AMEH AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicants, Ms Nkechi Clareth Ameh (“the first applicant”) and her three children, are Nigerian nationals who were born in 1976, 2003, 2005 and 2007 respectively and live in Sunderland. 2. 3. The first applicant entered the United Kingdom on 17 December 2005 on a valid visit visa, accompanied by her two eldest children. The first applicant remained in the United Kingdom following the expiry of her visa and did not come to the attention of the authorities until she claimed asylum in July 2009. 4. The basis of her claim was that she had married in 2002 and, when her eldest daughter was born in 2003, her husband’s family had raised the idea of having both her and the first applicant herself circumcised. Both the applicant and her husband had been averse to the idea. However, the applicant and her husband had separated when she was pregnant with her son, who was born in 2005, and their marriage ended definitively in 2009. Her third child, a girl born in the United Kingdom in 2007, was the result of a brief reconciliation with her husband. The applicant claimed to fear that, without the support of her husband, she would not be able to withstand his family’s pressure to have her two daughters, and herself, circumcised. 5. Her asylum claim was refused on 15 April 2010. The Secretary of State noted that the applicant was no longer in contact with her husband or his family. The applicant had remained in Nigeria following her first daughter’s birth, and even after separating from her husband, indicating that she did not genuinely fear her in-laws. Her last noted address had been in Lagos, which was not where her in-laws lived. It was therefore believed that she could return to that city or relocate elsewhere in Nigeria and thus avoid her ex-husband’s family, who would not be aware of her return, given their lack of contact. Furthermore, the background evidence indicated that the Nigerian authorities were taking steps to combat female genital mutilation (“FGM”) and had successfully outlawed the practice in several states. There were a number of women’s non-governmental organisations that could offer support to the first applicant. It was therefore considered that there was a sufficiency of protection available to her. She also had family, including two brothers, living in Nigeria and would therefore have a support network. Her claim was certified as clearly unfounded, meaning that she could not appeal against the refusal of asylum from within the United Kingdom. 6. The first applicant was advised by her legal representatives that any application for judicial review of the decision to certify her claim had a very poor chance of succeeding, as her claim was weak. Since her case was publicly funded, her representatives could not bring such an application on her behalf given that there was no reasonable prospect of success. As a result of the withdrawal of publicly funded legal assistance, the first applicant did not seek judicial review of the certification of her asylum claim as clearly unfounded. 7. Directions were set for the applicants’ removal on 4 February 2011. On 20 January 2011, the applicants sought an interim measure from this Court in order to prevent their removal. On 1 February 2011, the Acting President of the Fourth Section, to which the case had been allocated, indicated to the Government of the United Kingdom that the applicants should not be removed until further notice. Upon further consideration of the case, the Section on 15 March 2011 lifted the interim measure previously indicated. The applicants notified the Court on 25 March 2011 that, notwithstanding the lifting of the interim measure under Rule 39, they wished to continue with their complaints under the Convention. 8. Section 94(2) of the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, provides that, where a person has made an asylum or human rights claim and the Secretary of State has certified that that claim is clearly unfounded, the person may not bring an appeal whilst still in the United Kingdom. A claim will be certified as clearly unfounded only where, taking the claim at its highest, on any legitimate view it could not succeed. 9. The only means by which a person can challenge the certification of their claim under section 94(2) is by judicial review. The test that will be applied by the courts is whether, based on the material before the Secretary of State, there is a realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, would uphold an appeal (see R (on the application of YH) v. Secretary of State for the Home Department [2010] EWCA Civ 116, paragraphs 20-21).