Khan, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 3725 (Admin)

Case No CO/11601/2013Neutral Citation Number: 2014 EWHC 3725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 17 th November 2014
Before
Ms D. GILL(Sitting as a Deputy High Court Judge)
Between
THE QUEEN on the application of Waqas KhanClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr William Rees (instructed by Asghar & Co Solicitors) for ClaimantMr R Harland (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 16 October 2014
JudgmentMs D. Gill :
[1]The claimant challenges the lawfulness of a decision of the defendant of 9 August 2013 to certify his asylum and human rights claims as clearly unfounded under s.94(2) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). The effect of the certification (if upheld) is that the claimant may only bring an appeal against the defendant’s decision of the same date and contained in the same notice, to refuse to vary his leave to remain and to remove him from the United Kingdom, after he has left the United Kingdom. The outcome of the claimant’s case on the certification issue will determine the lawfulness of directions issued for the claimant's removal from the United Kingdom.[2]Although the original grounds challenged the certification of the human rights claim in terms which included a challenge to the certification of the claimant’s article 8 claim, the grounds in support thereof were very limited and did not raise any of the legal arguments Mr Rees sought to raise at the hearing and that were based on MF (Nigeria) v SSHD [2013] EWCA Civ 1192, R (Nagre) v. SSHD [2013] EWHC 720 (Admin) and MM (Lebanon) and Others v. SSHD [2014] EWCA Civ 985. As a consequence, significant amendment of the original grounds would have been necessary. No application to amend the grounds was made at any point, nor was any prior notice given of any proposed grounds. Mr. Rees did not seek to pursue the challenge to the certification of the article 8 claim advanced in the original grounds. The case therefore proceeded as a challenge limited to the two issues specifically mentioned in the grant of permission, i.e. whether the defendant had adequately considered the issue of sufficiency of protection and internal relocation against the background of the specific threat to the claimant given that the threat to the claimant had not been disputed or questioned by the defendant. Whilst these issues primarily concern the asylum claim, they are also relevant to the claimant's Article 3 claim, as this was based on the same factual matrix.

Immigration history

[3]The claimant is a national of Pakistan, born on 1 April 1991. He entered the United Kingdom on 10 October 2011 with a Tier 4 student visa valid until 12 November 2013. In March 2013, he stopped attending college. On 18 April 2013, the defendant decided to curtail his leave so as to end on 17 June 2013. On 11 June 2013, he contacted the Asylum Screening Unit to make an appointment to lodge an asylum claim. He lodged his asylum claim on 24 June 2013.

Basis of asylum claim

[4]The decision to certify was based on the claimant's evidence given at his screening interview of 24 June 2013 (“SIR”) (C54-C70), his asylum interview of 15 July 2013 (“AIR”) (C162-C191) and documentary evidence at C76-C161 (the documents at C192-C270, which were before the defendant, concerned the article 8 claim). The evidence that was before the defendant may be summarised as follows:[5]The claimant and his family lived in Nowshera. His father was the chairman of the Awami National Party (ANP) for the Nowshera district and a former “Nazim” (mayor) of the Nowshera town. On 21 December 2012 (i.e. after the claimant’s arrival in the United Kingdom as a student), his father was shot by unknown gunmen and seriously injured. His father was taken to a hospital where he received treatment. Following the shooting, the police began an investigation. The investigations were continuing as at the date of the asylum interview. At the end of January 2013, his father was discharged from hospital. He returned home to convalesce. In May 2013, his father received a threatening letter saying that he was lucky to have survived the attack, that he would not escape in the future and that the claimant and his siblings would be also be targeted “if come across”. The claimant said that he did not know who had attacked his father. He did not know who had sent the threatening letter. However, he suspected that those responsible may have been either political opponents of his father or his maternal uncles who had fallen out with his father over a business deal in the past (AIR, qns 12-14, 45, 48-57, 78 and 81).[6]The claimant’s family told him about the threatening letter. They told him that it was not safe for him to return to Pakistan. He feared that, if he returned to Pakistan, he would be killed by the same people who had attacked his father. As his father was unable to work, he could not afford to pay his tuition fees. His college would not extend the time for him to pay his fees beyond March 2013 (qns 42-44 on C178-C179). In March 2013, he stopped attending college.

The defendant’s assessment and the certification decision

[7]As to sufficiency of protection, the defendant referred to the test explained in Horvath v. SSHD [2000] UKHL 37. She then cited at length various passages from a Country of Origin Information report (“COIR”) for Pakistan dated 7 December 2012 (the “2012 COIR”). These included passages concerning how the police force in Pakistan is organised; that police effectiveness varied greatly by district, ranging from reasonably good to ineffective (top of page 4); and that the police in Pakistan are perceived to be corrupt as a matter of course and thought to be largely, if not solely, responsible for the breakdown of law and order in the country. The defendant concluded that the evidence showed that there was an established police force within Pakistan.[8]The defendant took the view that, as the police force had an established hierarchy, there was a structured approach available to the claimant if he were to experience problems on his return to Pakistan (para 14 of the decision letter). She then set out passages from the 2012 COIR concerning the avenues for bringing complaints against the police in Pakistan.[9]At para 15 of the decision letter, she concluded that acts of corruption, bribery and violations of human rights by police officers in Pakistan arose from failures of discipline and supervision and that those found guilty of such offences are held accountable for their actions. She considered that such behaviour was not a concerted policy on the part of Pakistan's government and was not condoned by the government. She considered that there were avenues of complaint available to the claimant if he were unsatisfied with the response of the police.[10]At para 16 of the decision letter, the defendant noted that the police in Pakistan were investigating the attack on the claimant's father and that the claimant’s own evidence demonstrated that there was a functioning police force that was willing and able to help him upon his return to Pakistan. The defendant noted that the claimant had stated that he did not know who had shot his father and sent the threatening letter but that he suspected that it could be either political opponents of his father or his maternal uncles who did not get on with his father. However, the defendant considered that the claimant had not demonstrated that either of these agents had significant power or influence in Pakistan given that his father had been able to remain at his home since his discharge from hospital in January 2013 without experiencing any further physical harm.[11]The defendant thus concluded that there was a sufficiency of protection available to the claimant in Pakistan and that he had not demonstrated a sustained and systemic failure of state protection in Pakistan. With regard to AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC), the defendant did not accept that the claimant required protection above the level that the Pakistani authorities were able to provide.[12]As to internal relocation, the defendant quoted at para 19 of the decision letter from the 2012 COIR at length. She concluded that Pakistan was a large, highly populated country where citizens could freely move. She concluded that, if the claimant experienced problems on return to Pakistan or if he wished to avoid problems in his home area of Nowshera, he could relocate to another area of Pakistan such as Karachi or Hyderabad which were 878 and 775 miles respectively away from Nowshera and had populations of approximately 11.6 million and 1.15 million people respectively.[13]At his asylum interview (qn 78), the claimant had stated that he could not relocate to Karachi because, if the attack on his father was politically motivated, there were “political people” all over the country. The defendant considered (para 21) that the claimant's suspicion that the attack on his father was politically motivated was pure speculation. In any event, even if the attack was politically motivated, she considered that the claimant had not shown that the people who had attacked his father had either the desire or the resources to locate him if he were to relocate to a big city such as Karachi or Hyderabad.[14]At his interview (qn 79), the claimant had sated that he could not relocate to another part of Pakistan because he would be unable to leave his property and shops in Nowshera and live elsewhere in Pakistan. The defendant rejected that explanation (para 21), observing that the claimant was living in the United Kingdom away from his family’s property.[15]Given that the claimant was a well-educated, resourceful and healthy young man who was fluent in Urdu, Pashtu and English, the defendant did not accept that it would be unreasonable for the claimant to relocate to another area of Pakistan, such as Karachi or Hyderabad, to escape his localised problems.

The “clearly unfounded test”

[16]The “clearly unfounded” test was considered by the Court of Appeal in ZL & VL v. SSHD & another [2003] EWCA Civ 25 in the context of the transitional provisions in section 115 of the 2002 Act which are in materially identical terms to s.94 of the 2002 Act. The Court considered the proper approach for the decision maker to take in determining whether a claim is clearly unfounded. At para 57, the Court of Appeal said that the decision maker will:
“(i) consider the factual substance and detail of the claim (ii) consider how it stands with the known background data (iii) consider whether in the round it is capable of belief (iv) if not, consider whether some part of it is capable of belief (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.” (ii) consider how it stands with the known background data (iii) consider whether in the round it is capable of belief (iv) if not, consider whether some part of it is capable of belief (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.”
[17]In R (Bagdanavicius) v. SSHD [2003] EWCA Civ 1605, the clearly unfounded test was said to be whether the claim “is so lacking in substance that the appeal would be bound to fail”. The onus rests on the person alleging that his removal from the United Kingdom would constitute a breach of the United Kingdom’s obligations under the Refugee Convention or article 3, to show a real risk of persecution or substantial grounds for believing that he would face a real risk of being subjected to treatment contrary to article 3.

The relevant legal principles as to sufficiency of protection and internal relocation

[18]The key case on the issue of sufficiency of protection is Horvath v. SSHD [2001] AC 489, where Lord Hope said (at page 500):
“in order to satisfy the fear tests in a non-statute agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill-treatment against which the state is unable to unwilling the provide protection…”
[19]As to the level of protection required, Lord Hope said:
“… the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals….”
[20]Lord Clyde approved of the following formulation presented in the Court of Appeal in the same case: “… there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders." “… inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. "It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy."[21]Mr Rees accepted that the country guidance cases of the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) (and its predecessors) establish that there is in general a sufficiency of state protection in Pakistan. As at the date of the defendant’s decision in the instant case, the most recent of UTIAC's cases which considered the country evidence was AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC).[22]Although AW was not specifically designated by UTIAC as a country guidance case, UTIAC considered the question whether there was systemic insufficiency of state protection in Pakistan. At para 34, the Tribunal (Lord Bannatyne and Senior Immigration Judge Storey) had regard to the case of AH (sufficiency of protection – Sunni Extremists) Pakistan CG [2002] UKIAT 05862) and KA and Others (Domestic Violence – Risk on Return) Pakistan CG [2010] UKUT 216 (IAC) and concluded that it could not be said that general insufficiency of state protection in Pakistan had been established.[23]Mr Rees accepted that the general conclusion in AW applied and that there was in general a sufficiency of protection in Pakistan.[24]AW is an example of a case in which the claimant succeeded in showing that was insufficient protection in his particular circumstances notwithstanding that there was systemic sufficiency of state protection. The Tribunal's reasons for reaching the conclusion that the authorities in Pakistan would be unlikely to provide the appellant in that case with the additional protection which he required in his particular circumstances were set out at paras 38 and 39 of the determination.[25]As to internal relocation, the question is whether it would be unduly harsh to expect a person to move to a part of the country where he would be safe, with sufficient protection, and which he could reach safely and without undue hardship: Robinson v. SSHD [1998] QB 929. In deciding whether an internal relocation option is unduly harsh, the comparison is between the claimant's circumstances in his or her home area and the proposed place of relocation and not between conditions in the country of asylum and the proposed alternative location in the home country: Januzi v SSHD [2006] UKHL 5.[26]I turn now to deal with the claimant's case on the defendant’s assessment of the issues of sufficiency of protection and the internal flight alternative

The claimant's case and my assessment of it

[27]It is said that the defendant had erred in failing to place “proper weight” on the COIR on Pakistan dated 9 August 2013 (the “2013 COIR”). The grounds quote at length from paras 8.6.1, 8.6.2, 9.05, 9.06, 9.12, 9.63, 15.17, 15.18, 15.20, 15.24 and 15.27 of the 2013 COIR.[28]As the 2013 COIR was released only on the date of the decision letter, it was not referred to by the decision maker. However, Mr Harland accepted that, in relation to sufficiency of protection and internal flight, there were no material differences between the 2012 COIR and 2013 COIR. He was therefore content for me to consider the 2013 COIR. Mr Rees did not point to any material differences between the 2012 COIR and the 2013 COIR.[29]The decision letter specifically quotes paras 9.05, 9.06, 9.12 and 9.63 of the 2012 COIR which were in the same terms of the same paragraphs in the 2013 COIR, as well as several other paragraphs from section 9 and section 18 of the report before the conclusion was reached that, although there was corruption, bribery and violations of human rights by police officers in Pakistan, these arise from failures of discipline and that there was in general systemic sufficiency of protection. That conclusion cannot be faulted, given the conclusion in AW and the acceptance by Mr Rees that the conclusion in AW, that there was in general a sufficiency of protection in Pakistan, applies.[30]Mr Rees submitted that there was insufficient protection for the claimant in his particular circumstances. He relied upon three such factors: the fact that the claimant’s father had a prominent position in politics; that his father’s political party was the ANP and that a letter threatening the claimant and his siblings had been received. In original grounds, reliance was placed on the evidence of politically motivated violence (for example, at paras 8.6.1, 8.6.2, 9.05, 9.06, 9.12, 9.63, 15.17, 15.18, 15.20, 15.24 and 15.27 of the 2013 COIR) for the proposition that such evidence of politically motivated clashes between the Muttahida Qaumi Movement (MQM), Pakistan Peoples Party (PPP) and ANP parties, when taken together with the fact that claimant's father was a high profile political leader in Pakistan, means that it was plausible not only that the shooting incident was a politically motivated attack but also that the gunmen would have the ability and resources to locate the claimant wherever he were to return in Pakistan.[31]However, reliance upon the assertion that there was a political motive behind the shooting incident and threatening letter ignores the fact that the evidence before the decision maker was that the claimant and his family had not had any problems in Pakistan before the shooting incident, notwithstanding the political background and activities of his father.[32]Furthermore, the claimant's own evidence was that he did not know who had carried out the attack on his father and sent the threatening letter. He said that he suspected that it was either political opponents or his maternal uncles who did not get on with his father after a business deal in the past had gone wrong. He did not know if the people who had shot his father still wanted to kill him (qn 46 of the AIR). He said that the police were investigating the shooting incident and the threatening letter (qns 21 and 85 of the AIR). He said that he expected that his family will know for certain who was responsible when the police investigations were complete (qn 84 of the AIR). At qn 50 of his AIR, he said that his sister had said that the problems may have occurred because ANP leaders are targeted before elections.[33]Thus, although the claimant and his sister did suggest that there might have been a political motive, the claimant repeatedly said he did not know who was behind the shooting incident and the threatening letter. The claimant’s family did not experience any problems in the period of more than six months between the shooting incident and the claimant's screening interview in June 2013 other than the receipt of the threatening letter in May 2013. Taken together with the fact that he and his family had not experienced any problems prior to the shooting incident notwithstanding his father’s political activities, the decision maker was fully entitled to take the view (para 21 of the decision letter) that it was speculation to suggest that there was a political motive. The suggestion that there was such a political motive was bound to fail before the First-tier Tribunal (FtT).[34]Similarly, any suggestion that there was no reasonable likelihood of the claimant being able to access sufficient protection in his home area was bound to fail before the FtT, given that his father had not only approached the local police for assistance; the police were actively investigating the shooting incident and the threatening letter and that his parents and siblings (including his younger brother who had also been threatened in the threatening letter) continued to live in their home. This is so notwithstanding the claimant’s evidence that his paternal uncles had supported his family since the shooting incident which is why he said they could not be attacked (qn 47 of the AIR). The fact that his father and siblings had not sought to evade any threat to them by relocating at any time during the period of more than six months between the date of the shooting incident and the claimant's screening interview sheds light on the degree to which they felt protected as well as the likelihood of any risk to the claimant materialising in his home area.[35]For all of these reasons, I am satisfied that, on any legitimate view of the evidence that was before the decision maker, the claimant's case, that was insufficient protection for him in his home area, had no more than fanciful prospect of succeeding before the FtT.[36]Further, and in any event, the claimant’s assertion, that he could not safely relocate, was wholly without foundation on the evidence that was before the decision maker. The original grounds contended that the ability of his father’s attackers to trace him in Pakistan is linked to his father's political prominence considered against the background material. The claimant has not explained how the ability of the attackers to trace him in Pakistan is linked to his father’s prominent position in politics in Nowshera. There was only one newspaper article before the decision maker (page 104). This reported the shooting incident. There was nothing to suggest that the article had appeared in the national newspapers or (even if it had) that the claimant's father was known nationally. More importantly, there was no explanation before the decision maker how or why the link between the prominence of his father’s position in politics in Nowshera was linked to the ability of the attackers to trace the claimant if he were to relocate.[37]For all of these reasons, I am satisfied that, on any legitimate view of the evidence that was before the decision maker, the claimant's case, that he could not relocate safely to another part of Pakistan, such as Karachi or Hyderabad, was wholly without foundation and bound to fail before the FtT.[38]Similarly, the claimant's case, that he could not relocate without undue hardship, stood no prospect whatsoever of succeeding before the FtT on the evidence that was before the decision maker. His claim that he could to relocate to another part of Pakistan because he would be unable to leave his property and shops in Nowshera could not succeed, given that he was living in the United Kingdom away from his family's property in Nowshera and that the evidence he gave was that his family were still living in Nowshera. Furthermore, as the decision maker noted, the claimant was a well-educated, resourceful and healthy young man who was fluent in Urdu, Pashtu and English.[39]Mr Rees took issue with the fact that the decision maker had not assessed the credibility of the claimant's account and had not made findings of fact. However, for the reasons given above for rejecting the challenge on the issues of sufficiency of protection and internal relocation, I agree with Mr Harland that any failure to assess credibility was immaterial.[40]Insofar as the claimant relies upon evidence that was not before the decision maker and which has been submitted since the decision of 19 August 2013, such evidence cannot be relied upon to impugn the lawfulness of the decision. In this respect, I refer (for example) to the fact that the claimant has now produced a further witness statement and further documentary evidence. He has now given additional reasons for the animosity between his maternal uncles and his father, stating that there were political differences as well as the dispute about a financial deal in the past; that his maternal uncles have influence in Pakistan; that an uncle was killed in 2014; and that his father was only able to continue living in Nowshera by remaining indoors and having his brothers and security guards to protect him.

Conclusion

[41]The defendant’s decision of 9 August 2013 23 April 2013 to certify the claimant’s asylum claim and human rights claims as clearly unfounded was lawful. Directions set for his removal from the United Kingdom are therefore lawful. The claim is therefore dismissed. The claimant may only pursue any appeal against the refusal to vary leave and decision to removal dated 9 August 2013 after he has left the United Kingdom.