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10 JAN 2013

R (on the application of Syed) v Sabahata and Others [2012] EWHC 3370 (Admin); (2012) PLLR 146

Immigration - Asylum - Certify - Best interests - Considerations

The Defendant was found to have properly considered all relevant factors before certifying the Claimant's asylum claim as clearly unfounded. The decision therefore could not be impugned.

27 November 2012

Administrative Court

Sibler J

(1)        The Claimant, Moinuddin Syed, is an Indian national who sought to challenge the Defendant's decision to certify the asylum claim of the Claimant and his dependants as unfounded. The Claimant has three dependants who are his wife and two sons. The Claimant arrived in the UK in 2008 on a visit visa, and since December 2009 he has been an overstayer.

(2)        By a decision dated 13 December 2011, the Defendant refused the Claimant's asylum and human rights claims, certifying these claims as ‘clearly unfounded'.

(3)        The Claimant challenged the Defendant's decision on the basis that:

(a)        the Defendant's decision was ‘plainly wrong'; and

(b)        the decision was unlawfully made in breach of the Defendant's duty under section 55 of the Borders, Citizen and Immigration Act 2009.

(4)        The basis of the Claimant's asylum claim was that due to fear of persecution from his wife's family and the Shia community, he could not return to India. The Claimant submitted that because he is a Sunni who married a Shia, he and his sons would be killed. It was further alleged that he had established a private life in the UK, and therefore removal would breach his Article 8 ECHR rights. The Claimant gave accounts of threats and abuse received after his marriage to his wife. He alleged that the police had failed to act.

(5)        The Defendant's conclusion was explained as being that despite the threats issued; the Defendant's wife's family did not carry out their threats and had made no attempt to do so. It was not accepted that the Claimant's fear of his wife's family or the Shia community was well-founded. The Defendant had further concluded that the Claimant had failed to test the protection of the police available in other areas. As such, it was determined that the Claimant could successfully relocate

(6)        HELD: India is a country identified by section 94(4) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act'), and as a consequence, the Defendant should certify the claim unless ‘she was satisfied that it was not clearly unfounded'.

(7)        The Court considered that the evidence showed that the Claimant had no well-founded fear of persecution if he were to return to India due to a number of factors:

(a)        All threats were received over the telephone and not in person;

(b)        No physical force was ever used;

(c)        The Claimant had repeatedly returned to the area near his wife's family and the Shia community;

(d)        The Claimant had left his son behind when coming to the UK, despite receiving threats to kill his son;

(e)        There had been no threats from other Shia communities;

(f)        No evidence had been filed addressing 'actual fear of persecution'.

(8)        The Court found that there was no reason to find that the Claimant would be unable to find work elsewhere, especially given that he had previously moved and found work.

(9)        In terms of safety, the Court upheld the Defendant's conclusion that the Claimant could successfully relocate and live in safety unless his wife revealed their address. The Claimant's challenge on the basis that he could not relocate thus failed.

(10)     The Court relied upon the fact that the Claimant had not sought the assistance of the police in areas other than the area in which his wife's family lived. It was concluded that there was no evidence that the police in India were unable or unwilling to provide protection to the Claimant.

(11)     The Defendant's decision letter was found to have considered information regarding the education of the Claimant's sons. It was held to be in their best interests that they return to India. There were found to be no errors in the Defendant's decision. She had properly accounted for her duty to safeguard and promote the welfare of the Claimant's children. As such, this challenge was rejected.

(12)     The Defendant had also properly determined that removal would not be contrary to the UK's ECHR obligations.

(13)     Finally, the Court held that all of the relevant considerations in forming the decision had been explained in the decision letter sent to the Claimant.

(14)     The Court found that the Defendant's decision could not be impugned, and as such, the application for judicial review was dismissed

Claim dismissed

Key paragraphs

[21] - Certify unless claim not clearly unfounded.

[58] - No well-founded fear.

[60] - Well-founded fear challenge dismissed.

[66] - Work in India.

[67] - Safe until wife disclosed whereabouts.

[74] - Police not unable or unwilling to protect.

[101] - Relevant considerations.

[106] - No errors by Defendant.

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