Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 173

P714/15

OPINION OF LORD KINCLAVEN

In the petition of

ZY (AP)

Petitioner

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  McIlvride QC;  Office of the Advocate General

13 December 2016

Introduction and Overview

[1]        This is a petition seeking judicial review of a decision of the Secretary of State for the Home Department to refuse the petitioner’s asylum and human rights claims and to certify those claims as “clearly unfounded” in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002.  The petitioner claimed asylum on 23 May 2014, and his claims were determined and certified on 27 October 2014. 

[2]        The petitioner is a citizen of Pakistan.  He seeks reduction of the certification decision in order to allow him to appeal to the First-tier Tribunal.  The respondent is the Advocate General for Scotland, on behalf of the Secretary of State.  The case came before me for a first hearing.

[3]        The petition and answers are framed, as is the decision, under reference to section 94(2) of the 2002 Act which embodies a “clearly unfounded” test.

[4]        Mr Caskie appeared for the petitioner.  He invited me to find that the decision of the respondent to certify her decisions and to refuse the petitioner leave to remain was unlawful, irrational, unreasonable et separatim inadequately reasoned; to sustain the petitioner’s plea-in-law, and to grant reduction as sought.

[5]        Mr McIlvride appeared for the respondent.  He submitted that the decisions complained of were neither unreasonable nor unlawful.  He invited me to sustain the respondent’s plea-in-law and to refuse the petition.

Factual Background
[6]        Prior to arriving in the United Kingdom, the petitioner had a relationship with N, who is also a Pakistani citizen.  The petitioner sought the approval of N’s family to marry but this was refused.  N was forced to enter an arranged marriage.  On 30 March 2006, she was admitted to the United Kingdom as a spouse.  Subsequently, however, her marriage broke down, apparently as a result of domestic violence. 

[7]        On 26 December 2009, the petitioner arrived in the United Kingdom with leave to enter as a student.  Whilst in the United Kingdom, he reunited with N, who is now his partner.  In 2010, N made an asylum claim, which was refused.  Her subsequent appeal was dismissed later that year.  On 11 August 2011, the couple had a child together, M. 

[8]        On 23 May 2014, the petitioner claimed asylum.  On 27 October 2014, his application was refused and his claims were certified as clearly unfounded.  The decision and annexed detailed reasons for refusal run to some 119 paragraphs over 24 pages, although the certification of the petitioner’s claims is set out only in the final section.  Under the heading “summary refusal paragraph”, it is stated in relation to each of the petitioner’s asylum and human rights claims (paras 111 and 112) that:

“In addition, after considering all the evidence available to her, the Secretary of State has decided that your…claim is clearly unfounded and hereby certifies it as such under section 94(2) of the Nationality, Immigration and Asylum Act 2002.” 

The Basis of Challenge to the Secretary of State’s Decision

[9]        Whilst the Secretary of State had indicated correctly that she would consider the petitioner’s case “at its highest” (para 33), which the petitioner characterised as consideration of “relevancy”, she thereafter called the petitioner’s account into question (paras 44 – 48 and 77 – 80).  To have done so was, in the circumstances, unreasonable et separatim unlawfully in breach of the Secretary of State’s policy on further submissions et separatim to leave relevant matters out of account, which an immigration judge would not leave out of account.

[10]      The Secretary of State had indicated (paras 34 – 37) that the petitioner’s and N’s asylum claims were similar.  She had had no regard to events following the birth of the couple’s child.  She had indicated (para 39) that family disputes did not fall within the ambit of the Refugee Convention.  That was to err in law where at the core of the dispute were breaches of the mores of the society that the persecutors inhabited, or at least an immigration judge would be entitled so to find (Shah and Islam [1999] 2 AC 629; K and Fornah [2007] 1 AC 412; Rasul Ameen (2002) UKIAT 0246). 

[11]      In any event, notwithstanding that the petitioner’s claim fell outwith the scope of the Refugee Convention, an appeal could proceed on the basis that there was a risk of serious harm to the petitioner upon his removal, which would therefore constitute a breach of Article 3 ECHR.  Whilst the Secretary of State had referred (paras 48 – 68) to there being a sufficiency of protection in Pakistan, which the petitioner accepted may generally be the case, she had failed to take account of the criminal and violent conduct of N’s family, which had not brought any response from the authorities.  Such conduct was relevant to the practical test to be applied, although the petitioner also submitted that there was no need for him to have attempted to obtain protection from authorities unable or unwilling to provide it.

[12]      In her consideration of the prospect of internal flight (para 69 – 76), the Secretary of State had failed to note the system of identify cards operating in Pakistan.  Corruption of officials in Pakistan was said to be endemic.  The petitioner’s and N’s families would be able to locate the couple by bribing a single official with access to those records.  By leaving that out of account, the Secretary of State had not proceeded as an immigration judge could.  She had also failed to give reasons for rejecting the petitioner’s explanations as to why internal flight would not be a viable option, or for concluding that the birth of the couple’s child would have no impact on that issue.

[13]      The petitioner did not seek to challenge the Secretary of State’s rejection of his Article 8 claim under the Immigration Rules.  However, the Secretary of State had failed to consider his claim outside the Rules, which amounted to an error of law (Asif Ali Ashiq v Secretary of State for the Home Department [2015] CSIH 31).

[14]      The petitioner also accepted that the Secretary of State’s decision was, in various respects, a reasonable one (Answers, para 8 – 11).  However, she had omitted to consider what an immigration judge might make of the matters before her.  The respondent’s pleadings as to the reasonableness of her decision supported that conclusion. 

[15]      Finally, the Secretary of State had conflated her consideration of the best interests of the petitioner’s child (paras 91 – 95) with the final proportionality assessment.  She ought either to have considered whether it was in the child’s best interests to remain in the United Kingdom or to go to Pakistan, or whether his parents should be returned to Pakistan (without consideration of the child’s position) and, if so, whether the child’s best interests would be better served in Pakistan or the United Kingdom.  She had, however, adopted neither approach, and had thereby erred in law. 

[16]      Whether the petitioner’s claim was “clearly unfounded” in terms of section 94(2) of the 2002 Act was a high test, which meant that the claim had “no prospects of success” (R (AK (Sri Lanka)) v The Secretary of State for the Home Department [2009] EWCA Civ 447).

[17]      The Secretary of State had therefore to ask herself the questions which an immigration judge might ask about the claim, and consider whether, on any legitimate view of the law and the facts, any of those questions might be answered in the claimant’s favour.  Any legitimate view included the view most favourable to the petitioner, which was not perverse.  Evidence could only be rejected at this stage if no reasonable decision maker could regard it as credible or significant, in which case it was right that the Secretary of State ought not to have to treat such material as the basis of subsequent fresh claims or appeals (Nazir v Secretary of State for the Home Department 2002 SC 134).  The Secretary of State’s own view of the merits was, however, only a starting point.  She was required to recognise the possibility that an immigration judge might make different findings in fact and would be entitled to determine the appropriate weight to attach to those findings.  In the present case, the Secretary of State had failed to go beyond that starting point.

[18]      In the present case, it was not possible to determine what the outcome would be before an immigration judge, and therefore the certificate could not stand.

The Respondent’s Position

[19]      The respondent submitted that the petitioner’s asylum and human rights claims were clearly unfounded.  Whilst taking an application at “its highest” meant assuming the most favourable version of events that it might credibly bear, it did not mean being bound to assume that everything said by the petitioner would be accepted as credible and reliable.

[20]      The Secretary of State had had proper regard to all of the material put before her.  She had made no error of law in deciding that the persecution said to be feared by the petitioner did not fall within the scope of the Refugee Convention; that there was, in any event, a sufficiency of protection against such persecution within the petitioner’s country of origin; and that the petitioner might avoid the risk of such persecution by relocating to another area within that country, and it would not be unduly harsh to expect him to do so. 

[21]      She had considered whether the return of the petitioner to Pakistan would constitute a breach of Article 3 of the European Convention.  She had had careful regard to the material provided by the petitioner in support of his claim, and had reasonably concluded that his return would constitute no such breach.  The petitioner had failed to show substantial grounds for believing that he faced a real risk of being subjected to treatment contrary to Article 3 if returned to Pakistan.  In any event, there was a sufficiency of protection available to him there, and he could safely relocate to another area of Pakistan and it would not be unduly harsh to expect him to do so.  The Secretary of State had had proper regard to all of the relevant circumstances.  Any reasonable immigration judge would be required to make the same findings.

[22]      The Secretary of State had given careful and detailed consideration to whether the petitioner and his family qualified for leave to remain under the Immigration Rules by virtue of the rights conferred upon them by Article 8 of the European Convention.  She had concluded that they did not.  She had thereafter reasonably concluded that there were no compelling reasons which might require leave to remain to be granted outside of the Rules.  Any reasonable immigration judge would require to make the same findings.

[23]      Furthermore, the Secretary of State had had full and proper regard to the best interests of the petitioner’s child.

[24]      The respondent accepted that, in deciding whether to certify the petitioner’s claim as clearly unfounded, the Secretary of State had to ask the questions which an immigration judge would ask about the claim.  It was not disputed that it was an element of the Secretary of State’s task to take account of the possibility that an immigration judge may make findings in fact which differed from her own.  It was submitted, however, that the Secretary of State had done so in deciding that the petitioner’s claims fell to be certified as clearly unfounded.  She had reasonably concluded on the material before her that the petitioner’s claims were bound to fail, and therefore fell to be certified as clearly unfounded.

[25]      The decision complained of was neither unreasonable nor unlawful, and accordingly the petition should be refused.

Decision

[26]      The petitioner seeks to challenge the Secretary of State’s decision “to certify her decisions to refuse the petitioner leave to remain” as unlawful, irrational, unreasonable et separatim inadequately reasoned (petitioner’s plea-in-law).  He does not challenge the underlying refusal decisions. 

[27]      The statements of issues lodged by both parties, identify as a matter for determination by the court whether the Secretary of State “properly assessed” (in the words of the respondent) or “failed to have regard to” (in the words of the petitioner) the best interests of the petitioner’s child.  The substance of the petitioner’s challenge, as set out in the petition (Stat 12), is that the Secretary of State reached her conclusion in the wrong way.  [28]       The test to be applied by the Secretary of State in determining whether the petitioner’s claims are “clearly unfounded” has come to be accepted as that set out by the majority in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 (see, e.g., SN v Secretary of State for the Home Department [2014] CSIH 7, Opinion of the Court delivered by Lady Clark of Calton at para [17]).  It is a binary and objective test, examining whether the petitioner’s claims could, on any legitimate view, succeed.  Whilst there may be room for a difference of opinion as to whether “clearly unfounded” is to be equiparated with “no realistic prospects of success” (c.f. rule 353), nonetheless a claim which is clearly unfounded will have no prospect of success; it is bound to fail.  Where matters turn on credibility and reliability, it will be appropriate to certify a claim as clearly unfounded only if there is no prospect of the reasonable decision maker accepting the particular account as credible and reliable.

[29]      This is a judicial review of the Secretary of State’s decision rather than appeal.

[30]      The task before the court is to consider whether, to the extent that the Secretary of State has drawn conclusions adverse to the petitioner, and materially affecting her determination of the petitioner’s claims, the reasonable decision maker would be entitled to draw different conclusions, and thereby to determine the petitioner’s claims differently.  In short: “If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.” (R(L) v Secretary of State for the Home Department [2003] 1 WLR 1230, Lord Phillips at para 57, cited in ZT (Kosovo) v Secretary of State for the Home Department (supra), Lord Phillips at para 22).

[31]      In this particular case, the Secretary of State observed (detailed reasons, para 33) that:

“your claim has been wholly considered ‘at the highest’ (meaning as if all material aspects were accepted as being true).  No findings…have been made as to whether the material aspects of your case are accepted as being true or not, rather, an assessment has been made as to whether even if your account was accepted as true, you could still return to Pakistan.”

[32]      Certification proceeds on the assertion (detailed reasons, paras 111 and 112, supra) that: “In addition, after considering all the evidence available to her, the Secretary of State has decided that your…claim is clearly unfounded and hereby certifies it as such” under section 94(2) of the 2002 Act.  The basis for certification of the claims as “clearly unfounded” is to be found in the underlying reasons for refusal of the petitioner’s claims.  Essentially, therefore, I require to consider whether certification necessarily, and without more, follows from those reasons. 

[33]      In her treatment of the petitioner’s asylum claim, the Secretary of State notes (detailed reasons, para 39) that “familial marriage disputes” and the petitioner’s reason for claiming a well-founded fear of persecution do not engage the United Kingdom’s obligations under the 1951 United Nations Convention relating to the Status of Refugees (“the Refugee Convention”).  In short, the petitioner’s claim was “not based on a fear of persecution in Pakistan because of race, religion, nationality, membership of a particular social group (PSG) or political opinion”.  Therefore, the petitioner’s claim was considered instead (para 40) to relate to Articles 2 and 3 of the European Convention on Human Rights.  Such is the extent of the Secretary of State’s reasoning in the refusal of the petitioner’s claim for asylum.  Nonetheless, it would be somewhat artificial not to consider the Secretary of State’s reasoning in relation to the ill-treatment feared by the petitioner as underlying and common to the petitioner’s claims in both cases.

[34]      The petitioner invites the inference, from the contention that the Secretary of State considered his partner N’s claim in 2010, and his claim in 2014, to be “similar”, that she left out of account relevant events in the intervening period, notably the birth of the couple’s child in 2011.  Three points arise, however, which deprive this contention of substance.  First, the Secretary of State expressly records that statements and evidence in support of the petitioner’s claim, from which a summary of the claim is derived, include amendments and records dating at least to 24 July 2014.  Indeed, the summary of the petitioner’s claim expressly includes reference (para 25G) to the birth of the child, and events consequent thereupon, including fears based on repercussions arising from the alleged “offence of having a baby out of wedlock from mismatching tribes” (para 25H) and the “Hudood” ordinance (fornication) (para 25I).  Secondly, the Secretary of State records that the claims of the petitioner and his partner are “for the most part, the same” (para 34), and that “the threat from either families [sic] is in substance, similar in both claims” (para 37).  Under reference to Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702, paras 39 and 41, however, the findings with regard to familial threat were considered to be merely the starting point in relation to consideration of the petitioner’s claim (para 36).  Thirdly, and in any event, refusal of the petitioner’s asylum claim was confined to the familial nature of the threat.  The petitioner contends that “family disputes” (Stat 7) could be considered to fall within the terms of the Refugee Convention.  Whether the petitioner’s asylum claim is “clearly unfounded”, therefore, depends initially on the question of the scope of the Refugee Convention, and whether there is any prospect that an immigration judge would be entitled to determine that protection is in fact available thereunder. 

[35]      The petitioner founds (para 26) upon the “fear that [he] will be subject to inhumane and degrading treatment or killing by both [his] family, the family of [N’s] original husband and from the Pakistan authorities” on the basis of a First Information Report in respect of the petitioner’s relationship out of wedlock submitted against the petitioner by his brother to police in Pakistan.   Alternatively, the petitioner founds upon N’s fear that she would be subjected to such treatment “on the basis of being a divorced single woman and returning from a Western country” (ibid).  The petitioner seeks to bring himself within the ambit of “membership of a particular social group” for the purposes of the Convention.  It is not inconceivable that a family unit may be regarded as a particular social group, and that such a group may be more narrowly defined by reference to the common characteristic or shared experience of engagement in adultery or sexual immorality, as perceived in Pakistani society.  Nor is it inconceivable that the petitioner and his partner may suffer persecution by reason of membership of such a group.  However, persecution requires not only discrimination but state sanction or tolerance, otherwise victims would be able to avail themselves of the protection of the state and would not require international protection.  Similarly, however, persecution may arise in the case of threatened discrimination by non-state agents as a result of insufficiency of state protection, by reason of inability or unwillingness to provide it (Horvath v Secretary of State for the Home Department [2001] 1 AC 489). 

[36]      In the present case, the Secretary of State records that the evidence provided in support of the familial threat allegedly posed to the petitioner and his partner (para 47) “cannot be relied upon and is given little weighting towards [his] claim”.  The First Information Report was said to be false (para 44), and no such report had ever been lodged, according to a British High Commission document verification report dated 2 October 2014.  The remaining documentary sources relied upon could not be verified, had been provided through a secondary source, and were considered in line with external reports to be available through financial exchange (para 47).  In addition, the petitioner provided “no evidence” (para 55) of familial affiliation with or undue influence over government, and “no indication” (para 57) of having approached the Pakistani authorities or provided an opportunity for the Pakistani government to protect him.  There was found to be a “generally functioning security system” in Pakistan (AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC)), and external evidence (paras 58 and 62; Country of Origin Information – June 2012 and August 2013) indicating limited but growing police protection, and a number of avenues of recourse in the event of unsatisfactory police response. 

[37]      Against that background, and in the whole circumstance, I am satisfied that the Secretary of State was entitled to certify the petitioner’s asylum claim as “clearly unfounded”, there being no prospect of a decision maker, on any legitimate view, concluding that the petitioner was at risk of facing persecution falling within the terms of the Refugee Convention.  Whilst the nature of the discrimination allegedly threatened by the petitioner’s and N’s families might be capable of acceptance as a basis upon which the petitioner and his partner might claim membership of a particular social group, there was no material before the Secretary of State that was capable of acceptance in support of the risk of persecution allegedly consequent upon membership of such a group, and, indeed, there was external evidence before her indicative of the contrary.  Whilst the petitioner complains that the Secretary of State “called [his] account into question” (Stat 6), she did so only to the extent required by indisputable evidence in contradiction of his account (c.f. policy, p 13).  Having regard to the submissions of counsel, I am satisfied that no reasonable decision maker could legitimately have concluded otherwise.

[38]      The petitioner accepts that there may generally be a sufficiency of protection in Pakistan (Stat 9), but that the Secretary of State failed to take account of “the criminal and violent conduct of the petitioner’s partner’s family that has not brought any response from the authorities”.  In the circumstances, however, the Secretary of State was entitled to conclude that, despite a risk of isolated acts of violence or ill-treatment, the petitioner was not entitled to refugee status due to there being no apparent failure on the part of the state to provide protection against it, such that the feared treatment had the character of persecution (Horvath v Secretary of State for the Home Department (supra), Lord Hope at 499).  There was no material before the Secretary of State that would have entitled her, as a reasonable decision maker, to conclude that the petitioner was at risk of persecution as recognised under the Refugee Convention in the event of his return to Pakistan.  

[39]      Where the basis of the petitioner’s underlying fears cannot be supported, further consideration of internal relocation for the purposes of evading the apprehended persecution does not arise.

[40]      Accordingly, certification of the petitioner’s asylum claim necessarily follows upon the material set out in the Secretary of State’s decision.  Furthermore, as already adverted to, the same may be said of the petitioner’s claims insofar as founded upon the alleged fear of ill-treatment for the purposes of Articles 2 and 3 of the European Convention. 

[41]      With regard to consideration of the petitioner’s Article 8 claim outside of the Immigration Rules, contrary to the petitioner’s submission (Stat 11), the Secretary of State has not failed to do so.  She has not imposed a requirement that the petitioner demonstrate a good arguable case before she will do so.  Rather, the Secretary of State concluded that consideration of Article 8 outside of the Immigration Rules would not be required (para 90) “unless there are exceptional circumstances involved, in your case, there are none”.  Where all of the relevant issues have already been addressed in the consideration under the Rules, there is no need for a separate examination to be undertaken outside of the Rules (Ashiq v Secretary of State for the Home Department 2015 SC 602, Opinion of the Court delivered by Lady Smith at para [5]).  That being so, no separate issue arises as regards certification of the claim.

Disposal

[42]      Accordingly, I shall sustain the respondent’s plea-in-law, repel the petitioner’s plea-in-law and refuse the orders sought in the petition.

[43]      I shall reserve meantime the question of expenses.