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
		24/04/2013

Mr Justice Bean :

1. The first Claimant, MV, is a national of Bolivia. She arrived in the UK in April 2007, was granted entry clearance as a visitor for six months, and remained unlawfully working thereafter. She obtained work by relying on a counterfeit Spanish passport. The second Claimant, JA, has been her partner since the end of 2005. He too is a national of Bolivia. He arrived in the UK in 2006, was granted entry clearance as a visitor for six months and remained unlawfully working in the UK thereafter. The third Claimant, the daughter of the first and second Claimants, was born on 20^th April 2011.
2. The second Claimant was encountered by officials of the UK Border Agency during an enforcement visit on 14^th January 2011. He claimed asylum on 3^rd February 2011 and the first Claimant did so on 8^th March 2011. In interview on 16^th March 2011, a first witness statement on 23^rd March 2011 and a second witness statement on 26^th July 2011 MV gave an account which was essentially consistent throughout, although the second witness statement was a little more detailed than the first.
3. MV stated that she had married a man called JM in Bolivia. They had three children: a daughter born in 1988, a son born in 1991 and another son born in 2000. JM was "a notorious criminal" with strong connections in the Bolivian underworld. He constantly beat her. She could not report him to the police because he threatened to kill her if she did; in any event the Bolivian police are corrupt and a man such as her husband with money and criminal connections "can get away with anything". He had served two prison sentences. The first was in the 1990s when he served six years in custody. In 1998 she was beaten "black and blue" causing scarring to her forehead and ribs and extreme pain. She tried but failed to gain admission to a women's shelter. She could not take the children out of Bolivia without her husband's consent.
4. At the end of 2000 her husband was arrested again and remanded in prison for 20 months. In October 2001 she was abducted (together with a neighbour) by three men and told she was being held hostage for a ransom of $25,000. One of her captors told her that she was the wife of a drug lord and had loads of money. She later discovered from a lodger that her husband had been the instigator of the kidnapping. When she was released and was in the process of giving the police a statement they took a call from JM who warned her not to say anything to the police.
5. She has not seen her husband since his release from his second period in custody. Nevertheless he has continued to persecute her. She left Bolivia in 2003, leaving her children with her mother, and stayed in the UK on a tourist visa for about 14 months. She returned to Bolivia in October 2004. She and her children moved to Santa Cruz, a relatively large city. She and JA started living together there in January 2006. JA started to receive threatening phone calls from her ex-husband. In January 2006 JA was assaulted by three men as he was leaving work. In June 2006 an attempt was made to kidnap him by men including one who had taken part in the January attack. The second Claimant managed to drive away. After a short while he heard a noise like gunfire and a bang on the side of the driver's door. Later he discovered a dent in that door that looked as if it had been created by a bullet.
6. The first and second Claimants took the view that reporting the matter to the police would only make life worse. MV states that the police are not only corrupt and ineffective but "even less inclined to assist in domestic issues and where they know that an influential drug lord is involved".
7. Following a further incident in October 2006 when JA's car was vandalised, threatening telephone calls from MV's ex-husband continued. In March 2007 MV was woken at home one night by the sound of someone forcing the front door of her house. She went to the balcony to look outside. She saw an armed man who started firing when he noticed her. She ducked and lay flat on the ground screaming. The car drove away. The police were called but did not appear. MV decided that she had no choice but to leave the country, even though this meant leaving her children.
8. By the first decision under challenge in these proceedings, contained in a letter of 18^th May 2011, an official of the UKBA acting on behalf of the Secretary of State refused MV's claims for asylum and humanitarian protection and certified under section 94 (2) of the Nationality Immigration and Asylum Act 2002 that they were clearly unfounded. The letter is careful and detailed: it refers both to objective evidence about conditions in Bolivia and decisions of the courts (including Horvath [2000] UKHL 37 on sufficiency of state protection) and Januzi [2006] UKHL 5 on internal relocation). I will cite only brief extracts from the 14 page letter:

"Sufficiency of Protection

26. Although it is acknowledged that corruption is a problem within the Bolivian police force, background evidence does suggest that there is an established police force in Bolivia who are taking steps to address issues of corruption by providing police officers with in depth human rights training. You have not provided any evidence that the authorities in Bolivia would not be able to provide you such protection on return if required.

27. Consequently, if you were to experience problems on return to Bolivia, you could and should seek protection from the authorities.

28. Taking into account the objective evidence above, it is considered that the Bolivian authorities are willing and able to offer sufficient protection to the 'Horvath' standard. Furthermore, it is considered that you have failed to demonstrate a systematic failure of the authorities to help you. By your own admission you were rescued by the police and your kidnappers were all arrested and detained. It is noted that the only reason why your kidnappers were released was because you failed to provide a statement whilst at the police station or show up in court. Furthermore, by your own account your husband has been imprisoned until 2003, clearly demonstrating that he is not above the law.

29. You have not provided any evidence to show a sustained and systematic failure of state protection on the part of the authorities in Bolivia. There is nothing in your account to suggest that the authorities in Bolivia would not or could not offer you protection against your husband. It is therefore considered that as there is sufficient protection available to you in Bolivia from the authorities which you could and should access for any genuine fears you may have……………..

Internal Relocation

41. …..{It] is considered that you could relocate to a different part of Bolivia. You stated that you went to stay with your sister in Cochabamba, and then your current partner's family in La Paz. There is nothing in your account that suggests that your husband has the ability to trace you should you relocate to a different part of Bolivia. It is also considered highly significant that your ex-husband did not physically attempt to track you and your partner and the only way he contacted you both was on the phone. It is noted that by your own account you went and resided in Sucra with your current partner's parents and that nothing happened to you there. Furthermore the only reason you left Sucra was because your children wanted to return to their old school and be with their friends so you went back to Santa Cruz (AIR Q49-51). It is considered that it is open for you and your current partner to internally relocate within Bolivia to an area such as Sucra where you were able to reside peacefully.

42. It is noted that you are a 42 year old woman who has been able to support herself in the UK and whilst you lived in Bolivia. It is noted that in the UK you have worked as a cleaner (AIR Q44) and that in Bolivia you worked in markets with cereals and vegetables (AIR Q43). It is considered that you have transferable skills and you have demonstrated excellent resourcefulness in being able to come to a foreign country and successfully obtain employment here. It is considered that you can utilise the skills you have demonstrated in the UK and in Bolivia in securing employment in Bolivia and that this would not be unduly harsh or unreasonable to expect you to do so.

43. Whilst it is considered that a person may face practical difficulties in starting a life at a new place and may have some genuine concerns about the uncertainties involved therein, you have adduced no evidence to demonstrate your inability to lead a relatively normal life in other parts of your country judged by the standards that generally prevail in your country of nationality. Furthermore, it is noted that your family and your partners family all reside in Bolivia therefore you have a support network available to you in Bolivia. Consequently, it is considered that internal relocation remains a viable option for you, and based on your own personal circumstances it is not considered unreasonable or unduly harsh for you to relocate to another part of Bolivia.

44. It is not accepted that there is a real risk that your removal to Bolivia would be a breach of articles 2 and 3 of the ECHR if you were to be returned there as the options of sufficiency of protection and internal relocation are open to you to escape any genuine fears you may have about your husband………….

Final Considerations

67. In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended). It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK and that you do not qualify for Humanitarian Protection. Therefore your application has also been refused under paragraph 339F of the Immigration Rules. Your application has been recorded as determined on 18 May 2011."

9. By letters of 26 July and 2 August 2011 the Defendant's officials were asked to reconsider this decision on the basis of MV's second witness statement and an expert's report from Dr Sian Lazar, a social anthropologist working as a lecturer at Cambridge University with expertise in the social and political affairs of Latin America generally and Bolivia in particular. Dr Lazar notes that domestic violence is common in Bolivia and that "while extreme levels of domestic violence are deemed unacceptable, domestic violence is seen as a natural if unfortunate part of most relationships". She states that "corruption within the police force is most likely to be constituted by a kind of 'low level' impunity for those with the financial capacity to bribe police officers or judges". She states that Bolivia is the third largest producer of coca for cocaine in the world (ranking after Peru and Columbia) and that there have been connections between drug cartels or "clans" and police officers at significant levels of seniority. She considers that JM's connections with the drug business give him the money and networks to enable him, if he is determined, to locate and attack his ex-wife, to seek her out and act with relative impunity wherever she lives in Bolivia; and that "the Bolivian state does not have the resources to protect her from an extreme and determined attacker".
10. By a further decision dated 14^th February 2012 the UKBA adhered to the previous refusal of the asylum and human rights claims, declined to withdraw the certificate that such claims were clearly unfounded and declined also to treat the further representations as constituting a fresh claim.
11. Section 94 (3) of the 2002 Act creates what is generally if inaccurately known as the "safe list" of countries specified in section 94 (4). It provides that if an asylum claimant or human rights claimant is entitled to reside in a state on the safe list, the Secretary of State shall certify the claim under subsection 2 unless satisfied that it is not clearly unfounded. The list in section 94 (4) includes Bolivia. I note that it also includes eight countries, all of them in Africa, "in respect of men" only.
12. By this claim, issued in the Upper Tribunal on 1^st May 2012, the Claimant seeks the quashing of the order placing Bolivia on the list in section 94 (4) ("the designation order"), alternatively the quashing of the order including Bolivian women in the list; the quashing of the decisions of 18^th May 2011 and 14^th February 2012; an order requiring the Secretary of State to grant the Claimants an in-country right of appeal to the First-Tier Tribunal; and a further mandatory order requiring the Secretary of State to accept the application of 26^th July and 2^nd August 2011 as a fresh claim. The Summary Grounds of Defence contest all aspects of the claim and conclude with a request that the claim be considered to be entirely without merit and that an order be made that any renewal to an oral hearing should not act as a bar to removal. It is regrettable when this is included as a routine final paragraph in defence to a claim which is very far from being totally without merit.
13. Since the claim included challenges to certification and to the designation order, the Upper Tribunal could not determine it and by order of 16^th July 2012 it was transferred to the Administrative Court. On 20^th August 2012, after consideration of the case on the papers, Ouseley J granted permission. He wrote:

"It is just about arguable that the listing of Bolivia is unlawful, and the case is rightly transferred to the High Court. If that is so, it is arguable that the test applied for certification is too unfavourable to the Claimants. It is quite likely that, even if Bolivia were not listed, the case would still rightly be certified in view of the likelihood of difficulties on return being repeated from those experienced long ago. The SSHD's letter makes some sound points about the conditions in Bolivia and about the nature of the claim and evidence. It appears to me that the family should all be parties, since the category of dependants on a claim is not apt for this court."

14. By letter of 1st October 2012 the Treasury Solicitor proposed a consent order whereby the certification of the claim would be withdrawn and an in-country right of appeal would be granted. The Claimants' solicitors replied on 16^th October 2012 as follows:-

"(1) We are pleased that the SSHD accepts that a right of appeal to the First-Tier Tribunal should be granted.

(2) There is however an issue of wider importance here, as Ouseley J granted permission on the basis that it was arguable that the listing of Bolivia in section 94 (4) of the 2002 Act was unlawful. There is therefore a public interest in this issue being decided as it cannot be right that if Bolivia is unlawfully listed in section 94 (4) that the SSHD continues to certify Bolivian asylum claims in this way, or that another claimant in a different case has to go through the same hoops as this Claimant has, of obtaining public funding, lodging a claim, and being granted permission, all over again.

(3) The section 94 (4) list issue is not even [sic – this should read "merely"] of academic public interest, as once the Claimants' own appeal comes to be heard, an Immigration Judge will be required to take into account the fact that Bolivia is listed, and will therefore approach the appeal on a basis "too unfavourable to the Claimant" (see Ouseley J's comments when granting permission). We therefore believe that the High Court should determine the list issue before the Claimants' (properly granted) appeal to the First-Tier Tribunal is heard.

(4) Costs are still an issue as the SSHD is liable to pay our costs so far."

15. For reasons to which I shall come shortly the point made in paragraph 3 of this letter is an incorrect statement of the law. It is unfortunate that the Treasury Solicitor did not send a letter pointing this out. The next development was the lodging on 7^th December 2012 of detailed Grounds of Defence responding to both the designation and substantive challenges. The detailed grounds describe the Claimants' solicitor's letter of 16^th October as a rejection of the Defendant's proposal. Fadiga & Co immediately replied, pointing out that the 16^th October letter had not been a rejection, adding for the avoidance of doubt that their clients had not rejected the offer, and reiterating the points made in the previous letter. They added that if the Secretary of State's position was that the offer of a right of appeal had been conditional on the dropping of the designation challenge that should have been made clear.
16. The Treasury Solicitor replied on 20^th December:-

"We offered to concede by granting a right of appeal in this case on the basis that the judicial review claim be withdrawn. This is clearly a pragmatic offer, coming after permission was granted.

In our view, if the general challenge were to fail, so too would this Claimants' individual challenge. As such, if the general challenge is to continue, we consider it to be entirely reasonable that the Claimants' individual challenge is decided at the same time.

We consider that our offer to concede should be seen as a whole, but failing that, it was merely an offer to concede, which we can choose to withdraw at any time. As you have indicated that the Claimant is not willing to concede the judicial review on the basis suggested, our offer to concede is withdrawn."

17. In short, supplementary grounds lodged on 4^th March 2013 the Claimants sought permission to challenge the Secretary of State's withdrawal of the offer of right of appeal. Mr Hawkin did not develop this aspect of the case in oral argument and I consider that he was right not to do so. As a matter of law the Treasury Solicitor was entitled to withdraw the "pragmatic" offer on 1^st October 2012 and to do so without notice. It would have been far preferable if a response had been sent to the Claimants' solicitor's letter of 16^th October giving a time limit for acceptance or otherwise of the offer of 1^st October and saying that if not accepted by the specified date (for example within 14 days), the offer was to be treated as withdrawn. Nevertheless the stance taken by the Defendant's solicitors was not unlawful and I refuse permission to add the supplementary ground.
18. I heard argument on the substantive challenge to the certification of the claims first and will deal with that issue first in the judgment.

The certification challenge

19. The test to be applied when certifying a claim as "clearly unfounded" was not in dispute before me. A claim should only be certified if the Secretary of State, after reviewing the available material, is "reasonably and conscientiously satisfied that the allegation must clearly fail" (per Lord Bingham of Cornhill in R(Yogathas) v SSHD [2003] 1 AC 920).
20. There are obvious points to be made against the Claimants' asylum and humanitarian protection claims. One is that they were only made after MV and JA had lived for more than three years in the UK and only when he came to the attention of the authorities. Another is that MV has not actually seen her ex-husband for ten years. But this is not a case in which the Claimants have been shown by the evidence or found by a previous court or tribunal to be liars. The Secretary of State, in a letter of 5 April 2012, wrote that "while there may be cogent reasons for doubting the veracity of your clients, any possible risk to her on return has been assessed [in the two decision letters] having taken her account at its highest." That is in my view a correct and sensible approach in the present case.
21. The Claimants' case is that JM is a dangerous and violent drug lord who has been responsible for a number of attacks on each of them; that they fled the country to escape from him; that, if returned to Bolivia, MV would naturally wish to see her sons who still live with him, which would place her at risk; and that even if she did not do so he might well track her down. She relies on the history which I have summarised in paragraphs 3 to 7 above. In addition, there is a formidable body of background evidence from respected international bodies, referred to by Dr Lazar in her report, which supports the argument that the Bolivian police offer inadequate protection to women who are victims of domestic violence, and that the criminal justice system is too weak and too corrupted to put men such as JM behind bars.
22. It may be that in the end these claims will fail: that will be a matter for the Tribunal after the evidence has been tested. But I do not consider that they are bound to fail, or that a reasonable and conscientious decision-maker acting on behalf of the Secretary of State could properly certify them as clearly unfounded. I therefore quash the certificate and declare that the Claimants are entitled to an in-country appeal to the Tribunal.

The designation challenge

23. In MD (Gambia) v SSHD [2011] EWCA Civ 121 the appellant appealed against the dismissal by Beatson J of both the inclusion of Gambia (in respect of men only) in the section 94 (4) list and the decision to certify his case as clearly unfounded. The Court of Appeal dismissed the challenge to the designation, holding that the Secretary of State is to be accorded a "wide margin of discretion when exercising her power to designate a State", but reversed the judgment on the certification issue. Elias LJ, giving the only substantive judgment, cited at paragraph 7 the observation of Wilson J in R(Zakir Husan) v SSHD [2005] EWHC 189 (Admin) that the difference in the approach to the certification of a claim dictated by subsections (2) and (3) of s 94 is "so Jesuitical as not to have measurable legal effect". He said that "at best it means that the background facts may weigh more heavily against concluding that a claimant has a valid asylum claim where the state to which removal is proposed has been designated".
24. He continued at paragraphs 51 and 57:-

"… since the listing of Gambia is not unlawful, the Secretary of State was obliged to certify the claim unless it was not clearly unfounded. I would observe, however, that the fact that Gambia has been listed does not mean that the general evidence of human rights abuses is thereafter immaterial. The background information may still, in the context of the facts of a particular claim, weigh against certifying the claim even where it is not enough to demonstrate the degree of systemic human rights breaches necessary to preclude the country being listed under section 94(4)…………….

Even though the objective evidence is enough to warrant the Secretary of State listing Gambia as a "safe" country, it does not follow that a Tribunal on appeal could not conclude that the objective evidence, when considered in the context of the particular facts in this case, created a real risk of persecution or Article 3 infringements."

25. In this case the Claimants will be entitled to adduce before the Tribunal evidence not only of the specific risk to them from JM, and their case on the impracticability of escaping that risk by internal relocation, but also evidence such as Mr Hawkin has placed before me about the sufficiency or otherwise of state protection (whether in general or for women in particular) in Bolivia. Mr Hawkin was unable to point to any authority suggesting that the Tribunal are bound by a country's designation. I note the observation of Elias LJ in paragraph 7 of MD (Gambia) cited above; but paragraph 57 in particular makes it clear that the Tribunal must reach their own decision on the evidence before them. Mr Barnes expressly confirmed on behalf of the Secretary of State that the Claimants would have the right to adduce such evidence before the Tribunal notwithstanding the designation of Bolivia as a "safe" country. He submitted that the only effect of designation is to alter the starting point for the Secretary of State's officials in approaching the issue of whether to certify a claim as clearly unfounded. I accept that submission.
26. For these reasons I consider that while the designation challenge would no doubt be of interest to other potential claimants from Bolivia, it is now only of academic interest to these Claimants, given my quashing of the certification of the claim as clearly unfounded, and an indication from Mr Barnes that the Secretary of State will not seek permission to appeal against that decision. The designation challenge will accordingly be dismissed on the basis that it has become academic in the present claim.

Costs

27. It is not in dispute that the Claimants are entitled to costs up to 1^st October 2012 when the Secretary of State offered the "pragmatic" concession. Mr Barnes submits that the Claimants should pay the Secretary of State's costs thereafter on the grounds that they have not achieved in this court anything more than was on offer on 1^st October. Mr Hawkin, on the other hand, points to the fact that his solicitors did not expressly reject the offer and, more significantly, to the fact that it was withdrawn without notice, and seeks the Claimants' costs throughout the litigation. I bear in mind that I have not decided the designation challenge. Taking these matters into account I will make no order as to costs after 1^st October 2012. I make the usual order for detailed assessment of the Claimants' costs for public funding purposes.