Issue 43 November 2008 - Current Awareness: Immigration & Asylum, 3 cases

IMMIGRATION AND ASYLUM - AA v Secretary of State for the Home Department [2008] CSOH 83

AA, an Iraqi Kurd, sought judicial review of a decision of the Secretary of State which refused his application for Indefinite Leave to Remain ("ILR"). AA had made an application for asylum and protection under art.3 ECHR but this had been dismissed on appeal by the Immigration Appellate Authority. Apart from that appeal the respondent has discretion to grant foreign nationals leave to remain in the United Kingdom. The discretion is exercised on behalf of the Secretary of State by his officers. These officers are guided in their decision-making by policies adopted by the respondent. The case of Bakhtear Rashid (R (on the application of Bakhtear Rashid) v Secretar of State [2005] EWCA Civ. 744) arose out of the discovery that there had been inconsistent and therefore unlawful application of a policy adopted by the Secretary of State not to rely on the possibility of internal flight as between that part of Iraq controlled by the government lead by Saddam Hussein ("Government Controlled Iraq or CGI") and the area to the north subject to international  protection known as the Kurdish Autonomous Zone. Following the decision of the Court of Appeal in Bakhtear Rashid and R (on the application of A, H and AH) v Secretary of State [2006] EWHC 526, the respondent adopted a policy in respect of Iraqi citizens who had made asylum claims, which was expressed in Iraq Policy Bulletin 2/2006, issued on August 1,2006. It was this policy that was relied on by the petitioner in challenging the decision of the Secretary of State in this petition. The respondent had determined that the appellant had been from the CGI rather than the KAZ and so fell out with the policy. The petitioner had been born in the CGI but had spent the nine years before he fled in the KAZ, had family there and had started a business there. The petitioner argued that the respondent had not interpreted the word "from" correctly and he should have been treated as eligible for ILR.

Held: petition refused. (1) When regard was had to the history and purpose of the policy, it would appear to me only reasonable to regard the petitioner as being from the KAZ.

(2) Notwithstanding that the question for the Court was whether the respondent made a decision which was open to him as a rational decision maker.

(3) That question could only be answered in the affirmative as the word "from" was capable of extending to either being from the CGI or KAZ and the alternative finding of the respondent could not be regarded as unreasonable.

(2) FO v Secretary of State for the Home Department [2008] CSOH 80

FO, a Nigerian, arrived in the United Kingdom in March 2006 and applied for asylum and protection under art.3. Her claim and subsequent appeal were refused. The Immigration Judge accepted that her fear of persecution was well founded, but dismissed her appeal because he concluded that she could relocate within Nigeria without undue difficulty. The petitioner applied for a reconsideration of this appeal. Her application was rejected. She submitted a petition for reconsideration to the Court of Session and this was refused. FO obtained further information. This consisted principally of two letters from her boyfriend, KO, three letters from her boyfriend's aunt and a police report regarding an incident on October 4, 2007. None of this information was before the Immigration Judge at the appeal hearing. The petitioner's solicitors wrote to the respondent with this information, submitting that it amounted to a fresh claim for asylum and breach of the petitioner's human rights in terms of para.353 of the Immigration Rules. The respondent decided that the submissions for the petitioner did not amount to a fresh claim and the petitioner sought judicial review of that decision. The claim of the petitioner was that her life was at risk because of the adverse interest that Chief O, the chief in her village, had in her.

Held: petition dismissed.

(1) The only issue on which this fresh information might have been relevant was the issue of the reasonableness of internal relocation within Nigeria (the issue of risk of persecution having already been decided in her favour).

(2) None of the material appended to the submission for the petitioner was relevant to this issue.

(3)The material suggested that Chief O was still interested in finding FO and it suggested that he may be prepared to instruct others to use violence towards people whom he perceives to be connected with the petitioner.

(4) There was nothing to show that his influence extended outwith the village or area in which the petitioner formerly resided.

(5)There was nothing which would undermine the reasoning of the Immigration Judge in his decision and there was nothing in the decision letter to suggest that the respondent has applied the wrong test to the alleged fresh claim. On the contrary, the respondent had applied precisely the test suggested in r.353 of the Immigration Rules.

(3) SM v Secretary of State for the Home Department [2008] CSIH 37

The appellant appealed to the Court of Session from a decision of the Asylum and Immigration Tribunal refusing her appeal for asylum and art.3 protection on grounds of her religious beliefs. The Inner House accepted that she was a convert to Christianity from Islam and the adjudicator had been wrong to hold the contrary. It was argued under reference to FS (Iran-Christian Converts) Iran CE [2004] UKIAT 00303, at para.190, that the appellant had additional risk factors which placed her at a real risk and was not just an ordinary convert who would not be at risk. It was argued that the adjudicator had failed to give adequate reasons why she was not at such a risk. The Tribunal in FS had pointed out that women in Iran suffered serious discrimination which was not in itself persecutory. It noted that as a single woman, lacking economic or social protection which a husband or other immediate family or friends might provide, the difficulties she faces as a convert would be significantly compounded. It noted that her legal status in any prosecution is much weaker; the risk of ill-treatment in any questioning is increased. It followed that the role of family as a source of protection should be examined carefully in individual cases. It also noted that similar support might also be provided by close friends or colleagues in employment. The Adjudicator had held that even although she was a single woman she had family support.

Held: appeal refused.

(1)The Adjudicator made detailed findings concerning the appellant's family. He held that she has five sisters, a brother and her mother still living in Iran. She looked after her mother who is now infirm. Her brother showed little interest in her conversion to Christianity. Her sisters were sympathetic to her views. Her mother expressed some unhappiness at her decisions. There was nothing to suggest that her family would not support her.

(2) The Adjudicator pointed out that the appellant was a trained nurse who had worked for a number of years in that profession and that despite her claimed political involvement she was able to work as a nurse until she left Iran. There was nothing to suggest that she could not work as a nurse in the future. Although the grounds of appeal claimed that because she is a Christian she would be denied such work there was nothing to back that assertion.

(3) Against that whole background and in the absence of any material to suggest that the appellant's family would not behave in a normally supportive way towards her, the Court considered that the Adjudicator's findings in relation to the family were properly based.