England and Wales High Court (Administrative Court) Decisions

“2. The Claimant arrived in the United Kingdom at Dover on 16 September 1999 as an undocumented ferry passenger from Calais. He denied having previously sought asylum in any other EU Member State and claimed to have travelled clandestinely to this country from Turkey, concealed in a lorry from which he disembarked only when on board the ferry. This account was wholly untrue.

3. On 24 November 1999 the Claimant’s fingerprints and personal details were sent to Germany. On 31 January 2000 the German authorities confirmed that they had made a positive fingerprint match which established that the Claimant had entered Germany on 15 September 1996 and that he had made an application for asylum there which had been finally rejected with effect from 6 September 1999. The German authorities record the Claimant as having gone to ground as of 1 September 1999.

4. On 28 March 2000 Germany accepted the return of the Claimant and arrangements were agreed with Germany for his removal, set to take place on 28 April 2000. This removal was halted in the face of an application for permission to apply for judicial review. This application for permission to apply for judicial review (CO/1498/00) of the Defendant’s decision to certify his asylum claim in the UK under s.2 of the Asylum and Immigration Act 1996 was refused, after consideration of the papers, by Mr Justice Silber on 8 December 2000. At no time during these proceedings was the Claimant’s marriage raised as an issue.

5. By letter received on 17 November 2000, the Defendant was belatedly informed of the Claimant’s marriage to a British Citizen, Miss Sarah Louise Tonkin, which took place at Medway Register Office on 9 June 2000.

6. The Defendant understands that the Claimant and his wife first met in December 1999 and decided to marry in March 2000. The Claimant’s wife has a daughter from a previous relationship who was born on 24 January 1998. The Claimant, his wife and stepdaughter have lived together since the marriage.”

Article 3

6. The evidence shows that, upon return to Turkey, the Claimant will suffer ill-treatment which will probably violate art 3. The Claimant is a Kurdish draft-evader and failed asylum-seeker who would be returning to Turkey without his own passport or identity documents. His background of links with the PKK and political protest in Germany makes ill-treatment all the more likely.

7. There is detailed background evidence on ill-treatment of returnees to Turkey and evidence that notwithstanding such risks the German authorities continue to remove large numbers of Kurds to Turkey. This gives rise to concern as to whether Germany is in fact properly complying with art 3 of the ECHR. Further evidence on this issue (of which the Secretary of State ought in any event to be aware) has been recently submitted. Those documents show that there are continuing concerns that Kurds are being removed from Germany to Turkey and are in fact suffering ill-treatment on return. Thus, whether or not appropriate laws and legal procedures exist in Germany which comply with the ECHR, the facts show that people are being deported to Turkey and are suffering or are at risk of suffering ill-treatment on return to Turkey. By way of example only, see at p.103, a report of German practice from ProAsyl (a prominent German non-governmental organisation) which indicates that Kurdish persons removed from Germany to Turkey have been subjected to risks which further evidence of persecution of returned person which is likely to be the ‘tip of an iceberg’, see also a further ProAsyl report dated August 2000 ‘From Germany to Turkish torture chambers’ (p.319 ffg) and note the evidence that 88 Kurds were forcibly returned to Turkey by the Germans in July 2001 and that 35 have been tortured on return (p.100-101, translation of p.97-99). The evidence as a whole compellingly shows that there are real risks on return but that, notwithstanding those risks, the Germans continue to remove, sometimes ‘in bulk’.

8. The Home Office’s own country assessment report acknowledges risks on return (e.g. p.252, 287-288 paras 7.34-7.42). Numerous Immigration Appeal Tribunal decisions show that asylum appeals have succeeded on the basis that returns to Turkey give rise to unacceptable risks: e.g. by way of example, see Immigration Appeal Tribunal cases of Okur (28.4.00) Mustafa (13.2.01) Bozyigit (2.4.01) Guvec (19.9.01).

9. In the light of this and the rest of the material produced by the Claimant, it cannot be said that it is clear and obvious without any doubt that the material may not lead an Adjudicator to the conclusion that there is a risk of removal from Germany to Turkey and that there is a risk of ill-treatment on return which violates art 3. It cannot be right to return the Claimant to Turkey via Germany (which in effect will be what will happen) when we would not return him to Turkey directly ourselves (or at least, having scrutinised the material at a hearing before an Adjudicator, we may not do so).

“5. In order to impugn to the Secretary of State’s certificate, the Claimant must establish that the Secretary of State could not lawfully conclude that Germany provides adequate protection under the ECHR.

“Following an unsuccessful application for asylum, persons of Kurdish ethnicity returning to Turkey who have not publicly drawn attention to themselves through political activity in exile, and who are not strongly suspected for other specific reasons of openly supporting the PKK or other organisations that are hostile to the state, also have the option of internal flight to alternative locations without being subject to excessive treatment that might support an asylum claim on return”.

“Whether a Kurdish asylum seeker is suspected of such [association] depends, however, on the circumstances and specific details of each individual case and there is no standard solution.”

“A person who alleges that an authority has, in taking a decision under the Immigration Acts relating to that persons entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an Adjudicator against that decision ...”

By virtue of section 65 (2)(b):

“An authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. ”

Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, which, as defined in section 1, includes the rights and fundamental freedoms set out in Article 3.

“If the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded”.

In this case the defendant so certified on 10 April 2001.

“May the Secretary of State lawfully certify as manifestly unfounded an allegation that he is acting in breach of a person’s Article 3 rights if the Secretary of State is minded to return that person to Germany, if Germany may then return him to Turkey and if the allegation is made (and is not manifestly unfounded) that there are substantial grounds for believing that he would face a real risk on return to Turkey of treatment contrary to Article 3?”

“That the Government of that country or territory would not send him [the asylum seeker] to another country or territory otherwise than in accordance with the Convention [the 1951 Geneva Convention for the Protection of Refugees].”

Richards J in refusing his application for judicial review of the decision to certify identified the issue: Whether, in the light of Adan and the evidence before the Court, Yogathas could lawfully be removed to Germany as a safe third country under section 2 of the Act.

“That the German procedures under which section 53(6) of the Aliens Act is deployed produce outcomes, at any rate in the context of Tamil asylum seekers such as these two appellants, which do not involve the return of a claimant to his country of origin otherwise than in accordance with the 1951 Geneva Convention.”

“What is said, in broad outline, is that the German procedures are not apt to ensure that someone who establishes that there are substantial grounds for believing that there is a real risk that he will be treated contrary to Article 3 if returned to Sri Lanka or, indeed, to other countries (but this case is concerned with Sri Lanka) will receive from Germany the protection that is required … That being so, it is submitted that it was not open to the Secretary of State to be satisfied that the claim was manifestly unfounded.”

“If that is right, it is difficult to see what room in truth there can be for a finding that those self-same procedures nevertheless yield breaches of Article 3 of the European Convention.”

“65. Mr Gill places great emphasis on materials before us which demonstrate the existence of a debate within Germany as to the practical efficacy of section 53(6); but this I think invites the court to form a judgment of fact and merit which goes beyond our proper remit. In any event I would accept Mr Underwood’s submission, set out in his skeleton argument at paragraph 9 thus:

‘(v) After exhausting all domestic remedies in Germany, the Appellant would have a right of individual petition to the European Court of Human Rights.

Germany would scrupulously comply with any request from the European Court of Human Rights (under rule 39) to suspend the execution of a deportation order. There has never been a report of the German authorities failing to comply with such an indication in the case of an order for deportation expulsion or removal.

It is the universal practice of the German Courts and Executive to comply with judgments of the [European Court of Human Rights] in proceedings in which Germany is a party.

There has been no case in which the [European Court of Human Rights] has found Germany to be in violation of Article 3 in respect of the deportation of a rejected asylum seeker.’

66. I should say that these are not mere assertions made on behalf of the Secretary of State. Chapter and verse is set out to vouch them, not least from the judgment in TI itself at pages 226H-227D and 230B-232B. Then at paragraph 13 of the skeleton:

‘It is entirely plain that, whatever detailed allegations may be made in respect of German domestic law, there is no prospect whatever of a failed asylum seeker who is asserting a risk of article 3 ill-treatment in his country of origin being removed without having access to, in the last resort, the [European Court of Human Rights]. Further, it is equally clear that any judgment of the Court would be honoured, and that there are adequate procedures in place in Germany to safeguard against expulsion in the meantime.’”

“That the domestic court’s obligation on an irrationality challenge in an Art 3 case is to subject the Secretary of State’s decision to rigorous examination, this it does by considering the underlining factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.”

He continued that the Court would not “pay any especial deference to the Secretary of State’s conclusion on the facts.” (729F)

“Despite the great wealth of material available to show that grave human rights abuses still regrettably occur in Turkey, and despite the lingering sense of unease which one must inevitably feel at the return of those like this applicant to Turkey, I am unable to hold that the Secretary of State was bound to find the risk of this particular applicant being ill-treated to be a real one.”

“But the Secretary of State is able to inform you that, should his decision be that, despite your latest representations, he maintains his decision to send the Claimant to Germany, the Secretary of State can at present see no reason to doubt that such a decision may lead to a right of appeal under s.65 of the Immigration and Asylum Act 1999.”

He was not however prepared to make a formal admission that there would be such a right of appeal. The letter continued:

“This is along the lines adopted in the case of Turgut and who, as you know, withdrew his appeal to the House of Lords.”

“3) Altinok was settled after the judgment of Court of Appeal in Thangarasa (21.9.01), a case which did not concern Kurds. Given that the Secretary of State has taken so long to assess the material filed in relation to the Turgut proceedings, and given the basis of the agreement to withdraw the challenge in Altinok to the decision under s.2 of the 1996 Asylum and Immigration Act 1996 after the decision in Thangarasa, it is difficult to see how the Secretary of State can maintain the stance that the background material of risks in Germany and in Turkey does not matter and that, so long as Germany maintains a system of legal procedures which are in principle ECHR-compliant, no in-country s.65 right of appeal can arise and that the human rights claim is manifestly unfounded.”

“This Court should be slow to find that the removal of a person from one Contracting State to another would infringe Art 3 of the Convention, as in this case, the applicant would be protected by the rule of law in Germany and would have recourse, if any problems arose, to this Court, including the possibility of applying for a r.39 indication to suspend his deportation. It would be wrong in principle for the UK to have to take on a policing function of assessing whether another Contracting State such as Germany was complying with the Convention. It would also undermine the effective working of the Dublin Convention, which was brought into operation to allocate in a fair and efficient manner state responsibility within Europe for considering asylum claims.”

“This applicant could only be deported on the basis of a new deportation order in respect of which he could appeal to the Administrative Court with the opportunity within one week of lodging a request for interim judicial protection. The order could not be enforced until that request was decided by a Court. If the applicant was not satisfied with the review by the Courts he could file a complaint with this Court. In that context, the German authorities would scrupulously comply with any request by this Court under r.39 of its rules to suspend the execution of a deportation order.”

“The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the UK to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Art 3 of the Convention. Nor can the UK rely automatically in that context on the arrangement made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution …”

The Court went on to say: (228-229)

“The Court has therefore examined below whether the UK have complied with their obligations to protect the applicant from the risk of torture and ill-treatment contrary to Art 3 of the Convention.”

“There is, furthermore, no basis on which the Court could assume in this case that Germany would fail to fulfil its obligations under Art 3 of the Convention to provide the applicant with protection against removal to Sri Lanka if he put forward substantial grounds that he faces a risk of torture and ill-treatment in that country.” (231 E).

Article 8

The Defendant’s Consideration of Article 8 (the Second Ground)

17. The Claimant contends that the Defendant's decision to remove him to Germany would constitute a breach of Article 8 of the ECHR. The Defendant is satisfied that this contention is without merit and is manifestly unfounded.

18. The Defendant has considered all the evidence and representations, including the most recent Affidavit of Sarah Louise Savas, sworn on 5^th July 2001. In addition, the Defendant has approached this issue on the basis that the Claimant’s marriage is genuine and subsisting and that he, his wife and stepdaughter are residing together as a family unit. The Defendant attaches significant weight to this.

19. The question for the Defendant is whether the undoubted interference with the Claimant’s right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a firm, fair and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.

20. Parliament has set a mandatory requirement for a foreign national seeking settlement in the UK as a foreign spouse to hold prior entry clearance for that purpose. The Defendant attaches great weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exceptional of circumstances. This approach has been considered and upheld by the Court of Appeal in the case of Amjad Mahmood [8 December 2000, AER (D) 2191]. The Court conducted a thorough review of the jurisprudence of the European Court of Human Rights and held in terms that the Secretary of State's approach conformed with Article 8 of the ECHR. In those circumstances, the Defendant is satisfied that an argument to the contrary would have no prospect of success on appeal to an Adjudicator.

21. The Defendant takes the view that it will be open to the Claimant to apply at any British diplomatic post overseas for the appropriate entry clearance to enable him to return lawfully to this country to resume his family life. He is confident that Germany will not summarily remove the Claimant to Turkey so it would be open to him to apply at a British Consulate or Embassy in Germany. But, even if Germany did remove the Claimant to Turkey, which the authorities there could lawfully and properly do in the absence of any further claim from the Claimant, this would only be in the case that there was no breach of Germany’s international obligations under the 1951 Refugee Convention or the ECHR. In that event it would be open to the Claimant to apply at any British diplomatic post in Turkey. In such circumstances the interference to the Claimants right to respect for family life would be temporary and would obtain only for the duration of the time it would take for him to apply for the requisite entry clearance and for his application to be processed.

22. Although it was not determinative of the Defendants consideration he took into account that the Claimant and his spouse were well aware three months prior to their marriage that the Claimant's potential rights of residence in the UK were at best precarious, as he had been informed that his asylum claim had been refused and he was to be removed to Germany. Indeed, were it not for the suspensive effect of his initial application for permission to apply for judicial review, the Claimant would have been returned to Germany well before the marriage took place.

23. Also, there are no insurmountable obstacles to the Claimant and his wife living together should he satisfy the conditions required for him to return lawfully to the UK to do so. Any hardship experienced by the Claimant and his spouse would obtain only until such time as the Claimant had met and complied with the entry requirements for settlement in the UK as a foreign spouse.

24. In such circumstances the Defendant strongly believes that the temporary interference with the Claimant’s right to family life under Article 8 is outweighed in these particular circumstances when balanced against the Defendant's legitimate public interest concerns which are to:

ensure the economic well being of this country by properly controlling, by means of the entry clearance system, those who enter the United Kingdom;

prevent disorder, by discouraging others from circumventing the system; and to

protect the rights and freedoms of others who do follow the proper procedure to enter this country.

25. The Defendant has considered whether his legitimate aims can be achieved by means which would cause less interference to the Claimant’s rights. He is satisfied that they cannot.

26. In the circumstances, the interference to the Claimant's right to respect for his family life will be of limited duration as the Claimant will be able to apply to a British diplomatic post in either Germany or Turkey for the mandatory prior entry clearance to permit him to return lawfully to this country to resume his married life. The Defendant is satisfied in this particular case that the need to maintain the effectiveness of the control of entry to this country for settlement outweighs the interference with the Claimant's Article 8 rights.

Conclusion

27. The Defendant is left in no doubt that his decision in respect of the Article 8 aspect of this claim entirely conforms with the obligations under Article 8; and furthermore this approach has already been endorsed by the Court of Appeal in Amjad Mahmood. There are no factors which could properly distinguish this case from Amjad Mahmood, and there is no prospect that an Adjudicator could properly allow a s.65 appeal on Article 8 grounds. The Defendant is entirely satisfied that this is a clear case and that it is proper to maintain his view that it is manifestly unfounded.”

“12. The Secretary of State has accepted the marriage as genuine. He further accepts that there will be undoubted interference with family life. However, he contends that such interference is justified. In so doing, he lays stress on

the need to protect the UK’s economic interests by properly controlling the Entry Clearance system,

the need to prevent the disorder which would occur if everyone came to the UK and sought to stay on the basis of marriage without first obtaining an EC from abroad as the rules require and

the need to protect the rights and freedoms of others who do follow the proper procedures for entering the UK for the purposes of marriage.

13. However, this reasoning is defective. As to (a), no economic interests could possibly be jeopardised. If anything, they are probably assisted by the Claimant’s presence. The Claimant’s presence here does not impose any additional strain on the economy beyond that (if any) which would follow if the Claimant were admitted as a foreign spouse after first having obtained an entry clearance from abroad.

14. Point (b) seems to suggest that disorder will occur if the Claimant is allowed to stay and that others will be encouraged to ‘circumvent the system’ by seeking to come here to marry without a prior Entry Clearance. This suggests that the Claimant is seeking to circumvent the system and that he came here knowing that he would seek to stay here on the basis of marriage. But that is not true; and no such allegation has been made. He is not guilty of any bad faith or attempting to manipulate the system. Had he known before he came here that he would marry someone here (or had he intended to try to do that), then it could be said that he was trying to circumvent a system which requires that he first get an Entry Clearance from abroad. The Secretary of State’s argument here fails to draw a distinction between those who seek to enter for the purposes of staying here on marriage grounds and those who have arrived in the UK and who then happen to form a genuine marital relationship on the basis of which they apply to stay here. The latter category is not blameworthy in any sense. As they are parties to a genuine marriage there is no reason for requiring them to go abroad and get an Entry Clearance first; that would be entirely pointless.

15. Moreover, there is no reason to think that others will think that they can get away with coming here in order to marry without first getting an Entry Clearance. If they lie to an Entry Clearance Officer about their intentions, they will be illegal entrants and removable as such. But the Claimant has not lied. He merely came to these shores and asked openly for leave to enter as a refugee. Whilst that was being processed he happened to form a relationship with a British national. Nothing in this suggests any form of disorder or circumvention of immigration control at all.

“51. The applicant who was born on 16 August 1968 is a citizen of Pakistan. On 26 November 1994 he entered the United Kingdom clandestinely in a lorry, or was later to claim that he had done so. On 11 January 1995 he applied for asylum. His claim was refused on 27 October 1997 and he was served with notice of removal directions as an illegal entrant. However a week earlier, on 20 October 1997, he had married Salma Yashin, who is a British citizen. In fact she had herself come from Pakistan and with members of her family had settled in the United Kingdom when she was about 13. Her parents, brothers and sisters live in this country.”

“Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect—as it is—that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.”

“From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls. (1) A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. (2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8. (6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned.”

Conclusion