Lord Bannatyne refuses judicial review challenge to homosexuality risk in Zimbabwe
Case comment by Michael Way, advocate
GC (Zimbabwe) v Secretary of State for the Home Department [2019] CSOH 67
Facts
The petitioner was a national of the Zimbabwe. He sought judicial review of the Home Office’s decision to refuse to accept his further submissions as a fresh claim for asylum, under Immigration Rule 353.
The petitioner had entered the UK in April 2016 and made an asylum claim. His claim was refused in September 2017 and his appeal to the First-tier Tribunal was dismissed in May 2018. He was refused permission to appeal by the First-tier Tribunal and Upper Tribunal. Having become ‘appeal rights exhausted’, the petitioner submitted further asylum submissions in February 2019 in terms of Immigration Rule 353.
Issues
The petitioner is an openly gay man. The applicable country guidance case (LZ (Homosexuals) Zimbabwe CG [2011] UKUT 00487 [IAC]) accepts that there is some risk to homosexuals in Zimbabwe, but suggests that there is not a general risk of persecution. Although not decisive, being openly gay might increase risk. Home Office information accepts that being gay in Zimbabwe confers a level a risk but not one, at a general level, that is sufficiently serious to amount to persecution – each case would have to be judged on its particular facts.
The petitioner’s further submissions (and Counsel’s submissions in this petition) sought to link a recent spike in violence and unrest in Zimbabwe to the level of risk that the petitioner might face. This situation would place any vulnerable group at a heightened risk, because the authorities would be less able to offer protection and homophobes might be able to attack gay people with relative impunity. Taking the new evidence as a whole, the decision was said to fail in three ways: (1) to take account of relevant matters; (2) to be supported by adequate reasons; and (3) to demonstrate anxious scrutiny.
The respondent’s position was that the petitioner was seeking to draw a line between two unconnected matters: the spike in violence and the general treatment of homosexuals. The Country Guidance noted that the Zimbabwean authorities do not provide protection to the gay community under normal circumstances. A spike in violence was accordingly irrelevant. In any event the information proffered in the further submissions was general in nature and had been adequately assessed (and dismissed) in the decision letter.
The questions for the Court were therefore:
- Is there a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, thinking that the petitioner will be exposed to a real risk of persecution on return to Zimbabwe?
- Has the decision maker erred in law by failing to take relevant matters into account or by giving inadequate reasons?
Decision
Lord Bannatyne refused the petition (at [69]). His Lordship concluded that there was no realistic prospect of success in front of an immigration judge; the claim was bound to fail (at [60]). His Lordship also considered that there was no error of law in respect of failing to give adequate reasons (at [61]-[64]) or consider relevant matters (at [65]-[66]).
On the first question, Lord Bannatyne accepted the “short and sharp point” made by the respondent at [38] with respect to the general lack of protection from the Zimbabwean authorities. A spike in violence made no difference where there was no protection in the first place. This submission “wholly undermined” the core of the petitioner’s case (at [53]).
To the second question, Lord Bannatyne again preferred the respondent’s submissions. Fundamentally, the reasoning was adequate to entitle the Secretary of State to have arrived at her conclusion. The well-established two stage process for considering fresh claims had been laid out in the decision letter. This process appeared to have been followed. Accordingly there was no error of law.
Analysis
The consideration of asylum and humanitarian protection claims always requires the most anxious of scrutiny by any decision maker. That said, a judicial review challenge to the adequacy of reasons and relevancy of considerations is often hard for a petitioner to successfully make out. This case was no different.
While some might not agree with the substance and implications of the applicable Country Guidance case law, a Tribunal would be bound to apply it unless there are compelling reasons not to. The logic of the respondent’s argument on the first issue was accordingly unassailable.
Representation
Ampersand’s Jamie Gardiner appeared for the respondent.
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New OAG Standing Junior Junior Appointments
Ampersand Advocates is proud to hear of the appointments of Giles Reid, Michael Way and Shane Dundas to the panel of Standing Junior Juniors to the Office of the Advocate General for Scotland. They join fellow stable members Ross Anderson, Graham Maciver, Usman Tariq, and Jamie Gardiner who are Standing Junior Counsel to OAG.
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Joanna Cherry QC MP & others for Judicial Review [2019] CSOH 68
Lord Doherty rejected Interim Orders sought by 75 Petitioners on the illegality of proroguing Parliament and interim interdict against UK ministers to prorogue and made no comment on whether the Petitioners have a prima facie case, preferring to wait until the Substantive hearing.
The case was due to be heard at a Substantive hearing on 6th September, but was ‘overtaken by events’ by the Queen’s Order in Council to prorogue Parliament, leading to the request for interim interdict. Following today’s decision, the Substantive hearing has been brought forward to Tuesday, 3rd September 2019, due to the interests of justice and the public interest.
Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.
Opinion of Lord Doherty here.
Summary of arguments at the Interim Interdict hearing can be found on the Scottish Council of Law Reporting website here.
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Lord Doherty rejects Interim Interdict regarding prorogation of Parliament
Following an urgent hearing on Thursday 29 August 2019, Lord Doherty has rejected Interim Orders sought by 75 Petitioners on the illegality of proroguing Parliament and interim interdict against UK ministers to prorogue and made no comment on whether the Petitioners have a prima facie case, preferring to wait until the Substantive hearing.
The case was due to be heard at a Substantive hearing on 6th September, but was ‘overtaken by events’ by the Queen’s Order in Council to prorogue Parliament, leading to the request for interim interdict. Following today’s decision, the Substantive hearing has been brought forward to Tuesday, 3rd September 2019, due to the interests of justice and the public interest.
Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.
Opinion of Lord Doherty here.
Summary of arguments at the Interim Interdict hearing can be found on the Scottish Council of Law Reporting website here.
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BD v Scottish Police Authority [2019] CSOH 53
Case comment by Michael Way, Advocate
Lord Woolman rejects police officer’s claim that refusing him medical retirement, while misconduct proceedings were ongoing against him, was irrational
Facts
The petitioner was a serving police constable of over 25 years’ service. He became signed off from work in April 2017 with various medical problems, including hyperthyroidism, which causes his hormone levels to fluctuate and includes symptoms of agitation, anxiety and depression.
In 2017, the petitioner received a summary conviction for sexual assault, stemming from incidents in late 2016. A £500 fine was imposed. The petitioner’s name was placed on the Sex Offenders’ Register.
In May 2018 the petitioner applied for retirement on the grounds of permanent disablement. The SPA refused this request and recommended redeployment within the police service. The petitioner took steps to challenge the decision, but the SPA withdrew the decision and undertook to retake it.
In August 2018 the decision under challenge in these proceedings was made. The SPA refused the application because there were live misconduct proceedings pending against him. It was the Interim Chief Officer’s view that, “on public policy grounds police officers should not be granted medical discharges whilst there are live misconduct proceedings against them, as he concluded that there could be a loss of public confidence in the service if police officers were seen to be evading misconduct proceedings by exiting the service on medical discharges before those proceedings had concluded.”
Subsequently, medical opinions concluded that the petitioner was mentally unfit to take part in disciplinary proceedings. Disciplinary proceedings are currently suspended.
Issues
In analysing the decision, the Court identified 3 key issues:
- Did the SPA take into account irrelevant material?
- Was the decision irrational?
- Did the SPA fetter its discretion?
Decision
The Lord Ordinary dismissed the petition (at [38]). His reasoning on the issues was as follows.
Issue 1 – Did the SPA take into account irrelevant material?
This issue is considered at [22]-[24]. The Lord Ordinary disagreed with the petitioner’s contention that the SPA erred by assessing the misconduct as serious, ignoring the compassionate circumstances, and implying that the petitioner was trying to evade the disciplinary proceedings. On the contrary, the existence of misconduct proceedings was a relevant and important factor (at [24]).
Issue 2 – Was the decision irrational?
The petitioner advanced several grounds which led inevitably to the conclusion that the decision was irrational. The first group were dealt with at [27]-[28]:
(A) The petitioner’s mental condition renders him unable to face proceedings.
(B) He should not be required to remain in the police service when he will never be able to fulfil his duties.
(C) His career and pension entitlement should not be left indefinitely in limbo.
(D) There was no question of evasion on the part of the petitioner, who is in wretched condition and does not have the mental capacity to exercise a conscious choice in this matter.
The Lord Ordinary considered that these factors were based on the subsequent medical evidence and were not properly before the decision-maker.
The petitioner advanced a further argument. Police officers can only be stripped of their pension, when in receipt of it, for a very serious criminal conviction or a conviction certified by the Secretary of State as “gravely injurious to the interests of the State” or liable to lead to a serious loss of confidence in the public service (at [29]).
The petitioner argued that if he had retired immediately after committing the offences, he would have kept his pension. The offending was at the lower end of the spectrum of seriousness. It would be inequitable if, by pleading not guilty and standing trial, he risked losing his full pension rights.
The Lord Ordinary considered this to be a “powerful argument, persuasively presented” (at {31]). However, his Lordship did not consider that it met the test of irrationality: “a sensible person could have arrived at the same decision” (at [32]).
Issue 3 – Did the SPA fetter is discretion?
This issue turned on whether the SPA had adopted a blanket approach of refusing to grant a medical discharge to any officer while disciplinary proceedings were outstanding. The decision letter stated that it had given “careful consideration of all the circumstances” but then relied on a public policy decision (at [34]).
The Lord Ordinary considered that there was “no foundation for holding that the SPA did not consider all the circumstances of the petitioner’s case” but simply that the SPA considered “public policy as tipping the balance” (at [36]).
Analysis
Despite the powerful and persuasive submissions advanced by senior counsel for the petitioner, and the likely harsh consequences that will follow the petition’s refusal, the Lord Ordinary concluded that the decision was within the range of reasonable responses from the decision maker.
This decision reinforces the difficulty that can arise when challenging administrative decision-making on the grounds of irrationality. It is not enough simply that the decision is harsh or is one that the Court might disagree with; the absurdity has to leap off the page.
Representation
Ampersand’s Craig Sandison QC appeared as senior counsel for the petitioner.
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AS (India) v Home Office [2019] CSOH 43
Case comment by Michael Way, Advocate
Lady Wise allows immigration ‘fresh claim’ judicial review
Facts
The petitioner was a national of the India. He sought judicial review of the Home Office’s decision to refuse to accept his further submission as a fresh claim, under Immigration Rule 353.
The petitioner had entered the UK as a visitor in 2006 and overstayed. He formed a relationship with a British national in 2010 and they would go on to marry in 2013. After their marriage, the petitioner applied to regularise his immigration status on the basis of this relationship. This application was refused and an appeal to the First-tier Tribunal was unsuccessful. The petitioner then made further submissions to the Home Office in August 2017, which were swiftly rejected.
This case concerned further submissions made in October 2017. The Home Office again swiftly rejected the submissions. What set these further submissions apart were that they included an expert report from an Indian advocate (“Expert Report”), as well as references to the Home Office’s Country Information and Guidance on India (“Country Guidance”), highlighting issues of gender discrimination and violence that women can face.
Issues
The petitioner’s central contention was that given his wife’s health and work status, alongside the difficulties obtaining a visa and other cultural difficulties, there would be insurmountable obstacles for them to have to move to India as a couple. The Home Office refusal letter had failed to even acknowledge the Expert Report and made only scant reference to the Country Guidance. This was said to be a material error. The petitioner contended that there had been a failure to consider the further submissions with the requisite “anxious scrutiny”.
The respondent’s position was that any failure to properly demonstrate consideration of the Expert Report and the Country Guidance was not a material error. It was not an error to fail to demonstrate consideration of material that would not have been created a realistic prospect in front of an immigration judge. The respondent contended that there was nothing in the new material that would have led to a different conclusion.
The questions for the Court were therefore:
- Was there a failure by the Home Office to substantively consider the Petitioner’s further submissions?
- If yes, would the outcome in front of a hypothetical Immigration judge have inevitably been the same?
Decision
Lady Wise allowed the petition and reduced the Home Office’s decision (at [25]). Her ladyship concluded that the failure to give any proper consideration to the new documentation was a material error.
The respondent had, quite fairly, conceded that there was nothing to demonstrate that the Home Office had given substantive consideration to the new documents. The error was, in effect, conceded. On the question of materiality, Lady Wise was satisfied, however, that had the documents been properly scrutinised that “the outcome may not have been the same on the issue of insurmountable obstacles” (at [21]). The error was, therefore, material.
This was because the Expert Report would have been admissible evidence in the Tribunal and could not be dismissed as “simply implausible” (at [20]). The Expert was qualified to give his opinion on visa and social welfare requirements in India. Moreover, his comments on the treatment of women in Indian society largely echoed the Country Guidance. An Immigration judge would have required to give this all careful consideration – in particular the Home Office’s own Country Guidance (at [20]).
The respondent further argued that, even if the Expert report could be accepted and it would not be possible for the petitioner’s wife to go with him to India, the decision letter had considered the article 8 implications of the petitioner being removed and his wife remaining. The petitioner accepted that he would have to demonstrate “exceptional circumstances” for an article 8 claim to succeed in those circumstances. Lady Wise, however, did not consider that that there was “any discernible conclusion” on the proportionality of such an option and she could not be satisfied that an article 8 claim would necessarily fail (at [22]). However, given the conclusion at [21] it was not necessary to reach “any definitive conclusion on this point” (at [23]).
Analysis
This is a not atypical example about how the Court will deal with a judicial review following a refusal of further submissions under Immigration Rule 353. The requirement for “anxious scrutiny” means that there is generally scope of a petitioner to argue that, when the Home Office has rejected their claim, they have not had the benefit of the requisite standard of decision-making care.
Where, on the face of the decision, there has been a failure to consider potentially relevant material, as in this case, all the respondent can sensibly argue is that the error was immaterial. In the circumstances, Lady Wise appeared to be content to give the benefit of the doubt to the petitioner.
Representation
Ampersand’s Graham Maciver appeared for the respondent.
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