Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 46
P223/12	OPINION OF LORD DRUMMOND YOUNG in the petition of ASM Petitioner; for Judicial review of a decision to certify the petitioner's asylum claim on safe third country grounds and to remove him to Austria ________________

Petitioner: Caskie; McGill & Co

Respondent: Webster; Solicitor to the Advocate General

20 March 2013

[1] The petitioner seeks judicial review of a decision made on 7 November 2012 by an official acting on behalf of the Secretary of State for the Home Department to certify an asylum claim made by the petitioner as clearly unfounded. What that means is as follows. The petitioner had claimed asylum in the United Kingdom, but the Secretary of State decided that another country, Austria, was the country responsible under Council Regulation (EC) No 3483/2003 for determining the petitioner's asylum claim, because the petitioner had made a claim there before coming to the United Kingdom. The result was that the petitioner should be returned to Austria for consideration of his claim. A decision to that effect was intimated by letter dated 28 February 2012 and was confirmed by the letter of 7 November 2012. The Secretary of State went further, however, by certifying the petitioner's claim to asylum in the United Kingdom as clearly unfounded; that was done in terms of paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The result of such certification is that the petitioner is unable to appeal against the Secretary of State's decision until after he has left the United Kingdom.

[2] The petitioner now seeks judicial review of the decision to certify his claim to asylum in the United Kingdom as clearly unfounded. He refers to the strength of his family connections in the United Kingdom and to certain practical advantages resulting from his family connections in having his asylum claim determined here rather than in Austria. It is a matter of agreement that certification would not be appropriate if an immigration judge, looking at the available evidence, might take a different view as to the strength of the petitioner's family connections in the United Kingdom; in that event it could not be said that the petitioner's claim was "clearly unfounded". Paragraph 5(4) of Schedule 3 to the 2004 requires the Home Secretary to certify a claim as being clearly unfounded unless she is satisfied that it is not clearly unfounded. Nevertheless, the petitioner contends that in the present case, having regard to the strength of the petitioner's family connections here, an immigration judge might take a different view. On that basis, the Home Secretary's decision is said to have been one that no reasonable person in her position could have made.

[3] I should record further that it is a matter of agreement that the decision of 7 November 2012 supersedes earlier decisions, in particular that made on 28 February 2012. When the present petition was appointed to a rescheduled first hearing the pleadings did not refer to the latest decision, and indeed were largely incomprehensible. The necessary amendments, including amendment to alter the remedy sought, were only made on the date set for the rescheduled first hearing. It must be emphasized that if the system of judicial review is to operate properly the solicitors acting for a petitioner must ensure that properly adjusted pleadings are available in good time for the first hearing. In the present case, time had to be taken to remedy matters, and the result was that a hearing that should have finished comfortably in one day had to spill into a second day.

[4] The legal background to the present petition is Council Regulation (EC) No/203 (the Dublin II Convention). Under the Dublin II Convention, a scheme is established among the member states of the European Union to deal with claims for asylum made by persons who are nationals of countries outwith the European Union. It is common for such persons to pass through a number of member states. When such a person claims asylum, his claim is normally dealt with by a single member state determined in accordance with the Convention: article 3. The Convention lays down a hierarchy of criteria for determining which member state is responsible for considering the claim; these include reference to family connections, but it is a matter of agreement that the mandatory provisions dealing with family connections do not apply to the present petitioner, notwithstanding the fact that he has family in the United Kingdom. The default position, in cases of irregular entry into a member state from a third country, is that the member state thus entered is responsible for examining the application for asylum: article 10. In the present case the petitioner entered Austria before coming to the United Kingdom, and thus it is Austria that has primary responsibility for examining his claim. Nevertheless, the rules in the Convention are subject to discretionary exceptions. In particular, article 3(2) permits a member state to examine an application for asylum lodged by a third‑country national, even if such examination is not its responsibility under the criteria laid down in the Convention. That means that United Kingdom could, if it wished, consider the petitioner's claim.

[5] Within the United Kingdom, asylum claims are dealt with under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, mentioned above. Schedule 3 to that Act deals with the removal of asylum seekers to safe countries. Paragraph 3 of Schedule 3 provides that 28 designated states, including all European Union members, are to be treated as places where a person's human rights will not be threatened and where he will not be sent to another state in contravention of Convention rights or otherwise than in accordance with the Geneva Refugee Convention of 1951. Those states are all signatories to the European Convention on Human Rights. If the Home Secretary proposes to remove a third‑country national to one of those states, paragraph 5(4) applies. So far as material, this is in the following terms:

"The person may not bring an immigration appeal... in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded".

It is under that provision that the Secretary of State has certified the petitioner's claim, and it is that decision to certify that is challenged.

The petitioner's immigration history

[6] The facts upon which the petitioner relies are as follows. He is a national of Iran, born on 30 December 1990, and avers that he fears persecution on return to that country. He arrived in the United Kingdom in June 2010 and claimed asylum. In travelling to the United Kingdom he passed through Austria. He avers that he came to the United Kingdom to claim asylum as his father is lawfully settled here. His father now has British citizenship. In November 2010 he was returned to Austria in accordance with the scheme of the Dublin II Convention, but thereafter he returned to the United Kingdom. By then his mother, brother and sister had entered the United Kingdom lawfully and were living with the petitioner's father as a family unit. Prior to leaving Iran the petitioner states that he lived with his mother, brother and sister. He now wishes his claim to asylum to be determined where the remainder of his immediate family now lawfully live.

[7] He further avers that he has detailed his claim for asylum in a statement submitted to the Secretary of State. In summary, he states that he has aired political views on an Iranian radio station. He has produced evidence of his educational qualifications. He further avers that on 13 October 2011 his mother was approached by plainclothes police officers of the Etallat, which functions as a secret police force in Iran. They informed her that the petitioner was against Ayatollah Khamenei, who is styled as the "Supreme Leader" of Iran. Thereafter a court summons was served on the petitioner's mother, and she received further documents in relation to this matter. The petitioner's mother is, for practical purposes, the only person who could provide potentially corroborative evidence of these events. She lives lawfully in the United Kingdom with the remainder of the family. The petitioner accordingly submits that his removal to Austria might deprive him of potentially corroborative material in furtherance of his claim to asylum.

[8] The petitioner accepts that he has been dishonest in a number of respects in his dealings with immigration officials and has flouted United Kingdom immigration control. For that reason he states that he is a witness whose evidence might attract a significant degree of circumspection. He avers that his mother would not be regarded from the outset with the same degree of circumspection. Thus her evidence might be critical. He suggests that, if her evidence were to be believed, his claim for asylum would be "very likely" to succeed. It had been suggested that she could give her evidence to the Austrian authorities in writing, but that would present serious practical difficulties, and giving her evidence orally would enable her to be cross‑examined. It is further averred that, if the petitioner's asylum claim were refused because his mother was unable to provide oral evidence, that would have a negative impact on her; she is said to suffer from mental health problems.

[9] In response to the foregoing averments, the respondent states that the petitioner made an application for asylum in Austria in about June 2010, before travelling to the United Kingdom. On arrival in the United Kingdom he denied having made such an asylum claim. Austria accepted responsibility for determining the petitioner's asylum claim on 13 August 2010. The petitioner's application for asylum in the United Kingdom was then refused and was certified on safe third‑country grounds. A date for removal directions was set. The petitioner was removed to Austria on 18 November 2010. He subsequently re‑entered the United Kingdom clandestinely and unlawfully, and thereafter he evaded immigration control for nine months or thereby. When detected he claimed asylum again. Once again his claim was refused, and was certified on safe third‑country grounds. The petitioner requested that the Secretary of State should exercise discretion and consider his application for asylum notwithstanding the earlier decision to refuse. She did so, but declined to exercise her discretion in favour of the petitioner. It is further averred that, if the petitioner's mother is a witness whose evidence is not to be regarded with circumspection, the absence of oral evidence from her is unlikely to be of any materiality in the assessment of the petitioner's asylum claim.

The Secretary of State's decision

[10] The Secretary of State's decision letter dated 7 November 2012 narrates the petitioner's immigration history. This was not disputed to any significant extent. Consideration was given to the implications of article 8 of the European Convention on Human Rights. The writer of the letter then considered (paragraph 15 et seq) whether any interference with the petitioner's right to family life would have consequences of such gravity as potentially to engage the operation of article 8. The residence in the United Kingdom of the remainder of his family was noted. It was stated that the petitioner had made no applications for entry clearance to join his father although he could have done so from Iran, since his father was granted indefinite leave to remain in the United Kingdom on 9 December 2009, well before the petitioner left Iran. Instead, he arranged to come to the United Kingdom illegally. He had been removed from the United Kingdom and had come back. Findings were then made that the petitioner was living with his parents in the United Kingdom, and the petitioner's account of his relationship with his family in Iran was noted. On that basis, the writer stated (paragraph 19) that the interference with the petitioner's family relationships could not be said to have consequences of such gravity as potentially to engage the operation of article 8: that is the second of the well-known tests laid down in R v Home Secretary, ex parte Razgar, [2004] UKHL 27, at paragraph [17]. For the reasons discussed below, I consider that conclusion to be quite unsustainable.

[11] The decision letter continues (paragraph 20) by referring to the fact that the petitioner had entered the United Kingdom illegally. On that basis, the petitioner's claim failed to satisfy the third, fourth and fifth tests in Razgar; in particular, removing the petitioner to Austria was proportionate in view of the fact that any private life that he might have formed in the United Kingdom had been in the full knowledge that his immigration status was at best precarious. That appears to involve consideration of the fifth of the tests laid down in Razgar. On this test, as with the second, I consider that the letter is open to potential criticism. The letter further noted (paragraph 22) that the effect on the petitioner's family of his removal had also been considered; he was able to communicate with them through a variety of means, and his father at least could visit him in Austria. This is a further part of the letter that is in my opinion open to serious criticism; the matter is discussed below under reference to the decision in R (Mansoor) v Home Secretary, [2011] EWHC 832 (Admin).

[12] The letter then goes on (paragraph 23) to consider the significance of the petitioner's mother's evidence in respect of his asylum claim. This issue was not regarded as material on the ground that evidence could be provided in writing, or possibly by other remote means. Reference was then made (paragraph 26) to the need for the United Kingdom to maintain a secure border and effective immigration control. In this respect, it was stated that the petitioner would have the same opportunities for development and the same level of support in Austria as in the United Kingdom. He had not demonstrated any exceptional circumstances or raised any issues to establish the contrary. Once again, I consider that this part of the reasoning in the letter is open to serious criticism.

[13] The writer went on (at paragraph 28) to consider whether it was appropriate that the Home Secretary should exercise her discretion to permit the appellant to remain in the United Kingdom. This suggestion was rejected; the petitioner's mother would be able to give evidence in Austrian proceedings, and the petitioner's circumstances were not sufficiently exceptional to support any such exercise of discretion. The paragraph concluded by stating:

"It is considered that to a person such as your client, who has entered the UK illegally and whose asylum claim is for the Austrian authorities to consider to have his asylum claim considered in the UK would be to undermine the proper operation of the Dublin Regulation and to the disadvantage of those whose asylum claims are properly the responsibility of the United Kingdom to consider".

This is a further aspect of the letter that I consider is open to substantial criticism. Finally, the writer indicated that it was not accepted that the petitioner's proposed removal to Austria would result in an interference with his rights under article 8 (paragraph 29), and that, on the basis of the evidence available, the Secretary of State had decided that she was not satisfied that the petitioner's human rights claim was not clearly unfounded (paragraph 31). On that basis, the petitioner's human rights claim was certified as "clearly unfounded" in terms of paragraph 5() of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

Whether the Secretary of State's decision is open to legal challenge

[14] The present petition challenges the Secretary of State's certification of the petitioner's claim as "clearly unfounded". In certifying the claim, it was necessary to apply the well‑known test laid down by Lord Bingham in R v Home Secretary, ex parte Razgar, supra, at paragraph [17]:

"In a case where removal is resisted in reliance on article 8, [the relevant] questions are likely to be:

(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) 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?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

In the present case, the submissions focused on the second and fifth of these tests; it was not seriously disputed that the removal of the petitioner to Austria would involve some degree of interference with his family life; nor was it disputed that such interference would be in accordance with law, and was consonant with the need to maintain effective immigration control, which would satisfy the fourth test. The maintenance of immigration control is also relevant to the evaluation that must be carried out in furtherance of the fifth test.

[15] The critical question is thus twofold: whether the removal of the petitioner to Austria would interfere with his family life to such an extent as potentially to engage article 8, and if so whether such interference is proportionate to the need for the United Kingdom to maintain effective border controls. In addressing these questions, however, it is important to bear in mind that for present purposes it is not necessary for the court to give a definitive answer to either question. The challenge is to the Secretary of State's certification of the petitioner's article 8 claim as "wholly unfounded". Consequently, what must be considered is whether an immigration judge might properly, without acting unreasonably or perversely, reach a conclusion on these questions contrary to that of the Secretary of State. I conclude without hesitation that an immigration judge might quite properly reach a contrary conclusion. The reasons for this view are as follows.

[16] First, it is clear that the petitioner has strong ties with the remainder of his family. He lived with his mother and younger brother and sister in Iran until he left in about June 2010; at that time he was 19 years old. He claims that he did not leave Iran on a voluntary basis; he had found himself in trouble with the secret police and was trying to evade their attention. He came to the United Kingdom because his father was living here, having been granted indefinite right to remain, and he wanted to join his father. He was removed from United Kingdom to Austria in November 2010 but returned thereafter to the United Kingdom. That return was of course illegal; nevertheless it manifests a clear desire to be with his family. By this time his mother, brother and sister had come to the United Kingdom and were living with his father. (They were able to do so as dependents of his father; because of his age, the petitioner was not able to avail himself of this provision of immigration law). At present the petitioner is living with the remainder of his family, and it is clear that he wishes to remain with them and they wish him to remain. There are thus close ties with immediate family members, forming part of the basic family unit of husband, wife and children. This is obviously a central feature of the petitioner's life and indeed the lives of the other family members. It is a general, and important, criticism of the Secretary of State's letter that it fails to give anything like sufficient weight to this factor.

[17] Secondly, the foregoing criticism is apparent at paragraph 15, where the writer of the letter begins to address the second part of the Razgar test. It is noted that the remainder of the petitioner's family were resident in the United Kingdom, but the implications of that for the petitioner are not stated. The point is made that, unlike other family members, the petitioner made no application for mandatory entry clearance to join his father, although it was open to him to do so. This ignores the fact that, at the time when the petitioner left Iran, he claims that he was under threat from the secret police; consequently, if his claim is well founded, he had good reason to leave in a hurry, without going through the formalities of obtaining entry clearance. Thirdly, at paragraph 19 of the decision letter the conclusion is expressed that the petitioner's article 8 claim based on the assertion of a right to family life in United Kingdom was bound to fail under the second question in Razgar. This conclusion appears somewhat abruptly. In the preceding paragraphs there is some narration of the family's position, but it is at least arguable that what is said in those paragraphs does not justify the conclusion that is made, given the central position of the family in the lives of all concerned.

[18] Fourthly, at paragraph 20 the fifth question in Razgar is addressed. The fifth question involves an evaluation exercise: the pursuer's family life in United Kingdom must be balanced against other legitimate considerations, notably the need to maintain an effective system of immigration control. In paragraph 20 the focus is on the latter consideration, reference being made to the petitioner's poor immigration history and the fact that he could not have had any legitimate expectation that he would be allowed to remain in the United Kingdom for the consideration of his asylum claim. It can scarcely be disputed that the petitioner's immigration history was very poor; not only did he enter the country illegally on two occasions but he also took active steps to avoid the consequences of his acts and told untruths to the authorities. Nevertheless, the fifth question requires a balancing exercise, and it is not obvious that this has been carried out. In this connection, it is material that the petitioner merely seeks to have his asylum claim determined. Furthermore, in relation to the petitioner's poor immigration history, it must be borne in mind that he originally came to the United Kingdom at the age of 19 and that, if his claim is correct, he was fleeing the secret police in Iran. Furthermore, the fact that he has told untruths is not by any means fatal; this issue was considered at some length in MA (Somalia) v Home Secretary, [2010] UK SC 49, where it was indicated (at paragraphs [31]-[33]) that the significance of lies will vary from case to case; it is necessary to take account of the desperate situation in which a true refugee may find himself. A similar approach was taken in KU (Pakistan) v Home Secretary, [2012] EWCA Civ 107.

[19] Fifthly, at paragraph 22 the writer of the decision letter considers the effect that the removal of the petitioner might have on the remainder of his family. Stress is placed on the ability to communicate by telephone, letters, emails and the like. It is also pointed out that the petitioner's father would be able to visit him in Austria. In this connection it is appropriate to refer to the decision of Blake J in R (Mansoor) v Home Secretary, supra, where it is stated (at paragraph [16]):

"If members of the family enjoy family life in an inter-dependent household of partners and minor and dependent children it is no comfort to say that they can continue to enjoy that family life by telephoning each other, emailing, video conferencing or any of the other forms of electronic technology that may be in existence".

I respectfully agree with that statement. The fact that the person claiming asylum was over the age of 18 is also considered in that case (paragraph [27], and it is clear that the significance of family life extends beyond that age. That appears to me to be a matter of common sense.

[20] Sixthly, an argument taken for the petitioner is that he will require his mother's evidence in his claim for asylum; his own evidence may be tainted by the fact that he has lied on a number of occasions, whereas his mother's evidence is likely to be regarded without circumspection. This matter is dealt with at paragraph 23 of the decision letter, where it is suggested that the petitioner's mother's evidence might be given in writing or by video link or the like; translation facilities would be available. I do not know whether oral evidence would be admissible before an Austrian immigration tribunal, nor what arrangements could be made there for presenting the evidence of a witness in the United Kingdom. There may be advantages if the petitioner's main supporting witness is available in the jurisdiction where his asylum claim is heard; and if oral evidence is admissible it might be preferable to have the petitioner's mother give her evidence in person, especially as the petitioner accepts that certain aspects of his evidence are likely to be questionable. Moreover, the petitioner's mother is apparently in a position to give evidence as to what happened in Iran before the petitioner left. Nevertheless, overall, I do not regard this as a major flaw in the reasoning in the decision letter.

[21] Seventhly, paragraph 26 appears to be significant in that it contains an attempt to balance the responsibility of the Secretary of State and the UK Border Agency to maintain a proper system of immigration control against the interests of the petitioner, including his family life. The need to balance the conflicting interests is mentioned and it is pointed out, correctly, that the fact that has members of his family in the United Kingdom does not guarantee that his asylum claim will automatically be heard here when another state is in fact responsible under the Dublin II Convention. It is then stated that the petitioner would have the same opportunities for development and the same level of support in Austria as in the United Kingdom. That, with all due respect, seems extremely questionable. In Austria, the petitioner would plainly not have the support of his family except by remote means of communication and possibly occasional visits from his father. Furthermore, it appears that he would require to learn German, as there is no evidence that he already speaks that language. He would also require to adapt to a somewhat different culture from the United Kingdom, and probably without the support of the church that he has joined here (paragraph 23).

[22] Eighthly, at paragraph 28 the decision letter deals with the exercise of the discretion that is available under article 3(2) of the Dublin II Convention. It is stated that the petitioner's circumstances "are not considered to be sufficiently exceptional to support such an exercise of discretion". To do so in the case of a person such as the petitioner, who has entered the United Kingdom illegally and whose asylum claim is initially for the Austrian authorities, would be to undermine the proper operation of the Convention; and it would operate to the disadvantage of those whose asylum claims are properly the responsibility of the United Kingdom. The petitioner's family situation is not considered at this point. It seems to me that the effect of allowing the petitioner's asylum claim to be considered in the United Kingdom rather than Austria would be minimal. As to "undermining" the proper operation of the Convention, it is obviously important that a proper and consistent system of immigration law should be maintained. Nevertheless, article 3(2) makes specific provision for exceptional cases. In the petitioner's case, he is fairly young, and all of his immediate family are now living permanently in the United Kingdom. That might suggest that it is appropriate to treat his case as exceptional: compare R (Saeedi) v Home Secretary, [2010] EWHC 705 (Admin), at paragraphs [159] and [160], where it is pointed out that the Secretary of State must exercise her discretion under article 3(2) in accordance with fundamental rights as recognized by the European Union; these include the right to family life under article 8 of the Human Rights Convention. It is not necessary to reach a definitive view on this matter; the critical question is whether an immigration judge might take a different view from the Secretary of State. It seems clear to me that that question should be answered in the affirmative at this stage.

[23] Finally, counsel for the Secretary of State listed a considerable number of factors that supported the decision that had been made on her behalf. The petitioner had entered the country illegally; he had attempted to frustrate his removal to Austria, a country where civilised standards of government are observed and Convention rights are respected; he had entered the United Kingdom illegally a second time; he had used subterfuge in dealing with the UK Border Agency on his re‑entry; he would not face personal difficulties living in Austria; the was no reason to believe that his claim could not be properly advanced there; and his family would be able to exist without him in the United Kingdom, as they had in Iran. Emphasis was placed on the petitioner's exceptionally poor immigration history. Against that there were the petitioner's family, his church connection in the United Kingdom, and the assistance that his mother might give in immigration proceedings. The difficulty with this exercise is in my opinion that it treats the petitioner's family connections merely as one factor among many others. In reality, his family links are likely to be of far greater significance than any of the other factors mentioned. For this purpose, however, it is not necessary to reach a definitive view at the present time; it is enough to say that an immigration judge might take a different view from the writer of the decision letter.

[24] For the foregoing reasons I am of opinion that the decision by the Secretary of State that the petitioner's claim under article 8 is "clearly unfounded" is unreasonable, in the sense that no reasonable person in her position could have reached such a decision. I accordingly uphold the petitioner's challenge to the certification of his asylum claim in terms of paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. For that reason I will pronounce decree of reduction of the decision letter of 7 November 2012. The petitioner has succeeded in his petition for judicial review; I accordingly find him entitled to the expenses of the petition procedure.