Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 194
P927/12	OPINION OF LORD JONES in the cause (FIRST) RK (AP) and (SECOND) BR (AP) Petitioners; for Judicial Review of a decision of the Secretary of State for the Home Department ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: McIlvride; Office of the Advocate General

19 December 2012

Introduction

[1] The petitioners are Indian nationals and are illegally resident in the United Kingdom. They seek judicial review of a decision of the Secretary of State for the Home Department ("SSHD") to certify as clearly unfounded a claim by the first petitioner for asylum as a refugee and for humanitarian protection. The case came before the court on 13 September 2012 on the petitioners' application for interim suspension of removal directions which were issued on 24 August 2012, requiring each of the petitioners to leave the United Kingdom on 17 September 2012. At the conclusion of the hearing, counsel for the respondent gave an undertaking that the SSHD would not require the petitioners to leave this country before the determination of the petitioners' interim suspension application.

Background

[2] On 14 April 2009, while resident in India, the first petitioner applied for and was granted a United Kingdom visit visa for himself and his first wife, and they travelled to this country in the same month. She returned to India after four or five months and they were subsequently divorced. The visa expired on 14 October 2009, but the first petitioner remained here. According to the petitioners' averments, the first petitioner took part in an Indian marriage ceremony with the second petitioner at a temple in Birmingham, on 20 June 2011.

[3] On 24 March 2012, the first petitioner was arrested by Staffordshire Police during a domestic dispute. On the same day, he was served with a notice informing him that he was liable to removal from the United Kingdom, as a person who had overstayed his period of granted leave. By fax, dated 4 May 2012, solicitors acting for the first petitioner submitted an asylum claim on his behalf. It is averred that the second petitioner is a dependent on his claim.

[4] By reasons for refusal letter ("the refusal letter"), dated 23 August 2012, the first petitioner was advised that it had been concluded by an official who was acting on behalf of the SSHD ("the decision maker") that he did not qualify for asylum or humanitarian protection. Acting under the provisions of section 94(3) of the Nationality, Immigration and Asylum Act 2002, the SSHD certified that the first petitioner's claim was clearly unfounded in terms of section 94(2). The effect of the certification is to deprive the first petitioner of an in-country right of appeal to an immigration judge in the First Tier Tribunal (Immigration and Asylum Chamber).

The circumstances of the present application

[5] By Interlocutor, dated 6 September 2012, a first hearing in this case was set down for 5 December 2012. When the case called before me on 13 September, however, Mr McIlvride, advocate, for the respondent moved me to determine the petition in light of parties' submissions on the interim suspension motion, on the view that, in order to determine whether the petitioners have advanced a prima facie case in support of their application, I would have to consider the same material as would be considered at the first hearing and that, if I were to conclude that the petitioners have a prima facie case, such as to entitle them to suspension ad interim of the removal directions, I would have effectively decided that the certification should be reduced. If I were to hold that the petitioners do not have a prima facie case, it would follow that the petition would fall to be dismissed.

[6] The competency of adopting that course, submitted Mr McIlvride, was vouched by the decision in H K Petitioner [2009] CSOH 35. I did not understand counsel for the petitioners, Mr Winter, advocate, to contend that it would not be competent to do so.

The legal context

[7] Under the provisions of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ("the Refugee Convention"), contracting states have certain obligations to refugees. Article 1A(2) of the Convention provides that the term "refugee" applies to any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...". The petitioners claim to have a well-founded fear of persecution for reasons of religion and, owing to such fear, to be unwilling to avail themselves of the protection of their home country. They aver, in particular:

"The petitioners fear ill-treatment from the second petitioner's family based on their marriage. The first petitioner is Sikh and the second petitioner is Hindu. The petitioners have been threatened by the second petitioner's family on the basis that they disapprove of the mixed marriage. The petitioners also fear being at real risk from the general community based on their mixed marriage."

[8] Paragraph 339C of the Immigration Rules, which have been laid down by the SSHD under the provisions of section 3(2) of the Immigration Act 1971, provides that, where a person does not qualify as a refugee, he or she will be granted humanitarian protection in the United Kingdom if the SSHD is satisfied that, among other things, substantial grounds have been shown for believing that the person concerned, if he or she returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.

[9] The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 ("the 2006 Regulations"), were enacted in part implementation of Council Directive 2004/83/EC of 29 April 2004. They adopt the Refugee Convention definition of "refugee", and provide, among other things, as follows:

"Actors of persecution or serious harm

3. In deciding whether a person is a refugee or a person eligible for humanitarian protection, persecution or serious harm can be committed by:

(a) the State;

(b) any party or organisation controlling the State or a substantial part of the territory of the State;

(c) any non-State actor if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including any international organisation, are unable or unwilling to provide protection against persecution or serious harm.

Actors of protection

4.-(1) In deciding whether a person is a refugee or a person eligible for humanitarian protection, protection from persecution or serious harm can be provided by:

(a) the State; or

(b) any party or organisation, including any international organisation, controlling the State or a substantial part of the territory of the State.

(2) Protection shall be regarded as generally provided when the actors mentioned in paragraph (1)(a) and (b) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection.

(3) In deciding whether a person is a refugee or a person eligible for humanitarian protection the Secretary of State may assess whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph (2)."

[10] Paragraph 339O of the Immigration Rules provides as follows:

"(i) The Secretary of State will not make:

(a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country;

or

(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.

(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.

(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return."

The first petitioner's claim

[11] The details of the first petitioner's claim are summarised at paragraph 7(f)-(h) of the refusal letter, in these terms:

"f) Your partner is Sikh and you are Hindu and you are both from different castes. You are from the Jatt caste and your partner is from the Khatri caste. You have had no problems since you married, but both you and your partner fear that if you return to India you would both face problems from your partner's family. ...; [According to the petitioners' averments, the first petitioner is Sikh, and the second petitioner is Hindu.]

g) Your partner's two older brothers and parents live in Delhi and are wealthy landowners and business people. They are unhappy that their daughter married someone from a different caste and religion. Your partner's family were informed about the marriage after it took place and they have subsequently threatened that if you return to India, they will kill you both. The first time your partner spoke to her parents was in July 2011 when she informed them of your marriage. You also spoke to your partner's family during the same call in July 2011 and her mother told you they would not accept the marriage. You are not aware of any attempt by your partner to resolve the matter with her parents. You have no family in India to support [you] and as such you might be killed by her family before you have the opportunity to seek help from the police. You believe police help is also dependent on having money to bribe them. ...;

h) You could relocate in India however you would still fear coming to harm from Sikh and Hindu communities based your (sic) mixed religion marriage. You fear both your partner's family and the Sikh and Hindu communities in India and that you will be killed by either if you return to India. ...;"

[12] As I have noted earlier in this opinion, the petitioner's challenge to the SSHD's decision is restricted to her certification of the first petitioner's asylum and human rights claims as clearly unfounded. The relevant provisions of section 94 of the Nationality, Immigration and Asylum Act are as follows:

"(2) A person may not bring an appeal to which this section applies in reliance on section 92(4) 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.

(4) Those States are-

...

(y) India."

There is, therefore, a presumption that asylum or human rights claims by persons entitled to reside in a state listed in subsection 4 are clearly unfounded. What underlies that presumption can be gleaned from the terms of subsection 5, which empowers the Secretary of State to add a state to the list, if satisfied that there is in general in that state no serious risk of persecution of persons entitled to reside there and that removal to that state of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention. I was not addressed on what practical effect, if any, the operation of the presumption might have in this case. The terms of paragraphs 106 and 107 of the refusal letter make it clear, however, that the decision maker has made a positive finding that the first petitioner's claim is clearly unfounded "(a)fter consideration of all the available evidence", and, for the purposes of this opinion only, I am content to approach my scrutiny of his determination on the same basis.

[13] In FNG v Secretary of State for the Home Department 2009 SC 373, Lord Hodge considered the authorities on the question of the approach to be taken by the court in determining a challenge to section 94(2) certification by the SSHD, and expressed this view:

"... the court, in deciding whether the Secretary of State was entitled to be satisfied that a claim was clearly unfounded, must (i) ask the questions which an immigration judge would ask about the claim and (ii) ask itself whether on any legitimate view of the law and the facts any of those questions might be answered in the claimant's favour."

That "simple formula" was cited with approval by Lord Hope of Craighead and Lord Carsewell in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, at paragraphs 54 and 65, and has since been adopted and applied in a number of cases in this jurisdiction. (See SO Petitioner [2009] CSOH 86, paragraph 4; AM Petitioner [2010] CSOH 25 paragraph 22; and TW Petitioner [2011] CSOH 88, paragraph 14) Further, "the questions which a reviewing court must ask itself ... must be subjected to anxious scrutiny. It may become clear that the quality of the claim is such that the facts of the case admit of only one answer. But the process ... is essentially one of review." (ZT (Kosovo) per Lord Hope at paragraph 54)

[14] In MN Petitioner [2012] CSIH 63, an Extra Division expressed approval of "the legal proposition that, in order to certify the reclaimer's claim as "clearly unfounded", the SSHD required to be satisfied that the claim was so lacking in substance that it was bound to fail. Put another way, the SSHD had to find that the claim had "no prospect of success"". (Opinion of the court, paragraph [6])

The SSHD's reasons and the parties' contentions

"Convention Reason"

[15] Under the heading "Convention Reason", at paragraph 9 of the refusal letter, the decision maker describes the first petitioner's asylum claim as based upon his fear that, if returned to India, he would face mistreatment due to his religion. At paragraph 10, the decision maker explains that, in considering the first petitioner's asylum claim, information had been sought on freedom of religion in India, and, in particular, "the situation in India with regard to inter-religious marriages". At paragraph 18, having considered material relevant to the subject of religious freedom, the decision maker concludes that there is a diverse range of religions in India, and that members of the main religious groups are freely allowed to practice their religion. The subject of inter-religious marriage is addressed at paragraphs 19 to 21 of the refusal letter. It is recorded that, on that topic, the decision maker consulted the UK Border Agency Country of Origin Information Report for India, dated 30 March 2012 ("the COI report"). Paragraphs 20.28 and 20.29 of that report, which are quoted in the refusal letter, read as follows:

"20.28 As noted in an Immigration and Refugee Board of Canada response, dated 9 January 2006, 'According to several sources, inter-religious and inter-caste marriages are legal in India and are governed by the Special Marriage Act 1954.'

20.29 The same source continued: '...Inter-religious marriages are more common between students and among professionals in urban areas, and are less likely in rural areas.' The professor consulted commented that marriages between Sikhs and Hindus are 'not uncommon' in the state of Punjab because of prominent numbers of Hindus. It was his opinion that: ...The general societal attitude toward inter-religious married couples in India is 'not favourable'. In correspondence to the Research Directorate, an India-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] ostracize and discriminate against such unions'."

At paragraph 22, the decision maker expresses this view:

"In deciding whether a person is a refugee, an act of persecution must be sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right. This however has not been established in your case."

"Future Fear"

[16] Under the heading "Future Fear", the decision maker notes that the first petitioner's fear of return to India is based on events since he left India "and concerns a verbal threat made on the telephone". He comments that the first petitioner has not provided any evidence that he had attempted to resolve his differences with the second petitioner's family or that the second petitioner had attempted to do so. The decision maker goes on to make the observation that, in order to bring himself within the scope of the Refugee Convention, the first petitioner would have to show "that these incidents were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at (him) which was willingly tolerated by the authorities, or that the authorities were unable, or unwilling, to offer (him) effective protection." (Paragraph 25) "This", the decision maker concludes, "has not been established" in the first petitioner's case. Finally, under the "Future Fear" heading, the decision maker notes that the first petitioner had stated that he had no fear of the authorities in India, and expresses the view that the first petitioner could have attempted to seek redress through the proper authorities before seeking international protection.

[17] On behalf of the petitioners, Mr Winter argues that the country information on religious freedom is not relevant to the present case, because the petitioners do not rely on the fact that they are not allowed to practice their religion. They rely on the fact that the second petitioner's family disapproves of the marriage. Further, he submits, the decision maker makes no finding on the impact of the information on inter-religious marriages: in particular, that the general societal attitude toward inter-religious married couples in India is not favourable; that society in general disapproves of inter-religious marriages; and that the treatment of married couples with different religious backgrounds depends on their location and social levels. The decision maker, Mr Winter contends, has not supplied adequate reasons or findings as to how this impacts on the petitioners' case. The COI report details information about honour killings. One reason for honour killings is disapproval of a marriage. The decision maker does not appear to have considered this information when assessing the claim or, if he has considered it, he has not supplied any reason as to why it is not relevant or how it impacts on the present claim. Mr Winter submits that an honour killing would be an act of persecution sufficiently serious by its nature as to constitute a severe violation of a basic human right. Such an incident would not simply be a random action by individuals but would be an example of persecution. In any event such an action would breach Article 3, ECHR. Consequently, it is argued, the case is not bound to fail in light of the petitioners' not making attempts to resolve the conflict with the second petitioner's family in light of the death threat from her family.

[18] In his reply for the respondent, Mr McIlvride contended that, since the first petitioner's asylum claim involved an assertion that he would face persecution by reason of his religion if returned to India, the decision maker reasonably considered whether freedom of religion exists in India and, in particular, whether those who enter into a mixed religion marriage in India thereby expose themselves to a real risk of persecution. Having reviewed the available objective evidence on conditions in India, argued Mr McIlvride, the decision maker reasonably concluded that the first petitioner's claim to have a well-founded fear of persecution by reason of having entered into a mixed religion marriage was clearly unfounded. The evidence indicates that there are no legal impediments to such marriages, and that mixed marriages are not uncommon. Insofar as Indian society may still in general disapprove of mixed religious marriages, that disapproval does not amount to persecution.

"Sufficiency of Protection"

[19] The decision maker turns next to consider sufficiency of protection, because, as he explains at paragraph 26, the petitioner had stated that he had no fear of the authorities in India and it was considered that he could have attempted to seek redress through the proper authorities before seeking international protection. After referring to certain of the dicta in both the Court of Appeal and the House of Lords judgments in Horvath v Secretary of State for the Home Department [2000] Imm AR 205 and [2001] 1 AC 489, the decision maker writes:

"In line with the above judgments, information has been sought in order to ascertain whether a sufficiency of protection would exist in your case were you to encounter any future problems India (sic)." (Paragraph 28)

The decision maker then goes on to consider material accessed on the Government of India website and the Delhi Police website, as well as information contained in the COI report, and concludes:

"43. ... in light of the above objective information, it is considered that there is an overall effective police force in India. Furthermore, the Indian constitution clearly safeguards its citizens' rights and liberties.

44. From your account, it is evident that you have not approached the police in India or sought help from the Indian High Commission in London. Furthermore, you have provided no reason to fear the authorities there and as such it is considered that you should have and could have done so prior to seeking international protection. As such, you have failed to demonstrate that the police would be unable or unwilling to offer you a sufficient level of protection were you to approach them."

[20] Mr Winter challenges the decision maker's conclusions at paragraphs 43 and 44 of the refusal letter. He contends that the decision maker does not explain why or how he reaches the conclusion that there is an effective police force, in light of the information relied on. In particular, says Mr Winter, at paragraph 36 of the refusal letter, the decision maker quotes from an August 2009 Human Rights Watch ("HRW") report, which is referenced in the COI report, and which states that the use by junior-ranking officers of professional crime investigation techniques is effectively discouraged by the dearth of time, training and equipment with which they operate. The HRW report also states that these officers face frequent intervention in investigations by local political figures, who sometimes act to protect known criminals. At paragraphs 38 and 39 of the refusal letter, the decision maker quotes further observations by HRW: that police infrastructure is crumbling; that posts are stocked with antiquated equipment and lack sufficient police vehicles, phones, computers and even stationery; that a severe police staffing shortage is compounded by additional demands on an already stretched force; and that police performance is severely undercut by the inadequacy of training. Further, submits Mr Winter, the decision maker does not appear to have considered how the police respond to honour killings such as are referred to in the COI report at paragraphs 24.48-24.49 or, if he has, he does not explain how or why the finding has been reached at paragraph 43 of the refusal letter in light of this information. It is contended on behalf of the petitioners that the COI report, quoting from the HRW report, states that the police treat domestic violence as a private matter. Although this focuses on the situation of women, it is relevant, argues Mr Winter, to the present claim. It is unclear why or how, he says, the respondent has reached the finding at paragraph 43.

[21] For the respondent, it is contended that the decision maker has reasonably observed in the refusal letter that that the petitioners' claim to have a well-founded fear of persecution (or treatment contrary to Article 3 ECHR) is founded upon their own evidence of a death threat said to have been made by the second petitioner's family in July 2011, but in circumstances where the petitioners admit that they have made no subsequent attempt to resolve matters with the second petitioner's family, nor to seek the protection of the authorities in India. Nevertheless, the decision maker has considered whether in the face of such a threat there a sufficiency of protection available to the petitioners in their own country. The decision maker has reasonably concluded, so continues the argument, that there is such a sufficiency of protection in India and that the petitioners' claims are accordingly clearly unfounded.

"Corruption"

[22] At paragraph 45 of the refusal letter, the decision maker records that he has had regard to claims "that the Indian police force are prone to corruption, which in turn prevents (the first petitioner) from seeking redress" and that, accordingly, he had considered a number of passages in the COI report, which he identifies and from which he quotes. At paragraphs 55 and 56 of the refusal letter, he concludes as follows:

"55. Without prejudice to the afore reached conclusion that there is an overall sufficiency of protection in India, your concerns regarding corruption within the police force have been noted. Subsequently, it is conceded that the preceding objective information indicates corruption remains a problem within the Indian police force. However, it is also noted that the government have introduced significant steps towards dealing with corruption in an attempt to eradicate it. (The quote is accurate)

56. Furthermore, given your belief that the police are corrupt, you have nonetheless failed to raise your concerns with any higher authorities within the police force or any other government bodies in India. Therefore, your fear of being denied a sufficiency of protection remains unsubstantiated and purely speculative. It is considered that you would be able to avail yourself to the authorities in India and that they would be able to provide you with a sufficiency of protection as defined within the Horvath judgement."

[23] Mr Winter points out that, at paragraph 46 of the refusal letter, quoting from the COI report, the decision maker states that bribes were typically paid to speed procedures such as police protection. Police officers accounted for 30% of bribe demands. Corruption in the police force was pervasive. Citizens had to pay bribes to receive police assistance. It is reported at paragraph 49 of the refusal letter that bribery has become institutionalised. At paragraph 50 of the refusal letter it is reported that, despite the government introducing steps to combat corruption, officials frequently engaged in corrupt practices with impunity. It is contended on behalf of the petitioners that this corruption is indicative of an unwillingness to provide protection to individuals like the petitioners (Hussein v Secretary of State for Home Department 2005 SC 509). The material quoted by the decision maker shows that there is evidence of systematic or institutionalised unwillingness to afford protection to the victims of persecution by non-state actors (Hussein, supra, at paragraph 7). Adequate protection requires a willingness to operate an effective criminal system and a system in which the police, as a matter of general practice, require a bribe in order to investigate a serious incident does not meet this test (see Hussein, supra, at paragraph 15). In light of the foregoing, submits Mr Winter, the decision maker has failed to supply adequate reasons as to why or how the conclusion has been reached, at paragraph 55, that the police force affords adequate protection from persecution.

[24] It is contended on behalf of the respondent that the available country information is to the effect that corruption on the part of all police officers has not been eradicated but that further steps are being taken by the Indian authorities to address the problem and that there is no institutionalised or systematic unwillingness to enforce the law without payment of a bribe. In those circumstances, it is submitted, the decision maker reasonably concluded that a sufficiency of protection will be available to the petitioners if they return to India.

"Avenues of Redress" "Human Rights Groups (HRGs)" and "Non-Governmental Organisations (NGOs)"

[25] At paragraphs 57 to 62 of the refusal letter, the decision maker considers what he describes as "other avenues of redress", and concludes, at paragraph 63:

"In light of the previous objective information, it is considered that there are further avenues of redress available for you in India, if you were aggrieved with the way the police handles any case you bring to them. (sic) While it is noted that the process can at times be intimidating or frustrating, you have failed to approach the police at any point yourself and therefore have failed to substantiate your belief that any complaint would be unsuccessful. As such, it is considered that there is an overall sufficient police force in India, which is able to offer you a sufficiency of protection in line with the Horvath judgement. Beyond this, it is considered that there are further avenues of redress for you to pursue should you be discontent with the response provided by the police force."

At that point, the decision maker turns to consider the position of HRGs and NGOs and expresses the view that, if the first petitioner were to have exhausted the "other avenues of redress" "there is also a selection of HRGs and NGOs that (he) you could approach for assistance." (Paragraph 64) After reviewing the workings of such groups, the decision maker concludes, at paragraph 73:

"The above information indicates that there is such a system of protection for the citizen in place in India in line with Horvath. It is therefore considered reasonable to assume the state would allow citizens of India to seek redress as and when necessary."

[26] Mr Winter submits on behalf of the petitioners that the decision maker has erred in looking at these "other avenues of protection", because "protection after the event is no protection at all", and he cites Kinuthia v Secretary of State for the Home Department [2001] EWCA Civ 2100 per Tuckey LJ, at paragraph 26, in support of that proposition. Further, contends Mr Winter, there is no onus on an asylum seeker to seek redress from higher authorities, under reference to Balough v Canada (Minister of Citizenship and Immigration) [2002] FCJ No 1080 per Lemieux J, at paragraph 44, and Risak v Minister of Employment and Immigration [1994] FCJ No 1581 per Dube J, at paragraph 11. As to the decision maker's conclusion expressed at paragraph 63 of the refusal letter, Mr Winter points out that, at paragraph 58, the country information cited by the decision maker states that there is no external police complaints agency in India at a national level, and that, although the Supreme Court had directed all states to establish a local police complaints commission, only 18 had done so and none fully complies with the Court directive. Mr Winter argues that paragraphs 59 to 61 of the refusal letter focus on human rights abuses by the police and he questions their relevance to the present claim. It is, therefore, unclear, he says, how the conclusion at paragraph 63 of the refusal letter has been reached in light of the country information.

[27] Moving on to consider paragraphs 65 to 67 of the refusal letter, which focus on the Indian National Human Rights Commission (NHRC), Mr Winter points out that the country information cited by the decision maker indicates that that organisation does not have the statutory power to enforce requests, initiate proceedings for prosecution, or grant interim compensation. The NHRC been criticised for not registering all complaints, dismissing cases on frivolous grounds, failing to investigate cases thoroughly and not adequately protecting complainants. Further criticism, he says, is noted at paragraph 71 of the refusal letter. So, submits Mr Winter, it cannot be said that the case is bound to fail and/or that anxious scrutiny has been applied.

[28] For the respondent, it was submitted that the decision maker was simply saying that if an individual asks the Indian police for protection and they refuse, that individual "can go elsewhere". The decision maker had considered the threat of violence from the second petitioner's family and had carefully considered the whole question of sufficiency of protection.

"Internal relocation"

[29] Finally, in his scrutiny of the first petitioner's asylum claim, the decision maker considers the issue of internal relocation. At paragraphs 74 to 76 of the refusal letter he says this:

"74. ... consideration has been given as to whether if you had exhausted all of the above, you would be able to use internal relocation to avoid future problems in India.

75. It is also noted that you state that you could relocate in India but would fear being harmed by Sikh or Hindu communities if they found out about your marriage. ... However, in your answer, you also expressed the view that there are Hindus and Sikhs everywhere in India and the world.

76. As such, it is considered that internal relocation within India would be as viable an option for you as internal (sic) relocation."

The decision maker then goes on to consider certain authorities which give guidance on considerations which might exclude the option of internal relocation and concludes that, having regard to the circumstances of the case, "it would not be unreasonable to expect (the first petitioner) to relocate were (he) to encounter any localised problems on return to India". (Paragraph 89)

[30] Mr Winter submits that the decision maker has not supplied adequate reasons as to why internal relocation would not be unreasonable or unduly harsh in light of the country information cited at paragraph 21 of the refusal letter or the existence of honour killings not carried out by relatives. He contends that paragraph 24.42 of the COI report, quoting from the US State Department "Country Report on Human Rights Practices 2010" (USSD 2010), states that 88% of honour killings are carried out by the girl's relatives. (In fact, the figure given is 88.9%.) The country information, he says, indicates that the petitioners could be ostracised and discriminated against, which would impact on the issue of internal relocation, for example on their chances of gaining employment. He complains that the decision maker has not examined the impact of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2011] 1 AC 596. The petitioners, he argues, would fall into the category identified in HJ (Iran) by being denied the right to live openly and freely without fear of persecution or, alternatively, by having to live discreetly for fear of being persecuted. In light of these considerations, he submits, it cannot be said that the case would be bound to fail and/or anxious scrutiny has been applied.

[31] In response, Mr McIlvride submits that, on the general merits of the first petitioner's claim, two questions fall to be addressed. The first is whether the first petitioner's fear of violence gives rise to a well-founded fear of persecution. If so, the second question is whether there is a sufficiency of protection. Two further questions arise on the issue of internal relocation. The first of these is whether the risk of violence can be avoided by moving. If so, the second question is whether it is unduly harsh to expect the asylum seeker to move. In this case, Mr McIlvride submits, the risk which the petitioner claims to exist comes from two sources: the second petitioner's family and the general community. There is, however, no evidence that the reach of the second petitioner's family extends throughout India, nor do the petitioners claim that it does. Nor, says Mr McIlvride, does the objective evidence suggest that the petitioners will be at real risk of suffering violence from the community generally by reason of their mixed religion marriage. There is no evidence tending to establish that it would be unreasonable or unduly harsh to expect the petitioners to relocate internally within India. The decision maker reasonably determined that the petitioners will be able to lead a relatively normal life elsewhere in India, judged by the standards generally prevailing in that country. In those circumstances, he made no error of law in concluding that the first petitioner's claims were clearly unfounded: Januzi v Secretary of State for the Home Department [2006] 2 AC 426.

Discussion

"Convention Reason" and "Future Fear"

[32] I have considered the first petitioner's claim, the evidential material that was available to the decision maker, the refusal letter, the petition and answers and the parties' submissions, all with anxious scrutiny.

[33] At paragraph 7(h) of the refusal letter, the decision maker records that the first petitioner's fear is that he would be killed by either the second petitioner's family or by the Sikh or Hindu communities, if he were to return to India. The decision maker has made no adverse comment on the first petitioner's credibility in that or, indeed, in any other respect.

[34] Paraphrasing Regulation 3 of the 2006 Regulations, so far as relevant to the circumstances of this case, in deciding whether a person is a refugee or a person eligible for humanitarian protection, persecution or serious harm can be committed by, among other persons, any non-state actor, if it can be demonstrated that the state or a substantial part of the territory of the state are unable or unwilling to provide protection against persecution or serious harm. "Persecution" is defined in the 2006 Regulations as "an act of persecution within the meaning of Article 1(A) of the Geneva Convention". (Regulation 2) No definition, as such, of the word is to be found in the Convention, but Article 33, the non-refoulement provision, prohibits the return of a refugee to the frontiers of territories "where his life or freedom would be threatened on account of", among other things, his religion.

[35] As is noted at paragraph [14] of this opinion, the decision maker's conclusion, stated at paragraph 22 of the refusal letter, is to the effect that it has not been established that the "act of persecution" under consideration in this case is "sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right" as to qualify the first petitioner as a refugee. (My emphasis) Given that the first petitioner fears for his life if he were to return to India, the question of repetition does not arise. In any event, I have three difficulties with the terms of paragraph 22, just quoted. The first concerns the material on which the stated conclusion is purportedly based; the second has to do with the relevant law; and the third concerns the decision maker's discussion of the country information which preceded it.

[36] In the process of determining whether the first petitioner qualifies as a refugee by reference to the seriousness of the act of persecution, the decision maker first considers material which gives an insight into the topic of freedom of religion. (Refusal letter, paragraphs 10 to 17) At paragraph 18, the decision maker concludes that there is a diverse range of religions in India and that members of the main religious groups are freely allowed to practice their religion. That has no bearing, however, on the question whether the feared act under consideration, i.e. the unlawful killing of the first petitioner, would be sufficiently serious as to qualify him as a refugee.

[37] At paragraphs 19 to 21 of the refusal letter, the decision maker goes on to record information on the subject of inter-religious marriages. Whilst that material might be relevant to the question whether the first petitioner's fear of persecution by the community is well-founded, it has no relevance to the question of the seriousness of the feared act.

[38] Turning to the second difficulty, the paragraph 22 conclusion is clearly intended to reflect the terms of Regulation 5 of the 2006 Regulations, which provides, among other things, as follows:

"(1) In deciding whether a person is a refugee an act of persecution must be:

(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).

(2) An act of persecution may, for example, take the form of:

(a) an act of physical or mental violence, including an act of sexual violence;"

As noted in paragraph [34] above, "persecution" is defined in the 2006 Regulations as "an act of persecution". As Mr McIlvride accepted, a single act of persecution is enough to qualify an individual as a refugee, provided that it is sufficiently serious by its nature as to constitute a severe violation of a basic human right. By reference to Article 15 of the ECHR, right to life is a basic right. In my view, therefore, and contrary to that of the decision maker, an individual who has a well-founded fear of being murdered in his country of origin should he return there may qualify as a refugee within the meaning of the Refugee Convention.

[39] Given that the next paragraph in the refusal letter, paragraph 23, comes under the heading "Future Fear" and records that the first petitioner's fear of return to India is based on events since he left there, it might be thought that paragraph 22 was intended to refer to events which had occurred before the first petitioner left India. That would make no sense, however, because the first petitioner's asylum claim is not based on anything which was said to have occurred at that time.

[40] The third difficulty that I have in understanding paragraph 22 flows from the fact that the decision maker makes no attempt to explain his reasons for reaching the conclusion that he did, based on the material that he considered.

[41] The decision maker's conclusion set out at paragraph 25, quoted at paragraph [15] above, is no more intelligible than his conclusion recorded in paragraph 22. For ease of reference, I repeat it here:

"In order to bring yourself within the scope of the United Nations Convention, you would have to show that these incidents were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at you which was knowingly tolerated by the authorities, or that the authorities were unable, or unwilling, to offer you effective protection. This has not been established in your case."

I have three difficulties, also, in understanding that passage. The first is that it is not explained what "incidents" the decision maker intends to refer to. Indeed, the decision maker nowhere else in the refusal letter refers to an "incident" or "incidents". As I have said, the first petitioner's asylum claim is based on a single threat to kill, and a more general fear of being killed by members of the general community. The second and third difficulties that I have with paragraph 25 are the same as the second and third difficulties that I have with paragraph 22, namely that, (a) to qualify as a refugee, it is not necessary that an individual has been the victim of a campaign of persecution in the past, and (b) no factual basis is given for the stated conclusion.

[42] So perplexed was I by the apparent incongruity between the factual basis of the first petitioner's claim and the terms of paragraphs 22 and 25 of the refusal letter that I put the case out By Order for a further discussion. My researches had revealed that, in each of a number of cases, an individual had sought asylum in this country having fled his country of origin following attacks on his person and had failed, according to the decision that had been issued, because the individual had not demonstrated that "these incidents were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at (him) which was knowingly tolerated by the authorities or that the authorities were unable or unwilling to offer effective protection". The first instance that I had discovered of the use of that phrase, or a very close variant, was in Choudhrey v Immigration Appeal Tribunal [2001] EWHC Admin 613. The most recent is to be found in AH (Bangladesh) v Secretary of State for the Home Department [2011] CSOH 7; 2011 GWD 5-150. In the former case, the asylum claim was founded on the assertion that the claimant had been beaten and harassed by a group called Khatm-e-Nasuwat while he was living in Pakistan, his country of origin, and as a result was forced to abandon his studies at a college in Rabweh where he lived. In the latter, the petitioner claimed that he had fled Bangladesh because, as a supporter of the Awami League, he was being persecuted by the Bangladesh National Party. In both cases, the claim was based on a fear that past "incidents" would be repeated if the claimant returned to his country of origin. At the By Order hearing, which took place on 4 October 2012, I was informed by Mr McIlvride that the phrase that I have just quoted is to be found in guidance issued to Home Department officials to assist them in articulating reasons for their decisions in asylum cases. I make no criticism of that, but the inapposite use of standard phraseology in this case raises questions about the decision maker's grasp of the nature of the first petitioner's claim and of the relevant law.

[43] In any event, it follows from the foregoing analysis of the refusal letter that the conclusions recorded in paragraphs 22 and 25 are, in my view, unsustainable.

"Sufficiency of Protection"

[44] It is necessary, therefore, to turn to the question of sufficiency of protection. Since the persecution that the first petitioner claims to fear is by non-state actors, the issue that arises in this case is whether the state of India is unable or unwilling to provide protection against persecution or serious harm. (Regulation 3(c) of the 2006 Regulations)

[45] The test to be applied in determining whether a state is unable or unwilling to provide protection, as accepted by both parties, is set out by the decision maker at paragraph 27 of the refusal letter, in the following terms:

"In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders." (Horvath, per Stuart-Smith LJ, at paragraph 22)

[46] Further, Mr Winter relies on certain passages from the opinion of the court in Hussein v SSHD [2005] SC 509. These are as follows:

"[7] ... it is not enough to point to corruption, inefficiency or incompetence on the part of individual members of the police, prosecution or justice system. There must be evidence of systemic or 'institutionalised' unwillingness to afford protection to the victims of persecution by non-state actors. On the other hand, each case must be judged on its own facts. As Laws LJ remarked in Mishto v Home Secretary (para 24): 'Every practitioner in this field who brings an objective judgment to his task knows that general in-country conditions may sometimes be malleable when it comes to a particular set of facts'.

...

[14] It appears ... that the tribunal approached the case on the basis that the relevant questions were (i) whether Pakistan had an 'effective criminal system' and (ii) whether there was discrimination against Shias or, more particularly members of IO [the Imamia Organisation]. Notwithstanding the quotation from the country evidence about police corruption, the determination contains no reference to the matter of bribery.

[15] We have come to the conclusion, albeit with considerable hesitation, that the tribunal's failure to deal with the issue of bribery constitutes an error of law. Horvath makes clear that 'adequate protection' requires not just the existence of an effective criminal system, but a willingness to operate it, including a willingness on the part of the police to take the necessary first step of investigation. A system in which the police, as a matter of general practice, require a bribe in order to investigate a serious incident of shooting would not meet this test.

[16] It is, nevertheless, important to distinguish between systematic bribery as a pre-condition of setting the criminal process in motion and a demand for a bribe by an individual police officer. So it would be necessary in this case to consider whether, in the first place, the appellant's allegation of bribery is reliable and then, if so, whether that demonstrates a failure in the system of criminal justice such that the appellant can be said to be deprived of adequate protection in Pakistan."

[47] Mr McIlvride drew my attention to certain passages in Horvath, which, he said, were of particular relevance in this case. At page 494F, Lord Hope, with whom Lord Browne-Wilkinson and Lord Hobhouse agreed, expressed this view:

"The following issues arise in the determination of the question raised by the problem that the parties have identified in regard to the allegation of persecution by non-state agents: (1) does the word "persecution" denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection? (2) is a person "unwilling to avail himself of the protection" of the country of his nationality where he is unwilling to do so because of his fear of persecution by non-state agents despite the state's protection against those agents' activities, or must his fear be a fear of being persecuted there for availing himself of the state's protection? (3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin-is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?"

On the first issue, his Lordship said this:

"I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word "persecution" implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme." (Page 497G)

Lord Hope considered that the second issue "loses much of its significance" given his Lordship's view on the proper approach to the first issue. Turning to the third issue, Lord Hope continued:

"As regards the third issue, the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said [2000] INLR 15, 44G, under reference to Professor Hathaway's observation in his book, at p 105, it is "axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the Immigration Appeal Tribunal in this case applied the right standard when they were considering the evidence." (Page 500F)

[48] Lord Clyde also expressed views on the sufficiency of protection question. At page 510E, his Lordship said this:

"A question arises, and it has been canvassed in some detail in the oral and written submissions before us, as to the level of protection which is to be expected of the home state. This was identified by the applicant as the third of three issues which he set out in his case. ... I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like "sufficiency" or "effectiveness", both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom (1998) 29 EHRR 245 the European Court of Human Rights recognised that account should be taken of the operational responsibilities and the constraints on the provision of police protection and accordingly the obligation to protect must not be so interpreted as to impose an impossible or disproportionate burden upon the authorities. At the least, as is noted in condition (iii) in rule 334 which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.

It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] INLR 15, 26, para 22:

... (The passage set out in paragraph [45] above is quoted.)

And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. "It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy." The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance."

[49] In the refusal letter, the decision maker separates his consideration of "sufficiency of protection" (paragraphs 27 to 44) from his review of the country information on "corruption" (paragraphs 45 to 56). In my view, having regard to the passages from Hussein and Horvath quoted above, it is clear that the question of police corruption falls to be considered as part of the discussion of sufficiency of protection. Where the agents of a national police force, which might otherwise be effective in bringing offenders to justice, will routinely refuse to act unless in receipt of a bribe, for example, that will impact on the question of sufficiency of protection.

[50] At paragraph 43, the decision maker concludes that "there is an overall effective police force in India." Among the country information which he considered, however, was the following material, drawn from the HRW report referred to in paragraph [20] above:

"At the level of the civil police station, where junior and low-ranking police often reside and deal with suspects or victims, we found that civil police, particularly constables, live and work in abysmal conditions. They are often exhausted and demoralized, always on call, working long hours without shifts and necessary equipment, only to return to government-provided tents or filthy barracks for a few hours' sleep. Junior-ranking officers often face unrealistic demands from their superiors to solve cases quickly. Even if officially encouraged, their use of professional crime investigation techniques is effectively discouraged by the dearth of time, training and equipment with which they operate. These officers also face frequent intervention in investigations by local political figures, who sometimes act to protect known criminals ... To get around these systemic problems many officers take 'short-cuts'. Officers told Human Rights Watch they often cut their caseloads by refusing to register crime complaints. At other times, they use illegal detention, torture and ill-treatment to punish criminals against whom they lack the time or inclination to build cases, or to elicit confessions, even ones they know are false.

There is just one civil police officer for every 1,037 Indian residents, far below Asia's regional average of one police officer for 558 people and the global average of 333 people.

Police infrastructure is crumbling. Decaying, colonial-era police stations and posts across India are stocked with antiquated equipment and lack sufficient police vehicles, phones, computers, and even stationery. A severe police staffing shortage is compounded by additional demands on an already stretched force. Police are routinely diverted to protect 'VIPs' - usually politicians, business people, and entertainment figures. Senior police officials frequently use low-ranking staff as orderlies and even as personal family servants.

Police performance is severely undercut by the inadequacy of training. For [non-senior] officers, pre-induction training of six to nine months [is] military in style and dominated by physical fitness, [marching] and ceremonial parades. (One sub-inspector told HRW that the work of crime investigation was largely neglected in his training.)

In parts of India, in-service training is extremely infrequent ... Even when police are promoted to positions requiring a different skill set, they may not receive additional training."

[51] In my opinion, in approaching the matter of sufficiency of protection in the way that he did, the decision maker erred in law. The starting point for the consideration of the issue is the identification of the act of persecution against which the asylum seeker contends that he will not be protected if returned to his country of origin. As I have noted in paragraph [10] above, the decision maker has recorded the first petitioner's fear as being that, should he return to India, the petitioners will be killed by the second petitioner's family and that such an event might occur before the petitioners have an opportunity to seek help from the police. Further, the first petitioner fears that, if the petitioners were to relocate in India, they will be killed by the Sikh or Hindu communities. The question which is at issue in this case, therefore, is whether the state is able to take reasonable steps to prevent the feared persecution or suffering of serious harm, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm. (Regulations 3 and 4 of the 2006 Regulations) In my view, where the risk faced by the asylum seeker is of serious injury or death, to be "effective" the legal system must operate to deter. (See, e.g. A v United Kingdom (1999) 27 EHRR 611, judgment, at paragraph 22; McPherson v Secretary of State for the Home Department [2002] INLR 139, CA; Regina (Bagdanavicius and another) v Secretary of State for the Home Department [2004] 1 WLR 1207, CA) Accordingly, the decision maker's remarks at paragraph 44 of the refusal letter are irrelevant to the question that fell to be determined. The first petitioner's failure to approach the police in India or seek help from the Indian High Commission has no bearing on the question whether there is in India an effective system of investigation, prosecution, etc, so as to deter the commission of the sort of crime under consideration in this case. The decision maker is, therefore, wrong to conclude that, by having failed to approach the police in India or seek help from the Indian High Commission, the first petitioner has "failed to demonstrate that the police would be unable or unwilling to offer (him) a sufficient level of protection were (he) to approach them."

[52] In my view, on the same line of reasoning, the decision maker is also wrong in his conclusion at paragraph 56 of the refusal letter. (See paragraph [22] above)

[53] As I have already noted, at paragraph 55 the decision maker makes it clear that he regards what he describes as the "problem" of corruption within the Indian police force as continuing. For the reasons which I have advanced as to the proper approach to the question of sufficiency of protection, that concession ought not to have been made "without prejudice to" the conclusion that there is an overall sufficiency of protection in India, but ought, instead, to have been considered as part of the information relevant to the determination of that issue.

[54] It follows from what I have said so far that, in my view, the decision maker's observations on "Avenues of redress" together with the "selection of HRGs and NGOs that (the petitioner) could approach for assistance" are equally irrelevant to the issue of sufficiency of protection.

"Internal Relocation"

[55] I turn, finally, to the question of internal relocation. The decision maker records that it is the first petitioner's position that he "could relocate in India however (he) would still fear coming to harm from Sikh and Hindu communities based (on his) mixed religion marriage." (Refusal letter, paragraph 7(h)) In the current proceedings, the petitioners do not claim that the family's reach is such that, if they were to relocate, they would continue to be at risk from that quarter.

[56] As I have noted above, Mr McIlvride submitted that, in determining the issue of internal relocation, two questions fall to be answered. I agree with him. The first question is whether the risk of violence which the first petitioner fears can be avoided by living in some part of India other than Delhi. If so, the second question is whether it would be unduly harsh to expect him to do so. The proposition that there are two separate questions is vouched by Baroness Hale in AH (Sudan) v Secretary of State for the Home Department) [2008] 1 AC 678, in the following passage:

"21 We are also all agreed that the test for internal relocation under the Refugee Convention is not to be equated either with a "well-founded fear of persecution" under the Convention or with a "real risk of ill-treatment" contrary to article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. By definition, if the claimant had a well-founded fear of persecution, not only in the place from which he has fled, but also in the place to which he might be returned, there can be no question of internal relocation. The question presupposes that there is some place within his country of origin to which he could be returned without fear of persecution. It asks whether, in all the circumstances, it would be unduly harsh to expect him to go there. If it is reasonable to expect him to go there, then he can no longer claim to be outside his country of origin because of his well-founded fear of persecution. Mercifully, the test accepts that if it is not reasonable to expect him to go there, then his continued absence from his country of origin remains due to his well-founded fear of persecution."

[57] I hope that I do not do Mr Winter a disservice if I observe that, in the petition and in his submissions at the hearing before me, he appeared to elide the two questions. In the petition, for example, it is averred that the decision maker has not supplied adequate reasons why it would not be unduly harsh to expect the first petitioner to relocate "in light of the country information cited at paragraph 21 of the refusal letter (of) the existence of honour killings not carried out by relatives". If the first petitioner had a well-founded fear of being the target for such an honour killing, no matter where he might settle in India, the question whether it would be unduly harsh to expect him to relocate would not arise.

[58] In my view, turning the first question proposed by Mr McIlvride on its head, there was nothing in the material before the decision maker that would have entitled him to hold that the risk of violence feared by the first petitioner could not be avoided by internal relocation. I have quoted the country information recorded by him at paragraph 21 of the refusal letter at paragraph [14] of this opinion. What can be taken from it are the following propositions:

Inter-religious marriages are a known phenomenon in India;

They are more common in certain places and among certain social groups than others;

Marriages between Sikhs and Hindus are "not uncommon" in the state of Punjab;

The general societal attitude to inter-religious marriages in India is "not favourable", society generally disapproving; and that

Persons in such unions may be ostracised and discriminated against.

In my opinion, none of that material would permit of the conclusion that there is nowhere in India where the petitioners could settle that would put them beyond the risk of "an act of persecution which is sufficiently serious by its nature ... as to constitute a severe violation of a basic human right" as provided for in Regulation 5(1). Putting it in terms of the first petitioner's fear, there was no evidence before the decision maker that would entitle an immigration judge to conclude that there would be a risk that the first petitioner would come to harm "from Sikh and Hindu communities based (on his) mixed religion marriage" were he returned to India.

[59] The petitioners argue, however, that the decision maker had before him further country information, not discussed in the refusal letter, which demonstrates that the first petitioner's fear of persecution, wherever he might relocate to in India, is well-founded. It is necessary, therefore, to have regard to what that country information is.

[60] Paragraph 24.42 of the USSD 2010 Report, on which the petitioners rely, is in these terms:

"So-called honour killings continued to be a problem, especially in Punjab and Haryana, where as many as 10 percent of all killings were honour killings. Although statistics for honour killings are difficult to verify, on October 10, The Guardian reported police officially recorded 19 honour killings in the northern part of the country between April 19 and June 30. According to the same report, one recent study estimated more than 1,000 honour killings every year, most of them occurring in the northern states of Haryana, Punjab, and Uttar Pradesh. The most common justification for the killings offered by those accused or by their relatives was that the victim married against their family's wishes. During the year a survey conducted by the NCW [National Commission for Women] along with the NGO Shakti Vahini revealed that in 88.9 percent of the cases, the perpetrators of the honour killing were the girl's family members. In 2009 the MHA [Ministry of Home Affairs] issued an advisory to all state governments and union territories to review their policies and tackle the problem of such killings." (In these passages and elsewhere I have altered the American text by adopting the U.K spelling of "honour")

When looked at in isolation, it is not altogether clear from that passage what an "honour killing" is. The meaning becomes clear, however, when one reads on to paragraph 24.43 of the USSD Report, which is also quoted in the COI report. It is explained that "honour killings" of women and girls continued in 2010, mostly in the northern states of Haryana, Punjab, and Uttar Pradesh. Unofficial village councils issued edicts condemning couples for marrying outside their caste or religion and censured marriages. The text continues, "To enforce these decrees, family members threatened couples and killed spouses to protect the family's honour". (My emphasis) It can be understood from that passage that it is a central feature of honour killings that the perpetrators and victims are associated by family membership. Further, in my opinion, when we read in paragraph 24.42 that "in 88.9 percent of the cases, the perpetrators of the honour killing were the girl's family members", the implication is that, in the remaining 11.1 percent of the cases, the perpetrators are the husband's family members, not, as the petitioners contend, non-relatives. As I have already noted, the petitioners do not claim that they would be at risk from the second petitioner's family if they were to relocate in India.

[61] In summary, looking at all of the material on which the petitioners found in this application, in my view there is no prospect that an immigration judge, having regard to the material which is available, would hold it established that there is no place in India to which the first petitioner might be returned without fear of persecution.

[62] The question which then falls to be decided is whether it is unreasonable, in the sense that it would be unduly harsh, for the applicant to be expected to relocate internally within India. (Januzi per Lord Bingham, paragraph 21; Lord Hope, paragraph 45) The decision maker considered the question of internal location at paragraphs 74 to 86 of the refusal letter. He applied the "unduly harsh" test, and concluded as follows:

"87. ... it is noted that you are a fit and healthy educated adult who was able to earn a living in the UK by working in the farming industry (HO Records) and working in India as a shop worker. You can therefore reasonably be expected to continue to do the same on your return as these are considered transferable skills.

88. Furthermore, India is a large populous country with many substantial cities and towns. Other than a generalised risk of ill treatment, which in any event has not been found to be objectively well founded in your case, you have not adduced any credible evidence of hardships or adversities that prevent your relocation within India to the safe places outside your home area such as Mumbai located approximately 867 miles or Chennai located approximately 1328 miles from Delhi, respectively.

89. Whilst a person may face some practical difficulties in starting life at a new place and may have genuine concerns about the uncertainties involved therein, you have not provided any evidence to demonstrate your inability to lead a relatively normal life in other safe parts of your country judged by the standards that generally prevail in your country of nationality. As such, it is considered that it would ... not be unreasonable to expect you to relocate were you to encounter any localised problems on return to India."

[63] The petitioners do not challenge the decision maker's approach on the law, which he explains in the internal location paragraphs, or his reasoning or conclusions, other than by reference to the honour killings point, with which I have dealt above. In their pleadings, however, the petitioners point to the possibility of their being ostracised and discriminated against, and contend that that "would impact on the issue of internal relocation, for example their chances of gaining employment".

[64] In my opinion, there is no prospect that an immigration judge would hold, on the evidence available to the decision maker, that it would be unreasonable to expect the first petitioner to relocate in India. The content of the relevant test was considered by the Judicial Committee in Januzi. An issue which was common to all of the appeals before it was whether the quality of life in a place of relocation must meet the basic norms of civil, political and socio-economic rights before relocation there can be said to be reasonable, in the sense of not unduly harsh. In expressing agreement with Lord Bingham of Cornhill, with whom Lord Nicholls of Birkenhead, Lord Carsewell and Lord Mance also agreed, Lord Hope resolved that issue in these words:

"I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights." (Paragraph 45)

[65] Unsurprisingly, their Lordships determined the matter which they were called upon to decide by declaring what would not amount to an unduly harsh expectation. But they also expressed views in a positive sense - i.e. what would be necessary for an expectation that a claimant should relocate to be considered unduly harsh. In doing so, they noticed the terms of the UNHCR Guidelines on International Protection of 23 July 2003, paragraph 7 II(a), in which the reasonableness test is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there." The analysis is developed in the guidance under the heading "Respect for human rights" in this way:

"Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative." (See paragraph 20, per Lord Bingham)

[66] Lord Bingham regarded the guidelines as "helpful" as he did a passage in Storey, "The Internal Flight Alternative Test: The Jurisprudence Re-examined," (1998) 10 International Journal of Refugee Law, 499, which includes these words:

"Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny 'decent means of subsistence' that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically ..." (See paragraph 20, per Lord Bingham)

[67] In addressing the arguments advanced on behalf of a Sudanese appellant, Lord Hope said this:

"The almost total absence of civil, political and socio-economic rights which those in the camps experience is not in itself, for the reasons already given, a ground for holding that it would be unduly harsh for Mr Mohammed to move to a place of relocation in Khartoum. It is the risk to his most basic human rights that being required to live there would expose him that requires to be evaluated, ... " (Paragraph 59)

[68] As an example of the application of the "unduly harsh" test, as explained by the Judicial Committee, it is instructive to notice the disposal of Mr Januzi's appeal. On his behalf, it was submitted:

" ... that the evidence showed that conditions for the medical treatment that he would need in the place of relocation are below the standards for the provision of basic norms of civil, political and socio-economic rights that are regarded as acceptable internationally. His case is that it would be unduly harsh, in the context of an untreated severe psychological distress, for Mr Januzi to be required to live in a place where he has no family or friends or community ties, no independent means of subsistence and no prospect of gainful employment."

Notwithstanding that evidence, it was held that it would not be unduly harsh to expect Mr Januzi to relocate.

[69] In my opinion, there is no prospect that an immigration judge would hold that the conditions which the first petitioner would be likely to experience were he to relocate in India would be such that his fundamental human rights would not be respected or protected.

[70] Finally on the matter of internal relocation, the petitioners submit that the decision maker did not examine the impact of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2011] 1 AC 596, and they argue that they fall into the category identified there as persons who, if they were to return to India, would be denied "the right to live openly and freely without fear of persecution or alternatively living discreetly for fear of being persecuted". In HJ (Iran) and HT (Cameroon), the claimants were homosexual men who had arrived in the United Kingdom from Iran and Cameroon respectively and sought asylum. Each claimed that, by reason of his sexual orientation, he had a well-founded fear of persecution if he were returned to his country of nationality. The SSHD refused both claims. Both men appealed unsuccessfully to the Asylum and Immigration Tribunal, and then to the Court of Appeal, and successfully to the Supreme Court, where it was held that international protection was available where, as members of a particular social group defined by the shared characteristic of sexual orientation, the claimants would be denied their fundamental right to live openly and freely, in their home state, without fear of persecution, sponsored or condoned by that state. The court further held that, where a claimant could avoid persecution only by modifying his behaviour on return to his home country, but chose not to do so, he had a well-founded fear of persecution and, since persecution did not cease to be so because those fearing it could take avoiding action, a claimant who would live discreetly on return for the reason that he feared persecution would not lose the protection of the Convention. It is clear, in my view, that the starting point for the argument in HJ (Iran) is the proposition that each claimant had a well-founded fear of persecution in his home state which could be avoided only by his living discreetly. In the case before me, as I have explained, the first petitioner could return to India and live in a place where he would have no well-founded fear of persecution. The H J (Iran) decision is, therefore, of no assistance to the petitioners in this application.

Decision

[71] For the foregoing reasons, I am of the opinion that the petitioners have failed to make out a prima facie case for reduction of the SSHD's certification as clearly unfounded of the first petitioner's claim for asylum and for humanitarian protection. Consequently, the petitioners' application for interim suspension of the removal directions fails. Further, given that the petitioners' application for judicial review has been fully argued on both sides, that all of the relevant documentation has been presented to the court, and that there is no material dispute of a factual nature such as to prevent me from making a fully informed decision at this stage, I consider that I am entitled to, and should, finally determine the petitioners' application for judicial review. I shall, therefore, sustain the respondent's second plea-in-law, repel the petitioners' pleas-in law, and refuse the petition. I shall reserve all questions of expenses.

Comments on the form of the refusal letter

[72] The determination of a claim for asylum or humanitarian protection must be regarded as an important matter in the life of the claimant. He or she is entitled to expect that, as a matter of law, the decision maker will subject the claim to anxious scrutiny. (Bugdaycay v Secretary of State [1987] AC 514 at page 531, per Lord Bridge) In my view, a claimant is also entitled to expect that, as a matter of courtesy, the Secretary of State's decision is communicated to him or her in a form which is intelligible, and free from careless mistakes. In paragraph [42] of this opinion, I have commented on the form of certain of the conclusions in the refusal letter. It will be seen from my quotations from it that the letter was wanting in a number of other respects. Consequently, in my view, this refusal letter was not presented in a form such as the first petitioner was entitled to expect.