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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 62
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OPINION OF LORD MENZIES
in the Petition of
NAUROZ AKHUND
Petitioner;
for
Judicial Review of
a decision by an employee of the Immigration Service Enforcement Directorate
to refuse to allow the Petitioner to make an application for asylum in the United
Kingdom
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Petitioner: D E L Johnstone, QC et Melvin
Farr; Drummond Miller WS
Respondent: Lindsay;
C Mullin, Solicitor to the Advocate General
28 April 2006
[1] The
petitioner is a citizen of Afghanistan. It is averred on his behalf that he fled Afghanistan
in 2004 and arrived in Greece
by inflatable boat in or around October 2004, where he was immediately arrested
and detained. It is averred that at no
stage was he provided with an interpreter or a legal representative in order to
represent him in his claim for asylum, and that after about four or five days
he was released from detention and given a piece of paper advising him that he
must leave Greece within 30 days. It is
averred that he frequently attempted to claim asylum but was ignored, that he
left Greece in
January 2005 in order to enter the United
Kingdom, and that he arrived in the United
Kingdom on 23 March 2005 and tried to claim asylum in the United
Kingdom.
By letter dated 8 April 2005 from the Immigration and Nationality
Directorate of the Home Office the petitioner was told inter alia that under the provisions of Council Regulation (EC)
number 343/2003 of 18 February 2003 the authorities in Greece had accepted
that Greece was the State responsible for examining his application for asylum,
and making reference to paragraph 3(2) of part 2 of schedule 3 to the Asylum
and Immigration (Treatment of Claimants, etc) Act 2004. By notice dated 21 April 2005 the petitioner received notice from
the Home Office of removal directions requiring that the petitioner be removed
to Greece. In the present proceedings the petitioner
seeks reduction of the decision to refuse him leave to make an application for
asylum in the United Kingdom
and suspension of the removal directions, each on the ground of
unreasonableness and irrationality.
Legislation
[2] The present
application falls to be determined in accordance with the provisions of Council
Regulation (EC) No. 343/2003 and the Asylum and Immigration (Treatment of
Claimants, etc) Act 2004.
[3] Article
10(1) of the Council Regulation provides as follows:
"Where it is
established, on the basis of proof or circumstantial evidence as described in
the two lists mentioned in Article 18(3), including the data referred to in
Chapter III of Regulation (EC) number 2725/2000, that an asylum seeker has irregularly
crossed the border into a Member State by land, sea or air having come from a
third country, the Member State thus entered shall be responsible for examining
the application for asylum. This
responsibility shall cease 12 months after the date on which the irregular
border crossing took place."
Article 13 provides as follows:
"Where no Member
State responsible for examining the
application for asylum can be designated on the basis of the criteria listed in
this Regulation, the first Member State
with which the application for asylum was lodged shall be responsible for
examining it."
Article 17(1) provides as follows:
"Where a Member
State with which an application for asylum has been lodged considers that
another Member State is responsible for examining the application, it may, as
quickly as possible and in any case within 3 months of the date on which the
application was lodged within the meaning of Article 4(2), call upon the
other Member State to take charge of the applicant.
Where the
request to take charge of an applicant is not made within the period of three
months, responsibility for examining the application for asylum shall lie with
the Member State
in which the application was lodged."
[4] Section
33 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004
provides that Schedule 3 to that Act shall have effect. Part 2 of that Schedule gives a first list of
safe countries, and applies inter alia
to Greece. Paragraph 3 of Part 2 provides as follows:
"(1) This paragraph applies for the purposes of
the determination by any person, tribunal or court whether a person who has
made an asylum claim or a human rights claim may be removed -
(a) from the United
Kingdom, and
(b) to a State of which he is not a national
or citizen.
(2) A State to which this part applies shall
be treated, insofar as relevant to the question mentioned in sub paragraph (1),
as a place -
(a) where a person's life and liberty are
not threatened by reason of his race, religion, nationality, membership of a
particular social group or political opinion.
(b) from which a person will not be sent to
another State in contravention of his Convention Rights, and
(c) from which a person will not be sent to
another State otherwise than in accordance with the Refugee Convention."
Submissions for the petitioner
[5] Senior
counsel for the petitioner challenged the validity of the Home Secretary's
decision as set out in the first paragraph on the second page of the letter
dated 8 April 2005, where it is stated that:-
"The Secretary
of State will normally decline to examine the asylum application substantively
if there is a safe third country to which the application can be sent. There are no grounds for departing from this
practice in your case."
He submitted that this was
unreasonable and irrational, and that there were grounds for departing from
that practice in this case. He accepted
that the letter contained a certificate by the Secretary of State for the
purposes of paragraph 5 of Schedule 3 to the 2004 Act, but in the circumstances
of this case this was not enough. The
Secretary of State had failed to take account of cogent evidence that it was
likely that the petitioner's application for asylum would not be examined
substantively by the Greek authorities.
In support of this he referred to two reports, each dated November 2004,
by the United Nations High Commissioner for Refugees relating to the asylum
procedure of asylum seekers returned to Greece, and aspects of refugee
protection in Greece, (numbers 6/1 and 6/2 of process). Where there was such evidence to the effect
that the Greek authorities would not consider the substantive merits of an
asylum application, he submitted that the Secretary of State required to go
beyond the deeming provisions of the 2004 Act, and consider such evidence; if he failed to do so, his decision would be
irrational. In support of this
submission, he referred me to R v Secretary of State for the Home Department
ex parte Bugdaycay [1987] AC 514, and in particular to the speeches of Lord
Bridge of Harwich at page 532 and Lord Templeman at 537. He also relied on the decision of the
European Court of Human Rights in TI
v United
Kingdom
[2000] INLR 211, particularly at pages 227 to 228. In the circumstances, the Secretary of State's
decision was unreasonable because it omitted a relevant factor. Senior counsel accepted that the Secretary of
State must take account of primary legislation, but in deciding whether or not
to examine an asylum application substantively he must investigate the
possibility of "refoulement" or return of the applicant to a persecuting
country by the third party country. He
referred me to R v Secretary of State for the Home Department
ex parte Adan [2001] 2 AC 477 and particularly to the speeches of Lord
Steyn at page 515 and Lord Hutton at pages 526/527. For the Secretary of State to comply with his
obligations under article 33 of the 1951 Geneva Convention, before he declines
to examine an asylum application substantively he must be satisfied that the third
party country will do so properly rather than simply returning the applicant to
a country where his life or freedom would be threatened on account of his race,
religion, nationality, member of a particular social group or political
opinion.
[6] Senior
counsel accepted that the above cases were not directly in point, but they
contained instructive parallels to the present case. The principle of the law was clear, that a
person who applies for asylum must have his application properly and
substantively examined somewhere, and must not be returned to the country where
he fears persecution without such examination.
In light of the reports relied on by the petitioner, it could not be
asserted with confidence that this will be done by the Greek authorities, and
it was therefore unreasonable for the Secretary of State to decline to enter
into any substantive examination of the petitioner's case. His decision to decline to do so was
vitiated, first because it exposes the petitioner to serious risk of violation
of article 33 of the 1951 Refugee Convention, and second because it is
irrational in failing to take account of cogent evidence that there will be no
substantive examination of the application unless that takes place within this
jurisdiction.
Submissions for the respondent
[7] Counsel
for the respondent invited me to repel all the petitioner's pleas-in-law, to
sustain the second plea-in-law for the respondent, and to refuse all orders
sought. The respondent's position was
based principally on the fact that Parliament had provided, in the 2004 Act,
that Greece
must be deemed to be a place in which the substance of the petitioner's
application for asylum will be examined.
Paragraph 3 of Schedule 3 to the 2004 Act does not give the respondent a
discretion in the matter - read short, Parliament has provided that Greece
shall be treated as a place from which the petitioner will not be sent
to another state in contravention of his Convention Rights or otherwise than in
accordance with the Refugee Convention.
Unlike earlier legislation, Parliament has now removed any residual
discretion on this matter from the respondent, with the result that the
respondent's decision cannot be challenged on the ground that Greece is not a
safe country which will carry out a proper and substantive examination of the
petitioner's application for asylum.
[8] Counsel
submitted that this did not leave the petitioner without a remedy. On the hypothesis that Greece was not a
country in which the petitioner's application for asylum would be properly
investigated and examined, the problem lay with the primary legislation, and
not with the actings of the Secretary of State which were in accordance with
that legislation and required to be taken as a result of it. The petitioner's proper remedy was to seek a declaration
of incompatibility in terms of section 4 of the Human Rights Act 1998. He referred
me to section 6(2)(a) of that Act, and submitted that as a result of the terms
of Part 2 of Schedule 3 to the 2004 Act the Secretary of State could not have
acted differently; the language of
paragraph 3(2) of the 2004 Act was mandatory and allowed for no discretion on
the part of the respondent. He relied on
Ibrahim v Secretary of State for the Home Department [2001] Imm AR 430, and particularly
the opinion of Simon Brown LJ (as he then was) at paragraph 16. He also relied on the only Scottish authority
which shed light on this point, namely Abbas
Jalloh petitioner, 2002 SCLR 248,
and an unreported decision of the Administrative Court
in England
namely Mohammed and others v Secretary of State for the Home Department
[2002] EWHC 57 (Admin). Counsel invited
me to refuse the petition.
Decision
[9] I
have reached the view that the submissions for the respondent are preferable to
those for the petitioner, having regard to the deeming provisions and mandatory
terms of Part 2 of Schedule 3 to the 2004 Act.
Over the last several decades, Parliament has successively legislated to
reduce the discretion of the Secretary of State in a situation in which a
citizen of country A claims asylum in country B and then travels to the United
Kingdom.
As a result of the 1951 Geneva Convention Relating to the Status of Refugees,
and the Immigration Act 1971, there was at one time considerable discretion in
a Home Secretary to have regard to factual circumstances in third party
countries. That was the situation which
was considered by the House of Lords in R
v Secretary of State for the Home
Department ex parte Bugdaycay. Changes were made to that situation by the
enactment of section 6 of the Asylum and Immigration Appeals Act 1993 and
section 2 of the Asylum and Immigration Act 1996, and those changes were
considered by the House of Lords in R v
Secretary of State for the Home
Department ex parte Adan. However,
the legislative framework which was before the House in Adan still provided for discretion on the part of the Secretary of
State. In particular, an applicant for
asylum could be removed from the United Kingdom
if the Secretary of State had certified that in his opinion the conditions
mentioned in section 2(2) of the 1996 Act were fulfilled. Those conditions, which applied to Member States
of the European Union, were:-
"(a) that the
person is not a national or citizen of the country or territory to which he is
to be sent; (b) that his life and
liberty would not be threatened in that country or territory by reason of his
race, religion, nationality, membership of a particular social group, or
political opinion; and (c) that the
government of that country or territory would not send him to another country
or territory otherwise in accordance with the Convention."
Because there was a requirement for
the Secretary of State to certify that in his opinion these conditions were
fulfilled, there was still scope for application to the courts for judicial
review on the ground of unreasonableness, irrationality or the like.
[10] This was changed by the terms of the Asylum and Immigration Act
1999 section 11, which removed the requirement for the Secretary of State to
certify that in his opinion these conditions were fulfilled. Instead, Parliament enacted that
"in determining
whether a person in relation to whom a certificate has been issued under
subsection (2) may be removed from the United
Kingdom, a Member
State is to be regarded as -
(a) a place where a person's life and
liberty is not threatened by reason of his race, religion, nationality,
membership of a particular social group, or political opinion; and
(b) a place from which a person will not be
sent to another country otherwise than in accordance with the Refugee
Convention."
It was against this statutory
background that the cases of Ibrahim,
Abbas Jalloh and Mohammed were decided. Each
of these cases supports the respondent's position. Since then, the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 has been enacted. It is this Act which governs the present
application. If anything, it seems to me
that the wording of Part 2 of the Schedule 3 to the 2004 Act is even clearer
than section 11 of the 1999 Act in removing any discretion from the Secretary
of State in a matter such as this. Greece
is specified as a country to which Part 2 applies, and Parliament has provided
that it shall be treated as a
place from which a person will not be sent to another state in contravention of
his Convention Rights or otherwise than in accordance with the Refugee
Convention (my emphasis). The language
of Part 2 is mandatory, and the respondent is obliged to comply with it. Section 6(2) of the Human Rights Act 1998 is
therefore engaged - as a result of the provisions of this primary legislation,
the respondent could not have acted differently.
[11] Senior counsel for the petitioner submitted that the respondent
had an obligation in terms of the Geneva Convention to satisfy himself that
Greece was indeed a place in which the petitioner's application would be
substantively examined and not merely a place in which he would be "refouled"
to Afghanistan. I do not consider that
such an obligation rests with the respondent, who is obliged to comply with
primary legislation. He no longer has
the discretion which he formerly had.
The petitioner does not seek a declaration of incompatibility in terms
of section 4 of the Human Rights Act 1998.
Counsel for the respondent may be correct in suggesting that such a
course of action is open to the petitioner - I express no view on this
point. This petition is based on the
unreasonability and irrationality of the respondent's decision, but in light of
my views on the effect of the 2004 Act and the lack of discretion in the
respondent, it follows that he could have done nothing else. In the absence of discretion, questions of
unreasonableness or irrationality do not arise.
For these reasons I refuse this petition.
