in paragraph 65 ff why I have concluded that the claimant, his wife and children could live safely if they relocated in India.
100. The main thrust of the claimant's case on this issue is that the decision letter is flawed because it failed to take into account relevant matters and there has been no "best interests assessment by way of evaluation" in the light of the duty set out in section 55 of the 2009 Act and the guidance given under it in "Every Child Matters: Change for Children".
101. In this case, the decision letter does show that all the relevant matters as explained by Baroness Hale in paragraph 33 of HH (which I have quoted in paragraph 97 above) has been complied with because it considered and established that the claimant's children who at the time of the decision letter were in the case of Mustafa Anas four years and one month and in the case of Mustafa Mannan five months had no deep or strong friendships outside their immediate family. Those bonds would continue if and when the children and their parents were removed to India as a single unit.
102. There is no suggestion whatsoever that the claimant's children are to be separated from the claimant or from the children's mother. They will continue to be a family unit with the result that they will be looked after in the same way in India as they would have been in England.
103. Both the sons of the claimant will have no difficulty making friends in India because the eldest son's first language is Urdu and it is to be expected that the youngest son will also have the same first language. It is to be noted that both the claimant and Seema when interviewed by the Home Office official in connection with the claimant's asylum and human rights claim spoke in Urdu.
104. Another relevant issue was whether the claimant's children would receive education in India. There is no challenge to the reasoning in the decision letter that schooling is available to both the claimant's children in India at the appropriate ages. In the case of Mustafa Anas he had only been in school in the United Kingdom since 2 November 2010 and his return to India would not disrupt his education since he would be able to start again in India at the appropriate age. An additional factor which will assist the claimant's children to settle down in India is that schooling in India will be in the language and culture of the claimant's children. As I have explained in paragraphs 61 to 74 above, the claimant, Seema and his children could live peacefully in India without violence or threats if they relocated. I am fortified in reaching that conclusion by the fact that there would be adequate State protection.
105. Thus both the claimant's children are young enough to readapt to life in India when they return with their family. The decision letter recorded that regard had been had to the statutory guidance issued under section 55 of the 2009 Act relating to making arrangements to safeguard and promote the welfare of children in the publication "Every Child Matters: Change for Children".
106. No cogent submissions has been made to suggest that there are any other issues which should have been considered by the Secretary of State, but which had not been considered. In my view, she had a complete picture of the relevant factors which enabled her to make the decision under challenge in compliance with her statutory duties. There are no errors in her decision, thus this challenge must also be rejected as the Secretary of State took account properly of her statutory duty to safeguard and promote the welfare of the claimant's children. The challenge to the certification on human rights grounds could not on any legitimate view succeed because the Secretary of State was clearly correct and nothing has been suggested to the contrary.

IV. Conclusion

107. The challenges to the certification in the words of Lord Phillips set out in paragraph 20 above "cannot on any legitimate view succeed" and so must be rejected. The Secretary of State complied with her duties under section 55 of the 2009 Act. So both claims made by the claimant must be rejected and this application has to be refused.