Ahmed v. Secretary of State for the Home Department

AHMED v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 449

Hearing Date: 13 February 1992

13 February 1992

Index Terms:

Political asylum -- application for asylum on arrival in the United Kingdom -- applicant granted temporary admission -- subsequently refused leave to enter and political asylum application refused -- refusal of asylum subsequently withdrawn for consideration of further representations -- whether that withdrawal by necessary implication was also a withdrawal of the refusal of leave to enter -- whether the applicant secured, by operation of law, limited leave to enter the United Kingdom -- whether the applicant's examination under the Act was completed when the letter of refusal of the application for asylum had been drafted -- whether the Secretary of State's approach to the application was contrary to Wednesbury principles. Immigration Act 1971 (as amended) sch 2 para 6.

Held:

Renewed application for leave to move for judicial review of Secretary of State's refusal to grant political asylum to a citizen of Bangladesh, who had made that claim on his arrival in the United Kingdom. The applicant was granted temporary admission. He was subsequently refused leave to enter and his asylum application was refused. Further representations were made on his behalf: the refusal of asylum letter was withdrawn while those representations were considered. The refusal was subsequently maintained in a letter drafted in December 1991 but not handed to the applicant until 31 January 1992. Counsel argued that the Secretary of State had acted too hastily in giving his first refusal, and that tainted all that he did subsequently. The withdrawal of the first refusal of asylum by necessary implication was also a withdrawal of the refusal of leave to enter: the examination of the applicant, within the meaning of the Act, had been completed when the final letter of refusal of asylum was drafted, some weeks before it was handed to the applicant. On either basis, in accordance with the provisions of schedule 2 to the Act, the applicant had secured six months' leave to enter. Held 1. The withdrawal of the letter explaining the reasons for the refusal of the application for asylum did not cause the withdrawal of the refusal of leave to enter. 2. The examination of the applicant was not completed until the final letter of refusal had been served on the applicant. 3. Neither way did the applicant secure limited leave to enter, by operation of the law. 4. The Secretary of State's approach could not be faulted: the Secretary of State had to "act fairly and promptly upon the case put to him, while remaining willing to consider any further representations".

Cases referred to in the Judgment:

No cases are referred to in the judgments.

Counsel:

S Hussain for the applicant; MH Kent for the respondent PANEL: Neill, Ralph Gibson, Stocker LJJ

Judgment One:

RALPH GIBSON LJ: This is a renewed application for judicial review by Mr Helal Ahmed. The decisions which, if given leave, he would ask the court to quash are a refusal by the Secretary of State to grant to him the status of a refugee and the consequential decision on 31 January 1992 to direct his removal to Bangladesh on 6 February. The applicant is aged 31 and is a citizen of Bangladesh. He arrived in this country on 8 June 1991 and claimed asylum. His case is that he was a political activist at district level in Sylhet District since 1986 on behalf of the Jatio Party, the national party of General Ershad, which controlled the government until 6 December 1990. By the end of November 1990 the opposition forces in Sylhet District, he says, had grown strong enough to engage in acts of revenge against well-known supporters of the Jatio Party, among which he says he is numbered. On 29 November, before the surrender of power by General Ershad, the applicant says that he was attacked and injured by members of opposition parties. He was attacked by men with knives and left for dead with injuries to hands, right thigh, left thigh, and left buttock. The applicant asserts that he fears for his life from attacks by political opponents and that the police are not to be trusted to provide impartial protection. He was interviewed by the immigration officer on 9 June 1991 when he stated his case for asylum. On 22 July he was seen again and was handed what is called a "minded to refuse" letter. He then made further representations. On 5 September he was served with a notice of refusal of leave to enter with a Home Office letter of 12 August, explaining the grounds of refusal of his claim to asylum. For some reason, which it is not necessary to consider, a letter dated 5 August from the applicant's solicitors with reference to the asylum claim was not considered, but the Secretary of State agreed to consider both it and further representations sent by solicitors on 6 and 11 September and 23 October. That was done, and the considered refusal of the claim to asylum was set out in a letter which was drafted in December 1991. The applicant was in custody. It was arranged that the refusal letter would be served on the applicant in the presence of his solicitors, who asked for a copy of the letter in advance, which was provided to them. The letter was served on 31 January 1992 in their presence. Further representations were made on the asylum claim. Further notice of refusal of leave to enter was, according to what we are now told both by Mr Hussain and by Mr Kent, served on 31 January 1992. The further representations on asylum were considered, and the reasons for holding that they did not give grounds for altering the decision were sent in a letter of 5 February 1992. Mr Hussain has made five points. In my view no one of them has revealed an arguable ground of relief upon which leave to apply should be given. The first was that the first decision on asylum was too hasty, and the making of it in that way tainted all that followed. There was said to have been thereby a breach of the duty to act fairly. I would reject that. The Secretary of State ought to act both fairly and promptly upon the case put to him, while remaining willing to consider any further representations. That is what he did. The second and third points were directed to criticisms of the way in which the Secretary of State expressed his reasoning, the reference to the medical report and to the reports by Amnesty International. Those points do not indicate any misdirection or misapprehension of the facts, in my judgment. The fourth point was based on paragraph 6(3) of the second schedule to the 1971 Act, namely that when in the letter served on 31 January 1992 the Secretary of State referred to the withdrawal of the "refusal on 5 September 1991 of the claim to asylum" and to reconsideration of it, that amounted to cancellation of the notice of refusal, and there was thereby, it was said, deemed leave to enter of six months. The answer in my judgment is that there was no cancellation under the sub-paragraph. The refusal of leave to enter of 5 September 1991 continued. It was the refusal of the claim to asylum which was withdrawn in order for it to be reconsidered on the fresh material, as was done. The fifth point was based on the 24-hour rule under paragraph 6 of the schedule. It was said that the letter drafted in December marked the "conclusion of the examination" and notice was not served until 31 January. Without considering the effect of the existing refusal of 5 September, it is sufficient in my judgment to say that the examination did not conclude until the letter was served by the immigration officer upon the applicant on 31 January when the immigration officer heard anything further that the applicant or his solicitors had to say. For my part I would refuse this application.

Judgment Two:

STOCKER LJ: I agree and there is nothing I wish to add.

Judgment Three:

NEILL LJ: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Hassan D Perera; Treasury Solicitor