EP & Anor, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2189 (Admin)

Case No CO/4991/2010[2010] EWHC 2189 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court
The Courthouse
1 Oxford Row
Venue Leeds LS1 3BGDate 20 th August 2010
Before
HIS HONOUR JUDGE S P GRENFELL
Between
THE QUEEN on the application ofClaimantsEP (1)ClaimantAP(2)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Ms Patel (instructed by Miles Hutchinson & Lithgow) for claimantsMr Evans (instructed by the Treasury Solicitor) for defendantHearing Hearing date: 18 th August 2010
JUDGMENTHis Honour Judge Grenfell:
[1]This is a renewed application for permission to apply for judicial review. Permission was refused on paper by His Honour Judge Behrens on the 29th June 2010.[2]The History[3]On the 27th October 2007 the claimants (EP born 17th September 1992 and AP born 15th April 1996) arrived in the United Kingdom with their mother as visitors. On the 16th April 2008 the mother claimed asylum (with the claimants as dependents); all were served with notice of liability to removal as illegal entrants. On the 14th May 2008 asylum was refused. On the 8th July 2008 her appeal was dismissed. The appeal had been based on her imputed political opinion due to her husband’s activities as a journalist, but was dismissed on the ground that her evidence was not credible.[4]In July 2008 it is accepted that the claimants and their mother started to attend Jubilee Church in Middlesbrough.[5]On the 18th November 2008 the claimants and their mother were detained pending removal to Iran on the 21st November. On the 18th November the mother submitted further representations, which the Secretary of State refused as a fresh claim. On the 20th November 2008 their mother’s claim for judicial review was issued (CO/11227/2008), including as an issue her conversion to Christianity.[6]On the 8th December 2008 His Honour Judge Pearl refused permission on paper in respect of mother’s judicial review. Flaux J refused permission at an oral hearing on the 23rd December.[7]In the meantime on the 7th December 2008 the claimants had been baptised Christians.[8]On the 2nd March 2009 the claimants claimed asylum in their own names, following which asylum interviews were held on the 4th March 2009.[9]On the 29th January 2010 the claimants’ ‘new’ asylum claims were refused and certified under section 96(1) Nationality, Immigration and Asylum Act 2002 Section 96 as amended provides: ‘Earlier Right of Appeal ‘(1) An appeal under section 82(1) against an immigration decision (“ the new decision” ) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies – ‘a) that the person was notified of a right of appeal under that section against another immigration decision (“ the old decision” ) (whether or not an appeal was brought and whether or not any appeal brought has been determined), ‘b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and ‘c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision,’ as matters that could have been raised on appeal in the ‘old’ asylum claim (their mother’s claim on which they were dependent).[10]Following pre-action letters sent on the 26th February 2010, the Secretary of State responded confirming certification by letter of the 11th March 2010, indicating that the claimants’ “mother could have raised any claim, including her and her children’s interest in Christianity in Iran, their attendance at a Christian church in Iran and the warnings they received about the danger they were putting themselves in by attending the church …”; that there had been the opportunity to raise these matters before the Tribunal.[11]I bear in mind that this claim concerns judicial review of the certification under section 96(1) and not any decision on the merits of the new matters raised, except insofar as the Secretary of State has the discretion to consider those matters as a whole when deciding to certify.[12]The grounds on which the claimants seek judicial review are as follows:(i) the conversion of the claimants to Christianity arose only after the determination of their mother’s asylum claim;(ii) the certificates have been issued without proper consideration of the factors in section 96(1) of the Act;(iii) the defendant has failed to apply the 4 stage test set out by Stadlen J in R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin);(iv) alternatively, the notices of removal themselves are defective as the country of removal has not been specified.[13]Ground (iv) has not been pursued. Ms Patel, counsel for the claimants, has enlarged on the above grounds: insufficient allowance was made by the decision maker for the fact that the claimants are minors; the Secretary of State did not exercise his discretion not to certify with proper consideration of the factors within the claimants’ claim for asylum (the part of the 4 stage test). In this last respect, Ms Patel sought to rely on what she submitted to be the analogous situation of persecution facing gay men in Iran as considered by the Supreme Court in R (HJ and HT Iran) vSecretary of State for the Home Department [2010] 3 WLR 386. The approach in paragraph 82 of Lord Rodger of Earlsferry JSC's judgment is stated, “If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them.”[14]In effect Ms Patel submits that the same principle should apply by substituting ‘Christian convert’ for ‘gay man’, in the passage which followed in paragraph 82:
“If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a [Christian convert], then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution.”
[15]Ms Patel submits that this should have been the kind of consideration that the Secretary of State was obliged to give to the claimants’ assertion that they would be at risk if returned to Iran, along with careful consideration of the evidence is support of the claimants’ conversion to Christianity.[16]The Secretary of State’s grounds of resistance can be summarised as follows:(i) the claimant’s had previously practiced a Christian faith while in Iran and it was open to the defendant to conclude the claimants were not newly converted;(ii) the claimants’ attendances at the Jubilee Church came only after their mother’s asylum claim had been refused and could therefore be viewed with caution by the defendant;(iii) even with their baptism, there is nothing to suggest that the claimants are anything other than “ordinary converts” and will not therefore be at risk: SM & JM (Christians – FS Confirmed) Iran CG [2008] UKAIT 00082;(iv) the claimants could have raised the issue of their Christianity even at the time of their mother’s asylum claim;(v) extensive reasons have been given which support the certification of these claims;(vi) the notices of immigration decision … are not defective;(vii) the claim is largely unparticularised and contains little more than assertions.[17]Mr Evans, counsel for the Secretary of State, submits correctly that the claimants could only succeed if they could challenge the certification on conventional judicial review grounds, that it is irrational or Wednesbury unreasonable. I have no difficulty in accepting that, on the basis that the claimants were dependent on their mother’s appeal which was determined on the 8th July 2008, the first 2 stages in the 4 stage test were clearly met. The claimant’s mother, on their behalf as well as on her own behalf, clearly had ample opportunity to raise the issue of her and their interest in Christianity which predated the hearing of that appeal. I note that the immigration judge made reference to a number of additional matters which the claimant’s mother raised in the course of that hearing. The Secretary of State had ample material on which to certify that the issue of Christianity could have been raised at that time, if the claimants’ mother had a genuine fear of persecution on the grounds of conversion, particularly since she was seeking to rely on the fact that she had been warned against practising Christianity before she left Iran.[18]As for the 3rd stage, the only substantive reasons for not raising the issue of Christianity earlier that have been advanced are the asserted fact that neither the claimant’s mother nor the claimants themselves had converted to Christianity by the 8th July 2008; that she was unrepresented at that hearing. The difficulty with this reasoning is, as I have considered above, that the claimants’ mother on her own evidence had been aware of the dangers of practising Christianity in Iran before she arrived in the United Kingdom; that in the course of the hearing before the immigration judge she was clearly casting around for additional reasons why her claim for asylum should succeed; that, if genuine, the issue of Christianity would have been raised notwithstanding the fact that neither she nor her sons had formally been baptised. Further, given that she was able to raise so many issues, the fact that she was unrepresented was of less significance than it might otherwise have been.[19]In my judgment, the Secretary of State’s decision that no sufficient reasons have been given for not raising the Christianity issue earlier cannot effectively be challenged (stage 3). Up to this stage, it is clear that the claimants, for the purposes of the stages 1 to 3, were dependent on their mother’s claim in respect of the matters that should have been raised and the reasons for not raising them.[20]At stage 4 the Secretary of State had to give proper consideration of the factors within the claimants’ claim for asylum. The decision maker’s thought processes are demonstrated in paragraphs 9 to 25 of the decision letters of the 29th January 2010. In summary, the reasoning is that the claimants’ account of how their conversion came about contained significant inconsistencies; that they had attempted to enhance their claim for asylum by influencing the church integration officer. The Secretary of State went on to consider whether, even if it were accepted that they had genuinely converted, they would nevertheless face a real risk of persecution. His conclusion is encapsulated within paragraphs 24 and 25:
“24. … you have already shown a willingness [to] adapt your behaviour and [to] practise your religion discretely in Iran when you were warned by a member of the church you attended that you should not be there as you were Muslims. Because of this warning you began to limit your attendance at church (AIR q8, 12, 13). “25. It is therefore accepted that you could return to Iran and follow Christianity without a real risk of serious harm.”
[21]The Secretary of State can be forgiven for adopting a sceptical approach to the facts that the claimants and their mother started attending the Jubilee Church almost immediately after her appeal was rejected; that their baptism followed within 3 weeks of the rejection of mother’s fresh claim. Based on the immigration judge’s rejection of mother’s credibility as a witness, the Secretary of State had been entitled to reject her reliance on conversion. In approaching the claimants’ own individual cases, however, he performed a detailed analysis of their claims in respect of their conversion and gave adequate reasons for rejecting such claims.[22]Ms Patel’s argument that the Secretary of State did not properly consider the ages of the claimants and the overriding interests of their welfare as minors has no real prospect of success, because the decision letters made it clear that the decision maker was well aware of their ages and their welfare needs.[23]In the light of HJ I have considered whether a challenge could be mounted against the reasoning contained in paragraphs 19 to 25 of the decision letters, based on an argument that having to practice religion discreetly for fear of prosecution could be sufficient to found a claim for asylum, but have concluded that the Secretary of State’s exercise of his discretion to consider all the factors has insufficient prospect of a successful challenge in the circumstances of this particular case.[24]It follows that permission to bring this claim for judicial review has to be refused and the claim dismissed. The claimants are to pay the defendant’s costs of the acknowledgement of service assessed in the sum of £360.00. Enforcement of the order for costs against the claimants is stayed until further order of the court. Further, there will be detailed assessment of the claimant’s costs, the claimants being in receipt of services funded by the Legal Services Commission.