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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 78
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OPINION OF LADY
DORRIAN
in the Petition of
SUKHWAT SINGH GILL
Petitioner;
for
Judicial Review of
a decision of the Secretary of State for the Home Department to certify his
claim as "clearly unfounded" in terms of section 94(2) of the
Nationality Immigration and Asylum Act 2002
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Petitioner: Devlin; Anderson Strathern
Respondent: A F Stewart; J C Mullin; Office of the
Solicitor to the Advocate General
18 May 2006
[1] By
letter dated 25 October 2004, the Immigration and Nationality Directorate
advised the petitioner that a decision had been made by the Secretary of State
for the Home Department (a) to refuse the petitioner's application for
asylum in the United Kingdom;
and (b) to certify the petitioner's application as "clearly
unfounded" in terms of the Nationality, Immigration and Asylum Act 2002
("the 2002 Act"). In this petition, the
petitioner seeks declarator that the decision to
certify the claim as "clearly unfounded" was unreasonable et separatim unlawful and also seeks
reduction of that decision.
Petitioner's submissions
[2] In
support of those claims, counsel for the petitioner drew attention to the
statutory framework against which the petition arose. Section 82 of the 2002 Act makes general
provision for a right of appeal to an adjudicator. That right is qualified by
Section 94 of that Act, sub-section 2 of which provides that a
person may not bring an appeal under Section 92(4) if the Secretary of
State certifies that the asylum claim or human rights claim (or both) is or are
clearly unfounded. In the case of certain listed States, (to which India
was added in 2005), the Secretary of State is obliged to certify the claim
unless satisfied that it is "not clearly unfounded". There is no practical distinction, it was
submitted, between these two tests, under reference to the case of R ex parte Husan v The
Secretary of State for the Home Department 2005 EWHC 189 (admin)
and R (L and Another) v The Secretary of State for the Home
Department [2003] 1 WLR 1230.
[3] Counsel submitted that the phrase "clearly unfounded" should
be given the same meaning as "manifestly unfounded" in Section 72(2)(a) of the Immigration and Asylum Act 1999, under reference
to Hansard HL, volume 638,
column 342 per Lord Falconer of Thornton LC. He referred to R (Yogathas) v The Secretary of State for the Home Department [2003]
1 AC 920 in which the Home Secretary's consideration was described as a
"screening process" in which the Secretary of State had to address his mind to
the question of whether the claim is "so clearly without substance that the
appeal would be bound to fail". Counsel submitted that the test of whether an
application was "clearly unfounded" is capable of several interpretations
namely (a) whether the application is capable of belief by an adjudicator
and if so, whether it is capable of being within either convention; (b) whether an adjudicator could be
reasonably and conscientiously and satisfied that the application must clearly
fail; (c) whether the application
is so clearly without substance that an appeal to an adjudicator would be bound
to fail; or (d) whether it is plain
that there is nothing of substance in the application.
[4] With that introduction, counsel turned to the reasons given in
the decision letter which is 6/1 of process, submitting that there were
two "limbs" to the reasoning in the decision letter: paragraph 17-24 which
deal with the application for asylum and humanitarian protection; and
paragraphs 25-30 which deal with the issue of internal relocation.
[5] Counsel
submitted that the respondent erred in law in failing to ask whether the
petitioner was a person who, owing to a well-founded fear of persecution, was unwilling to
avail himself of the protection of that country. He submitted that Article 1A of the
Refugee Convention 1951 set out two tests, namely, that first there is a well
founded fear of persecution and second, that, owing to such fear, there is an
inability or unwillingness to avail himself of the protection of his country of
nationality. He referred to Adan v The Secretary of State for the Home
Department [1999] 1 AC 293 at page 304B-E when Lord Lloyd of
Berwick observed that nationals outside their country of origin and seeking
asylum, must satisfy two separate tests "what may, for short, be called 'the
fear test' and 'the protection test' ...".
Counsel pointed out that there were two aspects to the "protection test"
namely first, the question of ability to avail oneself of the protection of the
country of origin and secondly, the question of willingness to do so. He drew attention to the opinion of
Lord Justice Sedley in Svazas v The Secretary of State for the Home Department [2002]
1 WLR 1891 at page 1899B where he noted this second aspect of
the protection test, saying:
".....even though
the home State may be able to provide protection, the fear now justifiably felt
by the individual may be such that he is unwilling to rely on the State to
protect him. ........Whether or not the (applicant) is 'able' to avail himself of
the [home] State's protection, such as it is, against police brutality, he may
justifiably be unwilling to try."
[6] Counsel submitted that there was no attempt in the decision
letter to consider whether the applicant was unwilling to seek
protection. In failing to address that question, the respondent erred in law.
[7] Counsel's second proposition was that the respondent had erred
in law in finding that the petitioner had failed to avail himself of the
protection of his country of origin because he failed (a) to make a formal
approach to the police, the Punjab State Human Rights Commission or the National
Human Rights Commission;
or (b) to raise proceedings before the Indian courts. He submitted that a person who, owing to a
well founded fear of persecution, is unable or unwilling to avail himself of
the protection of State agencies such as the police is not obliged to approach
Human Rights organisations or raise proceedings in the courts of that country
in order to qualify as a refugee. A
person subject to persecution by the police may justifiably be unwilling to ask
for their protection. Counsel submitted that the actions of rogue officials
should be treated as the actions of the State for the purpose of considering a
claim for asylum, under reference to the case of Vraw v M. I. M. A. [2004]
FCA 1133 an unreported decision of the Federal Court of Australia. It was
not the purpose of organisations such as the Punjab and
National Human Rights Commissions to provide protection against criminal acts.
Moreover, both offer redress after the events and protection after the event is
not protection for the purposes of the convention. Reference was made to Kinuthia v Secretary of State for the
Home Department
[2001]
INLR 133.
[8] Counsel's third proposition was that the respondent failed to
adopt the correct test for determining whether the petitioner had a well
founded fear of persecution. Counsel
submitted that the correct test is set out in a passage in Hathaway, Law of Refugees Status at page 125-126 where it is
stated that:
"The most
obvious form of persecution is abuse of human rights by organs of the State,
such as the police and military. This
may take the form of either pursuance of a formally sanctioned persecutory
scheme, or non-conforming behaviour by official agents which is not the subject
of a timely and effective rectification by the State. In such cases, it is clear that the citizen
can have no reasonable expectation of national protection, since the harm
feared consists of acts or circumstances for which governmental authorities are
responsible ..."
Counsel then went on to refer to
page 1897D-E of Svazas
v Secretary of State for the Home
Department [2002] 1 WLR 1891 where Lord Justice Sedley said:
"... The concept
of 'non-conforming behaviour by official agents which is not subject to timely
and effective rectification by the State' seems to me to give a precise edge to
the convention scheme ... and to make the key distinction between State and
non-State agents of persecution. While
the State cannot be asked to do more than its best to keep private individuals
from persecuting others, it is responsible for its agents unless it acts
promptly and effectively to stop them."
In paragraph 22 of that same
opinion, referring to a situation where the persecutors wear official uniforms,
he went on to say:
"Rather than
require to be satisfied that the State is actively or passively complicit in
persecution by other citizens, the decision maker in a case like the present
(which does not concern isolated rogue activity) is faced with the State's
undoubted responsibility and must examine what the State is doing about
it ...".
Counsel submitted that the
petitioner's case does not involve isolated rogue activity. The question to be
asked is whether the behaviour was subject to timely and effective
rectification, a question which the respondent did not address.
[9] Counsel
next addressed the issue of relocation, submitting that the respondent failed
to give sufficient weight to the fact that the persecution feared by the
petitioner was at the hands of State officials.
He referred to Symes and Jorro on
Asylum Law and Practice (2004) at page 223, paragraph 5.13
where the authors comment that "internal relocation will often be an
inappropriate consideration where the persecution feared flows from the
State." He then referred to the case of M.I M. A. v Jang [2000] FCA 1075 at paragraph 27 where the court
stated:
"... However,
where the feared persecution arises out of action taken by Government officials
to enforce the law of the country of nationality, or to implement a policy
adopted by the Government of that
country it will be much more difficult for [a] decision maker to reach
satisfaction that there is no real risk of the refugee applicant being
persecuted if returned to that country."
He then referred to Quin Shue Lin
v The Secretary of State for the Home
Department
2005 SLT 301, at 304
paragraph 12, where the court observed that where the petitioner feared
persecution at the instance of officials of the State, apparently in pursuit of
official policy, prima facie this
made it unlikely that internal flight was a safe alternative for him.
[10] Counsel's fifth proposition was that the respondent erred in
law in that the country background information on which he based his findings
was not sufficiently free from controversy to admit of the conclusion that the
petitioner's claim was incapable of being believed or of being within the
convention; or
that it would be bound to fail; or was
plainly without substance. He said that
in relation to internal flight reference was made in the decision letter to
several sources, including the Europa Year Book 2003
and the Danish Immigration Service fact finding report of 2000 (6/6) but no
reference was made to the Indian country report of 2004 issued by the
respondent (6/8). In that document, the question of internal flight for Sikhs is
dealt with at page 39, paragraphs 6.132-6.136. Paragraph 6.134 states that there are no
checks on newcomers [in other areas] and paragraph 6.136 talks about
willingness of Punjabi police to follow a "wanted suspect". Counsel said that a person may be free from
harassment from local police if he moves, but would not necessarily be free
from Punjabi police who may choose to follow him. The Danish Immigration
Service Report referred to in paragraph 6.135 predates the Country report
by four years and merely provides one source - the Director of the South
East Asia Human Rights Documentation Centre who it is said believed that it
would be possible for a low profile person to move elsewhere in India
without being traced. Counsel submitted
that the petitioner was not low profile given that the police interest stems
not from his own political position but his perceived association with Punjabi
separatists. The information so far
relied on was described as quite distinguishable from the US Citizenship and
Immigration Services information (2003) referred to at paragraph 6.136 of
the Country report which states:
"Observers
generally agree the Punjab police will try to catch a
wanted suspect no matter where he has relocated in India. Several say, however, that the list of wanted
militants has been winnowed down to 'high profile' individuals. By contrast, other Punjab
experts have said in recent years that any Sikh who was implicated in political
militancy would be at risk anywhere in India. Beyond this dispute over who is actually at
risk, there is little doubt that Punjab police will
pursue a wanted suspect. 'Punjab police
and other police and intelligence agencies in India do pursue those militants,
wherever they are located, who figure in a list of those who were engaged in
separatist political activities and belonged to armed opposition groups in the
past' a prominent Indian human rights lawyer said. ..."
Counsel submitted that the
reference in the 2004 to "a wanted
suspect" should not perhaps be understood literally - it refers to people
on lists of those involved in certain activities. He submitted that it was quite reasonable to
assume that harbouring militants could come within the phrase "engaged in
separatist political activities". If
there was an element of doubt one may engage in rational speculation in favour
of the asylum seeker but not against him.
[11] Counsel's final proposition was that the effect of the
aforesaid errors in law was to vitiate the whole decision. If any of the errors
had a material effect on the decision, that was enough
to vitiate the whole decision.
Respondent's submissions
[12] Counsel for the respondent took no real issue with the
submissions of counsel for the petitioner on the appropriate framework but drew
attention to the fact that India,
since 15 February 2005,
was a listed country under Section 94(3) which he said added weight to the
respondent's decision. He referred to
the explanatory memorandum at paragraphs 7.2-7.4 for the proposition that
the purpose of the list is to reduce the number of unfounded claims. Individual cases must be looked at but it is
against a background that very few cases involving countries on the list will
succeed. He referred R (L) v The Secretary of State for the Home Department 2003 1 WLR 1230
at paragraph 59 to submit that the change in terminology between the first
and second parts of the section was more than just an accident of
language - in the case of specified states the background facts can be
expected to weigh against the validity of an asylum claim. The purpose of the
"clearly unfounded" test was to try to ensure that the system does not remain
swamped with wholly unmeritorious appeals.
[13] Counsel then went on to look at the material which was before
the decision maker and went through Production 6/5 of process, the
Statement of Evidence form completed by the applicant, submitting that there
was a certain vagueness in the answers given in that form.
[14] In answering the Petitioner's submissions he commenced with the
question of relocation, referring to the case of Januzi v The Secretary of State for the Home Department [2006] UK
HL 5 for the proposition that a person will be excluded from refugee
status if under all the circumstances it would be reasonable to expect him to
seek refuge in another part of the same country. Even where the feared
persecutor is a national authority there is no absolute presumption against
relocation internally. The more closely the persecution is linked to the state
the more likely that a victim of persecution will be equally vulnerable in
another place within the state, but the converse may also be true. The real
issue was whether it would be unduly harsh to expect a person to relocate
internally. In paragraph 50 in Januzi, in the speech of Lord Hope of Craighead, it was stated that country guidance cases issued
by the IAT provide guidance as to how cases that originate from areas of
particular difficulty should be dealt with. Counsel then turned to a number of
such cases relating to Sikh separatists, the first of which was Ajit Singh v The Secretary of State for the Home Department CG [2002] UK
IAT 05994 where the application was rejected on the basis that internal
relocation was available to a Sikh who had advocated a separate Sikh state and
whose brother was a high profile person in an organisation promoting the
same. Similarly the case of Manjit Singh [2003] UK IAT 00098S
(India)
involved a Sikh who had been subject to a cycle of arrests and beatings which
were frequent and more long-term than in the present case. They also involved payment of a bribe effecting his release. That applicant was a serious
political activist and a trainer of fighters.
He had not had trouble elsewhere than in the Punjab. It was acknowledged that if he went to his
own home area he would be persecuted but the view was taken that there was
another area to which he could go where he would not be at risk of persecution
or Article 3 harm. The IAT
therefore held that relocation was acceptable for a Sikh with much greater involvement
than the present asylum seeker. The
third case was Lakwinder Singh v The Secretary of State for the Home Department CG [2002] UK
IAT 04714 where counsel referred to the obiter remarks in
paragraph 15, supporting the suggestion that internal relocation outside
the Punjab was a viable option for Sikhs in India. He submitted that these cases showed a clear
pattern of authority to the effect that internal relocation is possible for
Sikhs.
[15] He then referred to the Home Office Operational Guidance Note
for India (2004) which highlights the freedom of movement guaranteed under the
Indian Constitution (paragraph 3.6.7.) and asserts that there is no
evidence to suggest that those involved in low-level activities in Punjab would
be pursued by police outside Punjab (3.6.8, 3.6.9, 3.6.12)
[16] In addressing the argument that insufficient weight was
given to the fact that the feared persecution was at the hands of State
officials, Counsel submitted that the authorities relied on have one thing in
common to distinguish them from the present case - they all relate to
situations where there was an official policy to use the police as the agents
of persecution and the actings were thus of State
agents. The passage from Symes and Jorro
deals with persecution flowing from the State.
The case of Jang deals with
action taken to enforce law or policy and the case of Lin was in pursuit of official policy. He submitted that these present a very
different situation from that of Sikhs in the Punjab. There is no suggestion of official policy by
central Indian authorities to persecute Sikhs.
[17] Counsel moved on to the
submission that the country background information was not sufficiently
free from controversy to support the decision, submitting that there was in fact
sufficient information before the decision maker to enable him to come to the
decision which he reached. The
background information was sufficiently free from controversy to admit of the
conclusion he reached. It has been
sufficient for the IAT in one of the previous cases. For these reasons the petitioner's attack on
the second part of the decision fails and the petition should be dismissed.
[18] In moving to the first aspect of the decision letter, Counsel
submitted that this is a case of non-State activity. The dichotomy between State and non-State
actors is a bit fuzzy round the edges but this case involves "rogue police",
neither following official policy nor pursuing a course of action condoned by
State authorities, but acting in a rogue capacity, such as was also the case in
Krysztof Wierzbickie v The Secretary of State for the Home
Department [2001] Imm AR 602. He submitted that the test for whether such
activities should be treated as persecution was "whether they are knowingly
tolerated by the authorities, or if the authorities refuse, or prove unable, to
offer effective protection" see McDonald
on Immigration Law and Practice 6th edition at paragraph
12.51. He submitted that the correct test had been applied, as can be seen from
paragraph 9 of the decision letter where the exact words quoted above were
used. In subsequent paragraphs the
decision letter addresses specific issues designed to consider the question of knowing tolerance.
[19] The decision maker considers first whether such activities are
tolerated, then looks at whether the are "knowingly
tolerated". Under reference to
paragraphs 16 and 17, counsel submitted that unless the authorities
knew, it could not be said that the State knowingly tolerated such activities. The reference to the Commissions is in the
context of whether the abuses by the police were "knowingly tolerated". The existence of these Commissions, with the
powers they have, is a strong indication that activities of the type complained
of are not knowingly tolerated. The
Punjab Human Rights Commission is set up under a former Chief Justice. It is an official body with power to inspect
jails. It is not a human rights
organisation in the sense that one might have a political or lobbying
group. It is an official body set up by
the State in an effort not to tolerate abuses.
Similarly the National Human Rights Commission is an official body with
powers of a civil court. That again
indicates that abuses are not tolerated by the State. Paragraph 24 of the decision letter
focuses again on the question of knowing tolerance of abuse.
[20] Counsel then went on to address the case of Svazas v The Secretary of State for the Home Department [2002]
1 WLR 1891 suggesting that the matter was not as simple as suggested for
the Petitioner. The existence of some rogue police does not mean that the State
is unwilling to afford protection. The second part of the protection test only
arises if there is a well founded persecution under the first test. Before getting to the question of whether a
person was unwilling to avail himself of national protection as a result of
fear, it must be clear that there is a well founded fear of persecution which
underlies the unwillingness. A fear of persecution which was not well founded
would not require consideration of the issue of willingness. There is a real
difference between this case and the Svazas case, which, as can be seen from paragraph 37,
involved systemic or at least endemic violation of rights. The position is not
the same in India,
where the situation is one of historic problems which have been getting better
and where active steps have been taken to improve the situation. In Svazas, there was a "less than wholehearted
readiness on the part of government to admit the extent of the problem and
declining rate of intervention to remove delinquent police officers" (paragraph
37). It is clear from Svazas that what
is required is the reaching of a practical standard of protection, not an
absolute one. The question is whether the state can properly be said to be
providing sufficient in the way of protection.
[21] On the submission that the respondent failed to ask whether
owing to a well founded fear, the applicant was unwilling to avail himself of
protection, he accepted that these precise words do not appear in the decision.
It was not necessary to state that specifically in the decision. It is not
actually necessary to apply one test then the other ‑ a more holistic approach needs to be
applied. Here, the decision maker has
looked at the issues which relate to whether there is a well founded fear of
persecution. He has looked at the claim
about the police and assessed it in relation to issues of failure of discipline
against policy and in light of what the claimant says about his own position
and politics. It is implicit in what the
decision maker says that he has found that the unwillingness of the claimant to
seek the protection of the authorities is not justifiable, that it is not due
to a well founded fear of persecution. It is a matter of balancing the evidence
and seeing if there is any justification for the unwillingness. Nothing would allow the respondent to
conclude that the unwillingness was justifiable. From paragraph 9 of the decision letter, the
respondent builds up all that he founds on for his decision.
[22]. What the decision maker is doing in
paragraphs 20 to 23 is addressing the question of knowing toleration.
[23] The petitioner's argument that it is not sufficient to allow
recourse to the courts after treatment ignores the need for the State to find a
practical balance and effectively puts the state in the position of having to
provide a guarantee.
[24] The same point arose in relation to the submission that the
respondent made no proper examination of the steps taken and that there was no
evidence of timely rectification. This was too stark and absolute an
approach. The correct approach lay in
finding a practical balance.
Decision
[25] In my view the underlying basis of the
Respondent's decision was essentially that it was not accepted that the
Applicant had a well founded fear of persecution. As Lord Lloyd of Berwick
observed in Adan v The Home Secretary [1999] 1 AC 293 @ 304, Article 1A(2) covers two categories of nationals outside their
country of nationality; (i) those who are outside
their country due to a well-founded fear of persecution and are unable to avail
themselves of the protection of their country; and (ii) those who are outside
their country owing to a well-founded fear of persecution and, owing to that
fear, are unwilling to avail themselves of the protection of their country. In
the present case the issue of unwillingness did not arise for consideration
since the decision was that there was in the first place no well-founded fear
of persecution.
[26] The respondent's observations relating to
authorities which might have been approached by the
applicant are all relevant to an aspect of whether there is a well-founded dear
of persecution and to the question of ability to avail oneself of the protection
of the country, namely whether the state in question has the ability and
willingness to protect its citizens. The respondent's counsel was correct in my
view in submitting that in these passages the respondent as addressing the
issue of "knowing tolerance". That is why the issue of whether the applicant
approached higher officials in the police, or the courts, is a relevant
consideration. In Svazas
the court quoted the speech of Lord Hope of Craighead
in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at p497
in which he observes that "persecution" implies a failure by the state to make
protection available" going on to say at p500
"...complete protection against such attacks is not to be
expected of the home state. The standard to be applied is therefore not that
which would eliminate all risk and would thus amount to a guarantee of
protection in the home state. Rather it is a practical standard, which takes
proper account of the duty which the state owes all its own nationals".
In
the same case Lord Clyde (p510) spoke of "a system of domestic protection and
machinery for the detection, prosecution and punishment [of persecutors]......More
importantly there must be an ability and a readiness to operate that
machinery".
[26] The issues considered in
paragraphs 10 to 19 include the Constitution of India; the way in which police
are controlled; the relationship between the State and Central Governments; the
sources of information considered; training of police officers; and the
independence of counsel and the judiciary, all of which arise in the context of knowing tolerance
and are relevant to the existence of a protection system and a willingness to
operate it. The same applies to the existence of the Commissions referred to in
paragraphs 21 to 23. Before a state can act timely and
effectively to rectify offending behaviour it must be given the opportunity to
do so. As Stuart-Smith L J said in the Court of Appeal in Horvath [2000] INLR 15 at p 26,
"...the
existence of some policemen who are corrupt ......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
case of Svazas
relied on by the petitioner is far from the circumstances of this case. Svazas was a case
in which the evidence accepted by the fact-finding tribunal depicted "a police
force which systematically and endemically abuses its power". Similarly the cases of M.I.M.A. v Jang and Que Shue Lin related to action taken in pursuit of official
policy or to enforce the law of the country which is manifestly not the case
here. I do not consider that in the present case the Secretary of State either
applied the wrong test or failed to give due consideration to relevant factors.
[27] As to the background
information, I am of the view that there is sufficient correspondence to
conclude that a person in the position of the applicant would not be likely to
be followed from the Punjab and that relocation was a valid option in his case. I do
not accept the submission of counsel for the Applicant that the phrase "wanted
suspect" requires to be given anything other than its normal meaning,
especially when the phrase occurs in the context of an actual list of wanted
suspects. [28] Accordingly I will
sustain the respondent's plea in law and dismiss the petition.
