EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 7
Lady Paton Lady Clark of Calton Lord McGhie	P912/12 OPINION OF THE COURT delivered by LADY CLARK OF CALTON in the Petition of SN (AP) Petitioner and Reclaimer; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of the decision letters dated 2 April 2012 _______________

Act: Bovey QC, Winter; Drummond Miller LLP

Alt: MacIver; Office of the Advocate General

14 January 2014

Procedural history

[1] By letter dated 2 April 2012, the respondent rejected various claims by the petitioner including a claim for asylum and a claim that moving the petitioner to South Africa or requiring him to leave the United Kingdom would be a breach of articles 2, 3 and 8 of the European Convention on Human Rights ("ECHR"). The respondent identified that in relation to the human rights claim, section 94(3) of the Nationality, Immigration and Asylum Act 2002 applied. She concluded that the petitioner's claim was clearly unfounded and certified the claim under section 94(2) of the 2002 Act. It was not disputed that the effect of the certification was that the petitioner had no right of appeal to the Asylum and Immigration Tribunal while he remained within the United Kingdom.

[2] The petitioner sought judicial review of the decision of the respondent. That was considered by the Lord Ordinary who issued an opinion and by interlocutor dated 22 March 2013, dismissed the petition.

[3] In this reclaiming motion, counsel for the petitioner invited the court to recall the interlocutor of the Lord Ordinary, and to reduce the certification under section 94(2) of the 2002 Act. The matters which were focused in the reclaiming motion related to claims by the petitioner that on return to South Africa he would face a real risk of behaviour to him by the police in breach of article 3 which would be contrary to the United Kingdom's obligations under the ECHR. It was not disputed that if the reclaiming motion was successful, the result would be that the reclaimer would be able to exercise an in country right of appeal to the First Tier Tribunal (Immigration and Asylum Chamber).

Immigration history

[4] The petitioner who is a South African national came to the United Kingdom legally with a working holidaymaker's visa, valid from 2 August 2003 until 2 August 2005. He overstayed this visa, but returned to South Africa in February 2008. Thereafter his attempt to obtain a visitor's visa to the United Kingdom failed. On 22 September 2008 he left South Africa and flew to Dublin and thereafter lived illegally in the UK where he was served with illegal entry papers in 2009. On 2 August 2011, the petitioner applied for voluntary return to South Africa but withdrew this application on 19 October 2011. On 20 January 2012 the petitioner contacted the Asylum Screening Unit in Croyden and scheduled an appointment for 9 March 2012 when he was interviewed in relation to his claims, some of which are not the subject of the reclaiming motion.

The statutory structure
Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").

"Section 94(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).

(2) 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.

(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.

(4) Those States are -

...

(w) South Africa, and

(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that -

(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention. ..."

Article 3 ECHR

[5] Article 3 ECHR states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Submissions by counsel for the petitioner

[6] Senior counsel for the petitioner adopted the revised note of argument (23 of process) and it is unnecessary to summarise that. His oral submissions fell into two main chapters. The first chapter related to the nature of the statutory procedure, the meaning to be given to the legal test and the "presumption" to be drawn from past mistreatment in a case such as the present. He submitted that the alleged past mistreatment of the petitioner in South Africa was of such a nature and severity as to amount to a breach of article 3. In his second chapter, counsel criticised the reasons given by the Lord Ordinary for concluding that the statutory test was met in the circumstances of the present case.

[7] In dealing with his first chapter counsel characterised the statutory test as "the must fail" test. He accepted that the Lord Ordinary appeared to refer to the correct test. But various formulations were set out in paragraphs [12]-[14] of the opinion and this led to some uncertainty as to whether or not the Lord Ordinary had in mind the correct test. Counsel submitted that it was accepted in this case by counsel for the respondent that the past treatment at the hands of state agents, namely the police, described by the petitioner was, if true, a breach article 3 ECHR. This was not a case involving an applicant who, for various reasons, merely expressed concern that he might in the future be the subject of such treatment.

[8] Senior counsel explained that there had been a dispute before the Lord Ordinary as to whether it was appropriate to apply a "change of circumstance" test to consider the risk to the petitioner if he is returned to South Africa. That was the test supported by counsel on behalf of the petitioner. The contrary submission by counsel for the respondent was that the test which should be applied was to be found in the Council Directive on Minimum Standards (Council Directive 2004/83/EC of 29 April 2004) commonly known as "the Qualification Directive". Reference was made to article 4(4) which states:

"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."

[9] Senior counsel submitted that whatever test was applied, on the facts and circumstances relating to the petitioner, it could not reasonably be concluded that the respondent was entitled to certify the claim of the petitioner as "clearly unfounded". Counsel prayed in aid Demirkaya v Secretary of State for the Home Department [1999] Imm AR 498 at 506 and MD (Guinea) v Secretary of State for the Home Department 2011 SC 237 at paragraphs 5 and 6.

[10] In relation to his second chapter, senior counsel submitted that there were two categories of error on the part of the respondent and these errors were also apparent in the opinion of the Lord Ordinary. Counsel submitted that in paragraphs [32] to [34] of his opinion, the Lord Ordinary discounted material which is relevant. In particular the Lord Ordinary failed to appreciate that it was the outstanding warrant which would make the petitioner a particular target with his history and would bring the petitioner back to the attention of the police. Counsel further submitted that the Lord Ordinary had taken into account matters which were speculative and unfounded in the evidence in paragraphs [32] and [34] of his opinion. There was no evidence before the Lord Ordinary that prominent individuals or political dissidents were the people in South Africa who were at risk of ill treatment by the police. The Lord Ordinary also speculated both about the identity of the police officers who may still be working as police officers and whether the petitioner would be likely to spend time in police custody. Counsel also criticised the reasoning of the Lord Ordinary in paragraph 35. He submitted that the mere passing by the legislature of the Police Investigative Directorate Act in 2011 did not assist the respondent's case in the absence of any information that there had been real and effective reform of police behaviour. He prayed in aid Kinuthia v Secretary of State for the Home Department [2002] INLR 133 and MD (Guinea) v Secretary of State for the Home Department 2011 SC 237.

Submissions by counsel for the respondent

[11] Counsel for the respondent provided a detailed note of argument (19 of process) and adopted this as part of his submission. Counsel submitted that the reasoning of the Lord Ordinary was not flawed and was well founded. In these circumstances, counsel invited the court to adhere to the interlocutor of the Lord Ordinary and refuse the reclaiming motion.

[12] In oral submissions counsel focused on four general chapters firstly, the test to be applied; secondly, information about the country background of South Africa; thirdly, the weight to be afforded to past ill-treatment and the approach to be applied; and fourthly, an analysis of the reasons for the Lord Ordinary's conclusions.

[13] Counsel confirmed that the case had proceeded in front of the Lord Ordinary on the basis that the past mistreatment described by the petitioner, assuming it to be true, fell within the prohibition of article 3 ECHR.

[14] In relation to the test for certification applied by the Lord Ordinary, counsel submitted that it was plain that the Lord Ordinary identified and applied the correct test. He submitted that the discussion by the Lord Ordinary in paragraphs [12]-[14] of various formulations of the statutory test was in the context of the Lord Ordinary considering a submission to the effect that the petitioner could succeed where there was only a fanciful prospect of success. The Lord Ordinary correctly rejected that submission.

[15] Counsel submitted that it was important to understand the significance of the statutory structure. In the 2002 Act, South Africa was listed in what is commonly referred to as "the white list". This meant that as a general proposition, a person would not be regarded at risk of serious harm, persecution and breach of human rights by return to South Africa. He submitted that was borne out by the country of origin information in this case. He prayed in aid The Government of the Republic of South Africa v Dewani [2013] 1 WLR 82 in particular paragraph 33 and Horvath v Secretary for the Home Department [2001] 1 AC 489 at page 510. He submitted that the mere fact that there may be some risk of police violence is insufficient. The protection afforded by article 3 did not extend to absolute guarantees. It was important to consider whether there was an effective domestic system of protection in South Africa and he submitted that there was. The country of origin information in this case did not suggest that there was a systemic problem of brutality from state agents, such as the police, in South Africa.

[16] Counsel submitted that in considering the allegations of previous ill treatment of the petitioner by the police, the broad approach taken by the Lord Ordinary in paragraph [32] of his opinion was correct. The Lord Ordinary had applied the test of "strong reasons" but counsel submitted that the proper test was "good reasons". He prayed in aid the terms of article 4(4) of the Qualification Directive. He submitted however that there was no material difference in the result. He submitted that it was not necessary to show a change of circumstances provided there were good reasons. In considering the reasons advanced by the Lord Ordinary, he submitted that it was important to look at the cumulative picture.

Discussion

[17] The statutory test for certification in terms of section 94(2) of the 2002 Act is whether the petitioner's claim or claims "is or are clearly unfounded". In carrying out such certification, the respondent must apply section 94(3) of the 2002 Act. We consider that it may lead to confusion to attempt to explain or replace the statutory words by other wording where there may be different shades of meaning in the different formulations. In attempting to explain the statutory test, the Lord Ordinary used a number of different expressions including reference in paragraph 14 of his opinion to a claim which "must have some realistic prospect of success". He then concluded "to state that the prospects of success must be realistic is to say no more than that a judge properly applying his mind to the appeal under section 82(1) would be properly entitled to uphold the claim". We consider that this does cause some confusion and we refer to the discussion in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348. The majority decision was to the effect that the "clearly unfounded" test is more generous to the applicant than the "realistic prospects of success" test. That latter test which is very familiar to the courts in considering fresh claims under rule 353 of the Immigration Rules is commonly referred to as a very low threshold test. In our opinion the statutory test in section 94(2) of the 2002 Act referring to claims which are "clearly unfounded" is an even lower test which is more generous to an applicant. We accept that there is some confusion in the discussion in the Lord Ordinary's opinion of the test to be applied and that this arose because the Lord Ordinary was trying to deal with various formulations advanced to him. We wish to emphasise the importance of the statutory language and the problems of attempting to reformulate the language.

[18] In our opinion the issue in the present case is whether or not the respondent properly applied section 94(3) of the 2002 Act and was therefore entitled to certify the petitioner's claim under section 94(2) of the 2002 Act. The opinion of the Lord Ordinary does not focus on the decision-making of the respondent albeit one might expect that in a judicial review. The approach of the Lord Ordinary was not criticised by senior counsel for the petitioner in that respect. The opinion does focus on the facts which the respondent required to interpret. We have therefore dealt with the matter focusing on the facts of the case with the statutory test in mind.

[19] The circumstances founded upon by the petitioner are set out in paragraphs [5] to [10] of the opinion of the Lord Ordinary. The Lord Ordinary stated:

"[5] The background to the human rights claim is set out in the Reasons for Refusal. They are as follows. The petitioner comes from the Ivory Park Township on the outskirts of Johannesburg. On 29 April 2008 he was involved in an incident that led to him being accused of beating five police officers, interfering with police duties and breaking their state car. This arose out of an incident which happened at his brother's tavern when police officers arrived and were searching people in the tavern. The petitioner approached one of the officers wearing a uniform identified as Inspector Mahlangu, and asked him what was happening. An altercation then ensued as a result of which he was told that he was going to be arrested. He was allowed to go and collect a sweater. When he returned he saw police officers beating his brother. He pushed one of them who fell over landing on bricks. Inspector Mahlangu then approached him, sprayed him with pepper spray and beat him with his baton. He was then handcuffed, beaten and taken to the police car.

[6] He was then taken to the Ivory Park Police Station where he was taken to a small room, insulted and slapped. Other members of his family had also been arrested. He was then taken to a larger cell with other inmates before, in the early hours of the morning being taken into a room and beaten this time by six officers. He was returned to the larger cell but during the next two nights was taken out to the smaller cell and beaten. On the third morning he was charged with beating a police officer and then released. After his release he went to a private hospital as he wanted a written statement but they refused to become involved. He then went to a public hospital where he was checked over and given painkillers and ointment.

[7] He appeared in court the following Monday but the hearing was postponed in total, according to the petitioner, 16 times. He claims that he was intimidated and threatened by members of the Ivory Police Forum.

[8] At the end of August 2008 the petitioner claims that he was shot at near to the gate of his house. He did not know who shot at him. He was not hit but whoever shot at him missed and hit the lamppost. He reported this to the police who told him that it could have been anybody and he should be glad that he was not hit. So far as the proceedings in court were concerned, he said that he was not allowed to say what had happened to him at the hands of the police. The petitioner did not give evidence in court because of the threats.

[9] He said that he wrote a letter of complaint to the CID, which the respondent presumes to be a reference to the ICD, the Independent Complaints Directorate, but received no response. He also sent an email to a TV Station but also received no response. He left South Africa in September 2008.

[10] After the petitioner left South Africa he said that his brother had told him that the police were looking for him and had a warrant for his arrest. They had been to his father's house. So far as the charges against him were concerned he did not know whether or not they had been dropped."

[20] It was not in dispute that the information which formed the basis for the findings of the Lord Ordinary is to be found in the statement of evidence and combined interview form, page 71-108 of the appendix. The history recorded by the Lord Ordinary is of course a summary but in our opinion it does omit certain information which we regard as important. The petitioner described a number of beatings on different occasions. On at least one occasion he was handcuffed during the beating. He described the use of weapons, namely batons, and that the beatings continued over three days (paragraph 47, page 86 of the appendix). The petitioner stated (paragraph 59, page 89 of the appendix) "that I decided to leave South Africa to save my life". The petitioner described a long history of repeated police intimidation thereafter. In particular when he reported that he had been shot at by someone, the police did not file a report or take any action (paragraph 79, pages 92 to 93 of the appendix).

[21] It was not in dispute that at the assessment stage for the purposes of section 94 of the 2002 Act, the statement in evidence presented by an applicant is to be assessed taking the information at its most favourable for the applicant. If considered at a later stage by an immigration judge, findings of adverse credibility and reliability may lead to different conclusions. In this case, neither the respondent nor the Lord Ordinary appeared to consider whether the past treatment complained of by the petitioner was of such a nature and severity to be in breach of article 3. Obviously there may be allegations of police brutality, which one might condemn, which nevertheless might not amount to a breach of article 3. In the present case it is not clear what conclusions the respondent made in relation to the police beatings and complaint made by the petitioner. The respondent did not record that the beatings were with weapons or all the circumstances in which they occurred. The Lord Ordinary at paragraph 31 stated:

"The allegations of police brutality relate to incidents which occurred over a short period of time starting with the petitioner's arrest on 29 April 2008. If true, and for present purposes I have to assume that they are, they are shocking, particular the allegations of assault within the police station ...

Accordingly all that is really left are two occasions of police beatings, the second of which occurs on two nights in the police station. These incidents occurred nearly five years ago and all are at the hands of the Ivory Park police. There is no suggestion that the petitioner is in any way a prominent individual or that the police are looking for him with a view to renewing their brutality."

We have no difficulty in agreeing with the description of the Lord Ordinary that such behaviour is "shocking" but we also consider that the allegations in this case of police violence using weapons repeatedly over a number of days, with continuing threats and the lack of willingness to investigate the shooting incident leads to a different conclusion than the conclusion made by the Lord Ordinary when judged by the low statutory test.

[22] We consider that it may reasonably be inferred that, in the circumstances described by the petitioner, the police developed serious hostility to the petitioner which manifested itself in the behaviour he has alleged. The petitioner has not been silent about his complaints against the police. These complaints are not limited to one or two "rogue" police officers but were directed to all the police officers with whom he came in contact. The allegations are plainly serious and one may reasonably assume would not be welcome to the police officers against whom allegations have been made. We cannot agree with the Lord Ordinary that the allegations of police brutality themselves do not disclose that the petitioner is a particular target. That is at the very core of the allegations which have been made. The passage of five years has not altered the situation that the petitioner is alleged to have committed police assault, and by his account, he was a victim of serious assaults by a number of different police officers and the target of threats from their colleagues. He is also a victim who has made complaint and continues to make complaint about police brutality. As a result of the outstanding police warrant the petitioner may be expected to end up in police custody in South Africa if he is returned.

[23] The critical question is whether there is a real risk of violation of the petitioner's article 3 rights if he is returned to South Africa. We consider that the fact that the petitioner has been subject to violence of the type described in the past in breach of article 3 is significant in this case. Obviously what has happened in the past may not predict what is likely to happen in the future. But in a case such as this where there has been no significant change in the circumstances, past events may be regarded as one of the best indicators available to gauge the risk to that particular individual. And that is the approach we adopt in this case.

[24] We are also of the opinion that the criticisms made by senior counsel for the petitioner are well founded in relation to the opinion of the Lord Ordinary about the same police officers being unlikely to encounter the petitioner on his return.

[25] The Lord Ordinary placed weight on the passing of the Police Investigative Directorate Act 2011. We understand that the respondent placed no weight on this in her reasoning. This appears to have been a new matter placed before the Lord Ordinary on behalf of the respondent. We have reservations about whether, in a judicial review action, it is appropriate to introduce such new material available to the respondent but not relied on by her. We consider it unnecessary however to resolve this. In our opinion, in the absence of evidence that the passing of new legislation resulted in significant change and improvement in police behaviour and protection for those in their custody, this legislation does not assist the respondent's case.

[26] We consider that "good reasons" is wide enough to encompass a change of circumstances and nothing is to be gained in this case by resolving the dispute between the parties about whether "change of circumstances" or "good reasons" is to be considered. The Lord Ordinary considered there were "strong reasons" for his conclusion but in our opinion the reasons he set out do not justify a conclusion that the respondent was entitled in the circumstances of this case to certify the case under section 94(2) of the 2002 Act.

[27] For the reasons given we allow the reclaiming motion, recall the interlocutor of the Lord Ordinary and reduce the certification decision of the respondent dated 2 April 2012 under section 94(2) of the 2002 Act. We reserve the issue of expenses.