Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 3

 

P409/15

OPINION OF LORD MULHOLLAND

 

In the petition of

SHARIF KADIR

Petitioner

for

Judicial Review of a decision by the Secretary of State for the Home Department

to certify the Petitioner’s Asylum and Human Rights Claim as clearly unfounded

in terms of section 94 of the Nationality, Immigration and Asylum Act 2002

Respondent

Petitioner:  Bovey, QC, Byrne; McGill & Co

Respondent:  McIlvride QC; Solicitor for the Advocate General for Scotland

18 January 2017

Introduction
[1]        This is a judicial review of a decision by the Secretary of State for the Home Department to certify the petitioner’s asylum and human rights claims as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002.

[2]        The petitioner is an Iraqi national born on 1 January 1963.  According to the decision letter dated 3 March 2015 [number 6/2 of the inventory of documents] issued by the Secretary of State for the Home Department, the petitioner is from the Sulaymaniyah area of Iraq which is an area governed by the Kurdish Regional Government.  He is a Sunni Muslim who speaks Kurdish Sorani.  He worked in an electric power station in Sulaymaniyah.  He made a complaint of theft from the power station against two persons who were influential members of two powerful groups who were in control of the Kurdish Regional Government. After making the complaint he was removed from his job.  One week later he was arrested and detained for 17 days.  Following his release, guaranteed by his father, he went to Baghdad where he remained until 1998.  During his time in Baghdad he moved eight or nine times to avoid abuse due to the Kurdish war.  Having decided to leave Iraq he left for Turkey in 1998 where he stayed for one year and six months.  He then moved to Greece where in June 1999 he applied for asylum.  In 2000 he was granted an entitlement to lawfully remain there.  He worked and paid taxes in Greece for the next 12 years.  He was granted asylum in 2012 (see paragraph 10 of the decision letter).

[3]        According to paragraph 6.1 of the petition he lived in Greece without significant incident until 2009 when the factory where he worked closed down.  Thereafter he would attend a local square in Athens where unemployed migrants could seek work.  Whilst in the square migrants would be targeted by the ‘Golden Dawn’ and attacked.  The Golden Dawn is a Neo-Nazi, racist and xenophobic political party (taken from the descriptions set out in the decision letter at pages 3, 6 and 7).  When the petitioner did not obtain regular work in the square he sold jewellery in a small shop, in a port region of Athens.  The Golden Dawn would attend the area where he sold jewellery and broke the table on which it was sold. They also damaged his stock.  The Golden Dawn patrolled the area where the petitioner worked, wearing black clothing and engaged in violence towards migrants.  On or around December 2013 the petitioner’s home was attacked by the Golden Dawn.  A petrol bomb was thrown at his home. The petitioner complained to the police who told him they could not support him, to get out of Greece and that he was not wanted.  Paragraph 10(k) of the decision letter records that the police told him that the persons who were responsible can steal from his home as he has stolen from the government.  The petitioner left Greece following this.  Paragraph 10(l) of the decision letter sets out two alternative scenarios for the petitioner’s movements upon leaving Greece.  It matters not for this purpose which of the scenarios is true.  He entered the United Kingdom (UK) on 26 February 2014.  The only relatives he has in the UK are his mother’s paternal aunt’s child and his paternal uncle’s son.

 

Immigration history
[4]        Following his entry into the UK he claimed asylum.  He claimed that to remove him to Iraq or Greece would be contrary to his convention rights in that he had a well‑founded fear of persecution and harm in Iraq due to his imputed political opinion and a well‑founded fear of persecution and harm in Greece due to his race.

[5]        On 3 March 2015 the respondent issued the decision letter rejecting the petitioner’s claim.  In addition, the respondent certified his asylum and human rights claims as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002 (see paragraphs 58 (asylum claim) and 60 (human rights claim) of the decision letter).  The effect of certification is that the petitioner is unable to appeal the respondent’s decision from within the UK.  On 30 March 2015 the petitioner was detained at the respondent’s instance and on 14 April 2015 directions were issued for his removal to Greece at 1815 hours on 25 April 2015.  These directions have been recalled pending the outcome of this review.

 

Preliminary matter
[6]        At the outset of the hearing the petitioner moved a minute of amendment to insert the petitioner’s latest address (which was not opposed and allowed) and to amend plea in law two to make it clear that the petitioner also challenges the respondent’s decision on human rights grounds.  This was opposed on the basis that it was out of time in terms of section 27A(1)(a) of the Court of Session Act 1988.  This provides that an application to the Court’s supervisory jurisdiction must be made (an application is made when the petition is lodged – see RCS 58.3(2)) within 3 months of the date on which the grounds giving rise to the application first arise.  The court has a discretion to extend the 3 month period if it considers it equitable having regard to all the circumstances (section 27A(1)(b)).  Having heard counsel for the petitioner and respondent on this issue I was persuaded that the petition as originally framed and then adjusted on 24 February and 30 March 2016, when read with the respondent’s decision letter, could be read as challenging both asylum and human rights certifications.  I therefore allowed this amendment which resulted in the petitioner’s second plea in law now reading as follows:-

“The petitioner’s asylum and human rights claims not being clearly unfounded, the decision of 3^rd March 2015 should be reduced.”

Had I not been so persuaded I would have exercised my discretion in terms of section 27A(1)(b) to extend the 3 month period to allow the human right’s claim to be received.  At the end of the day both the asylum and human rights claims broadly cover the same territory and given the importance of the subject matter I considered it fair, just and equitable to do so.

 

Judicial review challenge
[7]        The petitioner challenges the respondent’s decision in respect that she erred in holding that a tribunal judge could not hold that the return of the petitioner to Greece would expose him to the risk of persecution.  There are three aspects to this challenge which are that the respondent erred in holding the following:-

1. the petitioner would not be persecuted if returned to Greece (the persecution issue)
2. the petitioner would be adequately protected if returned to Greece, having regard to comparison of the extracts of reports mentioned in the decision letter with the United Nations High Commission for Refugees [UNHCR] report dated December 2014 (the sufficiency of protection issue) and

(iii)       the petitioner can live elsewhere in Greece (the internal re-location issue).

 

Submissions for the petitioner
[8]        The petitioner submitted that a tribunal judge could hold that the petitioner would be persecuted upon his return to Greece.  Certification is a draconian and formidable measure reserved for claims which are unarguable and it could not be said that the claim was clearly unfounded when applying anxious scrutiny.  A reasonable immigration judge would undertake a more detailed and rigorous examination of the facts and law in contrast to the more rudimentary process that the decision maker is able to undertake and reach a different view to that of the respondent.  The respondent erred in assessing the risk of persecution against all foreign nationals as distinct from a particular group to which the petitioner would belong on his return.  There were substantial grounds for believing that, contrary to article 3 of the convention, there was a real risk that he would be subjected to inhuman or degrading treatment.  The respondent failed to make adequate enquiry by not having regard to the UNHCR report dated December 2014 on the situation of asylum in Greece.  The respondent failed to evaluate the evidence of the petitioner in his interviews which was consistent with hostility to migrants as confirmed by the respondent’s own guidance and relevant ECHR and UNHCR reports and other material.  The respondent failed to make a finding that the steps the Greek state had taken to combat racist violence is or has been ineffective to that end.  The respondent erroneously approached the issue of internal relocation in considering whether the non- state agent (Golden Dawn) could influence all of the police force in Greece as distinct from whether they are ineffective or unwilling to protect the petitioner as an individual or as member of a racial group. With regard to the petitioner as an individual his wrongful arrest on terrorism charges and the attendant publicity has made him a potential target for anti‑Islamic groups and has given rise to a potential barrier to effective relocation.

 

Submissions for the respondent
[9]        The respondent submits that the petitioner cannot be a refugee because he fears persecution outwith his country of nationality.  The respondent did not err in holding that a tribunal judge would be bound to hold that the fear of persecution upon a return to Greece was not well founded.  In particular, the objective evidence and the petitioner’s own account of events do not demonstrate that there is a reasonable likelihood that the petitioner is at risk of being subjected by non-state actors to treatment which amounts to persecution within the meaning of the refugee convention.  There was no evidence in the petitioner’s own statements that there was a real risk of persecution as opposed to unpleasantness or prejudice. This would not amount to Article 3 ill‑treatment.  The Greek authorities had taken measures to deal with racist conduct and the targeting of refugees and these measures are taking effect.  If the actings of non-state actors in Greece feared by the petitioner are capable of amounting to persecution, there would nevertheless be a sufficiency of protection against persecution provided by the authorities in Greece.  Even if at risk of persecution in that part of Greece where he has resided previously the petitioner has failed to demonstrate that he cannot avoid persecution by safely relocating to another part of Greece, or that it would be unduly harsh to expect him to do so.  Isolated attacks on migrants from supporters of Golden Dawn is not evidence that the entire political opinion or population is xenophobic. If the petitioner has encountered problems there is nothing to show that he cannot avoid those problems by relocating within Greece, nor is there anything to suggest that it is unduly harsh to expect him to relocate.

 

Decision
[10]      With regard to the respondent’s submission that the petitioner cannot be a refugee because he fears persecution out with his country of nationality, I consider that this argument is not tenable in these proceedings having regard to the way in which the respondent approached the petitioner’s claim.  The respondent did not consider the claim in respect of his return to Iraq.  It was considered on the basis of his return to Greece (see paragraph 32 of the decision letter).  Given that the question for the court is whether the respondent erred in holding that the petitioner’s claim was clearly unfounded and a tribunal judge could not take a different view to that of the respondent, it would be inappropriate to approach this by having regard to an argument which was not considered by the decision maker.  In any event the argument only featured in submissions as a side issue without reference to detailed arguments and authorities.  With regard to the authority presented to me bearing on the issue this seemed to me to be against the respondent.  The UNHCR Thematic Compilation of Executive Committee Conclusions, 6^th edition, June 2011 on the irregular movement of refugees and asylum seekers from a country in which they had already found protection records at paragraph no 58(g) that there may be exceptional cases in which a refugee or asylum seeker may justifiably claim that he has reason to fear persecution or that his physical safety or freedom are endangered in a country where he previously found protection.  The document records that such cases should be given favourable consideration by the authorities of the State where he requests asylum. As I have indicated this appears to be against the respondent’s submission. However, for the reasons given I do not think it necessary or appropriate to reach a decision on this issue in this case.

[11]      It is important to note that this challenge is to the certification of the petitioner’s claim for asylum and human rights as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The effect of certifying is that

the claimant is precluded from bringing an appeal to the Asylum and Immigration Tribunal against the Secretary of State’s decision from within the United Kingdom. Certification under section 94 of the 2002 Act was considered by the UK Supreme Court in the case of ZT [Kosovo] v Secretary of State for the Home Department [2009] 1 WLR 348. In the judgement of Lord Philips, he said at paragraphs 22 and 23:

“[22]      The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof - in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230, paras 56—58 I put the matter as follows:

 

“56. Section 115(1) empowers - but does not require -  the Home Secretary to certify any claim ‘which is clearly unfounded’. The test is an objective one: it depends not on the Home Secretary’s view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.

 

57. How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states ‘unless satisfied that the claim is not clearly unfounded’. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief,(v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.

 

58. Assuming that decision-makers - who are ordinarily at the level of executive officers -  are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded. Miss Carss-Frisk for the Home Secretary has properly accepted that this is the correct approach.”

 

[23]      Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State’s conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State’s view was irrational.”

 

At paragraph 58 Lord Carswell described the power of certification as a draconian and formidable measure reserved for claims which are unarguable on the facts and law. So applying these dicta to the present case I require to determine whether, applying anxious scrutiny, on any legitimate view of the facts and the law, the claim could succeed. Is the case so clearly in favour of upholding the respondent’s decision that no immigration judge could hold otherwise, see FNG Petitioner 2009 SC 373 per Lord Hodge at paragraph 14 (page 376): -

“[14] It follows that the court, in deciding whether the Secretary of State was

entitled to be satisfied that a claim was clearly unfounded, must (i) ask the questions

which an immigration judge would ask about the claim and (ii) ask itself whether

on any legitimate view of the law and the facts any of those questions might be

answered in the claimant’s favour.”

 

As Lord Carswell noted at paragraph 58 in ZT [Kosovo] v Secretary of State for the Home Department [2009] 1 WLR 348 the matter must receive most anxious scrutiny which means that no conceivable factor in favour of the applicant must be left out of account, see Dangol v Secretary of State for the Home Department 2011 SC 560 per Lord Bonomy delivering the decision of the court at paragraph 9.

[12]      Applying this test to the circumstances of the case the respondent held in the decision letter that the petitioner would not as a result of his race, being a foreign national, face mistreatment, punishment, torture or inhuman or degrading treatment if returned to Greece.  Paragraph three above sets out the circumstances giving rise to the petitioner’s fear of the Golden Dawn.  The respondent approached consideration of this at its highest, assuming everything said by the petitioner was true (see para 14 of the decision letter). The issue of state protection was an important issue in the consideration of this issue. EU Council directive 2004/83 article 7.2 provides:-

“   Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.”

 

In Horvath v Secretary of State for the Home Department [2001] 1 AC 489 Lord Clyde said at pages 510G - 511D:-

“At the least …the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected.  More importantly there must be an ability and a readiness to operate that machinery.  But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.

 

It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] INLR 15, 26, para 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 by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.;

 

And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence 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.”

 

[13]      The respondent approached the issue of state protection applying this test.  The decision letter records at paragraph 22 that a state is not expected to eliminate all risk to its citizens, but protection shall exist when the state takes reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm. In determining whether the Greek state (a democracy) afforded the petitioner sufficient protection if returned to Greece the respondent had regard to its own Country of Origin Information (COI) response in January 2014 which is set out at paragraph 24 of the decision letter. This guidance cites a report from the Commissioner for Human Rights of the Council of Europe who visited Greece for 5 days from 28^th January 2013.  He expressed serious concerns at the increase in racist and other hate crimes targeting migrants. The report stated:-

“A number of the reported attacks have been linked to members or supporters, including MPs, of the neo-Nazi political party ‘Golden Dawn’ which won seats in Parliament in June 2012. Whilst welcoming the fact that the Greek authorities have adopted new measures to combat racist violence, the Commissioner regrets that rhetoric stigmatising migrants has been widely used in Greek politics and that immigration control measures have led to the further stigmatisation of migrants.

 

The Commissioner also stated his concern at the persistent reports of ill-treatment, including torture, committed by law enforcement officials notably against migrants and Roma…” though added that, “The 70 newly established anti-racist units and the hotline for reporting racist incidents are a welcome step forward. However, there were concerns about the human and financial resources available to run the anti- racist units.”

 

The guidance also cites a 2013 special report from the Greek Ombudsman titled, ‘The phenomenon of racist violence in Greece and how it is combatted’. The Ombudsman recorded 281 complaints of racist violence between 1 January 2012 and 30 April 2013, although he indicated that this was just the ‘tip of the iceberg’.  In 47 of the 281 cases of violence victims claimed security forces’ involvement.  The guidance also includes reference to Human Rights Watch (HRW), a non-profit, non-governmental human rights organization who publishes reports and briefings on human rights conditions in countries. HRW commented on a draft anti-racism bill introduced to the Greek parliament in November 2013.  According to HRW the bill would impose sanctions for hate speech and incitement to violence but failed to address problems in existing Greek law and practice with respect to reporting and prosecuting racist violence. HRW also recorded that it had heard repeatedly from victims of racist violence that the threat by police of possible detention and deportation proceedings deterred them from reporting a racist attack to the police or pursuing the case, and that in respect of police abuses of migrants in Athens there were frequent stops of people who appear to be foreigners, unjustified searches of their belongings, insults, and, in some cases, physical abuse.

[14]      The guidance also refers to the UN Human Rights Council’s report of the Special Rapporteur on the human rights of migrants dated 12 June 2013 who conducted an official visit to Greece from 25 November 2011 to 3 February 2012. The rapporteur stated that he was:-

“…deeply concerned at the widespread xenophobia and violence against migrants in Greece, which is often tolerated by the police and sometimes even perpetrated by police officers themselves. Irregular migrants who are victims of such attacks are often unwilling to report them as they risk detention and deportation if they approach the police. This contributes to a climate of impunity for violence against migrants.  In November 2012, the Minister for Public Order and Citizen Protection announced the establishment of specialised police units to fight racially motivated crime. While welcoming this initiative, the Special Rapporteur is concerned that this unit will not be able to carry out its works effectively as long as irregular migrants risk detention and deportation if they report racist crimes.”

 

He further noted the need for specialised police units to receive training on the conduct of their specific duties and to be subject to appropriate oversight. The Rapporteur believed that there was a link between xenophobia, violence against migrants and terminology, such as ‘illegal migrant’ employed by Government institutions. Coupled with the criminalisation of irregular migrants such terminology contributes to justifying the alienation, discrimination, marginalisation and ill-treatment of migrants.  The Racist Violence Recording Network, part of the office of the UN Refugee agency in Greece, cited in the Home Office Country of Origin Information, concluded from its findings, documented in Greece from January to September 2012 , that a major problem was the inability or unwillingness of the criminal investigation authorities to record racist violence incidents, to investigate the cases thoroughly and to arrest the perpetrators, or, at times, with the practice of deterring the victims of the attacks who do not have legal residence papers from reporting racist violence to the police.  The European Commission against Racism and Intolerance of the Council of Europe in December 2012 expressed concern at the rise and activities, in Greece, of Golden Dawn noting that members of Golden Dawn have systematically carried out acts of violence and hate crimes, at times tolerated by the police, against immigrants, political opponents, ethnic minorities and those who express concern about the situation. Further the COI guidance also refers to an HRW report in 2012 ‘Hate on the Streets – Xenophobic violence in Greece’ which documented the increase in xenophobic attacks and the failure of the Greek police and the judiciary to prevent, investigate and punish vigilante violence targeting migrants and asylum seekers.

[15]      The decision letter also cites (included in the Home Office Country of Origin Information) the Human Rights Watch 2014 report on Greece which covers 2013.  This report noted that despite the creation in January 2013 of anti-racism police units and some arrests, attacks on migrants and asylum seekers continued, with a non-governmental organisation network recording 104 incidents by the end of August. The Greek ombudsman warned in September that racist violence and impunity for the perpetrators undermine social cohesion and the rule of law.  In November, the government tabled a bill to sanction hate speech and incitement to violence, failing to address problems in existing legislation and practice with respect to racist violence.  Two people were convicted of racially aggravated crimes in November, the first known time the 2008 statute had been applied.  The fatal stabbing of an anti-fascist activist in Athens in September by an alleged member of the Golden Dawn sparked a crackdown on the party and the arrest of the party leader and five parliamentarians on charges of managing a criminal organisation.  An internal police investigation found in October that ten Greek police officers were linked to Golden Dawn.

[16]      The foregoing information is described as objective (para 25 of the decision letter). The respondent assesses this information as the Greek authorities having recognised that there is a problem with racism and that they have implemented new measures to combat racist violence (ibid) in respect of the establishment of 70 new anti-racist units and a hotline for reporting racist incidents. The decision letter at paragraph 26 refers to the US State Department Report on Greece which records that during the year police had received training from Government ministries, regional and international organisations, NGO’s and service academies.  Themes included inter alia anti-racism, asylum seeker recognition, witness protection and interviewing skills.

[17]      Having regard to this information the respondent concluded that: -

1.         there is an established police force in Greece from which the petitioner could seek protection if the need arose, the Greek government having taken steps to remedy the problems with the police force (para 27 of the decision letter);

2.         that if the petitioner was not satisfied with the response of the police there were avenues of complaint available (para 29 of the decision letter);

3.         the petitioner had failed to provide evidence that would indicate that the police would not be able to deal with the Golden Dawn and had failed to demonstrate that the police were unwilling or unable to assist him (para 30 of the decision letter);

4.         that there was no evidence that would suggest that the Golden Dawn would be able to influence the entire Greek police force into refusing to offer the petitioner any protection that may be necessary, particularly in light of the steps that are currently being taken to address racism in Greece (para 31 of the decision letter); and 5.            The petitioner had failed to establish a sustained and systemic failure of state protection on the part of the authorities in Greece and there is a sufficiency of protection available if he were to experience any problems upon his return (para 32 of the decision letter);

[18]      The decision letter makes no mention of the UNHCR report dated December 2014 providing observations on the current situation of asylum in Greece.  The report was published in January 2015, before the decision letter which is dated 3 March 2015.  The report concludes that Governments should continue to refrain from returning asylum seekers to Greece.  I appreciate that the report is concerned with asylum seekers but there are statements of broader application in the report which are relevant to refugees and migrants. For example, in section 11 headed ‘Racism and Xenophobia’ the UNHCR states at pages 35 - 37 that:

“Incidents of racism, racial discrimination, xenophobia, racist violence and other forms of related discrimination and intolerance remain of serious concern to UNHCR as they contribute to a climate in which the protection of asylum-seekers and refugees is regularly under threat. Greece has experienced a continuous trend of gradual legitimization of xenophobic discourse in the public sphere and widespread anti-immigrant sentiment influencing many aspects of social life, in particular since the start of the economic recession. Although racism, xenophobia and intolerance are broader human rights issues affecting different groups such as the Roma, persons of diverse sexual orientations and gender identities and others, such phenomena in Greece have been, to a large extent, manifested against migrants and refugees.

 

Racial discrimination, racist violence and intolerance undermine the protection environment in the country, including, first and foremost, the physical integrity of persons of concern. Negative public attitudes towards persons of concern have laid the ground for restrictive detention policies and measures; heightened risk of exploitation and abuse, including in formal and informal labour markets; segregation, marginalization and exclusion of persons of concern from the local community; and have contributed to difficulties in accessing rights and services. Regular expressions of racism and xenophobia hamper the reception and integration of beneficiaries of international protection in Greek society.

 

Racism and xenophobia are also reflected in increased support for far-right extremism during the last three years and an escalation of racially motivated attacks against migrants, asylum-seekers and refugees on the basis of the colour of their skin, their religion, or their country of origin. Although racist incidents have been on the rise since 2011, they were largely under-reported and unaddressed by the competent authorities. From the second half of 2012, racist attacks were reported in the press almost a daily basis all over the country, while the competent authorities failed to record them. According to the European Union Agency for Fundamental Rights (FRA), Greece is ranked in the lowest category as regards existing state mechanisms for recording and publishing data on hate crimes….

 

Despite efforts and positive steps by the Greek authorities towards effective recording and prosecuting of hate crimes, persons of concern to UNHCR continue to experience racially motivated verbal attacks and physical abuse that remains unnoticed and therefore unaddressed. It remains to be seen whether recent measures will tackle past impunity, prevent racist attacks and have a real impact on the lives of persons of concern.”

 

Albeit the report records that the Greek authorities have adopted a series of reforms and actions to record, prosecute and prevent related crimes more effectively the UNHCR are concerned that persons of concern continue to be subjects of verbal and physical abuse that remain unaddressed (see executive summary at page 4). This is what persuaded the UNHCR to make the recommendation that Governments should continue to refrain from returning asylum seekers to Greece.

[19]      Given the special importance to be attached to the views of the UNHCR, see the United Kingdom Supreme Court decision in EM (Eritrea) v Secretary of State for the Home Department [2014] 1 AC 1321 per Lord Kerr of Tonaghmure at paragraphs 71 – 72, it is difficult to understand why this report was not referred to in the decision letter.  There is nothing in the decision letter to suggest that the report was considered by the respondent.  It was available at the time the decision letter was issued, indeed it could be said that it provided contemporaneous information on the subject matter of the petitioner’s claim (Golden Dawn is referred to in section 11 of the report (see page 35) when dealing with racially motivated attacks against migrants, asylum seekers and refugees).  Given its broad scope and its conclusions and recommendation, it is certainly of relevance and given the special importance which should be attached to the views of the UNHCR it should have been considered and dealt with in the decision letter.   As it has not been taken into account it cannot be said that the petitioner’s claim has received anxious scrutiny.

[20]      The respondent has certified the claim as clearly unfounded. In my view an Immigration Judge having considered the COI material set out in the decision letter together with the UNHCR report dated December 2014 and the petitioner’s accounts could legitimately take a different view to that of the respondent and find in favour of the petitioner. I am therefore of the view that the respondent erred in holding that the claim was clearly unfounded. An immigration judge could agree with her decision, but looking at the COI material and the UNHCR report a judge could legitimately take a different view and there is a real prospect of success.  The petitioner should have the right to have this decided in an ‘in-country’ appeal.  Given this decision it is unnecessary for me to determine the petitioner’s human rights claim and the internal relocation issue which are covered in the same broad territory as the sufficiency of protection and persecution issues that I have ruled on. These issues are best left to a tribunal judge to deal with.  With regard to the adverse publicity point I consider that this is without merit. It is entirely speculative that Golden Dawn or indeed the Greek authorities would pay any attention to the limited publicity which followed the petitioner’s wrongful arrest on terrorist charges. There is simply no evidence to support such a claim.

[21]      For the foregoing reasons I grant the petition and sustain the petitioner’s first plea in law and repel the respondent’s fourth plea in law.