Issue 38 August 2007 - Current Awareness

ECHR ARTICLES INDEX

Article 2-Case 2, 3, 6

Article 3-Case 1, 2, 3

Article 6-Case 4

 Immigration and Asylum

(1) MK v Secretary of State for the Home Department [2007] CSOH 109

The petitioner, who is an Iranian, claimed that she would suffer a breach of Art.3 ECHR and would be persecuted if returned to Iran. She claimed risk on the basis of her sexual orientation. Her claim was refused by the respondent and her appeal was refused. She submitted new material to the respondent claiming that she now had a fresh claim for asylum. The material consisted of documents from her sister in Iran including a sentence of 10 years in prison and 74 lashes. Although this predated the date of her appeal she claimed she was not aware of it because her sister had been too afraid to tell her about it. The respondent did not believe the claim by the sister. In her petition for judicial review the petitioner argued that the respondent had erred in law by applying a test of actual credibility to the claim, and not the correct test of apparent credibility, and that the decision was unreasonable.

Held: petition dismissed. (1) The correct tests had been considered. The sister had been aware of the alleged court proceedings before the asylum appeal had been heard and her explanation as to why she had not sent the material before was vague, as was the account of the petitioner in that regard. (2) There was no need to consider the actual documents, as the failure to believe the account took away from the seriousness of the alleged sentence imposed, and the respondent was entitled to take the view that the new material should have been produced earlier. (3) There was no basis to hold that the decision was unreasonable.

(2) YKAf v Secretary of State for the Home Department [2007] CSIH 55

The appellant claimed that Art.3 would be breached if he was returned to Rwanda. His parents had been killed in the 1994 genocide. In 2002 the Rwandan government began to try suspects and the appellant considered testifying. However, he did not because he and his siblings had received threats and two other relatives and a family friend had been detained on apparent political grounds. The Asylum and Immigration Tribunal ("AIT") accepted that the appellant had a genuine fear of harm if returned, yet it still held that the fear was subjective, and could not be justified on objective grounds as the background material showed that there had only been killings of a small number of genocide survivors. The appellant appealed to the Inner House on the basis that the AIT had misunderstood the background evidence and so had failed to assess the risk correctly, and also that the analysis by the AIT of state protection had been flawed.

Held: appeal dismissed. (1) The AIT had taken into account relevant considerations on the assessment of risk including the frequency and location of the killing of witnesses. (2) The AIT had been entitled to prefer evidence from more specific sources-as opposed to the more general evidence in the US State Department Report relied on by the appellant and the AIT had been entitled to reach the view that the frequency of the killing of witnesses was of the lower order based on the evidence it preferred, and they had given adequate reasons for that view. (3) The view that the fear of the appellant was largely subjective was one it was entitled to take. (4) Although the ordinary Rwandan courts could not cope with the volume of cases which required to be tried, the special courts set up in 2002 had been used to try crimes other than genocide. (5) Following Horvath v Secretary of State for the Home Department [2001] A.C. 489 and Osman v United Kingdom [1998] 29 EHRR 245, neither the ECHR or the Refugee Convention offered a guarantee of safety and, in all the circumstances, the AIT had been entitled to conclude that the Rwandan state had been providing a reasonable level of protection for someone such as the appellant.

(3) HA v Secretary of State for the Home Department [2007] CSIH 65

The appellant, who is an Afghan national, appealed to the Inner House from a decision of the AIT. The appellant claimed that he had got M, the daughter of a local army commander, pregnant outwith marriage. He claimed that his arrest was sought and that he would be stoned to death in breach of Arts 2 and 3. He claimed that his brother-in-law and sister had been attacked by agents of the father looking for the appellant and had to flee their own home as a result. On appeal he argued that the immigration judge who had heard his case and the AIT on reconsideration had not been entitled to reject the claim as incredible.

Held: appeal allowed and case remitted to a differently constituted tribunal. The circumstances in which an assessment of credibility could be challenged as amounting to an error of law were as follows: (1) The credibility of an asylum-seeker's account is primarily a question of fact, and the determination of that question of fact has been entrusted by Parliament to the immigration judge. (2) The Court must not interfere with the immigration judge's decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion. But, if the immigration judge's decision on credibility discloses an error of law falling within the range identified by Lord Clyde in Reid v Secretary of State for Scotland, 1999 S.C. (HL) 17, that error is open to correction by the court. (3) If a decision on credibility is one which depends for its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation. (4)A bare assertion of incredibility or implausibility may disclose an error of law. (5) Further, an immigration judge must give reasons for his decisions on credibility and plausibility. In reaching conclusions on credibility and plausibility an immigration judge may draw on his common sense and his ability, as a practical and informed person, to identify what is, and what is not, plausible. (6) Credibility, however, is an issue to be handled with great care and sensitivity to cultural differences, and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose culture and customs are very different from those in the United Kingdom. (7) There will be cases where actions which may appear implausible if, judged by domestic standards, they may not merit rejection on that ground when considered within the context of the asylum-seeker's social and cultural background. (8) An immigration judge's decision on credibility or implausibility may disclose an error of law if, on examination of the reasons given for his decision, it appears either that he has failed to take into account the relevant consideration that the probability of the asylum seeker's narrative may be affected by its cultural context, or has failed to explain the part played in his decision by consideration of that context, or has based his conclusion on speculation or conjecture. (9) Although some of the attacks on credibility in this case failed, others succeeded. It had been unfair of the immigration judge to not raise with the appellant his concern over the credibility of such a relationship being conducted without apparent use of contraception. It had been erroneous in law for the immigration judge to treat it as being inherently unlikely that the appellant would have telephoned the family home of M, knowing that the family would disapprove of such contact. The immigration judge had erred in treating it as being incredible that M told her mother of her pregnancy before telling the appellant-he had failed to take into account the cultural context. The immigration judge had given no reasons for treating the account as being implausible when there was evidence from the brother-in-law and sister which supported it. As for the issue of internal relocation, it was evident that in this case the flawed assessment of credibility had infected the findings of the immigration judge on internal relocation as he had held that the appellant could move to Kabul, but had not properly dealt with the evidence of the brother-in-law that he had been attacked whilst in Kabul.

Comment: Here we have a very useful distillation and practical application of the principles to be applied by immigration judges in the assessment of credibility in ECHR and asylum claims.

In Reid v Secretary of State for Scotland, in the passage relied on by the Court, Lord Clyde said (at 41B-41 H):

"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case ... As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or sufficient evidence, to support it or through account being taken of irrelevant matter, or through failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence."

In HA, the Inner House did not consider that this passage, which was from a judicial review case, was not relevant in a case arising, as here, as a statutory appeal.

(4) Lord Advocate, Petitioner [2007] CSOH 135

The petitioner sought judicial review of the decision of a sheriff to award expenses arising from a Fatal Accident Inquiry. She argued that an award of expenses was not competent. The interested parties to the inquiry argued that such an award was competent. The parties had submitted to the sheriff that the inquiry had been unnecessary because it dealt with no matter which had not already been covered at an earlier criminal trial of one of the interested parties. The interested parties under reference to cases including Stankiewicz v Poland, ECtHR, App. No.46917/99, Judgment dated April 6, 2006, relied on Arts 2 and 6 and argued that the legislation permitted an award of expenses against the petitioner. As under Art.2, family members had a right to participate in an inquiry into the death of a relative-a denial of a right to recover expenses from the state constituted an unlawful restriction on the Art.2 right and was unfair. Although the interested parties in this case were not family members, as a matter of principle, expenses were competent, and it was a matter of discretion as to whether they should be awarded to non-family members in appropriate cases. The petitioner argued that if that was so then interested persons such as family members might also become liable. The petitioner argued that that would be contrary to the public interest and so, on the whole, awards should not be made and would in fact be incompetent.

Held: petition allowed. (1) An award of expenses was not competent. (2) The Fatal Accident and Sudden Deaths Inquiries (Scotland) Act 1976 is a self contained set of provisions which related to the investigation of deaths in the public interest. An inquiry was not an adversarial litigation where success or failure could be determined. (3) The 1976 Act made no provision for expenses and in other administrative law contexts Parliament had to make express provision for expenses. (4) Art.6 did not require an award of expenses. The ability to award expenses was not an essential part of fairness under Art.6. (5) In any event, Art.6 was not engaged. An inquiry did not involve the determination of civil rights and obligations and Stankiewicz v Poland was not in point and, in any event, did not lay down any general proposition on expenses under Art.6. As Art.6 did not apply, no issue under Art.2 arose.

Comment: Stankiewicz v Poland is an interesting case. It concerned civil proceedings for unjustified enrichment brought by a Polish public prosecutor (acting on behalf of the State Treasury) against the applicants-Polish nationals who had bought real property at auction from a public authority. The public prosecutor claimed that the property had been sold under value and sued them for the difference. The applicants successfully defended the action, which was dismissed. The court of first instance awarded the applicants their litigation costs but, on appeal by the prosecutor, the court refused to award them their legal costs. That decision appears to have been based upon Art.106 of the Polish Code of Civil Procedure. Ordinarily, expenses went with success but Art.1 06 conferred an exemption on the public prosecutor from liability in respect of the costs of civil litigation. It was doubtful whether, as a matter of domestic law, the exemption was truly applicable because it did not seem to apply where the prosecutor initiates a civil action in the financial interests of the State Treasury. Nonetheless, the domestic appeal court held the exemption applicable and the appellants complained that that was a breach of Art.6(1).

They argued that the exemption enjoyed by the prosecutor was unfair and discriminated against them as private individuals.

The European Court of Human Rights held that in all the circumstances there had been a breach of Art.6(1) of the Convention. The one authority cited was Robins v United Kingdom (judgment of September 23, 1997, Reports of Judgments and Decisions 1997 V,p.1809). The applicants in that case had been involved in civil litigation with neighbours and complained of undue delay (contrary to Art.6(1)) in the determination of their liability in expenses. The European Court held that the duties under Art.6(1) relating to proceedings for the determination of civil rights and obligations related not only to the determination of the merits of the action but also to the ancillary questions relating to costs. Accordingly, it follows that there may be situations in which issues linked to the determination of litigation costs can be relevant to the assessment of the question of whether the proceedings in a civil case seen as a whole have complied with the requirements of Art.6(1): see· Stankiewicz at para.60. The substantive proceedings in Stankiewicz were unquestionably proceedings relating to the determination of civil rights and therefore the denial of costs formed part of the whole proceedings to which Art.6(1) undoubtedly applied.