Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 47
P912/12	OPINION OF LORD BOYD OF DUNCANSBY in the Petition of STN Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: McIver, Office of the Advocate General for Scotland

22 March 2013

[1] This is the petition of STN for judicial review of a decision by the Secretary of State for the Home Department to certify the petitioner's human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) in letters headed "Determination of Asylum Claim" and "Reasons for Refusal" and "Notice of Immigration Decision" all dated 2 April 2012.

[2] The petitioner is a South African National. He has made a human rights claim to the respondent. The Immigration decision which he seeks to reduce is a notice to remove the petitioner from the United Kingdom. If he does not do so voluntarily directions will be given for his removal from the United Kingdom to South Africa.

[3] Under section 94(3) of the 2002 Act if the Secretary of State is satisfied that an asylum or human rights claimant is entitled to reside in a State listed in section 94(4) of the Act she shall certify the claim under section 94(2) unless satisfied that it is not clearly unfounded. South Africa is a State listed under section 94(4) of the Act.

[4] According to the Reasons for Refusal the petitioner was issued with a Working Holidaymaker's Visa by the British Embassy (I suspect this should read (High Commission) in Pretoria which was valid from 2 August 2003 until 2 August 2005. He overstayed this visa, remaining in the UK until February 2008 when he returned to South Africa. On 21 February 2008 he was refused entry to the UK as he had previously overstayed his visa. He applied for a visitors' visa to the United Kingdom from the British Embassy (sic) in Pretoria on 28 May 2008. This was refused on the ground that the petitioner had previously overstayed his visa. On 22 September 2008 he left South Africa and flew to Dublin via Abu Dhabi arriving in Dublin the following day. He was issued with a two week visitor visa. He then flew from Dublin to Edinburgh where he remained living illegally. On 29 January 2009 the petitioner was encountered by the UK Border Agency Enforcement and served with illegal entry papers. On 2 August 2011 the petitioner applied for voluntary return to South Africa but withdrew this application on 19 October 2011. On 20 January 2012 the petitioner contacted the Asylum Screening Unit in Croydon and scheduled an appointment for 9 March 2012 when he was interviewed in relation to his human rights claim.

[5] The background to the human rights claim is set out in the Reasons for Refusal. They are as follows. The petitioner comes from the Ivory Park Township on the outskirts of Johannesburg. On 29 April 2008 he was involved in an incident that led to him being accused of beating five police officers, interfering with police duties and breaking their state car. This arose out of an incident which happened at his brother's tavern when police officers arrived and were searching people in the tavern. The petitioner approached one of the officers wearing a uniform identified as Inspector Mahlangu, and asked him what was happening. An altercation then ensued as a result of which he was told that he was going to be arrested. He was allowed to go and collect a sweater. When he returned he saw police officers beating his brother. He pushed one of them who fell over landing on bricks. Inspector Mahlangu then approached him, sprayed him with pepper spray and beat him with his baton. He was then handcuffed, beaten and taken to the police car.

[6] He was then taken to the Ivory Park Police Station where he was taken to a small room, insulted and slapped. Other members of his family had also been arrested. He was then taken to a larger cell with other inmates before, in the early hours of the morning being taken into a room and beaten this time by six officers. He was returned to the larger cell but during the next two nights was taken out to the smaller cell and beaten. On the third morning he was charged with beating a police officer and then released. After his release he went to a private hospital as he wanted a written statement but they refused to become involved. He then went to a public hospital where he was checked over and given painkillers and ointment.

[7] He appeared in court the following Monday but the hearing was postponed in total, according to the petitioner, 16 times. He claims that he was intimidated and threatened by members of the Ivory Police Forum.

[8] At the end of August 2008 the petitioner claims that he was shot at near to the gate of his house. He did not know who shot at him. He was not hit but whoever shot at him missed and hit the lamppost. He reported this to the police who told him that it could have been anybody and he should be glad that he was not hit. So far as the proceedings in court were concerned, he said that he was not allowed to say what had happened to him at the hands of the police. The petitioner did not give evidence in court because of the threats.

[9] He said that he wrote a letter of complaint to the CID, which the respondent presumes to be a reference to the ICD, the Independent Complaints Directorate, but received no response. He also sent an email to a TV station but also received no response. He left South Africa in September 2008.

[10] After the petitioner left South Africa he said that his brother had told him that the police were looking for him and had a warrant for his arrest. They had been to his father's house. So far as the charges against him were concerned he did not know whether or not they had been dropped.

The legislative background

[11] The petitioner has a right of appeal against the decision of the respondent under section 82(1) of the 2002 Act. However, where the respondent is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in section 94(4) of the 2002 Act she shall certify the claim under section 94(2) unless satisfied that it is not clearly unfounded. South Africa is a State listed in section 94(4). The effect of such certification is to provide that the right of appeal cannot be exercised while the petitioner remains within the United Kingdom (see sections 94(1A) and 92(2) of the 2002 Act. The reason for those provisions can be found within section 94(5) which provides that the Secretary of State may by order add a State to the list in section 94(4) if satisfied that there is in general in that State no serious risk of persecution of persons entitled to reside in that State and removal to that State of persons entitled to reside there will not in general contravene the United Kingdom's obligation under the Human Rights Convention. The appearance of South Africa on the list indicates that the respondent is satisfied that these conditions are met in South Africa.

The test

[12] Parties were in broad agreement as to the test to be applied determining a judicial review of the respondent's decision in the circumstances of this case. The test is whether or not there are no prospects of success. It is an objective one. It does not depend on the view of the respondent but upon the criteria that a court can readily apply once it has the materials that the Home Secretary had: R(L and Another) v Secretary of State for the Home Department (2003) 1 WLR 1230 per Lord Phillips of Worth Matravers at p 1245H (para 56). If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. A case which is clearly unfounded is one which with no prospects of success or so clearly without substance that the appeal would be bound to fail; R (AK) (Sri Lanka) v Secretary of State for the Home Department (2010) 1WLR 855 at 869, para 34. An arguable case is one that could on any legitimate view succeed. Such a case would not qualify for certification, R Bagdanavicius v The Home Secretary 2004 1 WLR 1207 per Auld LJ at para 58.

[13] Mr Winter in his submissions on this point suggested that even if the prospects of success were fanciful then the court should grant the prayer of the petition. For the respondent, Mr McIver took issue with the submission that even if the prospects of success were fanciful the petition was entitled to succeed. He submitted that if the court concluded that a claim was not "clearly unfounded" or had a realistic prospect of success then the petitioner was entitled to succeed: ZT (Kosovo) v Secretary of State for the Home Department (2009) 1 WLR 348 per Lord Phillips at paras 22 and 23 and Lord Neuberger at para 83.

[14] I reject the view that even the fanciful prospect of success is sufficient to pass the test. If that were true, all that would be needed for success in this process would be to state the claim. In my opinion the claim must have some substance. It must have some realistic prospect of success: ZT (Kosovo) para 23 per Lord Phillips and para 83 per Lord Neuberger. The proper recourse for the court is to assess the material objectively taking the case at its highest for the claimant and giving the most generous interpretation to the facts that they can credibly bear. To state that the prospects of success must be realistic is to say no more than that a judge properly applying his mind to the appeal under section 82(1) would be properly entitled to uphold the claim.

[15] In determining this matter on previous occasions the court has made their own assessment of how an immigration judge might have decided the matter on the basis of the material available to the Secretary of State: see for example Morag Wise, QC (as she then was) sitting as a temporary judge in MN 2011 CSOH 121 and Lord Malcolm in JS, Petitioner 2010 CSOH 75 at para 30. I shall follow the same course.

[16] Mr Winter also submitted that while there was still a right of appeal from outwith the United Kingdom that was, he submitted, fairly useless where the claimant has been returned to a country where there is a real risk of ill-treatment; R (Venediktov) v The Secretary of State for the Home Department (2005) EWHC 2460 (Admin) per Collins J at para 14. I accept that this is true and no doubt that is one of the reasons why the test which is applied is a low one. A similar observation was made in R(L) to which Lord Phillips observed that he could not see that the nature of the appeal procedures has any impact on the question of whether the decision to refuse the applicant's asylum claims and to certify the claims were lawful (see para 54, p 1245).

The substance of the claim - Submissions for Petitioner

[17] The claim falls into three chapters. First, whether or not the petitioner is at real risk of ill-treatment if he were to return to South Africa in such a manner as to infringe his article 3 rights under ECHR. Secondly, whether or not the avenues of complaint that are open to her afford protection from such treatment, and thirdly, whether or not the prison conditions to which he may be subject infringe article 3 and/or article 8 of ECHR.

[18] For the petitioner Mr Winter submitted that the beatings by police officers were repetitive. They had occurred on two distinct occasions. Indeed the second of these occurred over two nights within the police station. Intimidation and threats had continued after his release from police custody and culminated in the shooting incident in August 2008. He pointed out that the police have a warrant for him and he was likely to be arrested on his return to South Africa. Accordingly he was still at risk from beatings from the police following his arrest on return. He was likely to be prosecuted and to be detained while awaiting trial. Mr Winter however took no issue with the fairness of the trial. However, he submitted the respondent had not considered whether in the absence of any change of circumstances in South Africa the petitioner was still at risk of ill-treatment. He referred to article 4(5) of Council Directive 2004/83/EC ("the Qualification Directive") which states:

"the fact that an applicant has already been subject to prosecution or serious harm or to direct threats of such persecution of serious crime is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm unless there are good reasons to consider that such persecution or serious harm will not be repeated. "

(See also Demirkaya v The Secretary of State for the Home Department (1999) Imm Ar 498 at paras 20-23 per Stuart-Smith LJ; MD (Guinea) v The Secretary of State for the Home Department 2011 SC 237 at paras 5-6 per Lord Hardie; Symes & Jorro, Asylum Law on Practice (2^nd Ed) para 2.55).

[19] He reminded me that treatment that attained a minimum level of severity and involves actual bodily injury or intense physical and mental suffering constituted ill-treatment for the purposes of article 3 of ECHR; Symes & Jorro, paras 11.34, 11.38, 11.40, 11.42. A finding of torture was not required; McDonald's Immigration Law & Practice, p 482.

[20] The reasons for refusal at paras 55-61 detailed the avenues of complaint that are available to those who claim that they have been the victims of violence at the hands of police. It quotes the COIR South Africa which in turn notes the United States State Department assessment that some police officers reportedly tortured, beat, raped and otherwise abused suspects. According to Amnesty International, methods included the use of electric shock, suffocation and prolonged assaults with batons, fists and booted feet. Police torture and physical abuse allegedly occurred during interrogation, arrest and searches of persons' homes and sometimes resulted in death. There is an independent complaints commission which is responsible for investigating complaints of brutality, criminality and misconduct against members of the South Africa police service. Over 900 reports of assault by police were reported to that commission who investigated the reports leading to charges and convictions of some police officers.

[21] The respondent considered that it was clear that there were established avenues of complaint against South African police. The petitioner had sent one letter and after receiving no response, had not followed it up. She had concluded that it could not be said that he had exhausted his avenues of complaint regarding the alleged beatings while he was in detention. It was also considered that in the event of his trial continuing on return to South Africa, that he would be able to complain about incidents of intimidation and physical harm to the relevant authorities and independent bodies. At para 63 the respondent considered that there was no evidence that ill treatment by police officers including beatings were endemic throughout the South African Police Force. Not only were there avenues of complaints established but the ICD were able and willing to investigate and where appropriate prosecute police officers who have assaulted civilians.

[22] Mr Winter submitted that protection after the event is no protection at all; Kinuthia v The Secretary of State for the Home Department 2002 INLR 133 at para 20. On one view, Mr Winter submitted the immigration judge could come to the same view. Accordingly, it could not he submitted, be said, that the claim was clearly unfounded.

[23] There is no onus on a person seeking international protection to see redress from a higher authority; Balloch v Canada (Minister of Citizenship and Immigration) (2002) FCJ No 1080 per Lemieux J at para. 44. He submitted that even though a system for protection would be in place, it was important to look at what was happening in practice, Svazes v Home Secretary (2002) 1 WLR 189 per Sedley LJ para 22 at p 1899; AA (Zimbabwe) v SSHD (2007) EWCA Civ 199 at para 22.

[24] So far as prison conditions are concerned the facts appear from para 64 onwards. This showed that the majority of the 237 operational prisons in South Africa did not meet international standards and prison conditions did not meet the country's minimum legal requirement. There were allegations of assault, including sexual assault. Some detainees awaiting trial had reported contracted HIV Aids through rape. These are taken from the COIR South Africa, itself again quoting the US State Department 2009 Human Rights Report on South Africa published in March 2010. The refusal letter had concluded that although it was accepted that prison conditions in South Africa are poor the evidence did not show that were the petitioner to be imprisoned on his return to South Africa the conditions were such that the petitioner's article 3 rights would be breached. This conclusion was reached on the basis that the petitioner is a young healthy male.

[25] Mr Winter submitted however that the US State Department Report disclosed a rise in the incidents of assault with a particular problem of rape in communal cells. There was one relevant case - The Government of South Africa v Dewani (2012) EWHC 842 (Admin). He pointed out that in that case the South African Government had given undertakings as to where Mr Dewani would be held and the conditions that would apply to him both on remand and following conviction. He accepted however that Mr Dewani was suffering a particular mental illness which differentiated his position from that of the petitioner in this case.

[26] Pulling all these matters together Mr Winter submitted that it could not be said that the petitioner's claim was clearly unfounded. Accordingly he invited me to reduce the decisions of the respondent.

Submissions for Respondent

[27] Mr McIver for the respondent submitted that the allegations of police brutality can be broken down into four particular elements. There were the incidents on 29 April 2008 which followed with his assault on a police officer. Secondly, there were the beatings within the Ivory Park Police Station while in detention. It was unknown what these related to. Thirdly, there was the alleged shooting at the end of August 2008 and finally there were the general issues of intimidation culminating in the reason why he had apparently not "taken the stand in court because he had been threatened" (see para 23 of the decision letter). So far as the shooting was concerned, there was no reason to believe that the incident was carried out by the police as the decision letter pointed out. Violent crime is a serious problem in South Africa and the murder rate is still very high, particularly in a township like Ivory Park. It could not be said that it was the police that had been responsible. The police of course had a duty to investigate if there was a discharge of firearms by officers. However, he submitted that there was no scope for an immigration judge to make a factual finding that the shooting had any relationship to the allegations of ill treatment by the police.

[28] Addressing the submission of Mr Winter that past episodes of ill-treatment are to be taken as indicative of future risk unless there is a major change of circumstances in South Africa, he pointed out that article 4(4) of the Qualification Directive did not make any reference to major change of circumstances. What required to be shown were good reasons why these episodes of ill-treatment were not indicative of future risk. These had been given particularly in paras 55-56 and to the avenues of complaint that are available to the ICD. It was plain that this was an investigatory body with the ability to bring charges and secure convictions against police officers who had assaulted civilians. He also submitted that the ICD had undergone re-organisation. The South African Parliament had recently enacted the Independent Police Investigative Directorate Act 2011 which strengthened its independent role. The Act established the Directorate with an executive director to be confirmed by a Parliamentary Committee. Section 26 of the Act prescribes measures for ensuring the integrity of members of the Directorate. Section 28 states that the Directorate must (that word is in bold) investigate inter alia any deaths in police custody, any complaints relating to the discharge of an official firearm by a police officer and any complaint of torture or assault against a police officer in the execution of his or her duties. These measures, Mr McIver submitted, greatly strengthened the complaints procedure. Mr McIver contrasted that position with the position in ND at para 5 which referred to the state of affairs in Guinea and to the observations of Stuart-Smith LJ in Demirkaya which dealt with the state of affairs in Turkey. In this case he said that the Secretary of State can point to something that can cure or address the issue of ill-treatment.

[29] Turning to the observation that judicial intervention after the event is no protection at all (see Kinuthia at para 26 and 27). Mr McIver pointed out that the circumstances in Kinuthia were very different from the one which prevailed here. In this case the Secretary of State considered that because of the protection available there was no prospects of the petitioner's rights being breached.

[30] Turning to the issue of prison conditions, Mr McIver pointed out that this only arose if he was detained on remand and subsequently convicted of an offence which resulted in a sentence of imprisonment. In Vilvarajak v The United Kingdom 1991 14 EHHR 248 the issue before the European Court of Human Rights there was a return of Tamil refugees to Sri Lanka. The court said that the evidence before it concerning the background of the applicants as well as the general situation did not establish that their personal position was any worse than the generality of the members of the Tamil community or other young male Tamils returning to their country. Since the situation was still unsettled there was a possibility that they might be detained and ill-treated as appears to have occurred previously in the claims of some of the applicants. A mere possibility of ill-treatment however in such circumstances is not in itself sufficient to give rise to a breach of article 3 (see para 111). Secondly, Mr McIver submitted that the Secretary of State had taken prison conditions into account as appeared from paras 65 and 66 of the refusal letter. The respondent acknowledges that prison conditions in South Africa are poor and that prisons are overcrowded. There is, however an oversight body, the Judicial Inspectorate of Prisons, referred to in the refusal letter. I was referred to the case of Dougoz v Greece (2002) 34 EHRR 61 in which the Court of Human Rights found that there had been a breach of article 3. This was an example of the type of conditions in which ill-treatment could be found. However, he concluded that the evidence did not show that there was a real risk of ill-treatment in prison amounting to a breach of article 3 if the petitioner were to be imprisoned following conviction on his return to South Africa. The decision of the Secretary of State that prison conditions did not amount to a breach of article 3 rights was, he submitted rational.

Discussion and Decision

[31] The allegations of police brutality relate to incidents which occurred over a short period of time starting with the Petitioner's arrest on 29 April 2008. If true, and for present purposes I have to assume that they are, they are shocking, particularly the allegations of assault within the police station. There are no specific incidents of violence after his release. I agree with Mr McIver that it is not possible to hold that the shooting was anything to do with the police. The only other allegations relate to general threats and intimidation but it is not clear what the nature of the threats were or how the intimidation manifested itself. Accordingly all that is really left are two occasions of police beatings, the second of which occurs on two nights in the police station. These incidents occurred nearly five years ago and all are at the hands of the Ivory Park Police. There is no suggestion that the petitioner is in any way a prominent individual or that the police are looking for him with a view to renewing their brutality.

[32] I accept that where a person has been the subject of past ill treatment that can be taken as an indication that were they to return they would be subject to further ill treatment unless there are strong reasons why that would not be the case. In my opinion there are strong reasons why that presumption should not apply here. First, the allegations of police brutality themselves do not disclose that the petitioner is a particular target. There is no suggestion that he was singled out for any particular reason. The assaults in the police station may have been related to his alleged assaults on police officers. If true that of course is no excuse for what happened but there is nothing else to bring him to the particular attention of the police. He is not a prominent individual. He is not a political dissident. Other than his alleged assault on police officers on 29 April 2008 he has done nothing to distinguish himself as a person of interest to the police.

[33] Secondly these events occurred nearly five years ago. There is no cogent reason given other than the fact that there is apparently an outstanding warrant for his arrest why he should be subject to further ill treatment now.

[34] Thirdly the allegations relate only to the activities of the Ivory Park police and not to any other section of the South African Police force. Even if he was returned to the custody of the Ivory Park police it is not certain that the same officers will be there. In any event he is likely only to be in their custody until either remanded, when he would be in prison, or released on bail.

[35] Fourthly, during his absence from South Africa the oversight of the police has been strengthened through the enactment of the Independent Police Investigative Directorate Act 2011. The Directorate is accorded significant powers through this legislation to investigate and prosecute police brutality. It is of course true that what is often more important than the words of a statute is the culture in which the justice system operates. However South Africa is a democracy founded on the rule of law with significant constitutional protections for its citizens. It has a strong criminal justice system with judges who are fully independent of the state. While it is impossible to guarantee that the petitioner will never be the victim of police assault it seems to me that this is not an occasion when it can be said that judicial intervention after the event is no protection at all. In a democracy founded on the rule of law a strong investigative body and an independent judiciary are the principle means of protecting citizens from abuses at the hands of police and other state bodies.

[36] Finally, turning to the question of prison conditions, it is clear that the system is overcrowded and that abuses can and do occur in prison. South Africa is not alone in attempting to cope with overcrowded conditions. However I have seen no evidence upon which it could be said that the petitioner's article 3 rights will inevitably be infringed were he to be returned to South Africa.

[37] For all those reasons I consider that the human rights claim is clearly unfounded. Accordingly I will sustain the respondent's first and second pleas in law and dismiss the petition. I will, as requested by Mr McIver, award expenses to the Respondent but modified to a nil award.