Eva, R (on the application of) v Secretary of State for the Home Department

This is an application for judicial review of a decision by the Secretary of State apparently made on 13th June 2012. Permission was granted by Lewis J; Foskett J had already granted interim relief.

The history of the case is somewhat complex. The claimant came to the United Kingdom as a student and continued her studies in the United Kingdom for some time. She was then introduced by members of her family to a man who took the opportunity of a meeting with her, apparently, to attack her and to attempt to rape her. She sought to escape from him and did so by going out onto the balcony of a block of flats. Her own account of the circumstances is that she does not have a full recollection of what happened but it appears she climbed over the fence of the balcony and dropped to the ground. She was quite badly injured, suffering damage to her ribs and her leg amongst other injuries and she has subsequently had to walk with the aid of a stick or crutch at times when her leg is painful.

Following that incident and arising out of the culture from which she comes, there were family discussions about how to deal with the matter. The claimant had reported the attack to the police who took action by way of prosecuting the man. Rather surprisingly I have not been told the outcome of those proceedings.

So far as the family is concerned, after a certain amount of prevarication and indeed uncomfortable dealings, there was a suggestion by the man that he would marry the claimant and a sum of money was mentioned. The claimant made it perfectly clear that she was not prepared to marry him.

The claimant's parents in Bangladesh had already attempted to arrange a marriage for the claimant with a man in Bangladesh but she had refused him too. The claimant's parents decided, in view of her refusal of both the first marriage and the second marriage to her attacker, to disown her and they have executed an official document to that effect. The claimant's sister has subsequently been advised by their parents not to maintain any contact with the claimant.

The account given by the claimant is therefore of a person who has been very badly treated in this country, who is to an extent imprisoned and threatened by members of her family who had adhered to a more traditional culture, who is at risk of being married against her will to a person who has attacked her and who is at risk of other ill treatment arising, she says, from a fear of her attacker (if he should be able to discover her again) and from her parents, her father being, she says, a violent man who treated her and her siblings with violence in their youth.

The claimant also gives an account of post-traumatic stress disorder, of depression and of other psychological problems arising from her treatment in Bangladesh and from her experiences in this country, particularly when coupled with a threat of removal from this country.

That is the claimant's case put at its highest and as assembled by her over a number of years. I have summarised it in that way partly because it is apparent, and it became, if anything, more apparent during the course of today's hearing, that the claimant has never been prepared to give a full account of what she fears or what her circumstances are at any particular time; but has instead responded to each adverse decision by the Secretary of State with a new statement indicating a new set of facts.

Of course the production of facts in that step by step way does not necessarily mean that they are untrue; although a person charged with determining the credibility of the account may well take into account the way in which the facts have come to notice.

The claimant originally made an asylum claim, that is to say a claim that her removal to Bangladesh at the expiry of her leave as a student would breach the 1951 Convention Relating to the Status of Refugees. In 2012 that claim was made firmly on the basis of a risk arising from physical harm at the hands of her assailant or his brothers.

The claim was considered by the Secretary of State and refused in a letter dated 8th June 2012. That letter goes through the material then available to the Secretary of State. It concludes, first, that a fear of attack from her assailant and his brothers is not a fear of persecution for a Convention reason. It goes on nevertheless to consider the claim at its highest. It concludes that on the material available to the Secretary of State the claimant would have, if returned to Bangladesh, an appropriate level of protection available to her through the authorities in Bangladesh, including the police. The letter recognises that the performance of the police in Bangladesh is not without its critics and that the corruptibility of the police is recognised. But nevertheless the Secretary of State takes the view, recorded in the letter, that the level of protection available to the claimant would be sufficient for the purposes and would exclude the possibility of her being a refugee for risk of persecution.

As Miss Wilding points out in the course of her submissions there is no specific attention given in the course of that consideration to the particular difficulties faced by women in Bangladesh, difficulties which have been recognised over the years by numerous authorities and by at least one decision of the Upper Tribunal giving country guidance. It is said that the domestic violence exists in Bangladesh at a particularly high level and it might therefore be said, as Miss Wilding does say, that in a case where the threat was of violence within the family, there ought to have been some consideration in particular of the level of protection available from that.

Be that as it may, the letter goes on to consider internal relocation and concludes that the claimant, if removed to Bangladesh and if unwilling to live in her home area, (whether or not because of a fear of ill treatment there) would be able to go to other parts of Bangladesh, despite her injuries and despite the practical difficulties of starting life in another part of the country. The Secretary of State takes the view that she would have been able to do so. There is, I think it is fair to say in that part of the consideration again no specific treatment of the situation of the claimant as a person who would be returning as a single woman. But although I summarised the facts in total or claim in total at the beginning of this judgment, it has to be remembered that at the time this letter was written the claimant asserted no danger from her family other than the her assailant (a distant family member) and his brothers.

The Secretary of State concluded that the asylum claim should be refused; and that any claim for humanitarian protection should be refused for the same reasons; and the Secretary of State then went on to consider the question whether removal to Bangladesh would breach the claimant's human rights. That claim had been based on her present medical condition; but that is to say nothing to do with a fear of persecution but the fear that her medical condition realistically prevented her from being expected to live in a country other than the United Kingdom.

The Secretary of State went through both the evidence relating to medical assistance in Bangladesh and that relating to the claimant's then presently asserted medical condition and concluded, on the authorities, that the claimant's medical condition was not such that the European Convention on Human Rights inhibited her removable to her own country.

The final paragraphs of the letter are these:

Those are the only paragraphs in which certification is mentioned. The letter is dated 8th June, as I have said, and it was when sent out accompanied by a Notice of Immigration Decision dated 13th June 2012. The decision summarises the conclusions reached in the Decision Letter. It is a decision to remove an illegal entrant or other immigration offender. It is in that form because the claimant's leave had expired by the time that she had made her application and thus was a person who was remaining without leave unless she was able to obtain leave on the basis she had applied.

The first part of the decision narrates the application; that it had been considered; and that the decision maker had concluded that the asylum claim should be rejected and that the humanitarian protection claim should be rejected. There appears to be no specific indication that the human rights claim had been rejected as well.

The letter then goes on to say that there is a right of appeal. The possible grounds of appeal are set out and there is then this:

The claim form indicates in the usual form a section 3 details of a decision to be judicially reviewed. So far as I am able to read that part of the form (there is a punch hole through it) it appears to be:

There was an interval of almost exactly a year between the original decision and the grant of permission by Lewis J. There has been a further interval of a year between the grant of permission and the hearing to date. For the whole of that time the assumption has been made that the decision under challenge was the to certify the claimant's asylum claim. Miss Wilding's extensive submissions this morning were to the effect that the certification of the asylum claim was in the circumstances of this case unlawful, bearing in mind the conditions which applied to certification.

Section 92 of the Nationality, Immigration and Asylum Act 2002 sets out the circumstances in which a person may appeal from within the United Kingdom when an immigration decision has been made. One of those circumstances is that the person has made an asylum or human rights claim whilst in the United Kingdom. There has been a considerable amount of authority on the precise meaning of that phrase but there is no doubt that the claimant is a person who has made an asylum or human rights claim within the United Kingdom.

Section 94 of the same Act provides in part as follows:

It is convenient here to deal with a question of statutory construction. The precise wording of subsection (2) appears to indicate that if a person has made an asylum claim and a human rights claim and one of them is certified, there is no right of appeal from within the United Kingdom. So if a person says ‘I have a well founded fear of persecution in my own country and removing me from this country will breach my rights under Article 8’, then if either of those claims is certified the person may not appeal from within the United Kingdom. That is one possible reading and the apparent literal reading of subsection (2).

However, if that were right it would produce the following result. Suppose a person made a totally unviable (although perhaps honest) asylum claim and coupled it with a human rights claim which might well be successful and might well be wholly well-founded. Certification of the asylum claim would prevent any appeal being brought from within the United Kingdom. The person could be removed from the United Kingdom without any right of appeal, despite the fact that it was removal from the United Kingdom (rather than arrival in the country of destination) which she claimed would breach her human rights. That, in my judgment, cannot be right. I therefore conclude that subsection 94(2) cannot have this meaning: it is to be read as indicating that the claim that is certified cannot be appealed from within the United Kingdom.

That raises the question which is much more clearly specified by section 94, which is this: is there a process of ‘catch-all’ certification, or is the Secretary of State to decide, when an asylum claim and a human rights claim are made together, whether both, or either, and, if so, which, are to be certified? It appears to me perfectly clear that subsections (1) and (2) of section 94 treat separately the asylum claim and the Human Rights claim, even if they have been made together; and under section 94(2) the Secretary of State may certify the ‘claim or claims’. No other interpretation would do justice to the need to ensure that a person who may have or indeed has a viable claim is not removed from the United Kingdom in breach of one Convention solely on the basis that the viable claim has been coupled with a claim under the other Convention that was bound to fail.

With that parenthesis I return to the decision under challenge. The letter of decision made in June 2012 does not in fact certify both claims. It recognises and deals with an asylum claim and a human rights claim. It then specifically certifies the human rights claim before asserting that both claims have been certified. It appears to me that this letter does indeed certify the human rights claim, does not certify the asylum claim and incorrectly states that both have been certified. Similarly the notice of decision correctly states there has been a certification but fails to recognise its restricted nature; and in a subsequent letter issued by the Secretary of State on 31st August 2012, referring to the decision to certify the asylum claim as clearly unfounded, there is again an incorrect reference to an event which had not in fact happened.

The matter is of some importance, not only in the context of this case. The certification of a claim has the effect that there is no appeal in relation to that claim from within the United Kingdom. Certification is an important part of the process of immigration control. It enables the Secretary of State to deal swiftly with those who make entirely unmerited and particularly repeated entirely unmerited claims. The power to certify is therefore an important part of the system as a whole. But because the effect of certification is the removal of an in-country right of appeal it has to be exercised only in accordance with the law; and the provisions for its exercise need to be properly followed before the right of appeal can be regarded as having been removed.

When I pointed out that it is not easy to see in the letter of 8 June 2012 the decision against which this claim is brought clearly took the parties by surprise. It is fair to say that the absence of a specific certification of the asylum claim took me by surprise when I was assembling my thoughts in order to give judgment. As a result, the argument that I was able to extract from the parties on this issue was necessarily brief and largely unprepared. But whether or not the point has been previously raised, it is extraordinarily difficult to see how judicial review can lie in challenge to a decision which has not in fact been made.

Miss Wilding, on behalf of the claimant, was forced to attempt to argue that a letter not actually certifying an asylum claim, should for the benefit of claimants seeking judicial review be read as though it did certify the claim and so remove their right of appeal. That was an expeditious argument for the present case. It cannot of course be in general right; the removal of a right of appeal is something that can only be done using the proper process and the proper form.

As a result it seems to me the appropriate outcome of these proceedings is that judicial review should be refused on the basis that the decision under challenged has never been made and that there is therefore no basis to challenge it.

Miss Wilding asks me to indicate in this judgment also what my view is on any certification which might have been made, if she is right to treat the letter of 8th July as continued certification of the asylum decision. I decline to do that. It seems to me that the letter is a perfectly good consideration of the case and a perfectly good certification of the human rights claim but it does not certify the asylum claim. Any such decision certifying the asylum claim would be a matter for the Secretary of State's discretion in the future.

The consequence of the failure to certify the asylum claim is at any rate arguably serious. It is that the notice sent on 13th June 2012, with the Decision Letter is defective because it fails to give an accurate representation of the rights of appeal available to the claimant, that is to say, that it fails to recognise there was a right of appeal in relation to the asylum claim from within the United Kingdom. If that is right there has as yet been no valid determination of the asylum claim at all because the claim is not validly determined until the immigration decision reflecting it is properly served with an indication of the rights of appeal and how they can be exercised, in accordance with the Notices Regulations. It therefore seems to me that the correct position is that the claimant awaits a lawful decision of her claim made in the spring of 2012, accompanied by a notice of decision correctly indicating a right to appeal flowing from the Decision Letter.

Of course the result of that might be that the Secretary of State decides to certify the asylum claim, but this time does it properly: that would leave Miss Wilding in the position that she thought she was all along. No doubt that is why she asked me to say whether the Secretary of State's certification was bad or good. But as I indicated at the beginning of this judgment, the claimant's case is a complex one; and there is no doubt at all that at the time when the first decision letter was issued the claimant's case had not reached the level of complexity and maturity that it since has.

Mr Malik's submissions resisting the claimant's claim on the certification it was at the time thought had been made were directed in part to the Secretary of State's position that where a claim has been rejected and certified under section 94(2) and further submissions are made in support of it, those further submissions will be considered to see if they are a fresh claim within the meaning of paragraph 353 of the Statement of Changes in Immigration Rules HC 395 (as amended); but that the certificate itself will not be reconsidered unless it is decided to make a new immigration decision as a result of the application of the test in paragraph 353. For that reason Mr Malik asked me to consider the certification, not on the basis of the facts which have emerged since the original Decision Letter of the 8th June 2012, on the basis of the facts as they were then and not on the basis of any subsequent material.

That may well be a correct legal basis upon which to approach the challenge to certification. If it is, I have more than a little sympathy with the Secretary of State's position. I have in any event, as I indicated before the short adjournment, more than a little sympathy with the Secretary of State's position because of the way in which the claimant's case has emerged over the course of the last couple of years. Nevertheless the position is that the claimant's case as now put is one which has the features which I identified. The issue of violence to women in Bangladesh is a serious and current one. The issue of the availability of police protection in Bangladesh may well in truth be as the Secretary of State represents in general; but it may be that is not the entirely appropriate response to a claim by a woman who fears violence from her extended family.

I do not say that the claimant's claim is credible. Indeed for reasons that I indicated during the course of the hearing, some of the aspects of the way in which it has been put might lead to a conclusion that it is not credible. But judgments as to the credibility of a story that might constitute a good claim are normally taken finally by Tribunals, not by the Secretary of State and certainly not by this court.

Because there has been no good service of the asylum decision, the Secretary of State will need to look at the material again and (if I may say so) I should be very surprised to hear that of all the claims which the Secretary of State has and deals with in the course of the relevant period of time, this claim, with the features that I have indicated a while ago, is the appropriate one in which to say that there should be no in-country right of appeal because it simply cannot succeed.

The claim then is dismissed and all that remains to do I think is for me to thank both counsel for their willingness to jump through the hoop which I provided for them at such a late stage of the hearing.