Hussain, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin)

Case No CO/15673/2009[2012] EWHC 1952 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/07/2012
Before
JAMES DINGEMANS QC(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
The Queen on the application of MUSTAFA ABDUL HUSSAINClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
David Jones and Helen Foot (instructed by Wilson Solicitors LLP) for ClaimantSamantha Broadfoot (instructed by Treasury Solicitors) for DefendantHearing Hearing dates: 4 July 2012
JudgmentJames Dingemans QC:Introduction
[1]The Claimant applies for judicial review of the Defendant’s decision dated 21 October 2011. By that decision the Defendant had refused the Claimant indefinite leave to remain, but had granted the Claimant discretionary leave to remain from 21 October 2011 for a period of 3 years, following which there will be a further review.[2]The Claimant is an Iraqi national. He was one of the hijackers of a Sudan Airways Airbus which arrived at Stansted airport on 27 August 1996. The Claimant contends that he committed no crime because he was acting under duress in carrying out the hijacking, in that he feared being seized by the Sudanese authorities and returned to the former Iraqi regime, which had sentenced him to death.[3]The Claimant’s contentions are that the decision made by the Defendant is unlawful on the grounds that:(1) the decision is flawed because it is inconsistent with the approach taken by the Defendant to other persons involved in the hijacking who are in a similar position;(2) the Defendant’s decision that the Claimant is excluded from international protection because he had been involved in hijacking is unreasonable and irrational;(3) the Defendant’s policy in relation to the grant of Indefinite Leave to Remain (“ILR”) meant, if it had been properly applied, that the Claimant should have been granted indefinite leave to remain.[4]The Defendant resists the claim and denies that there has been any unlawfulness in the decision making process.

The Claimant’s background and travel to Sudan

[5]The Claimant is an Iraqi national, being a Shiite Muslim from Basrah. It is common ground that his family and he had suffered at the hands of the Iraqi regime headed by Saddam Hussein. In Iraq the Claimant had been detained without trial and tortured. He had been accused of refusing to serve in the Iraqi army and had, as a result of a confession extracted by oppression, been sentenced to death in his absence after absconding, a sentence which had been confirmed on a later occasion. His wife had been tortured. His brother had been executed. In a decision given on 3 November 2005 the Asylum and Immigration Tribunal found (at paragraph 18(ii)) that the Claimant “suffered persecution, including torture, under the former regime in Iraq as a result of his perceived membership of an opposition group and his religion, consequent upon which the Appellant was sentenced to death”.[6]In 1995 the Claimant had escaped from Iraq, bribing border officials to allow him into Jordan. From Jordan he had travelled to Sudan.[7]In Sudan he began to fear for his safety because he had only false travel documents, and because there were links between the former Iraqi regime and the regime then governing in Sudan. Attempts to arrange travel out of Sudan on false passports failed, and attempts to get a visa for European countries had failed. He, and a group with which he was associating, were ordered to leave the country otherwise they were going to be handed to the authorities in Sudan who were intending to hand the group to the Iraqi embassy in Sudan or return them to Iraq. At this stage the Claimant’s wife and children were with him in Sudan.

The hijacking

[8]On 27 August 1996 the Claimant was part of a group which hijacked a Sudan Airways Airbus after it had taken off from Sudan. There were 197 persons on board. The Claimant’s wife and children were some of the passengers on board the airbus.[9]The plane stopped for refuelling at Larnaca, Cyprus, before flying on to London Stansted airport.[10]It is obvious that the hijacking would have been a terrifying experience for the innocent passengers on board the plane. After arriving at Stansted airport, the Claimant surrendered and claimed asylum. The Claimant and others were arrested for hijacking.

The trial and successful appeal in relation to the offence of hijacking

[11]The Claimant and 6 others were tried for their respective roles in the hijacking. The Claimant’s actions in the course of the hijacking do not appear to have been in dispute. He had carried on a plastic knife as part of the plan to seize the plane. In the course of the hijacking the Claimant had been handed and held a metal butcher’s knife which had been located among the luggage of passengers. The Claimant relied on the defence of duress. This was based on the cruel and tyrannical nature of the former regime in Iraq, the Claimant’s uncertain status in Sudan, and the other unsuccessful attempts to travel out of Sudan. As the Claimant put it in his witness statement in support of his claim for asylum his fears were such that “… we had no choice but attempt to leave the country in the manner in which we did by hijacking the Sudanese airbus”.[12]The trial judge did not permit the defence of duress to be left to the jury. This was on the basis that the threats to the Claimant were not sufficiently immediate to justify the defence. On 31 October 1997 the Claimant and his co-Defendants were convicted. The Claimant and another one of the hijackers were sentenced to 5 years imprisonment. Two other hijackers were sentenced to 7 years imprisonment. Another of the hijackers, H, the acknowledged leader of the group who had handed out the metal knives on the plane, was sentenced to 9 years imprisonment. (It might be seen that the names of the other hijackers are not set out in this judgment. I note that in relation to one of the hijackers, his name has not been given in a Court report of judicial review proceedings. No information has been provided about whether orders providing for anonymity of those other persons have already been made, but it seems as if they might have been, and both the Claimant and the Defendant at the hearing before me submitted that the other hijackers should be identified by letters. If anyone wishes to apply for details of names of those other persons to be provided, the application can be made. The Claimant’s name has been provided).[13]One of the hijackers, N, had been charged with conspiracy to hijack and not the substantive offence. This was because he decided not to participate in the hijack and refused to tie up an airhostess, and he was himself tied up and gagged. The jury were unable to agree a verdict in relation to him, and he was retried and convicted. At that second trial N did not run duress. He was sentenced to 30 months imprisonment.[14]The Claimant and the co-Defendants convicted at his trial appealed against their convictions. On 17 December 1998 the Court of Appeal in a judgment ([1998] EWCA Crim 3528) quashed the convictions on the basis that the trial judge had been wrong to withdraw the defence of duress from the jury. The legal test for duress was clarified to be “whether there was evidence of such fear operating on the minds of the defendants at the time of the hijacking as to impel them to act as they did, and whether, there was evidence that the danger they feared … existed and that hijacking was a reasonable response to it”. The Claimant’s claim to the defence of duress had been accepted by the trial judge to be the strongest on nexus, although as the trial Judge had then considered, still not sufficiently closely connected to the hijacking to be left to the jury.[15]No retrial was ordered because of the past suffering of the defendants and the fact that for some of them the custodial parts of their sentences were nearly served.[16]N, who had not been convicted at the first trial but who had been convicted at his retrial of conspiracy to hijack, had his appeal dismissed. This was because duress was not raised as a defence on his retrial.[17]The effect of the conviction having been quashed is that the Claimant is treated as if he had been tried and acquitted pursuant to the provisions of section 2(3) of the Criminal Appeal Act 1968.

The Claimant remains in the UK and the applications made by him

[18]The Claimant was interviewed in relation to his asylum claim on 23 October 1998, shortly before the hearing of his appeal and release from custody after his successful appeal to the Court of Appeal in December 1998.[19]The Claimant’s wife and children had also claimed asylum and on 21 June 1999 they were granted refugee status.[20]On 24 October 2001 the Claimant applied for leave to remain in the UK with his family. No decision was made, and further representations in support of the application were made on 8 October 2002.[21]In February 2003 the Claimant appears to have been granted Exceptional Leave to Remain (“ELR”) along with others who had been involved in the hijacking of the plane. This was with a view to returning the Claimant if the Iraqi regime changed.[22]On 14 March 2003 the Claimant’s claim for asylum was refused on the basis that he was excluded from the 1951 Refugee Convention (“the 1951 Convention”) pursuant to article 1F of the 1951 Convention.[23]On 2 May 2003 there was a letter before action challenging the Defendant’s refusal to grant the Claimant leave to remain with his family, and on 1 July 2003 there was an appeal filed (out of time) challenging the refusal to grant asylum. On 29 August 2003 the Claimant made an application to extend his leave to remain in the UK.[24]On 10 March 2005 an Immigration and Asylum Tribunal considering the case of N found that he was excluded from humanitarian and asylum protection, but that it would not be permissible to return him to Iraq, even after the change of regime, because there was such a risk of relevant ill-treatment that any return would infringe the provisions of article 3 of the European Convention on Human Rights (“ECHR”).[25]On 18 April 2005 the Respondent granted the Claimant Discretionary Leave to Remain (“DLR”) until 18 October 2005. On 14 October 2005 the Claimant applied to extend that leave.[26]On 23 March 2006 the Claimant issued judicial review proceedings challenging delays in determining his applications for leave to remain.[27]The Claimant continued to reside in the UK with his family. On 24 March 2009 the Claimant was granted DLR for 6 months.[28]On 3 April 2009, in proceedings for judicial review brought by N (the person convicted of conspiracy to hijack), determined by Collins J. and reported at [2009] EWHC 1581 (Admin), the delays in considering N’s claim were noted. It was held that a recent decision to restrict the grant of DLR to 6 months should be reconsidered, in the light of the time and delays which had occurred in relation to the consideration of N’s application. At some stage N was granted ILR.[29]On 23 July 2009 a briefing note about the Claimant was prepared by the Special Cases Directorate to Ministers relating to the Claimant. It was noted that there were similarities between the Claimant’s case and N’s case in relation to the delays. It was therefore recommended that the Claimant be treated as having completed 10 years DLR in the UK, and that consideration should then be given to the Claimant’s claim for ILR.[30]On 28 August 2009 the Claimant was refused ILR on the basis that because of his involvement in the hijacking his presence was not conducive to the public good.[31]At some stage H was also granted ILR. It appears that his family had become or were always British citizens.

The decision of 1 October 2009 and legal proceedings

[32]On 21 September 2009 the Claimant again applied for ILR. On 1 October 2009 ILR was refused, but DLR was extended for 6 months.[33]On 22 December 2009 the Claimant issued proceedings for judicial review challenging the legality of the decision made on 1 October 2009. The Claimant specifically complained (at paragraphs 6 and 7 of this claim) that his position was the same as H, who had by then been granted ILR.[34]The Defendant filed summary grounds of defence on 28 February 2010.[35]On 21 June 2010 Collins J. granted permission to apply for judicial review. He held that the continued reliance on the hijacking was arguably unlawful and that “the grant of citizenship to his wife and children makes the decision even more unreasonable. This coupled with a failure to explain why [H]’s case differs add to the apparent unlawfulness”.[36]The matter did not proceed to a hearing of the claim for judicial review. This was because the Defendant withdrew the decision of 1 October 2009, and decided to make a fresh decision. The decision of 1 October 2009 is relevant only therefore as a matter of procedural history.

The decision of 21 October 2011 and further legal proceedings

[37]On 6 October 2011 a further submission to Ministers was prepared.[38]Annexed to the submission was the submission to Ministers prepared for the case of N, following consideration of which N had been granted ILR. Also annexed to the submission was a table showing that N and H had been granted ILR, but that other persons involved in the hijacking had not been granted ILR. It appeared that one of those other persons had absconded.[39]The decision was made on 21 October 2011 to refuse the Claimant ILR, but to grant the Claimant DLR for 3 years, following which the position would be reviewed.[40]On 26 October 2011 directions were given providing for the proceedings to continue as a challenge to the decision dated 21 October 2011.

The real issues in this claim

[41]During the course of argument the essentials of the claim were refined. There are now two main issues to be determined. These are: i) Whether the Defendant was, because of the earlier determination to grant ILR to H and N, effectively bound to grant ILR to the Claimant, who was said to be in a similar position; and ii) Whether the Defendant’s decision that the Claimant was excluded from protection pursuant to the 1951 Convention was unlawful either(a) because it was irrational or(b) because there had been a failure to take into account relevant matters.[42]Before turning to those issues it is necessary to say a little about the 1951 Convention.

The 1951 Convention

[43]The 1951 Convention provides essential international protection for refugees. However certain persons are excluded from the scope of the protection under what is known as “the exclusion clauses”. The UNHCR background note on the 1951 Convention records (at paragraphs 3 and 4) that the rationale behind exclusion clauses is twofold:
“Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice”
. However the note also records that “as with any exception to human rights guarantees, the exclusion clauses must always be interpreted restrictively and should be used with great caution”.[44]Article 1F is one of the exclusion clauses. It provides that the provisions of the Convention “shall not apply to any person with respect to whom there are serious reasons for considering … that (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.[45]Hijacking is a “serious non-political crime”. It is recommended in the background note on the application of the 1951 Convention prepared by UNHCR at page 32, paragraph 85, that hijacking should not automatically exclude the perpetrator from refugee status, but that there should be consideration of the exclusion clauses in the light of the particular circumstances of the case.

Like cases alike

[46]There is an established principle of public law that “all persons in a similar position should be treated similarly”, see Stanley Burnton J. in R(Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 144 at [74], quoting Lord Donaldson MR in R(Cheung) v Hertfordshire County Council, The Times 4 April 1998. Any discretionary public law power “must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it”, see Sedley J. in R v MAFF, ex parte Hamble Fisheries [1995] 2 All ER 714 at 722a-b. One reason for that rule is that it provides consistency in decision making, and some certainty about the application of rules.[47]The Claimant contends that N and H’s cases are alike, that both N and H have ILR, and that the Defendant should have given him ILR. The Defendant contends that the principle of treating like cases alike must have limits. The Defendant has to deal with thousands of cases, and should not be compelled to trawl through files working out points of similarity or difference.[48]There seem to me to be important differences between the case of N and the Claimant. Although N was involved in the planning of the hijack, and indeed (because of the history of the criminal proceedings set out above) was the only person convicted in relation to the hijacking, his role was much less important than that of the Claimant or H’s role. N refused to take part in the events on board the plane, and he was therefore tied up during the hijacking.[49]However there are obvious similarities between H’s case and the Claimant’s case. Both were involved in the hijacking. H had a more significant role in leading the hijacking than did the Claimant. It appears that the Claimant had better evidence to support his defence of duress than did H.[50]I readily accept the proposition that the principle that like cases should be treated alike does not mean that a decision maker needs to trawl through other cases looking for the possibility that there might be a relevant decision to consider. Lawful decision making should not become either formulaic or difficult to achieve. I also accept that conscientious decision makers, applying their minds to the same set of facts, may sometimes come to different conclusions (a graphic example of which occurred in the case of Otshudi v Secretary of State for the Home Department [2004] EWCA Civ 893 to which Ms Broadfoot referred me). However this is not that case. In this case the Claimant arrived in the UK with 6 other persons involved in the hijacking. This is not a significant pool with which to compare his situation. There is no undue burden in requiring a consistency of decision making in relation to the treatment of applications for ILR made by the hijackers.[51]In fact, as appears from the information provided to the Defendant, there does not appear to have been any principled analysis of the position of the other persons involved with the hijacking. It might be thought that the cases of N and H provided support for the Claimant’s proposition that he should be granted ILR, but the point can fairly be made for the Defendant that the treatment accorded to the other hijackers apart from N and H suggests that he should not receive ILR. What can properly be determined at this stage is that there was no meaningful attempt to engage with the position of the other persons, still resident in the UK, who had been involved with the same hijacking. The omission to do so is surprising, given that the decision was made after Collins J. had made his remarks when granting permission to apply for judicial review about the similarities between the position of H and the Claimant.

Rationality of the exclusion and consideration of material factors

[52]The Claimant’s complaint that it was an irrational decision to exclude him from the protection of the 1951 Convention is not sustainable. The Defendant might, acting rationally, consider that there were “serious reasons” for considering that the Claimant had committed a “serious non-political crime” namely hijacking, and was not entitled to protection under the 1951 Convention. This is notwithstanding the importance of narrowly construing and applying the exclusion clauses. It is established that “serious reasons” means what it says and does not equate to the criminal standard of proof. The Defendant might consider that duress could not be established either at the time that the Claimant boarded the plane, or had ceased to apply when the Claimant had arrived at Larnaca, Cyprus. In order to come to such a decision, the decision maker would need to undertake a detailed appraisal of the suggested defence of duress and examine exactly what pressures were operating on the Claimant in Sudan or Larnaca.[53]However it is apparent from the decision letter dated 21 October 2011 that this did not happen. Instead there was a passage about the hijacking which included this statement:
“… you had actually managed to flee Iraq safely by bribing border guards and you actually undertook the hijacking in Sudan, a third country where you were not at risk”
(emphasis added). This suggests that the Defendant had not even considered duress as possibly applying to the Claimant when in Sudan, a position which was completely inconsistent with the judgment of the Court of Appeal, and the Claimant’s evidence which had not been challenged in earlier proceedings.[54]It is fair to note that it was only in the course of argument that Mr Jones focussed on this critical phrase, and Ms Broadfoot, both before and after taking instructions on the point, submitted that it should be read as meaning “immediate risk”. However it does not seem to me to be a possible construction of the decision letter in this case. It may explain the Defendant’s failure to deal with the Claimant’s case on duress.[55]In any event it is quite clear that the Defendant has failed to take into account relevant considerations, namely the Claimant’s claimed defence of duress to the hijacking charge in Sudan, by wrongly finding that there was no evidence of risk to the Claimant in Sudan. The Defendant might, having considered all the evidence, find that there was no sufficient risk to make good a defence of duress, but that was not the effect of the relevant decision.

Remedies and conclusion

[56]The decision made by the Defendant is flawed by reason of(1) the failure to consider the cases of the other persons involved with the hijacking who had been granted ILR, thereby not treating like cases alike; and(2) the failure to consider the Claimant’s claimed defence of duress after wrongly finding that there was no evidence of risk to the Claimant in Sudan, thereby ignoring relevant matters.[57]The Claimant seeks an order quashing the decision letter dated 21 October 2011, and a mandatory order requiring the Defendant to grant the Claimant ILR.[58]It seems to me that the decision of the Defendant set out in the letter dated 21 October 2011 has to be quashed for the reasons set out in paragraph 56 above. However this is not a proper case for making a mandatory order requiring the Defendant to grant the Claimant ILR. For the reasons given above it may be that the Defendant can distinguish the position of H and N, and show that the Claimant should be treated in the same manner as the other persons involved in the hijacking remaining in the UK, and it is possible for the Defendant, acting rationally, to consider that the Claimant is to be excluded from protection under the 1951 Convention. These are matters for the Defendant, and it is not appropriate for the Court to make these decisions for the Defendant.[59]I therefore order that the decision dated 21 October 2011 should be quashed and the matter remitted for the Defendant to reconsider.

Cited in 11 later judgments

and 2 more of the most senior