Deda, R (On the Application Of) v Secretary of State for the Home Department

Friday, 10th October 2003

1. MR JUSTICE MOSES: The claimant challenges the Secretary of State's decision to certify his asylum claim and his human rights claim as being clearly unfounded, pursuant to section 94(2) of the National Immigration Asylum Act 2002, ("the 2002 Act"). The decision of the Secretary of State to certify both his claims was made on 10th July 2003. The claimant is an asylum seeker from Macedonia. He arrived in the United Kingdom on 20th July 2003. He was accompanied by his partner, Lindita Islami. The claimant is a national of Macedonia. He is an ethnic Albanian, part of a minority, albeit a large minority, in that country, but he is in a minority amongst that minority because his faith is that of a Roman Catholic. His partner is a Roma and a Muslim and it is in that mix of ethnic origin that the troubles on which he relies stem.

2. The essence of the claimant's claim under the Refugee Convention and under the European Convention on Human Rights, is contained within an interview on which he relies to show that his complaint is not manifestly unfounded. He describes in the interview two reasons as to why he left Macedonia. Racism and religion appears to be the first reason. In other words, the discrimination against him because of his ethnic and religious background and particularly his partner's background as a Roma. But more particularly, and as I am quite satisfied, essentially, because of the threats to kill made by his girlfriend's family who opposed his marriage. Repeatedly during the course of the interview he spoke of the fact that the family would not tolerate his marrying a Muslim because he was a Catholic. He describes being threatened by his two brothers and threatened with being killed should he marry his partner.

3. That, as I have said, I am quite satisfied was the substantial reason why he left Macedonia and why he feared to return. He said in response to question 54 in interview that:

"The reason I'm claiming asylum in this country is that I can't go back to [Macedonia]. If I were to return I would be killed."

4. And further:

"My life is in danger if we were to go back they'd kill both of us."

5. By "they" it is clear he meant the family. His partner answered questions to like effect, "My family have told me if I marry him they'll kill me".

6. The second reason related to the discrimination and prejudice he faced within the community in which he lived. He described living in that village community, in question 32, as one of only two Catholic families in the village with the rest of the families being Muslim. He said, "That's why they hated us." They deprived him of support, both in the village generally, at hospital, and school, because of his religion (see in particular the answer to questions 32 and 36).

7. The Secretary of State summarised the fears of persecution advanced by the claimant at paragraph 5 of his letter of 10th July 2003, and it is not contended that that was an inaccurate description of his recitation of those complaints. He took the view that there was adequate protection within Macedonia at paragraphs 9 and 10. Subsequently he also took the view that the fears related only to specific areas within Macedonia. Later in his letter he took the view that there was not demonstrated any breach of Article 3 or of Article 8. He then took the view that the claim was bound to fail and certified the claim.

8. The statutory provisions relating to certification are contained within section 94 of the 2002 Act. Section 92(4) allows an in country appeal provided that a claim has been made for asylum or there is an assertion of an infringement of human rights. But by 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) 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."

9. Macedonia was included within the list to which section 94(4) applies by virtue of The Asylum (Designated States) Order 2003, 2003 No. 970, made on 31st March 2003.

10. The preliminary point has been taken by Miss Fielden, on behalf of the claimant, that the removal directions refer not to Macedonia but to Serbia and Montenegro. This was not a point taken in the claim in respect of which permission was given. The explanation why Macedonia was crossed out and Serbia and Montenegro (Kosovo) was put in, is not clear to me. A number of possibilities have been canvassed but it is plain that the Secretary of State has been deprived of a proper opportunity of meeting that point since the point was not taken earlier. In those circumstances I refuse permission to amend the grounds to rely upon this.

11. In any event, as it seems to me, it is wholly irrelevant. The decision challenged is that of 10th July of this year. The removal directions were made on 22nd July and the question, therefore, is whether the certification can stand or whether it cannot, and has nothing to do with the identification of the country to which it was proposed to remove the claimant and his partner. In any event those directions have now been withdrawn in the light of this claim and further fresh directions would have to be made.

12. The test as to whether it was appropriate to be certified pursuant to section 94 is now clear. I need not cite the authorities again or the approach as explained by the Court of Appeal in R (L) v Secretary of State for the HomeDepartment[2003] EWCA Civ 25. If I take the view that the claim, either for asylum or human rights infringement, is arguable it must follow that the Secretary of State should not have certified the claim because it could not be said, in the light of a judicial view that it was arguable, that the claim was bound to fail.

13. I should observe that a judge gave permission on the papers in this case, but he was only considering the question whether it was arguable that it was arguable. It is for me to decide whether, in the light of all the material I now have, it is arguable.

14. The first question to consider is whether the claimant's answers in interview show that he fears persecution. It is plain that he does because both he and his partner fear that were they to return they would be killed by members of his wife's family, on the grounds of the marriage between a Muslim and a Roman Catholic. But, as Miss Richards points out in her submissions, it is important to focus upon the fact that the fear of persecution, namely the fear of being killed on return, is a fear that stems from the family and from nothing else. There is no suggestion that the family would pursue this claimant were he to live with his partner, or if they were married, with his wife, elsewhere within Macedonia, a country of some 2 million people.

15. It was suggested that it would be unduly harsh to expect him to live elsewhere in Macedonia, but that, as it seems to me, is an impossible argument. The question of whether it would be unduly harsh to expect him to live beyond the reaches of the family within the village has recently been considered in two cases in the Court of Appeal. AE and FE vSecretary of State for the Home Department[2003] EWCA Civ 1032 and Januzi v Secretary of State for the Home Department[2003] EWCA Civ 1187. Those authorities, and particularly the latter, are authority for the proposition that in considering whether a claimant could go and live elsewhere within a country, the courts have failed to concentrate on issues that refer to refugee questions and the protection afforded by the Refugee Convention.

16. The question of whether an asylum seeker could reasonably have been expected to move elsewhere where he might be safe involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. The test does not involve a comparison between conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought.

17. In Januzi Buxton LJ pointed out that the medical treatment would be no worse in one part of Kosovo than another and in those circumstances such considerations as the inadequacy of proper medical treatment were irrelevant to the consideration of internal flight (see paragraph 28).

18. In the instant case it is important to consider the situation in the village as described by the claimant in comparison to elsewhere in Macedonia. The situation in the village, apart from questions of threats from the claimant's partner's family appears to me to be exactly the same as elsewhere within Macedonia. In other words, he would be no worse off elsewhere in that country than he is in the village where he has lived all his life, apart from the question of the threats from the family. In those circumstances there can be no question but that it would be perfectly proper to expect him, and safe for him, to go and live elsewhere in Macedonia beyond the reaches of his wife's family. He has never asserted that that family would be able to find him were he to live elsewhere.

19. In those circumstances it seems to me that his fears in relation to and his reliance upon Article 3 of the Convention, and his fears of persecution from the family, are bound to fail because he has no answer, or no answer that could properly be accepted, as to why he could not go and live beyond the reaches of the family which is the source of the threats to kill.

20. I turn then to the question of the treatment he has received in the village apart from the threats from the family, which I have already described in my outline of his answers in interview. It is plain, accepting his evidence, that he has suffered as a result of his being a Roman Catholic, as indeed she has as a Roma, from incidences of isolation and discrimination. But, as described by him, leaving aside the threats to kill from the family, those incidents are miles away from that which would be necessary to demonstrate that he faced a risk of a breach of Article 3. They are far from being persecution. They are far from reaching the necessary level of severity to constitute a breach of Article 3. I need not repeat the substantial number of authorities now as to the high threshold to be established in order to show a breach of Article 3.

21. That being so, the question remains whether it is arguable that there would be a breach of Article 8. It is apparent, particularly from the authority of Secretary ofState for the Home Department v Razgar[2003] EWCA Civ 840, that such an argument would be bound to fail. The territoriality principle is such that if that which is feared is exclusively likely to happen in the country to which it is proposed to expel the claimant, then Article 8 of the Convention has no application.

22. At paragraph 17 Dyson LJ in Razgar said:

"The territoriality principle referred to in Ullah can be applied without difficulty in many cases. It will often be plain that an allegation that expulsion will cause a violation of an ECHR right is directed exclusively at what it is claimed is likely to happen in the receiving state".

23. It is plain from the answers given by the claimant that the substance of the claim is a fear of repeats of the sort of discrimination that he has described in Macedonia. There are none of the factors which might give rise to an Article 8 claim, as identified in paragraph 22 of Razgar, present in the instant case.

24. Finally, it is said that it is arguable that there would be insufficiency of protection in relation to the feared persecution from non state agents. For the reasons I have given insufficiency of protection does not arise. There is no well-founded fear of persecution in circumstances where that which is feared can so readily be avoided by the claimant and his partner going to live beyond the reaches of the threats of the partner's family.

25. However, because the Secretary of State relied upon it, and because it has been urged forcefully by Miss Fielden, I should mention that what had been hoped for in this case was expert evidence to establish that there was insufficiency of protection within the meaning of the principles in Horvath vSecretary of State for the Home Department[2001] 1 AC 489. Although I have been referred to a number of reports that show that there have been problems in the past in Macedonia due to ethnic and racial prejudice, particularly during troubles in 2001, and although such prejudice persists in relation to members of the police force, it is quite impossible for me to say that it is arguable that there would be insufficiency of protection even if that issue arose. As counsel for the claimant, Miss Fielden was disposed to accept the evidence just is not here before me and was not before the Secretary of State. In those circumstances the Secretary of State was entitled to say that any assertion of insufficiency of protection on that material was bound to fail.

26. For the reasons I have given it seems to me that this claim was bound to fail and that the Secretary of State rightly certified it. In those circumstances this application fails.

27. MISS RICHARDS: My Lord, can I ask for an order that the claimant pay the defendants costs but in the usual term for a publicly funded claimant?

28. MR JUSTICE MOSES: Which are?

29. MISS RICHARDS: My Lord, which are that in that any assessment in liability to pay is postponed. I think the associate will probably have the actual wording.

30. MR JUSTICE MOSES: I know, and I would like it, because nobody ever gives it to me, although it has been the wording now for about two years. What do you want to say about that?

31. MISS FIELDEN: My Lord, obviously I have lost so I cannot resist on the face of it.

32. MR JUSTICE MOSES: Thank you very much. I shall make costs but in the order --

33. MISS FIELDEN: I would ask your Lordship to --

34. MR JUSTICE MOSES: -- that the determination of the claimant's liability to the payment of such costs be postponed pending further application. Yes, what do you want to ask for?

35. MISS FIELDEN: Can I please have a certificate for CLS funding to be assessed in the usual way?

36. MR JUSTICE MOSES: Well, yes, but there is a --

37. MISS FIELDEN: I hope it has been lodged with the court.

38. MR JUSTICE MOSES: Very well, you can.

39. The next thing I want to know is how the deplorable state of affairs that occurred this morning, when this case should have been argued at 10.30, came to happen. It seems to me you accepted a brief and then your clerk put you in another case so that you had no time to prepare it. What I require from you, from the clerk responsible, and from your head of chambers, are three letters. One from you, one from the head of chambers, and one from your clerk, as to how it was that you accepted a return, that the clerk allowed you to accept a return when it was somebody else's brief, and then kept you in court for two days, and you went to court for two days, thus leaving yourself inadequate time to prepare an extremely important case relating to persecution. I will look at those letters and then decide what, if any, further action to take place. It seems to me it may partly be your fault, but also partly a complete failure in the system in chambers allowing you to accept a brief by way of return, or indeed retain a brief by way of return, in circumstances where you were not ready to argue this case at the time when you should have been. All right?

40. MISS FIELDEN: Yes. My Lord, my explanation is simply that --

41. MR JUSTICE MOSES: I want it in writing from all of you.

42. MISS FIELDEN: -- pressure.

43. MR JUSTICE MOSES: That is no explanation whatever.

44. MISS FIELDEN: But that is the truth of what happened.

45. MR JUSTICE MOSES: Well, it does not seem to me to be an explanation at all. Barristers do not accept briefs unless they are in a position to get them up in time. Sometimes that requires a lot of burning the midnight oil, but I do not understand why you were not ready, and I do not understand why your clerks did not know about it or what system in chambers allows that sort of thing to happen, because it is a very rare case, but a very shocking one, if a barrister comes to court and says I am not ready to argue it because I was too busy in the days before. Something very seriously has gone wrong and that is why I want these three letters to explain it to me.

46. Thank you very much.