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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> R. v Special Adjudicator, ex p. Srikantharajah [1995] EWHC 2 (QB) (09 October 1995) URL: http://www.bailii.org/ew/cases/EWHC/QB/1995/2.html Cite as: [1995] EWHC 2 (QB), [1996] Imm AR 326

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

MR JUSTICE LAWS: This is an application for leave to move for judicial review. It concerns the decision of a Special Adjudicator who on 25th September 1995 dismissed this applicant's appeal against the Secretary of State's refusal to accord him political asylum.

The applicant arrived in the United Kingdom on 12th August 1995. He is a Tamil from Sri Lanka. He applied at once for political asylum on 13th August, the following day. The Secretary of State refused to consider his claim substantively because he concluded that there was a safe third country to which the applicant could be returned, namely Germany. In fact, the applicant had travelled to the United Kingdom first via Denmark and then Germany. The Secretary of State gave a certificate under the Asylum and Immigration Appeals Act 1993 to the effect that the applicant's claim that his removal from the United Kingdom would be contrary to this country's obligations under the Geneva Convention was without foundation.

In the course of the hearing of the appeal before the Adjudicator the legal position in Germany was canvassed, and I come at once to the submission made by Mr Murphy, that there was material before the Special Adjudicator, as there is before me, to the effect that the law of Germany prohibits any right to political asylum to a person who has arrived in Germany from any one of certain countries which are listed, or as it might be scheduled, in the relevant German legislative instrument. They include Denmark. The position therefore is, says Mr Murphy, that if this applicant is returned to Germany, the German authorities will automatically and without further consideration return him to Denmark, they will therefore not merely decline to consider his substantive asylum claim but decline to give any individual consideration in his case to the question whether, in its turn, Denmark is a country that will comply with its Convention obligations.

The submission is thus to the effect that the Secretary of State could not properly have been satisfied that Germany would abide by its Convention obligations the German rules merely deem that certain countries, to which an entrant may be automatically returned are safe third countries. They include Denmark.

The Adjudicator said:

"With regard to whether or not Germany is a safe third country which would honour its obligations under the Convention, I have taken account of the fact that Mr Murphy did not did not in my view seriously seek to argue that Germany was not a safe third country which would honour its obligations under the Convention. It is clear to me that Germany has taken, and is taking, every step towards that end, as set out in its legislation, and Dr L...'s letter. The main point relied upon by Mr Murphy is that whereas Germany may well honour its obligations, and whereas the Secretary of State may well be correct in being so satisfied, there is nothing to indicate that Denmark is a safe third country which would honour its obligations, and as the documents produced stated that Germany would not consider an asylum application from a claimant who had passed through Denmark on the way to Germany, then it was necessary for the Secretary of State to satisfy itself as to the safety of Denmark, and that having failed to do so he had not made good his certificate, under paragraph 345 of the Houses of Commons Paper 395. In my considered opinion, there is no substance in that point as it is clear from the document produced, notably the letter from the German Bundusministerial of 22nd December 1994 in reply to question 4, that the German authorities do not send asylum claimants back to countries which they do not consider safe and that they satisfy themselves on this point before the deportation of any asylum seeker."

Mr Murphy points to the case of Julia Martinaz [1995] IAR 192, in which Simon Brown LJ said at 192:

"Deciding whether a third country is safe in my judgment involves no more than this ... and also whether if such third country were instead themselves in turn to contemplate the return of the claimant to the country, let us call it the fourth country, from which he or she had reached the third country, the third country would properly consider whether in turn that fourth country was safe in the same sense, namely that it too would deal properly under the convention with both matters."

Mr Murphy submits that where the arrangements in the third country require automatic return to a fourth of an entrant such as this applicant, the Secretary of State could not properly hold that the third country would satisfy its Convention obligations in a case where it would so return an entrant.

In my judgment, there is nothing in this application. The fact is that the German authorities have arrived at a judgment that Denmark is a safe third country. They have done so, no doubt, by different legal or administrative mechanisms than those which operate here. The Secretary of State has considered the position in Germany, and himself made a judgment that Germany is a safe country: and, moreover, safe as regards the potential return of persons such as the applicant to any of the countries in the German list or schedule. The Secretary of State was, in my judgment, entitled to arrive at that conclusion. This is not a case in which any evidence was put before the Adjudicator, as I understand it, that some special considerations arose as regards this applicant which would put him at risk in Denmark.

The application, as it seems to me, is based purely on the theoretical possibility that conditions might perhaps change in one of the countries listed in Germany's schedule before that country could be reconsidered by the German authorities. As to that I say nothing, save that there is not the slightest reason to suppose that any such difficulty has arisen in the present case.

Leave will be refused.