Scottish Court of Session Decisions

Pursuer: Caskie, Advocate; Drummond Miller LLP

Defender: Webster, Advocate; Office of the Advocate General for Scotland

27 April 2012

Background

[1] The petitioner is a citizen of India who first came to the UK on 13 February 2007, remaining until March 2008 when she returned to India. She came back to the UK in September 2008 remaining until January 2009 when she again returned briefly to India before coming back to the UK in February 2009. She claimed asylum on 9 September 2009 and that claim was refused on 28 January 2010, the refusal being certified in terms of section 94 of the Nationality Immigration & Asylum Act 2002. The basis of that claim was that, were she to return to India, she would be persecuted by her brother-in-law in consequence of her marriage to his brother. She was at risk of violence from the brother-in-law who was said to have contacts in the police in New Delhi, of which details were not given, with the result that it was claimed that internal relocation was not a viable possibility. That claim was refused on the basis that she had exhibited no real risk of persecution for a convention reason. It was noted that the problems involved were confined to the New Delhi area and it was thought that she would be able to relocate. There was no evidence to suggest that her husband's family were high profile individuals or had the means and resources to find her elsewhere in one of the largest countries in the world. It was noted that she was a female educated to degree level with transferable skills to allow her to find employment.

[2] Following this, her solicitors advanced further submissions in a letter of 8 February 2011 asking for the claim to be reconsidered under rule 353. The submissions contained: (a) information designed to confirm that she was at risk from her brother-in-law; and (b) information relating to an article 8 claim, particularly with regard to her two children, one of whom was born in the UK. An issue about the petitioner's health was not pursued further. The Secretary of State declined to treat these submissions as a fresh claim and refused the application. Although other matters are raised in the petition, the argument before me was solely directed to that decision. The argument was directed towards the treatment by the Secretary of State of two issues (a) sufficiency of protection available from the authorities in India and (b) the best interests of the children.

[3] Reference was made in argument to the following case, L A Petitioner [2010] CSOH 83; J S Petitioner [2010] CSOH 75; Jaswinder Singh v Secretary of State for the Home Department 1996 SC 375; Skenderaj v Secretary of State for the Home Department [2002] EWCA Civ 567; Kinuthia v Secretary of State for the Home Department [2001] EWCA Civ 2100; Z H (Tanzania) [2011] 2AC 166; Tinizary v Secretary of State for the Home Department [2011] EWHC 1850; Mansoor v Secretary of State for the Home Department [2011] EWHC 832; F O v Secretary of State for the Home Department 2010 SLT 107; Dangol v Secretary of State for the Home Department 2011 SC 560; R (Iran) and others v Secretary of State for the Home Department [2005] Imm A R 535; Razgar [2003] EWCA Civ 840; Huang [2007] 2AC 167; M E Petitioner [2012] CSOH 20; A M v Secretary of State for the Home Department [2012] CSOH 24; and H S v Secretary of State for the Home Department 2011 SC 324.

Submissions for petitioner
[4] Counsel were agreed that the appropriate test was the Wednesbury test and the issue was whether there would be more than a fanciful prospect of success that an immigration judge, applying the rule of anxious scrutiny would find in favour of the applicant. It was argued that the Secretary of State had failed to have regard to relevant matters and had provided inadequate reasons for her decision.

[5] In relation to sufficiency of protection, Counsel submitted that the issue was not only whether the police could protect the petitioner in New Delhi but whether they would be able to provide protection elsewhere in India if she were located by her brother-in-law. The Secretary of State did not examine whether the admitted corruption in the Indian police was sufficiently widespread as to undermine the system, thus she failed adequately to consider this matter. She also ignored material in the COIR relating to demoralisation and corruption within the police which undermined the suggestion that the petitioner could look to the police for protection. In raising the possibility that protection could be sought from the NHRC she failed to acknowledge the weaknesses of the NHRC, who have no inherent power to commence an investigation.

[6] As to the best interests of the child considerable emphasis was placed on the dicta in paragraphs 33, 44 and 46 of Z H (Tanzania) that there is a primary obligation on an immigration or asylum adjudicator to consider the best interests of any children involved. The decision letter referred to Z H (Tanzania) and noted that the children had not spent their formative years in the UK and could reasonably be expected to adapt to life in India. It observed that the interests of the children are "only a primary consideration not the only one" and noted that "whilst it could be said that it is in their best interests to remain in the UK for education and to enjoy the lifestyle that they have enjoyed here these are not factors of such weight as to render removal disproportionate". The letter suggested that it had not been in the best interests of the children for the mother repeatedly to decline voluntary removal. Counsel submitted that a fair reading of these passages indicated that the Secretary of State had not reached a conclusion as to how the best interests of the children would be served. She required to do so, and to state what factors outweigh those interests and why. The mother's refusal of voluntary repatriation was not a relevant issue in considering the best interests of the children.

[7] Counsel accepted that if, contrary to his submission, this paragraph should be read as indicating a view by the Secretary of State that the best interests of the children would be served by their remaining in the United Kingdom, but that other factors existed which outweighed those interests it would undermine a significant element of the petition.

[8] Information placed before the Secretary of State by the petitioner in relation to the ages of the children appears in some respect to have been inaccurate. In such a situation, the case of Tinizary suggests that there was an obligation on the Secretary of State to make enquiries about the circumstances of the children and at least to ascertain whether they were on the at risk register. There was more than a fanciful prospect that an immigration judge would conclude favourably for the petitioner on both the article 8 claim and the issue of adequate protection.

Submissions for the respondent
[9] Counsel for the respondent submitted that the court had to accord to the respondent a margin of reasonable decision making on the issue before her, namely whether there was a realistic prospect of success before an immigration judge. The court might come to a different view but that does not make the Secretary of State's view erroneous. The court should not substitute its view for that of the Secretary of State. The decision of the Secretary of State was adequately explained and proper consideration was given to the issue which she required to address. She accepted the proposition that the police force in India is systemically corrupt and it was not necessary for her to set forth at length the evidential material on which such a conclusion was based. The question which then required to be considered was whether the petitioner would be at risk anywhere in India. The Secretary of State did not accept that the brother-in-law could use his influence in the New Delhi police to trace her elsewhere in India. The federalisation and division of the police force within India was discussed and is relevant to that consideration. Reasons were given for the conclusion that internal relocation would be effective and sources of protection were identified: not only the police but the Human Rights Commission. The Secretary of State must have regard not only to the fresh representations but to what has gone before. This is not a lawless state: it may not be perfect, corruption may be endemic but it does not mean that one person's local influence can be turned into an ability to trace the petitioner across India.

[10] So far as the children are concerned, at the time of the Secretary of State's decision the children were 6 and 1. The youngest was born here and the eldest has only spent two years in the UK from the age of 4 to 6. Proper immigration control is a weighty consideration and the Secretary of State was entitled to take it into consideration under reference to Razgar and Huang. The length of time spent in the country and the mother's precarious immigration position were also relevant. The Secretary of State has identified what was in the best interests of the children, has identified other factors weighing against and has come to a perfectly reasoned conclusion on proportionality. The best interests is only a primary consideration; it is not the only one and can be overcome by other factors including immigration control.

[11] The reasoning of the Secretary of State was almost identical to the reasoning which was attacked, on similar grounds, in M E [2012] CSOH 20. The Lord Ordinary rejected these arguments, saying:

"In my opinion that passage represents an entirely proper attempt to balance the two competing considerations: the need to maintain fair and effective immigration control and the desire of the petitioner to continue with her children's education in Scotland. As ZH, properly interpreted, makes clear, the rights of a child are not an overriding factor, but are merely a factor that must be treated as a primary consideration. That is precisely what is done in the Secretary of State's decision letter: paragraph 33, in the passage quoted above, contains a clear statement of the balancing exercise that has been carried out, and in my view there can be no doubt that it is precisely the balancing exercise that is required by law".

[12] In so far as Tinizary suggested that the Secretary of State required to make independent investigations of what is in the best interests of a child, it was incorrect. There is nothing in ZH to suggest that investigative action by the Secretary of State is necessary.

Discussion and decision
[13] In my view there is no merit in this petition. On the first matter the only additional material placed before the Secretary of State related to the issue of whether the brother-in-law presented a threat to the petitioner. There was no new information suggestion that his reach went beyond New Delhi or could affect the petitioner elsewhere in India. The corruption which is relied on as placing her at risk elsewhere is not the endemic corruption of the Indian police but the specific influence which the brother-in-law is said to be able to exert over certain police officers in New Delhi. In the context of non-unified federalised police forces and in the absence of a suggestion that the husband's family had either significant influence in the country as a whole or substantial resources, it does not seem reasonable to translate the potential influence of the brother-in-law in New Delhi to a trans-Indian influence putting the petitioner at risk anywhere in the sub-continent. The position is quite different from that in Singh where the petitioner was a member of a persecuted group and where there was central government involvement in the persecution. The decision of the Secretary of State on this issue cannot be faulted.

[14] Equally, the decision on article 8 was entirely reasonable. The decision letter makes it clear that the best interests of the children were considered and were thought to lie with remaining in the UK. However, the Secretary of State identified other relevant considerations which included: the length of time spent in this country; the lack of connection with the country; the mother's precarious immigration position and the need for effective immigration control. Having considered these matters she was entitled to conclude that they outweighed the interests of the children. The refusal to countenance voluntary repatriation was relevant to the issue of proportionality and although the wording of the letter might have been more clear, I consider it a fair reading to conclude that it was in such a context that this issue was considered. As to the Tinizary point, I do not accept that it is a consequence of the decision in ZH that the Secretary of State must as a matter of course make independent investigations as to the position and interests of minor children in all cases. Of course cases will exist where it is apparent on the face of the material that the children's interests may not be given sufficient attention by the parent or parents or where the interests of the children may diverge from those of the parents and the Secretary of State must be alert to such possibilities, and may in such a case require to make independent inquiries. However, there was no basis for such a suggestion in this case. I do not think that the decision of the Secretary of State can be impugned and I will refuse the prayer of the petition.