Scottish Court of Session Decisions

Johnson, Re Application for Judicial Review [2004] ScotCS 280 (03 December 2004)

[1] The petitioner, who was born on 16 December 1968, is a citizen of Sierra Leone. She is married and has two daughters, Fai Johnson born on 17 November 1998 and Lili Johnson born on 21 August 1999. She arrived in the United Kingdom along with her two children in early October 2002 and applied for asylum on the ground that she had a well-founded fear of persecution in Sierra Leone. She also claimed that the removal of herself and her children from the United Kingdom would breach the United Kingdom's obligations under articles 2, 8 and 14 of the European Convention on Human Rights ("ECHR"). In addition, the Secretary of State for the Home Department gave careful consideration to whether she should be allowed to remain in the United Kingdom as a result of the obligations of the United Kingdom under article 3 of the ECHR. By letter dated 5 December 2002 the Secretary of State intimated to the petitioner that he was not satisfied that she had established a well-founded fear of persecution in Sierra Leone and therefore refused her application for asylum. He also intimated that he did not consider that there were substantial grounds for believing that there was a real risk that her rights under articles 2, 3, 8 or 14 of the ECHR would be violated if she were returned to Sierra Leone. A Notice of Decision to issue Removal Directions was given to the petitioner by the Secretary of State on 5 December 2002. She appealed against that decision to an adjudicator and her appeal was heard at Glasgow on 9 May 2003. By Determination promulgated on 20 May 2003 the adjudicator dismissed both her asylum appeal and her human rights appeal. She thereafter sought leave to appeal against the adjudicator's decision from the Immigration Appeal Tribunal ("IAT"). On 23 July 2003 the IAT refused the petitioner leave to appeal against the determination of the adjudicator. The petitioner thereafter brought the present petition for judicial review of the decision of the IAT to refuse her leave to appeal against the decision of the adjudicator. Answers have been lodged by the Secretary of State for the Home Department, who is the respondent.

[2] The petitioner lived with her husband and two daughters in Sierra Leone. She is a member of the Kabala tribe. She and her husband are Christians. According to her account, she was the leader of a women's Christian prayer group and her husband was a leader of a men's Christian prayer group. Her husband had been warned to stop preaching. On 5 October 2002 soldiers broke into her house, beat up her husband and abducted him. She and the children escaped and fled to a farm. They there met a white man who took them to Freetown and arranged and paid for their flights to the United Kingdom.

[3] In refusing the petitioner's application for asylum the Secretary of State pointed out that most sources estimated that the population of Sierra Leone was 60% Muslim, 30% Christian and 10% practitioners of traditional indigenous religions. The Constitution provides for freedom of religion and the Government respects this right in practice, although there are requirements for the recognition, registering and regulation of religious groups. Religious instruction in public schools is permitted and students are allowed to choose whether they attend either Muslim or Christian oriented classes. There are amicable relations between the various religious communities, and interfaith marriage is common. The Inter-Religious Council, composed of Christian and Muslim leaders, plays a vital role in civil society and actively participates in efforts to further the peace process. There is no evidence to suggest that being a Christian is in itself sufficient to demonstrate a well-founded fear of persecution by the authorities in Sierra Leone. The Secretary of State disbelieved the petitioner's claim that she had experienced problems because she belonged to the Kabala tribe. He pointed out that the Sierra Leonian constitution provided protection against discrimination on the basis of race and ethnicity, except for the long time prohibition against citizenship for persons with a non-African father. The population is ethnically diverse and consists of at least thirteen ethnic groups, all of whom speak distinct primary languages and are concentrated outside urban areas. All ethnic groups use Krio as a second language, little ethnic segregation is apparent in urban areas and interethnic marriage is common. He was therefore satisfied that she would not face persecution solely on the basis of her race.

[4] The Secretary of State believed that further details of the petitioner's claim were so implausible that they strengthened his belief that her claim was a fabrication. He considered that if the soldiers were interested in her husband because he was the leader of a men's Christian prayer group then they would surely have arrested the petitioner at the same time as she allegedly held a similar position. He did not accept that the petitioner and her children would be able to escape from her house as easily as she had claimed if soldiers had attacked and set fire to it. He also did not accept that a complete stranger would take it upon himself to pay and arrange for her and her children to travel all the way to the United Kingdom. Nor did he accept that the same stranger would be able to obtain the necessary documents, in such a short time, to facilitate her journey to the United Kingdom.

[5] The Secretary of State also did not consider that there were substantial grounds for believing that there was a real risk that the petitioner, if returned to Sierra Leone, would face treatment contrary to articles 2, 3, 8 and 14 of the ECHR.

[6] The adjudicator refused the petitioner's appeal, essentially for the same reasons as the Secretary of State had refused her application. At the hearing of the appeal before him a point of some importance, to which no reference had been made in the petitioner's application for asylum, was raised. In a supplementary statement dated 6 May 2003 the petitioner stated that another main reason for fearing to return to Sierra Leone would be because her two daughters would, under present law and custom, be expected to undergo circumcision. The petitioner repeated that statement in her evidence to the adjudicator. According to the supplementary statement, the petitioner and her husband had made themselves very unpopular by refusing to take part in local initiation practices and were well-known for praying and preaching against them, including circumcision practices. She claimed that was the reason why soldiers had arrested her husband on 5 October 2002, they having specifically warned him on previous occasions against what he preached.

[7] The adjudicator did not believe the petitioner's account of how she came to leave Sierra Leone and come to the United Kingdom. He described it as "incredible" and "a fabrication". Nor did he believe her claim that a reason for fearing return to Sierra Leone was that her two daughters would be expected to undergo circumcision. He thought that, if that were the case, she would have mentioned it well before she did so in her supplementary statement of 6 May 2003.

[8] In her application for leave to appeal to the IAT the petitioner tabled two grounds of appeal. The first was that, as according to the CIPU Report, perhaps 90% of females in Sierra Leone undergo female genital mutilation ("FGM"), which is practised by almost all ethnic groups, there was a real risk that the petitioner's daughters would undergo FGM and "harsh and degrading treatment or punishment". The second ground of appeal was that it was unduly harsh for the petitioner to have to relocate to Freetown as she was from Kabala in the north of Sierra Leone. There were difficulties in gaining access to Kabala because of the current security situation.

[9] In refusing leave to appeal the IAT stated that the adjudicator had carefully considered the claimant's account, which he did not find to be credible, and it was therefore not necessary for him to consider whether the claimant could relocate elsewhere. The grounds of appeal did not identify any errors in the determination which could form the basis of an appeal with any prospect of success.

[10] Mr Govier set out the legal principles which he submitted applied in a case of this nature, and no issue was taken by Mr Lindsay with anything which he said. The onus of proof was on the petitioner and the standard of proof required for demonstrating a well-founded fear of persecution or ill-treatment contrary to article 3 of the ECHR was the same, namely, whether there was a real risk or reasonable degree of likelihood: R v Home Secretary ex parte Sivakumaran [1988] AC 958 and Kachaj v Secretary of State for the Home Department [2002] Imm AR 213. The findings made by the adjudicator, and the reasons given for those findings, had to be clear: Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at p 384 and Singh (Daljit) v Secretary of State for the Home Department 2000 SC 219 per Lord Weir at p 222A-B. Anxious scrutiny, in the sense of a rigorous examination, of the decision of the adjudicator was required: R v Secretary of State for the Home Department ex parte Bugdaycay [1989] AC 514 per Lord Bridge of Harwich at p 531E-G and Singh (Jaswinder) v Secretary of State for the Home Department 1998 SLT 1370.

[11] Two separate grounds of challenge are stated in the petition. The first is contained in article 6, where it is averred that in reaching his decision the adjudicator failed properly to exercise his jurisdiction or to take into account all relevant and material considerations. While he had rejected the petitioner's claim that a main reason for fearing return to Sierra Leone was that her two daughters would be expected to undergo circumcision, he had failed to consider whether, as young girls in Sierra Leone society, the daughters were members of a particular social group which was at a real and substantial risk, or subject to a real likelihood, of being subjected to FGM and whether the petitioner was unwilling to avail herself of the protection of Sierra Leone owing to a well-founded fear of her daughters being persecuted for reasons of membership of a particular social group (Article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees) and whether, if she was so unwilling, her removal from the United Kingdom would be contrary to the Refugee Convention.

[12] In presenting his submission in relation to this first ground of challenge, Mr Govier stated that he was not in a position to take issue with the adjudicator's finding on the credibility of the petitioner, but he maintained that it was irrelevant that the adjudicator had held her account to be untrue. Although he had disbelieved her account, there still remained a reasonable likelihood of a fear of persecution. This submission was based upon the findings of the adjudicator at para 20 of his determination, which is in the following terms:

[13] In my opinion this first ground of challenge is completely misconceived and wholly without merit. Under article 1A(2) of the Refugee Convention a well-founded fear of being persecuted must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. The adjudicator rejected the evidence of the petitioner that she and her family were discriminated against because they were Christian and his findings at para 20, far from suggesting that FGM is a practice directed against a particular religion or social group, make clear that it is a lawful practice which is engaged in by almost all of Sierra Leone's ethnic groups. Accordingly, on no conceivable view could it be said that the practice of FGM is capable of being a reason for persecution. I therefore reject the ground of challenge to the adjudicator's determination which is set out in article 6 of the petition.

[14] The second ground of challenge to the adjudicator's determination is set out in article 7 of the petition and deals with the petitioner's claim that on her return to Sierra Leone her daughters would be at risk of a breach of their article 3 rights by reason of the practice of FGM. Article 3 of the ECHR provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The point taken was that the adjudicator had failed properly to exercise his jurisdiction or to take into account relevant and material considerations so far as the appeal was based on article 3 of the ECHR. It was submitted that he had failed to consider whether, notwithstanding his adverse finding on the credibility of the petitioner's account, her daughters would be subjected to inhuman or degrading treatment in the form of FGM is returned to Sierra Leone. Under article 3 there was no need for the petitioner to demonstrate a well-founded fear of being persecuted. There could be a breach of article 3 if the petitioner were returned to a country where the practice of FGM was prevalent and her daughters were at risk of being subjected to it. In light of the adjudicator's findings at para 20 on the prevalence of FGM in Sierra Leone, there was ample evidence to satisfy him that there was a real risk or a reasonable likelihood of a breach of article 3 in respect of the genital mutilation of the daughters were they to be returned to Sierra Leone. He had failed properly to apply his mind to the question which arose for consideration under article 3 of the ECHR, All he had said at para 29, dealing with the petitioner's claims under articles 2, 3, 8 and 14 of the ECHR, was that he had examined the arguments put forward but that, in light of the facts as established, had found no substance in them. His opinion was that the petitioner would not be at any risk on return to Sierra Leone and certainly not at risk of breach of her rights under articles 2 or 3.

[15] In developing his submission on article 3 Mr Govier made reference to two decisions of the IAT. The first was Hashim v Secretary of State for the Home Department [2002] UKIAT 02691. In that case it was argued that the sixth appellant, a daughter of the family, was of an age that if she were returned to Sudan she would face being forcibly circumcised. The submission made was that FGM, which was widely condemned by international health experts as damaging to both physical and psychological health, was widespread in Sudan, where an estimated 90% or more of females in the north had been subjected to it with adverse health consequences, and there would be a breach of article 3 of the ECHR if the sixth appellant were returned to Sudan. The IAT held that the adjudicator had come to the correct conclusion in finding that to send the parents and family back to a country where the sixth appellant would be subject to circumcision would amount to breach of article 3 of the ECHR. It is in my opinion important to note that at para 22 of their determination in that case the IAT stated that they were satisfied that it would be an almost impossible task for the parents at all times to protect their daughter from being taken by relatives and having FGM (which was illegal in Sudan) performed upon her. The parents were opposed to FGM and there was a risk of the daughter being subjected to it by force.

[16] The second IAT decision to which Mr Govier referred was that of RM v Secretary of State for the Home Department [2004] UKIAT 00108. That case related to the practice of FGM in Sierra Leone. The female appellant claimed to have a well-founded fear of persecution if returned there as a result of membership of a particular social group, namely, a female who is expected to undergo FGM. The adjudicator dismissed both the asylum and article 3 claims. At the hearing before the IAT the representative of the Secretary of State informed the tribunal that he was granting the appellant three years humanitarian protection leave and was therefore conceding that there would not be a sufficiency of protection for her were she to be removed to Sierra Leone. The IAT dismissed the appeal based on the asylum claim, holding that the appellant had not established membership of a particular social group within the meaning of article 1A(2) of the Refugee Convention. At para 5 of its determination the IAT stated as follows:

The appellant in that case was therefore at risk of being forcibly subjected to FGM if she returned to Sierra Leone.

[17] Mr Lindsay in response submitted that there was no evidence before the adjudicator to establish that the article 3 rights of the petitioner and her daughters would be infringed if she were returned to Sierra Leone. Such a real risk was said to derive from the practice of FGM in Sierra Leone, but, once the adjudicator had rejected the evidence of the petitioner about FGM (as set out at para 24 of his determination), the only evidence about FGM which was before the adjudicator consisted of the relevant passages in the CIPU Report, which were reflected in para 20 of the adjudicator's determination. There was nothing in para 20 which suggested a real risk that the article 3 rights of the petitioner and her daughters would be infringed if they were returned to Sierra Leone. The practice of FGM would infringe article 3 only where the intended victim (in the case of an adult) or the parents of the intended victim (in the case of a child) objected - in other words, where FGM was going to be carried out forcibly. Nothing was said in the CIPU Report about forcible circumcision of adults or the inability of parents to prevent it being it being carried out upon their children. The key issue was not the widespread practice of FGM, it was whether the practice was likely to be carried out forcibly or not. That was made clear by the decisions of the IAT in the cases of Hashim and RM, to which Mr Govier had referred. Those cases were of no assistance to the petitioner. To engage article 3 in this case the petitioner would require to establish that there was a real risk of circumcision of her daughters being carried out against her wishes. She had not established such a real risk because the only evidence on the point came from her and that evidence had been disbelieved by the adjudicator. His adverse finding on credibility affected not only her asylum case but also her ECHR case.

[18] In my opinion that submission by Mr Lindsay is well-founded and must be upheld. In order to engage article 3 of the ECHR it is not sufficient for the petitioner to show that if she and her daughters were returned to Sierra Leone there is a real risk that her daughters would be subjected to female circumcision. The evidence about female circumcision accepted by the adjudicator is contained in para 20 of his determination, which I have quoted above. The evidence which the petitioner gave on this issue (set out at para 24 of the adjudicator's determination) was rejected by him. Accordingly, the only finding is that FGM is widely practised on all levels of society by almost all of Sierra Leone's ethnic groups and that the practice is lawful. There is no finding that, if the petitioner and her daughters were returned to Sierra Leone, there would be a real risk of her daughters being subjected to FGM against her wishes. The reason why there is not such a finding is because the adjudicator disbelieved the evidence of the petitioner on this point. I therefore reject the ground of challenge set out in article 7 of the petition.

[19] For the reasons set out above I shall sustain the second plea-in-law for the respondent, repel the plea-in-law for the petitioner and dismiss the petition.