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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> FNG (AP), Re Judicial Review [2008] ScotCS CSOH_22 (06 February 2008) URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSOH_22.html Cite as: [2008] ScotCS CSOH_22, 2009 SC 373, 2008 GWD 6-113, [2008] CSOH 22 |
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OUTER HOUSE, COURT OF SESSION [2008] CSOH 22 |
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P2086/07 |
OPINION OF LORD HODGE in the petition of MR F.N.G. (AP) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department to certify her decision to refuse the Petitioner's application on human rights grounds to remain in the United Kingdom, in terms of Section 94(2) of the Nationality, Immigration and Asylum Act 2002, and to decide to remove the Petitioner from the United Kingdom ________________ |
Petitioner: Caskie, Advocate; Drummond Miller, LLP
Respondent: A F Stewart, Advocate; C Mullin
Background
[1] The petitioner
is a citizen of
[2] By
letter dated
[3] In
this application the petitioner seeks to challenge the certification in
relation to his ECHR claim and thereby open his right of appeal to the Asylum
and Immigration Tribunal ("AIT"). He
accepts the certification that his claim under the Refugee Convention is
clearly unfounded. His submission is
that the certification that his ECHR case was clearly unfounded was
unreasonable in the Wednesbury sense.
The Petitioner's submissions
[4] Mr
Caskie, on behalf of the petitioner, supported his submission that the
Secretary of State's decision was unreasonable by four arguments. First, he submitted that the statutory test
for certification was a high one and required that before certifying the claim
as clearly unfounded the Secretary of State should put herself into the mind of
an immigration judge who might take an unusually generous view of the facts
provided that that view was not perverse.
Unless the Secretary of State could be satisfied that the unusually
generous immigration judge would necessarily find against the claimant, the
claim could not be certified as clearly unfounded. Had the Secretary of State considered the
matter in this way, she would not have certified the claim as clearly
unfounded.
[5] Secondly
he submitted that in the context of returning a person to another country a
claim under article 8 of ECHR should have regard to the physical and moral
integrity of the claimant and that circumstances which did not amount to a
breach of article 3 could nonetheless be a breach of article 8: R (Bernard) v London Borough of Enfield [2002] EWHC 2282 (Admin).
[6] Thirdly
Mr Caskie submitted that the Secretary of State had erred in failing to treat a
country guidance case on Liberia by the Immigration Appeal Tribunal ("IAT"),
namely LB (Article 3- Monrovia - Security) Liberia CG [2004] UKIAT 00299, as the starting point in her consideration of the state of affairs
in Liberia. He submitted that the case
revealed that conditions in
[7] Finally
he submitted that the decision to certify was vitiated by the absence of a
proper basis in fact for the Secretary of State's findings of fact about the
activities in
Discussion
The test
[8]
Section 94(2) of the 2002 Act provides:
"A person may not bring an
appeal to which this section applies in reliance on section 92(4)(a) if the
Secretary of State certifies that the claim or claims mentioned in subsection
(1) is or are clearly unfounded."
The statutory test for certification is that the
Secretary of State must be satisfied that the claim is clearly unfounded. That is a high threshold.
[9] In
several cases, judges have commented on the statutory words and have
paraphrased them. In R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230, Lord
Phillips of Worth Matravers stated (para 57) that if the claim cannot on any
legitimate view succeed it is clearly unfounded. In R (Razgar) v Secretary of
State for the Home Department [2004] 2 AC 368 Lord Carswell stated that the Secretary of State must be reasonably
and conscientiously satisfied that the application must fail (para 69). In R (Yogathas
and Thangarasa) v Secretary of State
for the Home Department [2003] 1 AC 920, (which concerned the test of
"manifestly unfounded" which is substantially the same test) Lord Bingham of
Cornhill said that the Secretary of State is entitled to certify "if he is
reasonably and conscientiously satisfied that the allegation must clearly fail"
(para 14), Lord Hope of Craighead said that the threshold for certification is
that the claim "is so clearly without
substance that the appeal would be bound to fail" (para 34), Lord Hutton said
that an allegation was manifestly unfounded "if it is plain that there is
nothing of substance in the allegation" (para 72) and Lord Scott of Foscote
posed the question whether the claim was "arguable" (para 117).
[11] In
deciding whether a claim is "clearly unfounded", the Secretary of State has to
allow for possible differences of opinion as she must take account of all
legitimate views of the law and the facts: R
(L) Lord Phillips (para 58). The
House of Lords in Razgar held, in
particular in the judgment of Lord Bingham (paras 16 to 20), that the judicial
review court in addressing a challenge to certification should ask itself the
questions which the immigration judge would have to answer. Thus in answering, for example, the question
whether the removal of an applicant would have consequences of such gravity as
potentially to engage the operation of article 8, the reviewing court would ask
whether the answer, which an immigration judge had to give, would or should be
negative. In answering the relevant
questions in a way in which an immigration judge would or might properly answer
them, the court allows for possible differences in opinion so long as the
opinion is not perverse. Lord Carswell
in that case (at para 77) said that in the light of the information before the
judicial review court it must ask whether the case is so clearly in favour of
upholding the decision to remove the applicant that no reasonable immigration
judge could hold otherwise. So indeed
must the Secretary of State when considering certification.
[12] Mr
Stewart on behalf of the respondent submitted that the issue for the court in a
judicial review is whether, on the material before her, the Secretary of State
was entitled to be satisfied that the claim was bound to fail: MK v
Secretary of State for the Home Department [2007] CSOH 128, Lord MacFadyen
at paragraph 22. I accept that submission subject to a qualification which is not relevant to the
present case which I discuss in the next paragraph. Mr Stewart's formulation is consistent with
the traditional role of the court in judicial review. But so stating the issue does not preclude
the court in the context of an ECHR challenge from subjecting the impugned
decision to careful scrutiny in the course of that review. The court as a public authority has a legal
duty to act to avert or rectify a violation of an ECHR right: Huang v Secretary of State for the Home Department [2007] 2 AC 167 (para
8).
[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.
Article 3
[15] Mr Caskie
submitted that the petitioner had an arguable case under article 3 of ECHR
which provides:
"No one shall be subjected
to torture or to inhuman or degrading treatment or punishment."
[16] However
he concentrated his submission on the article 8 case, recognising the high
threshold which article 3 set. Having
regard to the country guidance case, referred to in paragraphs 6 and 26, and
the objective facts about Liberia recorded in the decision letter and summarised
in paragraphs 22 and 27 below, I consider that the Secretary of State was
entitled to certify that the article 3 case was clearly unfounded.
Article 8
[17] The
petitioner relies principally on article 8 of ECHR which provides:
"(1) Everyone has the right
to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public
authority with the exercise of this right except such as in accordance with the
law and is necessary in a democratic society in the interests of national
security, public safety or the economic wellbeing of the country, for the
prevention of disorder or crime, for the protection of health or morals or for
the protection of the rights and freedoms of others."
[18] In this
case the court is not concerned with family life as the petitioner's family
live in
[19] The
reference in article 8 to respect for private life has been interpreted as a
protection against sufficiently adverse effects on a person's physical and
moral integrity: Costello-Roberts v United Kingdom (1993) 19 EHRR 112
(paras 34-36). It has been held that
article 8 protects a right to identity and personal development and a right to
establish and develop relationships with other human beings in the outside
world: Botta v Italy (1998) 26 EHRR 241 (para 32), Bensaid v United Kingdom (2001)
33 EHRR 205 (paras 46-47) and Pretty v United Kingdom (2002) 35 EHRR 1 (para
61). The boundaries of these concepts
are not clear. The courts have held that
article 8 might be engaged in cases where a claimant suffered from serious
mental illness (Razgar, Bensaid) and were engaged where a boy
who was deaf and had a specific language impairment was at risk of being unable
to communicate functionally in any spoken language if he was removed from the
United Kingdom (R (Jegatheeswaran) v Secretary of State for the Home Department [2005] EWHC 1131 (Admin)).
[21] Against
this background was the Secretary of State entitled in this case to certify
that the petitioner's claim was "clearly unfounded"? In my opinion she was. This case does not concern the breaking up of
family or other connections which the petitioner has made in the
[22] While
the objective evidence about conditions in Liberia disclose it to be a very
poor country which is only slowly recovering from the effects of its civil war
and that there can be difficulty in obtaining appropriate medication in
Monrovia, the petitioner is healthy and does not need medication. Mr Caskie acknowledged that security
conditions were improving in
[23] In
paragraph 17 in Razgar Lord Bingham
stated that the reviewing court must ask the questions which the immigration
judge would have to answer. Those were:
(i) will the proposed removal be an interference by a public authority
with the exercise of the applicant's right to respect for his private life? (ii) If
so, will such interference have consequences of such gravity as potentially to
engage the operation of article 8? (iii) If so, is such interference in accordance
with the law? (iv) If so, is such interference necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others? (v) If so, is such interference proportionate to
the legitimate public end sought to be achieved? While it might be arguable that the answer to
question (i) in this case could be positive, I am satisfied that the answer to
question (ii) would or should be negative.
There is no doubt that the facilities available in the United Kingdom to
assist deaf people are generally much better and more accessible than those in
Liberia, but the issue is not one of comparative advantage. There is nothing in the material before me
which suggests that the petitioner would not be able to establish and develop
relationships with other human beings in
The other challenges
[24] The other challenges relate to the alleged
failure to have regard to a relevant country guidance case and the allegation
that there was no factual basis for the findings in relation to the work of the
NGOs. I deal with each in turn.
Country guidance cases
[25] In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 the
Court of Appeal discussed the practice of the AIT and its statutory predecessor
of giving "country guidance" in order to avoid multiple examinations of the
political and general circumstances in a country at any particular time and to
achieve consistent decision-making. The
Court held that, where an appeal related to the country guidance issue in
question and depended upon the same or similar evidence, it would be an error
of law to fail to apply an extant country guidance decision unless there was a
good reason, explicitly stated, for not doing so. The error of law would be that the tribunal
would have failed to take a relevant consideration into account. The country guidance cases did not have the
status of factual precedents but provided at least a starting point for
consideration of the background circumstances in the country to which they
related. Thus an unexplained
inconsistency with a country guidance case could amount to an error of law.
[26] Mr
Caskie submitted that there had been a failure to consider the country guidance
case of LB (Article 3 -
[27] In the
decision letter in this case the Secretary of State summarised the political
developments and security situation in
[28] Mr
Stewart explained that it was not the practice of the Secretary of State to
refer expressly to country guidance cases in decision letters and submitted
that there was nothing in the decision letter in this case which was
inconsistent with the guidance given in LB. Absent such inconsistency, there was no error
of law.
[29] I am
satisfied that there is no inconsistency between the country guidance in LB and the findings of fact in the
decision letter in relation to the political and social circumstances in
Liberia. Like LB the decision letter concluded that the humanitarian and security
conditions in
The no factual basis
challenge
[30] I turn,
finally, to the challenge that there was no factual basis for the findings in
the decision letter in relation to the activities of NGOs. The statements in paragraph 37 of the
decision letter appear to have been made in the light of research on the
internet as the paragraph contained references to website addresses. It stated that the Liberia National
Association for the Deaf ("LNAD") was still actively working in the community
supporting and assisting deaf people. It
recorded that there was evidence that the Deaf Institute of Theology had been
requested to help deaf people in
[31] The
petitioner asserted that all that the website revealed in relation to the LNAD
was that it had existed and had an e-mail address and a PO Box address. But on the petitioner's own account of his
history to the immigration authorities he and many other deaf people had gone
to the LNAD on leaving school in the late 1990s. In addition the respondent produced evidence
that the LNAD had remained active in recent years and that it maintained a
current registration as a member of the World Federation of the Deaf, an
international NGO of national associations of deaf people. The Deaf Institute of Theology is an American
institution which offers theological training in the
[32] While
there may be questions as to the weight which can be attached to the possible
availability of assistance from the institute based in the United States and
from the missionary who may no longer be working in Monrovia, there was
evidence available to the Secretary of State to allow her to challenge the
petitioner's assertion that there was no support for deaf people in Liberia
(paragraph 36 of the decision letter) particularly in relation to the continued
work of the LNAD. I therefore reject
this challenge.
Conclusion
[33] I am satisfied that the Secretary of State's decision to certify under section 94(2) of the 2002 Act was lawful. I therefore sustain the respondent's plea-in-law and dismiss the petition.