Saemian v. Immigration Officer, Heathrow

SAEMIAN v IMMIGRATION OFFICER, HEATHROW

Immigration Appeal Tribunal

[1991] Imm AR 489

Hearing Date: 30 April 1991

30 April 1991

Index Terms:

Political asylum -- appellant arrived from safe country with counterfeit passport -- Secretary of State declined to consider application for political asylum -- Secretary of State satisfied that appellant would not be persecuted if returned to country whence he had come, nor returned to his own country without an application for asylum being considered -- whether in the circumstances the application was a request to the Secretary of State to depart from the rules -- whether, if that were so, the immigration appellate authorities had jurisdiction to determine whether the Secretary of State's decision was "in accordance with the law". Immigration Act 1971 ss 4(1), 13(1), 19(1), sch 2 para 1(3): HC 169 paras 16, 73, 134: UNHCR, Executive Committee, Conclusions (1980).

Held:

The appellant was a citizen of Iran who had spent the last five years in the United States of America. He arrived at Heathrow with a genuine visit visa, but his passport, the immigration officer concluded, was a forged document. A few days after he arrived he applied for political asylum. The Secretary of State declined to consider the application on its merits: the immigration officer accordingly refused the appellant leave to enter. The Secretary of State had concluded that the appellant could be removed to the safe country whence he had come, and would there have an application for asylum fully considered. An appeal to the Chief Adjudicator was dismissed: the Chief Adjudicator concluded that the application was an application for the Secretary of State to depart from the rules and accordingly the immigration appellate authority had no jurisdiction: he also concluded that if he had had jurisdiction, on its merits the appeal would have failed. The Tribunal reviewed the question of jurisdiction. Held: 1. The decision under appeal was a decision of the immigration officer to refuse leave to enter, on the instructions of the Secretary of State that the application for political asylum would not be considered. 2. Whether that application was a request to the Secretary of State to depart from the rules had to be determined by looking at all the rules: thus paragraph 134 of HC 169 was relevant, as well as paragraph 73. 3. The refusal to consider the application therefore had to be considered taking account of the United Kingdom's obligation under the United Nations Convention. 4. The Conclusions of the Executive Committee of UNHCR had no force in law. On the facts, the appellant would not be persecuted if returned to the United States. The appellant accordingly had no case under the United Nations Convention: his application was therefore a request to the Secretary of State to depart from the rules. 5. The immigration appellate authorities had nevertheless jurisdiction to determine whether the decision of the Secretary of State was "in accordance with the law." 6. The evidence showed that the Secretary of State had taken into account all those matters which he had, in his public police, stated he would take into account. He had according acted "in accordance with the law".

Cases referred to in the Judgment:

Pearson v Immigration Appeal Tribunal [1978] Imm AR 212. Mohammad Alsawaf v Secretary of State for the Home Department [1988] Imm AR 410. Domfeh Gyeabour v Secretary of State for the Home Department [1989] Imm AR 94. Yvonne Somasundaram and ors v Entry Clearance Officer, Colombo [1990] Imm AR 16. Sonia Malhi v Secretary of State for the Home Department [1990] Imm AR 275. Dawood Patel v Secretary of State for the Home Department [1990] Imm AR 478. Aujla (unreported) (6459).

Counsel:

P Bertram for the appellant; C Williams for the respondent. PANEL: Professor DC Jackson (Vice-President), ML James Esq, Mrs JHM Goodchild

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Iran, appeals against a decision of the Chief Adjudicator dismissing his appeal against the refusal of the Secretary of State to consider his application for asylum. The background facts The appellant arrived at Heathrow Airport from the United States on 29 December 1988. The immigration officer who examined his passport concluded that it was "a total counterfiet" although it contained a genuine United Kingdom visit visa issued in Los Angeles on 15 December 1988. The appellant maintained that he had been unaware that the document was counterfeit. In his interview with the immigration officer the appellant said that on completing his studies in the United Kingdom in 1980 he had returend to Iran. In 1982 he had left Iran illegally through Pakistan, travelled to Spain and then to Mexico, and had obtained a United States visa to study in the United States. He had entered the United States on 18 December 1982, and he had been there ever since. On 5 January 1989 an application for asylum was submitted to the Home Office by the appellant's solicitors. The appellant was then re-interviewed, and when asked if there were any countries to which he had a fear of returning, he replied "Iran" and any country that might return him to Iran. He confirmed that he had been a student in the United States for the past 5 years and that his course of study was not yet complete. He said that his wife was an Iranian living in Los Angeles, that his parents and his parents' brothers and sisters were all currently in the United Kingdom. On 24 February 1989 (as recorded in the explanatory statement): ". . . the Secretary of State said that in view of the fact that the passenger had spent the previous 5 years in the United States, he considered that the passenger was properly returnable to the USA under the 1971 Immigration Act and was satisfied that he would be readmitted there. Furthermore, on the basis of information available to him, the Secretary of State considered that the passenger would not be removed from the USA to Iran. In these circumstances he concluded that the asylum application should not be considered". Following this statement the immigration officer returned to the appellant who when informed that the application would not be considered, it is recorded, said he could not be returned to the United States because he was not now admissible there, and would be detained and sent to Iran. The explanatory statement continues: ". . . He said his solicitors had contacted the US Embassy in London who had advised that in view of the fact that his US visa had expired and he held a counterfeit passport, he would not be readmitted but returned to Iran. He stated it had been his intention to claim political asylum in the United Kingdom prior to going to the US; he had applied for a United Kingdom visit visa in Madrid in 1982 with a view to applying for asylum on his arrival in the United Kingdom but the applicant had been refused because he had left Iran illegally. He had only gone to the USA because this was the only English speaking country for which he could obtain a visa. He said he had not applied for asylum in the USA partly because he had been informed US policy was to refuse such applications and require applicants to leave the US within a short period of time, and partly because he wished to join his family in the United Kingdom. Although he had been legally married in the USA, he said that the marriage had not worked and he had been separated from his wife for the past one and a half years. Furthermore he said he had been afraid the US authorities would discover that at the time of his US visa application and his entry to the USA, his passport had, in fact, expired but had been unofficially extended when he was in Mexico. Finally the passenger said he wished us to take into account that all his family ties were now in the United Kingdom. The foregoing was reported to the Home Office for the Secretary of State's consideration". On 3 March 1989 the Home Office confirmed that the application for asylum would not be considered. The immigration officer then refused the appellant leave to enter on the grounds that, as the passport presented to the visa officer was counterfeit, false representations had been employed for the purpose of obtaining the visa. Further, the appellant had not disclosed to the visa officer that he wished to join his family in the United Kingdom nor that he and his wife had separated. On appeal further documentary evidence was adduced on behalf of the appellant going to show that Pan-American could not accept a passenger for travel unless that passenger had valid travel documents, and that unless he had proper documentation the appellant would be denied entry into the United States. There was also produced before the adjudicator an affidavit sworn in July 1990 by Mr Stanley Spence, a principal in the Refugee Unit at the Home Office, in connection with another case. This affidavit was intended to explain current Home Office policy in relation to asylum claimants who may be returnable to a third country, and to deal with the particular case in connection with which it was sworn. As regard the general considerations, it is stated that it is an internationally accepted concept that a person who claims to be fleeing from persecution should seek protection from the first safe country he reaches. Reference is then made to conclusions of the Executive Committee of the United Nations High Commissioner for Refugees and, in particular, to the conclusion that "Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State. Where, however, it appears that the person, before requesting asylum, already has a connection or close links with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State". The affidavit continues that where there was reason to believe that a safe third country would accept an asylum applicant, the Secretary of State considers the possiblity of returning the applicant there. The time spent in a third country before travelling to the United Kingdom is regarded as a "connection" for the purposes of the conclusion of the Executive Committee cited above. This approach is, however, not unqualified. It is said in the affidavit: ". . . However, the Secretary of State will not send a person to a safe third country without first considering whether there are any factors establishing a link with the United Kingdom or any compassionate factors as a result of which he might judge it inappropriate to send the applicant to another country. Only if in his view there are no such reasons of sufficient weight to justify consideration of the substantive asylum claim in the United Kingdom will the Home Office contemplate returning the asylum seeker to a safe third country on the ground that asylum could and should have been sought there first". The Chief Adjudicator's approach The Chief Adjudicator noted that it had been conceded that the appellant did not qualify for admission to the United Kingdom as a visitor, and that the only issue before him was whether the Secretary of State was justified in refusing to consider the asylum application. Mr Grant (who was then representing the appellant) argued that the decision was not in accordance with the law as set out in the extracts from the affidavit which we have set out above. The presenting officer agreed that the Chief Adjudicator had power to consider the issue, but argued that the decision was consistent with the policy. The Chief Adjudicator held: i. that by virtue of HC 169 paragraph 73 the duty of an immigration officer in relation to an asylum claim was (a) to refer the case to the Home office and (b) to satisfy himself that the applicant would not be removed to a country to which he is unwilling to go owing to a well-founded fear of persecution for a Convention reason; ii. that by virtue of HC 169 paragraph 76 a passenger who did not qualify for admission under the "On Entry" rules had to be refused leave to enter; iii. that the conclusions of the Executive Committee could not be considered as part of the domestic law of England or as part of the obligations of the United Kingdom in respect of the Convention relating to the Status of Refugess; iv. that, following from (iii), the statement of policy set out in the affidavit of Mr Spence could be regarded only as the way in which the Secretary of State intended to exercise his discretion outside the rules; v. the exercise of discretion outside the rules was not a matter within the jurisdiction of the appellate authority. Applying the law to the present case, the Chief Adjudicator found: "i. The respondent did refer the appellant's application for asylum to the Home Office; ii. The appellant would not face persecution in the United States where he had lived for 5 years prior to his arrival in this country; and iii. The appellant if refused entry into the United States, would not have been returned to Iran, his country of nationality where he claims he would be persecuted for a Convention reason, without full and proper enquiry, the United States being a signatory to the Convention". The Chief Adjudicator added that if he did have jurisdiction to review the Secretary of State's decision not to consider the claim for asylum, he was unable to find from the totality of evidence "that the Secretary of State did in fact depart from his declared policy". As Mr Bertram said, the central issue of the case was whether the Secretary of State, in refusing to consider the appellant's application for asylum, acted consistently with the policy set out in Mr Spence's affidavit. The second issue (and logically preceding the first) goes to the jurisdiction of the appellate authorities to review that decision. The jurisdiction of the appellate authorities As is well-known, that jurisdiction is set out in section 19(1)(2) of the Immigration Act 1971. These subsections read: "19(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. (2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so". (Sections 13(4) and 16(4) are not relevant to the issues before us). This appeal is an appeal against the refusal of leave to enter from the appellant who was refused leave first, on the basis that he was not entitled to enter as a visitor and secondly, as the Secretary of State refused to consider the application for asylum which, if considered and granted, would have formed the basis of leave to enter. The appellant is therefore entitled to appeal by virtue of section 13(1) of the Immigration Act 1971 subject to any restriction there may be on the jurisdiction of the appellate authorities not to consider the matter. By virtue of section 19 the appellate authorities' duty is to review the decision of the Secretary of State and assess whether it is in accordance with the law, or with any immigration rules or, thirdly, whether where the decision involved a discretion, the discretion had been exercised correctly. It has to be recalled that the question of whether leave to enter is granted to an applicant is a matter for an immigration officer subject to directions of the Secretary of State not inconsistent with the immigration rules (see Immigration Act 1971 section 4(1) and schedule 2 paragraph 1(3)). The immigration rules are an indication of how the discretion vested in an immigration officer or the Secretary of State will be exercised (see Pearson v Immigration Appeal Tribunal [1978] Imm AR 212). The restriction on the appellate jurisdiction imposed through section 19(2) refes solely to 19(1)(a)(ii) ie, the review of any discretion exercised by the Secretary of State. The perfectly understandable principle behind the restriction is that it is not open to the appellate authorities to declare that where (i) the decision is in accordance with the law and the immigration rules (ii) the Secretary of State has been requested to depart from the rules and (iii) has refused to do so, that he should have departed from the normal criteria of discretion reflected in the rules. This restriction has no application to the question as to whether a decision is in accordance with the law or with any rule, and has no application where there is no rule which can apply to a decision (see Somasundaram [1990] Imm AR 16). As a result the appellate authorites' jurisdiction extends in all cases to assessing whether a decision is in accordance with the law. In this context "law" means all law whether set out in statute, rule or by a judicial decision of the courts. This aspect of appellate authority jurisdiction has been examined in a number of Tribunal cases, the most recent being Aujla (6459) which was cited to us by Mr Bertram. This view of the jurisdiction is supported by dicta of members of the Court of Appeal in Malhi v Secretary of State [1990] Imm AR 275. Secondly, the jurisdiction extends in all cases to a review of any discretion exercised by the Secretary of State under the Immigration Act 1971 or the immigration rules made under it save where that discretion is a decision not to depart from any applicable immigration rule. In our view the decision in this case from which appeal is now brought is a decision of an immigration officer to refuse leave to enter on the instructions of the Secretary of State on the basis that an asylum application will not be considered. The issues on appeal are whether that decision was in accordance with the law and, if the decision incorporates the exercise of a discretion and that discretion was not a refusal to depart from an immigration rule, whether the discretion was rightly exercised. In order to answer the second question, therefore, we must first examine whether any immigration rule is applicable to the case. It will be apparent from what we have said that we disagree with the Chief Adjudicator if, as he appears to hold, any discretion of the Secretary of State to be exercised outside the rules is not, as such, a matter within the jurisdiction of the appellate authority. Although an argument was put to the Chief Adjudicator that the decision in this case was not in accordance with the law, this argument does not appear to be addressed in the determination. The question as to whether a decision in accordance with the law is quite different to the review of the exercise of discretion, although in practice it is likely to arise rarely where the discretion can be reviewed. As the decision in this case seems clearly to us to be an exercise of discretion by the Secretary of State, the first issue which should be examined is whether that exercise is in substance a refusal to depart from the rules. If it is not, then the discretion itself is reviewable and any question of whether the decision is in accordance with the law will become of less importance. Is the decision a refusal to depart from the rules? The applicable rules in this case are set out in HC 169. These contain a number of references to refugees and asylum, and a particular reference to applications for asylum on entry. Paragraphs 16 and 73 of the rules provide: "16. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmnd 9171 and Cmnd 3096). Nothing in these rules is to be construed as requiring acting contrary to the United Kingdom's obligations under these instruments". "73. Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees". The Chief Adjudicator appears to have taken the view that the duty to consider asylum applications on entry is rooted in paragraph 73, contrasting that paragraph with the rule applicable to applications for asylum from those already in this country. The immigration rule applicable to such persons is set out in rule 134. This reads: "134. A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances". The Chief Adjudicator thought that the final sentence of paragraph 134 reflected a deliberate distinction between paragraph 73 and paragraph 134. This led to his view that the duty of an immigration officer considering an application by an asylum seeker was (i) to refer the case to the Home Office and (ii) satisfy himself that the applicant would not be removed to a country to which he was unwilling to go owing to a well-founded fear of persecution for a Convention reason. Mr Williams argued somewhat similarly before us that the appellant in this case fell outside paragraph 73 because he did not fit within the first sentence. However, it seems to us that whether the application was to depart from the rules depends not on the ambit of paragraph 73 but of the rules as a whole including, in particular, paragraph 16. The final sentence of paragraph 134 seems to us, with respect, to have nothing to do with the ambit of the particular rule, but to be one of the sentences of general principle which are to be found in places in the rules. The question therefore is whether the refusal of leave to enter on the ground that the applicant's application for asylum would not be considered was consistent with the requirement under the rules, that full account was to be taken of the provisions of the Convention. As we have said, without doubt, the substance of the decision in this case was that, the immigration officer acting in respect of the asylum application on the instructions of the Secretary of State, leave to enter was refused. Those instructions were proper provided they were consistent with the immigration rules, and the question therefore is again whether the decision was taken consistently with the requirements of the rules as a whole. Prior to holding that this decision was an exercise of the Secretary of State's discretion outside the rules, the Chief Adjudicator cited paragraph 76 insofar as that paragraph provides that "A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter . . .". It would therefore follow, and this was clearly the Chief Adjudicator's view, that if the appellant did not fall within the foregoing rules (and particularly rules 16 and 73) then any application for leave was an application to depart from the rules. This indeed has been the view of the Tribunal expressed most recently in Somasundaram. Mr Bertram sought to argue that that decision was wrong on the basis that the construction undermines the general statutory powers to review decisions in accordance with the law and rules. However, as we pointed out to Mr Bertram, the sole result of the view taken in Somasundaram is to circumscribe the ambit of the power to review the merits of any discretion as regards leave to enter. It does not affect the requirement that such discretion must be in accordance with the law. In our view, the necessary conclusion from the sentence of paragraph 76 is that any application on a basis which is not included within the on entry rules must necessarily be an application for the Secretary of State to depart from those rules. That result will be reached in this case only if the obligations under the Convention do not extend to the appellant's application. As Mr Williams argued, it is established that the conclusions of the Executive Committee referred to in connection with the policy of the Secretary of State set out in Mr Spence's affidavit are exhortatory only, are not part of English law and do not form part of any obligation imposed on the Secretary of State by the Refugee Convention (see Alsawaf v Secretary of State [1988] Imm AR 410). It seems to us therefore that as there is no contention in this case that if the appellant was returned to the United States he would suffer persecution or would be returned to Iran without an examination of his refugee status, the contention does not go to any obligation imposed on the Secretary of State under the Convention. It therefore is concerned with the exercise of discretion outside the rules and, following from the principle of Somasundaram, concerned with an application to depart from the rules. As a consequence the appellate authorities cannot review the merits of the exercise of a discretion. Was the decision "in accordance with the law"? As we have said, the Tribunal has held that there is no limitation on the jurisdiction of the appellate authorites in considering whether a decision is in accordance with the law (see Dawood Patel [1990] Imm AR 478). We should just say that his jurisdiction goes essentially to the validity of a decision rather than the validity of any law against which the decision is to be adjudged. We accept, for the purposes of this case, that the appellant had a legitimate expectation that any application would be adjudged according to the policy then current (see Gyeabour [1989] Imm AR 94) and that that policy was set out in the affidavit which was cited to the Chief Adjudicator and is before us. The decision could only not be in accordance with the law if the appellant has shown before us that the Secretary of State either did not consider the matter or, in considering it, did not apply the then policy. We agree with the Chief Adjudicator that this has not been shown. It is apparent from the passage in the explanatory statement that the appellant's background, his connections with the United Kingdom and his connections with the United States were fully reported to the Secretary of State, and that the Secretary of State made his decisions after the reports had been sent. There is no evidence that the policy adumbrated in Mr Spence's affidavit was not carried out and, indeed, all the evidence points to the fact that factors there set out as relevant to the exercise of the discretion, as to whether to consider an asylum application, were before the Secretary of State and considered by him in reaching his decision. It has not been shown therefore that the decision is not in accordance with the law. A recommendation? Mr Bertram asked us, if we were against him on the law, to make a recommendation. However, the only evidence before us is that recorded in the explanatory statement, and that is not sufficient basis for recommending that the appellant be treated exceptionally. It remains open to the appellant's legal adviser to approach the Secretary of State with any further evidence there may be. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Seifert, Sedley, Williams.