EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Carloway Lord Menzies	[2012] CSIH 63 P938/10 OPINION OF THE COURT delivered by LORD CARLOWAY in the reclaiming motion MN Petitioner and Reclaimer against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent _______

Act: Devlin; Drummond Miller

Alt: Davidson; Office of the Advocate General

31 May 2012

[1] The reclaimer was born in Zimbabwe, but settled in South Africa in 1994. She entered the United Kingdom in July 2003, but returned to South Africa in 2004 and became a citizen of that country in the following year. In November 2005, she came back to the United Kingdom as a student. Her application for further leave to remain as a student was rejected on 21 May 2006. She remained in the United Kingdom illegally. She has two children who live in South Africa with her mother, although the rest of her family are in Zimbabwe. The petition does not state where in South Africa the reclaimer lived or where the children are now resident.

[2] The reclaimer claimed asylum on 26 February 2008, at least partly on the basis of anticipated xenophobic persecution in South Africa because she is a Zimbabwean. This claim was rejected on 22 July 2010 in terms of an extremely detailed letter from the respondent of that date. The respondent certified the reclaimer's claim as "clearly unfounded" in terms of section 94 of the Nationality, Immigration and Asylum Act 2002, thus cutting off the reclaimer's right of appeal, whilst in the United Kingdom, and prompting this petition for judicial review.

[3] The reclaimer's particular complaint was that in 1999 her shack had been burnt down by South African residents. The police had been present on that occasion but had not been able to prevent it from occurring (although they had tried to help injured people and to calm down the situation). The petition does not indicate where this incident occurred.

[4] The respondent's decision letter noted (paras 21 to 46) the general state of affairs in South Africa under reference to the terms of the United States of America's State Department Reports on Human Rights in South Africa for the years 2008 and 2009. The reports both acknowledge the existence of xenophobic attacks in those years, causing death and destruction. At the height of those troubles, there had been 62 deaths and some 80,000 migrants had been displaced to emergency shelters. Those migrants had since relocated back to their homes in South Africa or to their countries of origin. The letter concluded (at para 47) that, notwithstanding criticisms which were legitimately made of the authorities' actings, there was a sufficiency of protection against non-state actors from the police, assisted by the military, when required.

[5] The reclaimer's case before the Lord Ordinary had been that the material in those reports might have prompted an Immigration Judge to make a different decision from that reached by the respondent. The Lord Ordinary considered the reports and also concluded that they demonstrated that the South African authorities had a large police force at their disposal and that this, and the military defence force, had been used to quell the violence directed at foreign migrant workers, albeit that there had been criticisms of the speed of the response. The Lord Ordinary took into account later material dated 2010, downloaded from the internet, but did not think that it added much to what was already contained in the American documents.

[6] The grounds of appeal presented to this court do not challenge the legal proposition that, in order to certify the reclaimer's claim as "clearly unfounded", the respondent required to be satisfied that the claim was so lacking in substance that it was bound to fail. Put another way, the respondent had to find that the claim had "no prospect of success" (The Queen, on the application of AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447). However, during the course of the hearing on the reclaiming motion, the reclaimer nevertheless referred to ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, in which Lord Phillips stated (at para 23):

"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim was clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view the court will necessarily conclude that the Secretary of State's view was irrational".

Although the reclaimer made reference to certain other cases involving similar arguments (e.g. Mr FNG, Petnr [2008] CSOH 22) and in which the country of origin was listed in terms of section 115 of the 2002 Act (R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230), it was not contended that the Lord Ordinary, in determining for herself whether the reclaimer's claim was so clearly lacking in substance that it was bound to fail, had applied a different test from that advised by Lord Phillips.

[7] In the context of sufficiency of protection from non-state actors, the issue is whether the reclaimer is able to demonstrate that her fear of persecution arises from the actings of agents against whom the state authorities are unable or unwilling to provide protection (Horvath v Secretary of State for the Home Department [2001] 1 AC 489). Such protection requires to include the existence of effective systems for the detection, prosecution and punishment of persecution (Council Directive 2004/83/ EC, article 7 as implemented by the Refugee or Person in Need of International Protection (Qualification) Regulations (SI 2006 No. 2525), regulation 4). Beyond the need for effective general systems of protection against persecution, there requires to be consideration of individual circumstances, including any failures which have occurred in the past relative to a particular claimant (IM (Sufficiency of Protection) Malawi [2007] UKAIT 00071; AW (Sufficiency of Protection) Pakistan [2011] UKUT 31 (IAC), Lord Bannatyne at paras 22-23; R (Bagdanavicius and Another) v Secretary of State for the Home Department [2004] 1 WLR 1207, Auld LJ at para 55; Koudriachov v The Secretary of State for the Home Department (00/TH/02254) para 20; and The Queen (on the application of Andreasen) v Secretary of State for the Home Department [2007] EWHC 2578 (admin)).

[8] In addressing this critical issue, the Lord Ordinary accepted that the reclaimer felt that the police would be unwilling and unable to protect her upon any return to South Africa, were she to be attacked there. There was, the Lord Ordinary said (para [22]), no "suggestion or complaint" of any other failure in protection relating specifically to the reclaimer. She held (para [22] in fine) that there was:

"simply no basis for contending that the South African authorities have exhibited the kind of systemic failures required for the [reclaimer] to succeed with an insufficiency of protection argument".

The Lord Ordinary, having re-examined the reclaimer's circumstances in more detail, held that any Immigration Judge would be bound to reach the same conclusion as that reached by the respondent and that therefore the claim was "clearly unfounded in terms of the statute and therefore correctly certified".

[9] The grounds of appeal are, first, that the Lord Ordinary erred in failing to grasp, from her reading of the reports lodged, that the reclaimer had suggested steps which the authorities could take in order to prevent persecution by xenophobic violence. Particular focus was placed upon the South African Human Rights Commission's criticisms of the authorities, notably their slow and apathetic responses; and on an article entitled "Xenophobia: SA to call in UN". The second ground of appeal is that the Lord Ordinary erred in her appreciation of what the reports had said in relation to the authorities' poor responses in tackling xenophobic violence. The Lord Ordinary, it was said, had misconstrued the terms of the reports and had ultimately failed to grasp that the evidence was that the authorities had been ineffective in their reaction to the violence. The Lord Ordinary had thus erred in concluding that there was no prospect of an Immigration Judge reaching a different view.

[10] In oral argument, these grounds of appeal were developed into a more diffuse attack upon the Lord Ordinary's reasoning. Reference was made to particular passages in the reports already mentioned, to the existence of the respondent's own Country of Origin Report, of which the Lord Ordinary had not been made aware, and to the contents of a book entitled "From Foreign Natives to Native Foreigners" by Michael Neocosmos. The particular passages, to which express reference was made, undoubtedly indicated that there were criticisms, which might be made of the South African authorities, notably the police, in tackling the violence which occurred in the years 2008 and 2009. While the reclaimer appeared to accept that she could not point to any systemic failure in the general arrangements in South Africa for policing and law enforcement, she contended for a particular risk which was described as that applicable to all foreign migrant workers. Into this category she also included any South African nationals, whose ethnic origins lay outwith the peoples already settled in the country. It was accepted that, if that argument were sound, any such national and any migrant worker who had been resident in South Africa, would be entitled to asylum in another state, including the United Kingdom.

[11] In addressing the issues in the context of this reclaiming motion, the ultimate conclusion which the court reaches, having considered the various reports and other material presented, is that it is not possible to find any error in the Lord Ordinary's interpretation of the documentation placed before her. The level of protection in South Africa against non-state actors with an animosity toward foreign migrant workers was not at such a low ebb as to amount to a systemic failure of the type required for an asylum claim to succeed on the basis an insufficiency of protection. The additional materials to which the reclaimer referred do not appear to provide any proper basis for reaching a contrary view. Equally, the court is unable to find any error in the approach of the Lord Ordinary in considering the reclaimer's individual circumstances and past experiences. The correct approach, as explained by the authorities, required the Lord Ordinary to consider whether, in the absence of any systemic failure of the state to afford protection to the ethnic or other group to which the asylum applicant belonged, there were individual circumstances pertaining to the reclaimer demonstrating a special risk to her.

[12] The Lord Ordinary had regard to those circumstances and experiences, especially the attack on the reclaimer's shack in 1999, which was followed, as the Lord Ordinary also noted, by prolonged periods of time during which the reclaimer remained in South Africa without apparent incident. Addressing itself to the test advised by Lord Phillips in ZT (Kosovo) v Secretary of State for the Home Department (supra), this court, looking with an anxious degree of scrutiny at the material presented, concludes that the reclaimer's application, if presented to an Immigration Judge, would have no realistic prospect of success.

[13] This reclaiming motion must accordingly be refused.