Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 56
P671/11	OPINION OF LADY CLARK OF CALTON in the Petition of FM Petitioner; for Judicial Review of decisions made by the Secretary of State for the Home Department dated 14 December 2010 and 21 April 2011 Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: Campbell Q.C.; Solicitor to the Advocate General

30 March 2012

Summary
[1] The petitioner is a national of Yemen who entered the UK on 21 October 2009. His claim for asylum was rejected. His right to appeal was exhausted on 30 March 2010. A summary of the history of proceedings is set out in paragraph 4 of the petition.

[2] Counsel for the petitioner in his oral submission narrowed the scope of the petition. He sought reduction of the decision of the respondent dated 21 April 2011 (6/2 of process).

Submissions on behalf of the Petitioner
[3] Counsel made reference to the following cases: WM (DRC) v Secretary of State for The Home Department (2007) IM MAR 337; KH (Article 15(c) Qualification directive) Iraq CG (2008) UKAIT00023; Elgafaji v Staatssecretaris van Justitie (2009) 1WLR 2100; QD (Iraq) v Secretary of State for the Home Department (2011) 1WLR 689; GS (Article 15(c) indiscriminate violence) Afghanistan CG (2009) UKAIT00044; HM and Others (Article 15(c)) Iraq CG 2010 UKUTR331 (IAC); HM (Iraq) and Another v Secretary of State for The Home Department []2011] EWCA civ 1536..

[4] Counsel submitted that the petitioner's claim under paragraph 353 of the Immigration Rules is based in this case on Article 2(e) of Council Directive 2004/83/EC dated 29 April 2004 ("the Directive") (6/1 of process). Article 2(e) of the Directive provides:

"<<person eligible for subsidiary protection>> means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country."

[5] Counsel submitted that there was fresh evidence that the petitioner was a person who qualified for "subsidiary protection" often referred to as humanitarian protection in terms of the Directive because of the outbreak of internal armed conflict in Yemen in early 2011 and its effect.

[6] Counsel submitted that the respondent had been sent a substantial amount of information about the outbreak of armed conflict in Yemen, compiled from various sources, and relating to the conditions of violence in Yemen from January 2011 to early April 2011. That information is contained in 6/9 of process and was sent with a letter from the petitioner's solicitor dated 8 April 2011 (6/8 of process).

[7] The respondent, by letter dated 21 April 2011, refused the application on behalf of the petitioner under paragraph 353 of the Immigration Rules. Counsel submitted that the respondent had erred in concluding at paragraph 46 of 6/2 of process that:

"For the reasons given above, taking into account the applicable case law and relevant objective evidence as applied to your client's particular circumstances, it is not accepted that there is a realistic prospect of another immigration judge, applying the rule of anxious scrutiny, concluding that any of the evidence you have submitted regarding the current situation in Yemen would come to a different conclusion than that reached previously on 12 January 2010 that:

'the appellant does not qualify for either humanitarian protection or refugee status. There is no reason why the appellant cannot return to the Yemen in safety'".

[8] Counsel submitted, under reference to WM (DRC), that there was no dispute in this case about the correct approach to be applied in paragraph 353 cases. He submitted that in attempting to apply the correct approach in this case based on the Directive, the respondent wrongly applied the law and, having considered the documents provided on behalf of the petitioner, wrongly concluded that there is no realistic prospect of success before another immigration judge.

Submissions on behalf of the Respondent
[9] Counsel for the respondent invited me to sustain the second and third plea for the respondents and refuse the order of reduction sought by the petitioner. I was invited to repel the first plea-in-law for the respondent which was not insisted upon.

[10] Counsel for the respondent accepted the principles to be applied in the case under reference to WM(DRC). He submitted that the terms of Article 2(e) of the Directive required to be interpreted under reference to Article 15. His main submission was that the respondent had properly interpreted and applied the relevant law to the facts of the case.

[11] Counsel submitted that as there was no Country Guidance information, the respondent required to apply the law and to take account of the material which had been placed before her about the circumstances in the relevant period from January to April 2011 in the Yemen.

[12] Counsel accepted that the information provided by the petitioner disclosed severe violence but submitted that the violence was not such as to fall within the scope of the Directive. Reference was made to Elgafaji paragraphs 31-40 and QD (Iraq) page 695, paragraph 19. Sedley LJ at paragraph 19 stated:

"Article 15(c), both on its own and even more so when married with article 2(e), is highly problematical - in large part, we are bound to say, because of poor drafting. Three particular sticking points are readily perceptible: (1) the ostensibly cumulative but logically intractable test of 'a real risk' of a 'threat'; (2) the contradictory postulation of an 'individual threat' to life or safety from 'indiscriminate violence'; (3) the requirement of 'armed conflict' when there may well be only one source of indiscriminate violence. The first of these has to be coped with pragmatically. The second has now been resolved in principle by the Court of Justice of the European Communities. The third, albeit troubling, is the subject of agreement before us."

[13] Counsel also submitted that the violence referred to in the material submitted to the respondent is not to be regarded as indiscriminate in the sense envisaged by the Directive. The information disclosed that the violence was targeted at particular places and particular groups.

[14] Counsel submitted that the conclusions which the respondent reached at paragraphs 38, 45 and 46 are conclusions which she was entitled to reach. The respondent correctly applied the legal principles from Elgafaji and QD (Iraq) to the material presented to her.

[15] In conclusion, counsel accepted that HM (Iraq) and Another had been overruled and that the respondent was not entitled to rely on that case as she had done. Nevertheless, he submitted that case HM (Iraq) and Another had not taken the law in any different directions from the principles expressed in Elgafaji and QD (Iraq) on which the respondent had relied. Counsel submitted that the respondent had not therefore taken into account or applied the wrong legal principles.

The reported information about the situation in the Yemen (6/9 of process)
[16] There was reported information supplied by the petitioner about the conditions in Yemen from January to March 2011 from a variety of sources. A large number of documents contained in 6/9 of process were supplied to the respondent. The documents to which specific reference was made by the respondent are contained in the schedule, 6/10 of process. In paragraphs 30-35 the respondent sets out some references to reports albeit not in any order of date. I have considered these references in context with all the information in 6/9 of process. In order to give more context to the reported information, I set out below some of the information which predated the Guardian summary of 5 April 2011 cited in para. 30 by the respondent.

[17] It should be noted that according to the reports, the situation in Yemen which developed over the weeks from January 2011, took place against a background of a humanitarian crisis, which pre-dated the Government violence which was reported from January 2011. The Under Secretary General for Humanitarian Affairs and Emergency Relief Co-ordinator at the UN referred to the humanitarian crisis due to protracted conflict in the north displacing 300,000 people, some of them multiple times. She was also reported as stating "the recent fighting has again affected hundreds of people that have not recovered from earlier conflict". The violence took place in a country facing acute water and food shortages with the humanitarian agencies having difficulty reaching those in need due to insecurity in the country. That situation was reported on 28 March 2011 (6/10 of process, 1.7) but it is plain from the information that situation predated January 2011.

[18] The report from Amnesty International dated 26 February 2011 (6/9 of process) described reports that security forces in Yemen refused to allow residents to take the injured to hospital after central security forces fired on anti-Government protestors and by-standers when at least 11 people were killed. Security forces were accused of firing on protestors from armoured vehicles, as well as attacking houses where protestors were believed to have been seeking shelter. There were reports demanding that "the authorities must launch a prompt and independent investigation into killings of protestors and by-standers in Yemen and reports of denial of access to medical assistance". The underlining is mine.

[19] An Amnesty International Report dated 14 March 2011 described violence erupting in Sanaa early on Saturday morning when police attacked praying protestors with live bullets, batons and tear gas. The report described that at least 20 people were shot, while "thugs" affiliated to the security forces temporarily stopped ambulances from entering the protest camp, with one vehicle destroyed.

[20] The information given to the respondent included reports of Government forces attacking citizens in many of the cities. An example from a report, bearing to be from the BBC News Middle East, dated 18 March 2011 (6/10 of process, 2.4) said in effect that unidentified gunmen firing on an anti-Government rally in the Yemeni capital, Sanaa have killed at least 45 people and injured 270, doctors told the BBC. The gunmen fired from rooftops overlooking the central square in what the opposition called a massacre. ... According to a statement from the field hospital, a total of 617 people were injured on Friday, 270 with gunshot wounds and 347 "poisoned by gas". Tear gas was fired by security forces during the day. Many of the wounded were described as in critical condition. The injuries were described as mostly in the head and chest but there are also injuries all over the body. A spokesperson stated "we have cases targeted randomly and others were clearly shot to be killed. Most of those killed were shot in the head and chest. It was further reported that the President has said he will not seek another term in office in 2013 but has vowed to defend his regime "with every drop of blood".

[21] According to the Human Rights Watch Report, 23 March 2011, (6/10, 1.5) it has been documented

"The repeated use of unlawful and excessive force by security forces against protestors, including live ammunition. Security forces also have assisted or failed to stop pro-Government gangs, have shot peaceful protestors or attacked them with knives, sticks, and rocks. The attacks have killed dozens of protesters and wounded several hundred others."

[22] The respondent accepts that journalists and lawyers were targeted by the Government according to the reported information. The inference to be drawn is that there were Government efforts to suppress information about what was happening in the Yemen. The mere absence of reported violence in a particular location on a particular date does not in my opinion entitle an inference that the place was "safe". The mere fact that on some occasions and in some places citizens gathered together in the streets in peaceful protest and the Government forces and/or their supporters were not reported as responding with extreme violence does not in my opinion entitle the respondent to draw an inference that these places were safe. It appears from the reports that the nature and violence of the response by the Government and supporters were entirely unpredictable and random. It does not appear that there was any positive information before the respondent that there were any parts of the country which were for some reasons, safe and secure places in which Government troops would not choose to use extreme violence to citizens. In such circumstances anxious scrutiny is plainly required.

Discussion
[23] In WM(DRC) Lord Justice Buxton set out in paragraphs 6-12 the respective tasks of the Secretary of State and the court. He accepted that the decision of the Secretary of State was challengeable only on "Wednesbury" grounds but emphasised in paragraph 10 that a decision will be irrational if it is not taken on the basis of anxious scrutiny. It was not in dispute that the test for the petitioner to overcome is a low threshold test. I consider that the reference to persecution in the test as expressed by Lord Buxton has to be adapted in the context of the present case to focus on Article 2(e) of the Directive.

[24] I have set out the terms of Article (2)(e) of the Directive in paragraph 4. It was accepted by the parties in this case that Article 17(4) has no application. Article 15 provides a definition of "serious harm" which is important:

"serious harm consists of:

....

(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict".

[25] It was not submitted by either party that the case was concerned with international conflict. I consider therefore that the task of the respondent is to consider whether the new material, taken together with the material previously considered, creates a realistic prospect of success in an application before an adjudicator. Certainty is not required. Anxious scrutiny of the material is required.

[26] In paragraph 19 of the decision of 21 April 2011, the respondent sets out correctly the definition of "serious harm" contained in Article 15 of the Directive.

[27] In paragraph 20, the respondent makes reference to a number of cases in which Article 15 has been interpreted. One of the cases is KH (Iraq). Counsel for both parties agreed that this case could not be relied on as the case had subsequently been overruled. It was not clear to what extent, if any, the respondent was influenced in her approach by KH (Iraq).

[28] The respondent deals with the case in the absence of any country guidance case law authority and considers the facts on the basis of the information put forward on behalf of the petitioner. She seeks to assess in that context Article 2(e) of the Directive applying the relevant definition of "serious harm" contained in Article 15 of the Directive. In my opinion in attempting to apply the case law cited, particularly the guidance from the case of Elgafaji, the respondent fell into error.

[29] In paragraph 30, the respondent states the law in this way: "whether there exists in Yemen indiscriminate violence in the situation of international or internal conflict". In paragraph 35 having referred to some of the articles in 6/9 of process relating to the killing of the civilian population by armed Government forces, the respondent concludes that:

"although the evidence referred to above confirms that the Yemen government has responded to anti-regime process through the use of violence, it is not considered that the situation amounts to one of internal or international conflict, or (my underlining) that the level of violence is sufficient to engage the established threshold of 'exceptionally high'".

The respondent gives no reason for these conclusions except a reference to the number of people killed and injured according to one report. The respondent then continues:

"that it is noted that the security forces have engaged in using live ammunition at demonstrations, specifically targeting activists, lawyers and journalists in Sana'a. Therefore, (my underlining) the violence in Yemen, occurring at demonstrations and protest camps and targeted at those participating, is not considered to be indiscriminate".

[30] I note that the definition set out by the respondent in paragraphs 30 and 35 omits reference to the wording of Article 15 which refers to "internal armed conflict". If there is no internal armed conflict, the issue of Article 2(e) protection does not arise. The respondent in paragraphs 30 or 35 of 6/2 of process does not set out the correct legal test. In my opinion, the correct legal approach requires consideration of the threat to the petitioner in the situation of internal armed conflict and not an assessment merely of the level of violence.

[31] The respondent, in referring to the case of Elgafaji does not appear to recognise that the case is assisting with the interpretation of Article 15(c) in relation only to the first part of the criteria set out in Article 15(c). That case assists with the interpretation of the words "serious and individual threat to a civilian's life or person by reason of indiscriminate violence". It does not assist with the interpretation of what might amount to "situations of international or internal armed conflict". There may be situations in which there is international or internal armed conflict but nevertheless there may be no serious and individual threat to a civilian's life or person by reason of indiscriminate violence in that situation. The converse of that, is that in considering the threat to a civilian's life or person and the indiscriminate nature thereof, the context is the situation "of international or internal armed conflict". I consider that to be a crucial part of the test and refer to paragraph 34 of Elgafaji.

[32] I confess some difficulty in understanding the reasoning of the respondent. The respondent concluded that "it is not considered that the situation amounts to one of internal or international conflict" (paragraph 35). This conclusion may be because she has conflated the assessment of the level of violence and the threat to the individual along with her consideration as to whether or not there is internal armed conflict. The underlining is mine. Whatever the reasons I consider that it may be that the respondent has misunderstood the autonomous meaning of situations of international or internal armed conflict as explained by Sedley LJ in QD (Iraq) in paragraphs 34-37. It is perverse for the respondent to conclude that the situation disclosed in the information presented to the respondent is not capable of being considered as one of internal armed conflict. In my opinion, the serious and individual threat to life or person by reason of indiscriminate violence has to be assessed not separately or alternatively, as the respondent has done, but in the context of internal armed conflict. The respondent has not done this and in my opinion has erred in law both in her statement of the test to be applied and in reaching what I consider to be a perverse conclusion in relation to internal armed conflict on the material before her. For these reasons alone I consider the petitioner should succeed.

[33] I also have some difficulties with the reasoning to the effect that the respondent considered that the violence was not considered to be indiscriminate. Examples of what is considered to be indiscriminate violence of the type envisaged by the Directive is given by Sedley LJ in QD (Iraq) v Home Secretary, paragraph 27. He states:

"It is possible to devise a theoretical situation in which people can be said to face a risk of a threat (the possibility that a quiescent militia will re-emerge; a rumour that the local wells have been poisoned) but it is not thinkable that the directive seeks to cover such remote and not truly dangerous situations rather than the real risk and real threats presented by the kind of endemic act of indiscriminate violence - the placing of car bombs in market places; snipers firing methodically at people in the streets - which have come to disfigure the modern world".

[34] In paragraph 35 the respondent concluded that because "activists" were specifically targeted, the attacks were not indiscriminate. These "activists" referred to by the respondent are unarmed civilians (according to the documentary information put before the respondent). Even if "the activists" were all engaged in peaceful protest they are civilians and civilian bystanders (as referred to in at least one document in 6/9 of process). I do not consider that the shooting and violence by Government forces and their supporters somehow becomes "discriminate" because the violence is directed randomly at non-combatants who are unarmed peaceful citizens in the streets. It is plain from the documents provided to the respondent that during the weeks leading up to March 2011 there were unpredictable peaceful civilian demonstrations in unpredictable parts of the country with unpredictable responses by Government forces which included firing by Government troops into the civilian crowds at random, killing and maiming thousands of people in the space of some 8 weeks.

[35] The situation considered by the respondent was based on information relating to the weeks prior to April 2011. The situation may now be very different from that disclosed in the information put before the respondent. I must consider the issues on the basis of the information available to the respondent at the time of the decision. That is what I have done. I merely comment that the factual situation may now be very different.

[36] For the reasons given above, I grant the prayer of the petition and grant reduction of the decision of the respondent dated 21 April 2011. I reserve all question of expenses.