Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 31
P1189/12	OPINION OF LORD BANNATYNE in the petition of D.E.F. Petitioner; For Judicial Review of decisions of the Secretary of State for the Home Department to refuse the petitioner's further submissions as a fresh claim and answers for THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent; ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: MacIver; Office of the Solicitor to the Advocate General

22 February 2013

Introduction

[1] The petitioner is a citizen of Sierra Leone. He claimed asylum on 18 September 2010. His asylum claim was refused and the decision was certified on the basis that the respondent considered it to be clearly unfounded in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002 (decision letter of 8 October 2010 - 6/5 of process).

Background to the petitioner's asylum claim

[2] The petitioner was born and brought up in Sierra Leone. He was adopted as a 5 year old, he was educated and had a degree in Science. He maintained links with his natural parents. He became a school teacher and assistant outreach coordinator at a church. He is deeply committed to his Christian faith. His father was the leader of the local branch of the Poro. The Poro is a secret society in Sierra Leone. Following his father's death the appellant was required to take over as the leader of that branch in his original village but declined to do so. He was due to attend a ceremony one month after his father's death. He went to his father's village the night before that ceremony and whilst there discovered a plan to kidnap him and put him through an initiation ceremony, which ceremonies frequently involve circumcision and scarification. The petitioner fled. Three days later when he returned home from work he was advised by neighbours that people from his father's village had come to his home looking for him. He fled again, this time to a friend's house. He was unable to return to his work. The petitioner at that time was to attend a conference on behalf of his church. He required to transit within the United Kingdom in order to get to this conference which was to be held in Barbados. When he entered the United Kingdom he claimed asylum.

The submission of the fresh claim

[3] Further submissions on behalf of the petitioner were made in terms of immigration rule 353 as detailed in 6/1 and 6/3 of process. The material, which was said to be fresh material, submitted by the petitioner was first objective evidence relative to the operation of the Poro in Sierra Leone and second a medical report from a psychiatrist, Dr Sam relative to the petitioner's mental health.

[4] The said applications in terms of Immigration Rule 353 were refused by the respondent in decision letters dated 26 January 2012 and 5 March 2012 which are respectively 6/2 and 6/4 of process. It was these two decisions which the petitioner sought to have reduced.

[5] In brief the respondent rejected the further submissions and held that that there was no realistic prospect of an immigration judge finding (i) the petitioner had a well-founded fear of persecution; (ii) that there was other than a sufficiency of protection; (iii) that there was a breach of articles 2 or 3 or 8 of the Convention arising from the petitioner's mental health.

The legal context

[6] The context of the arguments upon which I was addressed related to Immigration Rule 353 which is in the following terms:

"When a human rights or asylum claim has been refused ... and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[7] The petitioner only sought reduction of the two decisions which dealt with the claim in terms of Immigration Rule 353 as parties were agreed that for practical purposes the respondent's decision on certification was not relevant in that the immigration rule provided a marginally more stringent test than would be applied by this court for a challenge to certification. It was not in dispute that when considering the test of "clearly unfounded" (section 94(2)) and "no realistic prospect of success" (rule 353) their meaning was as set out by Lord Justice Laws in AK (Sri Lanka) v The Secretary of State for the Home Department [2009] EWCA Civ 447 who having in detail considered the opinions of their Lordships in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 said this at paragraph 34:

"I do not consider, with great deference, that the reasoning in ZT (Kosovo) is of great assistance in setting the bar, as it were, for the impact of the "realistic prospect of success" test in Rule 353. For what it is worth I should have thought that there is a difference, but a very narrow one, between the two tests: so narrow that its practical significance is invisible. A case which is clearly unfounded is one with [no] prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with [no more than a fanciful] prospect of success. "Realistic prospect of success" means only more than a fanciful such prospect. Miss Giovanetti accepted this interpretation."

In light of the foregoing it was accepted on behalf of the respondent that if the two decision letters regarding the rule 353 applications were reduced the practical effect would be that the respondent would reconsider the issue of the certification. In addition counsel for the respondent accepted having regard to the above observations that the hurdle which the petitioner required to meet was a modest one.

[8] Turning to the issue of the role of the decision maker in a 353 case this was accepted by both parties as being as follows: the question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an Immigration Judge applying the rule of anxious scrutiny, thinking that the applicant would be exposed to a real risk of persecution on return, see WM (DRC) v SSHD [2006] ECWA Civ 1495 paragraph 11 per Buxton LJ.

[9] Lastly turning to the approach which should be adopted by the court when considering rule 353 both counsel accepted that the test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test, all as fully explained by Lord Hodge in R v Secretary of State for the Home Department 2011 SLT 970 at pages 973/974, paragraphs 18 and 19 where he observes:

"When I recently considered rule 353 in TN v Secretary of State for the Home Department the parties were in agreement that the appropriate test to be applied was that which Carnwath LJ adopted in R (on the application of HY) (Iraq) v Secretary of State for the Home Department, which drew on the decision of the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department. It is now the Secretary of State's position that the judge should not himself decide whether there is a realistic prospect of success but he should apply the Wednesbury test to the Secretary of State's decision. Since I heard this debate an Extra Division in D v Secretary of State for the Home Department has reaffirmed that in Scotland the decision of the Inner House in O v Secretary of State for the Home Department, remains binding on judges of the Outer House. Accordingly, the court does not itself answer the question whether there is a realistic prospect of success in an appeal before an immigration judge but asks whether the Secretary of State was unreasonable in reaching the view that there was not.

[19] Having regard to the forensic character of the judgment which the Secretary of State must make and the low level of the hurdle that the applicant has to surmount, it is difficult to foresee circumstances in which the court would consider that there was more than a fanciful prospect but nonetheless hold that the Secretary of State could reasonably reach the opposite view. Thus in practice the question, however posed, is likely to lead to the same answer. But the requirement that there be a finding of Wednesbury unreasonableness, or that another ground of review be made out, may better serve to keep the courts consideration of rule 353 within conceptual structure of judicial review."

Submissions on behalf of the petitioner

[10] The submissions on behalf of the petitioner broke down into three detailed grounds of challenge of the respondent's decisions.

[11] In terms of the first line of argument it was contended that the decision maker's refusal to hold that the petitioner's fear of violence did not give rise to a well-founded fear of persecution was irrational. The petitioner's argument can be summarised as follows: the respondent at no point in any of the refusal letters sought to challenge the petitioner's credibility and reliability. In these circumstances it was unsustainable, given the petitioner's history as to what had happened to him in Sierra Leone when taken in the context of the objective evidence, that there was no more than a fanciful prospect of an immigration judge finding in the petitioner's favour on this issue.

[12] The second challenge to the respondent's decision related to the issue of sufficiency of protection. Counsel conceded that as a generality there was a sufficiency of protection for citizens of Sierra Leone through the actions of the police. However he submitted that there were two factors to which the respondent had failed to have regard when considering the issue of sufficiency of protection and holding that in the petitioner's case there was a sufficiency of protection:

(a) The petitioner had already crossed the Poro and the members of the society were out to get the petitioner.

(b) The objective evidence regarding the Poro which showed inter alia that the Poro was a nationwide organisation in Sierra Leone, which can mobilise throughout Sierra Leone, which is politically well connected and is able to act with impunity.

The Poro was in his submission unlike other antisocial elements within Sierra Leone and was not subject to the control of the police.

[13] It was counsel's position that the respondent when considering the objective evidence on the issue of sufficiency of protection had only had regard to two passages in the various pieces of objective evidence, neither of which he contended was to the effect that the police would take action as regards Poro activities. She had disregarded the rest of the objective evidence regarding the Poro and its ability to act with impunity.

[14] Again it was submitted that it was not sustainable looking to the whole of the objective evidence that there was no more than a fanciful prospect of an immigration judge finding in the petitioner's favour on this issue.

[15] Counsel's third argument was founded upon the petitioner's mental health.

[16] At the outset counsel abandoned that part of his argument as set forth in the petition which was founded upon a lack of medical facilities within Sierra Leone and the engaging of article 3 in that context. He conceded that the cases referred to by the respondent in the decision letters in relation to this aspect of the case including in particular N v The Secretary of State for the Home Department [2005] UKHL 31 were relevant and the high test set forth therein could not be met by the petitioner and thus he was not in a position to challenge the respondent's decision on this aspect of the case.

[17] However, he insisted on the argument as foreshadowed in paragraph 35 of the petition. This argument was based on the contention that, in light of the views of Dr Sam, as to the effect on the petitioner's mental health of the news of his removal there would be a breach of his article 3 rights in the domestic rather than in the foreign context (ie in the UK rather than Sierra Leone).

[18] In terms of this argument counsel contended that in relation to this matter the respondent's reliance on N v Secretary of State for the Home Department and the other cases referred to in the decision letters was misplaced as this case and the others were what he described as foreign cases ie they considered breach in terms of the receiving country. What his argument was based on was the effect on the petitioner's mental condition in this country on his being informed of his removal. It was his position under reference to KBO v Secretary of State for the Home Department [2009] CSIH 30 that in domestic cases the test was less stringent. Thus he contended in that the respondent had relied on the case of N and not taken account of KBO she had applied the wrong test and acted irrationally. It could not be said looking to the evidence of Dr Sam that there was no more than a fanciful prospect of an immigration judge accepting Dr Sam's evidence, particularly where it was unlikely that the respondent would produce any counter evidence. It could not be said that there was no more than a fanciful prospect of an immigration judge holding an article 3 breach established on the basis of this independent medical evidence.

[19] For the foregoing reasons he sought reduction of the decision letters.

Reply for the respondent

[20] Counsel's answer to the first leg of the petitioner's submissions was this: he took the court through each of the sections of the objective evidence which were quoted within the petition and submitted that each of the passages did not relate to the circumstances of the petitioner or to circumstances which were even akin to the petitioner and accordingly did not support the petitioner's position that he was at risk of harm from the Poro. In summary it was his position that on the objective evidence the petitioner did not fall into an identifiable group likely to be targeted by the Poro.

[21] Moreover it was his position that looking to the objective evidence as a whole the activities of the Poro were in reality confined to rural areas and thus the petitioner would not be effected by their activities as he was from Freetown, an urban centre.

[22] He submitted that having regard to the foregoing the respondent's conclusion that no immigration judge could hold on this evidence that the petitioner was at risk of harm was a reasonable one.

[23] With respect to the second line of argument on sufficiency of protection he pointed to the two quoted passages at paragraph 19 of 6/2 of process on which the respondent had relied, namely:

"An assessment has been made as to the protection available to you in Sierra Leone. The available country information states:

The Human Rights Watch World Report 2009, published 14 January 2009, stated

'On several occasions police were accused of using excessive force against the media and alleged criminals, or while executing a court order. There were also persistent reports of bribe-taking, extortion at checkpoints, and requiring victims of crimes to pay the police to file reports or conduct investigations. However, the police were notably professional and non-partisan during episodes of ethnic and politically-motivated violence and in their response to serious crimes...Police leadership is also increasingly more willing to investigate, discipline and dismiss officers engaging in unprofessional or corrupt practices. In June [2008], 94 police officers were fired after having been found guilty of professional misconduct.'

The US State Department Country Report on Human Rights Practices 2008, published 25 February 2009, stated:

'There were fewer cases of police brutality during the year [2008], but police corruption was a serious problem, in part exacerbated by low salaries. There were continued reports that police officers took bribes at checkpoints, falsely charged motorists with violations, and impounded vehicles to extort money. Police also accepted bribes from criminal suspects in exchange for dropping charges or having their rivals arrested and charged with crimes. Police were frequently not present or chose not to intervene when crowds beat alleged thieves. There were numerous instances in which police refused to make arrests when warranted, or arrested persons without charge for civil causes, such as alleged breach of contract or failure to satisfy debt, in exchange for kickbacks.'

The same USSD report continued:

'According to the Justice Sector Department Program, impunity was less of a problem than in the past, and there were several mechanisms available to investigate police abuses. The Police Complaints Commission and the Complaints, Discipline and Internal Investigations Department (CDIID) heard complaints against police officers...The CDIID facilitated all hearings and trials related to police officer complaints. An appeals process was available...[In the first half of 2008] CDIID received 1,273 complaints countrywide, resulting in at least 176 officers being either dismissed, demoted, suspended, or officially warned...The most common complaints lodged against police were corruption, unfair treatment, lack of professionalism, and assault.' (Country of Origin Information Key Documents, Sierra Leone, Page 12)

The above information makes clear that, despite some problems relating to corruption and use of excessive force, there is a fully functioning police force in Sierra Leone. It is also noted that there are two bodies that deal with complaints against the police."

[24] He submitted that in light of the test regarding sufficiency of protection as laid down in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, namely: was the state unable or unwilling to provide protection, that the police, on the basis of the foregoing objective evidence were willing and able to protect persons such as the petitioner and accordingly it could not be argued that the respondent was unlawful in holding that there was no more than a fanciful prospect that an immigration judge would hold to the contrary.

[25] He submitted that if he was correct on either of these arguments that that would be sufficient to decide the matter in favour of the respondent.

[26] As regards the third branch of the petitioner's case it was counsel's position that this part was irrelevant. It was submitted that the assertion that there would be any effect on the petitioner's mental health on being informed of his removal was irrelevant. It was irrelevant in that it was accepted by the petitioner that the three refusal letters had informed him of his removal from this country and it was not asserted that any of these refusal letters had had any effect on his mental health.

[27] The psychiatrist's position was that there would be an effect on "threat of removal". This could not be changed, as asserted by counsel for the petitioner, to some stage where removal was crystalised ie when he was given a date of actual removal. According to the psychiatrist a threat was sufficient. He had been threatened with removal on three occasions, yet this had had no discernible effect on his mental health. Accordingly counsel submitted there was no basis upon which it could be asserted that on being advised of his actual date of removal this would have any effect on the petitioner.

[28] Further the petitioner on the basis of the doctor's report had not sought to argue that any threat of removal would result in the petitioner's suicide. Accordingly, any possible effect on the petitioner's health on there being a threat of removal was utterly vague and insufficiently stated.

[29] Moreover counsel relied on the decision in Tozlukaya v The Secretary of State for the Home Department [2006] EWCA Civ 379. In this case Lord Justice Richards observed at paragraph 69 in relation to the issue of breach of article 3 due to a decline in mental health in the United Kingdom following upon notice of removal as follows:

"I do not consider there to be any question of a breach of article 3 while Mrs Tozlukaya remains in this country following the communication to her of the removal decision, even if communication of that decision gives rise in itself to an increased risk of suicide. The authorities will remain under a positive obligation to take reasonable measures to protect her against the risk of suicide (cf Keenan v United Kingdom at paragraph 56 above). There is no reason to believe that they will be in breach of that obligation."

[30] Counsel accordingly submitted, that even if on being told of his actual removal, the petitioner suffered a decline in his mental health there was equally in this case no reason to believe that the United Kingdom authorities would breach the obligations which were incumbent upon them in terms of article 3.

[31] For the above reasons counsel submitted that I should refuse the petition.

Discussion

[32] Turning to the first issue, namely: the petitioner's fear of violence and whether this gives rise to a well-founded fear of persecution; I would firstly note that the respondent has generally made no adverse comments regarding the petitioner's credibility and reliability and in particular has made no such comments regarding the petitioner's narration of what happened to him in Sierra Leone arising from the activities of the Poro.

[33] The respondent at no stage in the decision letters sets out her reasons for concluding, on the basis of the petitioner's unchallenged account of what has happened to him, why that should not give rise to such a fear.

[34] The respondent it appears to me in the decision letter does not consider the individual circumstances of the petitioner. She merely brushes these aside. Rather the approach of the respondent is to analyse the objective evidence and say that the petitioner does not fall into any of the categories of persons who according to the objective evidence would attract the attention of the Poro (see: paragraph 18 of 6/2 of process). However, this is to miss the point: the petitioner has already come to the attention of the Poro. In failing to consider or attach any significance to the particular circumstances of the petitioner it seems to me that the respondent's approach is a flawed one. It cannot be said, on the basis of the petitioner's unchallenged account, that there is not a better than a fanciful prospect that an immigration judge would consider that there was a well-founded fear of persecution. In my judgment the respondent has erred in law in relation to the way that she has approached this issue. She has entirely failed to consider a relevant issue.

[35] The next issue is this: is there a sufficiency of protection?

[36] The starting point in considering this issue must be the case of Horvath: where it was held that whether protection was sufficient was a practical standard which takes proper account of the duty which the state owed its nationals...and that the sufficiency of state protection is not measured by the existence of a real risk of an abuse of the right but by the availability of a system for the protection of a citizen and a reasonable willingness of the state to operate it.

[37] A helpful summation of the test is given by Stuart Smith LJ when dealing with Horvath in the Court of Appeal where he says this at paragraph 22:

"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 for the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders."

[38] The above test was quoted with approval by Lord Clyde when Horvath was considered in the House of Lords. Lord Clyde then further observed regarding what had been said by Stuart Smith LJ at 511B as follows:

"And in relation to the matter of unwillingness he pointed out that inefficiency and incompetency 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."

Lord Hope in Horvath at 494G asked this:

"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?"

[39] In considering these questions Lord Hope made the following observations at page 500G regarding the proper approach:

"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."

[40] The respondent in the refusal letters properly directs herself to the case of Horvath and the approach and tests outlined therein (see: for example at paragraph 19 of 6/2 of process).

[41] In making her positive findings regarding the existence of sufficiency of protection and therefore what an immigration judge would find regarding this issue the respondent relies on the two passages in the objective evidence which I have earlier quoted in this opinion.

[42] I would firstly observe that what neither of said passages in said reports engages with is this: the police's willingness to take action against the activities of the Poro. There is no reference in either passage to the Poro. This lack of reference to the Poro, has to be seen in the context of clear objective evidence including expert evidence which was provided by the petitioner in terms of his further submissions and which was therefore before the respondent, that the police were unwilling to act in the particular area of Poro activities:

(a) Report by Dr Richard Fanthorpe (a recognised expert in relation to Sierra Leone) August 2007 at paragraph 3.5 where he says this:

"Furthermore, the state police are very thin on the ground outside the larger towns, and the police officers I interviewed during research on community policing in 2001 always took the position that they dealt with English (state) law, not customary law. They would investigate cases of alleged assault in respect of forced initiation and alleged manslaughter whenever initiates, male or female, died of blood loss and shock as a result of their operations. Very few cases of this kind come before the higher courts, almost all in Freetown. For example, in 1996, a 28 year old Freetown woman sought to bring an assault charge against Bondo society leaders who she claimed had forcibly initiated her. She was still waiting for the case to come to trial when fighting resumed. In 2002, a 14 year old Freetown girl bled to death after undergoing FGM and the Bondo society leader who performed the operation was put on trial for manslaughter."

(b) In the COIR report of 9 March 2009 the following is said at page 7:

"In 2006 the USSD reported a case of forced initiation despite police intervention. In March and April the Poro society in Monowa Kailahan district attempted to forcefully initiate a man into the society. The man ran away and reported the matter to the police, who deferred to the local paramount chief. The paramount chief then allowed Poro members to drag the man out of his home, beat him, and initiate him into their secret society."

"In 2005 it was reported that an Imam, near Bo, protested the forced initiation of a local Muslim man. The USSD reports that the Imam was abducted, when called to investigate the Sierra Leone police referred the case to chiefdom authorities. The Imam reappeared after several weeks and had been forcibly initiated into Poro society. The Freetown based council of the Imams registered a complaint about the issue, the chief apologised about the incident but the matter was not referred to court."

"According to the CRI project, the government has taken little action to curb Poro activities in relation to forced initiation."

[43] (c) In Sierra Leone C0I Key document January 2010 at pages 6 and 7 this is said:

"No law specifically prohibits FGM, and it was practiced widely and supported by politicians and community members...Although police occasionally detained practitioners on accusations of forced mutilation or manslaughter, human rights workers reported that police remained hesitant to interfere in cultural practices."

FGM is a major part of female secret society behaviour.

[44] (d) In the Patriotic Vanguard at page 2 this was said:

"The questions now asked by many are: how safe are non-initiates when secret society members have the right to take their lives? Where should non-initiates run to when secret society members are everywhere and manifest solidarity when it comes to dealing with non-initiates? Should a man like Ahmed Kamara continue to be in hiding throughout his life after stepping on their toes especially when the law cannot protect him? Where is the human right that society so much cherishes?"

[45] All of the objective evidence pointed to how deeply embedded the Poro was in Sierra Leone society; its large membership; its power relative to the election of MPs; its support within the government; its significant presence throughout the country including Freetown, where its activities were significant, if less than in rural areas. On the evidence there was no basis which would have entitled the respondent to hold that a person such as the petitioner would be safe in Freetown from the Poro but not in the countryside.

[46] The influence which the Poro has is fairly summarised in a section of the CRI project report quoted at paragraph 27 page 15 of the petition:

"Successive governments have made little effort to change this picture either because the practice is so deeply embedded in the culture of the people or because politicians fear losing the votes of the people if they attempt to ban it, or both. Caution has to be taken during this season if you are a non-initiate."

[47] In Bogdanavicius, the House of Lords at [2005] UKHL 38 left undisturbed the propositions set out by Auld LJ on real risk and sufficiency of protection in the Court of Appeal [2005] EWCA Civ 1605, one of these propositions was as follows:

"5. The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event: Horvath; Banonova [2001] EWCA Civ 807, McPherson [2001] EWCA Civ 1955 and Kinuthia [2001] EWCA Civ 2100."

Having regard to the objective evidence before the respondent there was evidence that the police systemically do not deter or prevent Poro activities including forced initiation activities carried out by the Poro; that if they do intervene there is no punishment for any such act.

[48] The respondent it appears to me, within the decision letters, where she deals with the issue of sufficiency of protection, fails to engage with this objective evidence. She fails to take into consideration relevant evidence showing systemic failure to deal with Poro activities by the Sierra Leone authorities. She never progresses beyond considering the two passages in the reports upon which she relies and which I have quoted earlier in this opinion. However, it is noteworthy that neither of these passages makes any reference to how the police deal with Poro activities. Nevertheless, she then seeks to draw a conclusion from these two passages about sufficiency of protection against Poro activities. Nor does she seek to set these two passages in the context of the other objective evidence to which I have referred which does deal in detail with the specific issue of how Poro activities are dealt with by the Sierra Leone authorities.

[49] In my judgment having regard to the objective evidence the respondent's view that no immigration judge could hold that there was not a sufficiency of protection cannot be sustained. Her approach in my judgment is fundamentally flawed in that in summary it appears to fail to engage with the whole of the objective evidence before her; or to disregard a considerable body of that evidence; or fails to consider those parts of the evidence upon which she seeks to rely in the context of the whole body of objective evidence. In my view the decision letter does not demonstrate that the respondent has shown anxious scrutiny. Material factors which could have been favourable to the petitioner have been left out of consideration in her review of the evidence.

[50] Lastly, I turn to the issue under this head of internal relocation. As submissions developed before me this matter no longer appeared to be an issue in the case. The petitioner at the time he left Sierra Leone lived in Freetown and if returned would go to Freetown. There was no suggestion on the respondent's part that he could relocate anywhere else in Sierra Leone. In any event so far as the question of internal relocation was concerned the issue of the Sierra Leone's government's system of identity cards had to be had regard to and no such consideration had been given by the respondent.

[51] Accordingly for the foregoing reasons I have broadly preferred the submission made on behalf of the petitioner regarding the first two issues and have held the respondents' decisions on these matters unlawful.

[52] Turning to the issue of a breach of article 3, within the United Kingdom, as a result of an effect on the pursuer's mental health arising in this country, on his being informed of his removal therefrom, I do not find this part of the petitioner's case to be well founded. According to the doctor the threat of removal should have had an effect on the petitioner. However, three refusal letters, which of course carried with them that threat, were not said to have had any effect on him. Accordingly the petitioner's argument did not appear to me to get off the ground. The doctor's report could not in my view, on a fair reading of it, be construed as saying that only when a removal notice was served, would there be an effect on the petitioner's health. The doctor's position in the letter was that threat of removal should have been sufficient to produce the effect. In any event, it was on the basis of the doctor's report wholly unclear as to what effects there would be on the petitioner's health on there being such a threat. Counsel for the petitioner accepted that on the basis of the letter there was no real risk of suicide.

[53] Moreover the case of Tozlukaya in my view renders the petitioner's argument under this head unstateable.

Decision

[54] I accordingly for the foregoing reasons reduce the said two decision letters. I was not addressed on the issue of expenses and have accordingly reserved all issues of expenses.