Secretary of State for the Home Department v. Razaq Mohd Saeid Abdu Abdel
SECRETARY OF STATE FOR THE HOME DEPARTMENT v RAZAQ MOHD SAEID ABDU ABDEL
Immigration Appeal Tribunal
 Imm AR 152
Hearing Date: 25 October 1991
25 October 1991
Political asylum -- citizen of Ethiopia -- resident in Saudi Arabia -- claimed political asylum on arrival in United Kingdom -- fear of persecution in Ethiopia -- Secretary of State refused to consider the application on its merits -- proposed to return the applicant to Saudi Arabia -- Saudi Arabia not a signatory to the Convention -- whether Saudi Arabia could be considered a safe third country to which to return the applicant -- whether the decision of the Secretary of State was justified -- Immigration Act 1971 s 13(1), 19(1)(a)(i), sch 2 para 8(1)(c): United Nations Convention relating to the status of refugees 1951 (Protocol 1967) art 33.
Political asylum -- Secretary of State had refused to consider claim on its merits -- whether adjudicator, in allowing appeal against that refusal had power to direct that applicant be granted leave to enter or remain in the United Kingdom. Immigration Act 1971 s 19(3).
Held: The Secretary of State appealed against the determination of an adjudicator in which he had allowed the appeal of a citizen of Ethiopia against the refusal of the Secretary of State to consider, on the merits, his application for political asylum. The applicant had been living in Saudi Arabia. He feared persecution in Ethiopia. The Secretary of State considered that the applicant could be returned to Saudi Arabia, a safe third country. He came to that conclusion despite information from the United Nations High Commissioner for Refugees that there might be a danger of refoulement if the appellant were sent to Saudi Arabia. The adjudicator allowed the appeal and directed that the appellant be granted leave to remain in the United Kingdom. The Secretary of State appealed to the Tribunal. Held: 1. The adjudicator had no power, in the circumstances, to direct that leave to enter or to remain be granted. The merits of the application for asylum, on which application those directions were based had never been considered by the Secretary of State. 2. The visa with which the respondent entered the United Kingdom had been rendered ineffective and on that basis refusal of leave was justified. 3. The decision not to consider the application for asylum on its merits was not justified and to that extent the decision of the adjudicator was upheld. 4. The application for asylum was therefore still before the Secretary of State for determination on the merits.
Cases referred to in the Judgment: R v Secretary of State for the Home Department ex parte Musisi  Imm AR 250. R v Secretary of State for the Home Department ex parte Yassine  Imm AR 354.
Counsel: A Clayton for the appellant; Miss N Lieven for the respondent PANEL: Professor DC Jackson (Vice-President), Miss PG Liverman JP, ML James Esq
Judgment One: THE TRIBUNAL: The Secretary of State appeals against the decision of an adjudicator (Mr RG Care) allowing the appeal of Razaq Mohd Saeid Abdu Abdel against the refusal of leave to enter. The factual background The relevant facts are not in dispute. The respondent arrived alone on 9 March 1991 and sought leave to enter the United Kingdom to accompany his employer, Prince Mohamed Bin Turki Bin Abdul-Aziz. He presented a United Nations 1951 convention travel document, issued on 4 February 1989 by the Government of the Sudan. The document bore a current visa issued in Jeddah on 29 January 1991 endorsed "Single Visit". It also bore a valid re-entry visa and residence permit valid until 26 January 1992 for Saudi Arabia. The respondent told the immigration officer that he was Eritrean and that he had been in the prince's employ for 5 years. However after further enquiries and questioning he admitted that he did not know the prince and had never been employed by him. He said he had obtained the documentation on which he relied for entry from the prince's office by payment of money to a person who worked there. He then (on 12 March 1991) applied for asylum -- it is recorded in the explanatory statement "on the basis that he had not been able to work or study in Saudi Arabia" in his time there. The respondent was then interviewed in respect of the asylum application but on the same date the Home Office directed that the application would not be considered on the grounds that Ethiopia was not the only country to which he could be removed. It is recorded that at a further interview the respondent said that he had no fear of returning to Jeddah. However on a later occasion (probably on the same day) he expressed such a fear when the immigration officer told him that he would be refused leave to enter and that his application for asylum would not be considered as the Secretary of State did not believe that he would be removed from Saudi Arabia to Ethiopia. The explanatory statement records: ". . . Mr Abdel then stated, that he would not return to Saudi Arabia as he claimed that a new law there required non-Saudi nationals to leave the country. He said that things were deteriorating for foreigners since the Gulf War, and said that his father had recently been hit merely because he was a non-Saudi. He added that he would commit suicide rather than return to Saudi Arabia, even though his father and brother were both still employed there . . ." When asked why the fear had not been stated earlier, the respondent said that he did not know that he should have done so. The notice of refusal is dated 13 March but the explanatory statement states that it was served on the respondent on 15 March. No arguments were based on this but it is clear that the information, as to the respondent's now expressed fear to returning to Saudi Arabia, was transmitted to the Secretary of State. The decision not to consider the application for asylum was confirmed on 15 March 1991. The notice of refusal reads: "Please see the attached notice. Furthermore you hold a current visa endorsed "Single Visit" but I am satisfied that false representations were employed and/or material facts were not disclosed for the purpose of obtaining the visa. The visa is not, therefore, effective." The "attached notice" relates to the decision on asylum. This reads: "You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Ethopia for reasons of race, religion, nationality, membership of a particular social group or political opinion. However Ethopia is not the only country to which you can be removed. You arrived from Saudi Arabia where you spent approx 14 years. You are under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971 properly returnable to Saudi Arabia and I am satisfied on the information available that you will be re-admitted there. Moreover, on the basis of the information available to him about the policies and practice of Saudi Arabia and having considered the circumstances of your case the Secretary of State is satisfied that you would not be further removed from Saudi Arabia to Ethiopia. In these circumstances your application for asylum here has not been considered." Before the adjudicator there was produced a letter dated 3 May 1991 from the Deputy Representative in the United Kingdom of the United Nations High Commissioner for Refugees. So far as relevant that reads: ". . . I would like to confirm that UNHCR is of the view that Saudi Arabia cannot be considered as a safe country for the purposes of removing asylum-seekers, insofar as that country neither is a party to the Refugee Convention and/or Protocol nor has enacted legislation or adopted policies concerning the grant of asylum. In these circumstances, there cannot be sufficient guarantees that an asylum-seeker removed to Saudi Arabia will be protected against refoulement. This uncertainty will be further aggravatted (sic) by the fact that UNHCR does not have an office in that country and, therefore, is not in a position to monitor these types of cases appropriately . . ." The adjudicator set out the facts as he saw them and referred to a number of authorities. On the issue of the Saudi Arabia attitude to the respondent if he were sent there, the adjudicator commented: "The respondent, on the instructions of the Home Office, considered that he had arrived from Saudi Arabia and could be sent back to Saudi Arabia and that there was no risk of him being sent on to Ethopia. This, said Miss Teo, was to ignore what the UNHCR has said. Certainly my own reading of the situation in Saudi Arabia and the country's attitude to foreign nationals is not inconsistent with the UNHCR views." The adjudicator concluded his determination: "Insofar as the facts are concerned the letter from the UNHCR has not been contradicted, and as I have said it does not contradict my understanding of the Saudi Arabian practice at the time. On what is before me I think that to send this appellant back to Saudi Arabia will be in breach of the United Kingdom's obligations under article 33 of the Convention if he can make out his claim to persecution in Ethiopia and his claim should be considered by the respondent. The substantive issue is of course not before me. Do I have the power to set the decision aside? Under section 19(1)(a)(i) of the Immigration Act 1971 an adjudicator shall allow an appeal which is not in accordance with the law and under subsection (3) shall give directions to give effect to the determination. The appeal is allowed, the decision to refuse to consider the appellant's application for asylum is set aside and I direct the appellant be given leave to remain for three months to enable the Secretary of State to consider the appellant's application for asylum in accordance with the law." Before the Tribunal Mr Clayton produced a copy of the respondent's travel document. This is completed in Arabic but there are notations of it in English, indicating a stamp showing the respondent's father's sponsorship for Saudi Arabia and the residence permit for Saudi Arabia valid until 26 January 1992. Mr Clayton said he challenged the adjudicator's determination in three ways: (i) on the evidence the Secretary of State was justified in making removal directions for the respondent to be returned to Saudi Arabia; (ii) in any event the adjudicator should not have directed the granting of leave to remain, or indeed any leave; (iii) the adjudicator should have made an express finding as to the ground of refusal of entry going to the obtaining of the entry clearance. As to (ii), Miss Lieven agreed that it was not within the adjudicator's power to direct leave to remain for indeed the respondent had no leave to enter. Further, as we understood Miss Lieven, ultimately she agreed that the adjudicator had no power to direct leave to enter for that was the very issue before him, and is before us. As to (iii), Miss Lieven pointed out that in his determination the adjudicator had commented that it was not argued before him that the respondent had not been refused leave to enter. However, she did not oppose the Tribunal making an express declaration as to the obtaining of entry clearance by a false representation. In the circumstances of the case the respondent had an appeal to an adjudicator in relation to both grounds of appeal. The central feature of the case is in substance whether the Secretary of State was justified in failing to consider the application for asylum, and it is common ground that if we are of the view that that should be considered then the application would be outstanding. In the grounds of appeal on which leave was granted it was argued (inter alia) that the respondent could have been removed to the Sudan in the light of the respondent's travel document. As Miss Lieven said there are no extant directions specifying the Sudan and Mr Clayton said that he was not relying on that argument. Both agreed that the sole issue before us in these proceedings was whether the notice regarding the asylum application reflects a decision justified on the evidence. Miss Lieven drew our attention to two authorities, both of which were cited to the adjudicator -- R v Secretary of State ex parte Musisi  Imm AR 250 and R v Secretary for State ex parte Yassine  Imm AR 354. In Musisi the applicant had arrived in this country as a visitor from Kenya but once refused, applied for asylum as a refugee from Uganda. In support of the applicant's case to the Secretary of State his representatives had said that a Kenyan diplomatic representative had indicated that permission to re-enter Kenya for Mr Musisi was in doubt and if no permission were received he would be removed to Uganda. On the evidence before the courts the House of Lords held that the decision to maintain the directions to remove Mr Musisi to Kenya were taken on the basis of confidence in Kenya's performance of its obligations under the Refugee Convention which were, in the view of the House of Lords, misplaced. There appeared to be some kind of admission by the Secretary of State that refugees had been returned by Kenya to Uganda and as the decision of the Secretary of State appeared to have been made without taking that fact into account, it could not stand. In Yassine the applicants were Lebanese citizens who arrived in the United Kingdom from Cyprus in transit to Brazil. They had valid visitor visas for Brazil but on arrival in the United Kingdom they claimed asylum. The Secretary of State declined to consider the applications on the merits and concluded that the applicants should be admitted to Brazil. They should make their application for asylum there. Schiemann J held that under the Immigration Act 1971 the Secretary of State was obliged to be satisfied that removal directions related to a country "to which there is reason to believe that the . . . [applicant] . . . will be admitted". The Secretary of State had not expressed such a belief and there was no reason that such a belief could be held. The question was not whether the applicants should be admitted to Brazil but whether there was reason to believe that they would. Miss Lieven argued that in the present case on the evidence, particularly of the letter of the UNHCR and the occurrence of the Gulf War, it could not be said that the respondent would be admitted to Saudi Arabia or indeed if he was that he would not then be returned to Ethiopia. In contending that the Secretary of State's decision was justified, Mr Clayton pointed to the then validity of the re-entry visa, the long-term residence of the respondent in Saudi Arabia and the sponsorship by the respondent's father of the respondent's residence there. Mr Clayton sought to distinguish Musisi on the basis that in that case the applicant had no re-entry visa to Kenya, and in this case there was no evidence that Saudi Arabia would send the respondent back to Ethiopia. This was not a hurdle which the Secretary of State had thought necessary to approach. Mr Clayton could make no comment to a question by the Tribunal as to whether any enquiry had been made of any Saudi Arabian representative as to what would happen if the respondent were sent back there. Conclusions We see this as an appeal under section 13(1) of the Immigration Act 1971 against the refusal of leave to enter. That refusal was based on two grounds. There is no contest that the ground which relates to the effectiveness of the visa was both justified and is to be sustained. It follows that any appeal against that ground of refusal must be dismissed. The second ground of refusal is set out in the notice attached to the notice of refusal. As we said to Mr Clayton, it could clarify matters if both grounds of refusal were set out in the notice of refusal. Be that as it may, the substantive ground of refusal was that the application for asylum would not be considered for the reasons set out in the notice attached to the notice of refusal. It is common ground that a return of a person to a country with regard to which there is a risk of return to another country in which he would be persecuted would be contrary to the obligation imposed by Article 33 of the of the Convention relating to the status of refugees. As Lord Bridge said in Musisi, this would simply be to effect indirectly what would otherwise be done directly. The question of the risk of return is, as again is common ground, one of degree. In Musisi Lord Bridge set out the task of the courts in this area, pointing out that between the extremes of certainty of return and certainty of non-return to a country of persecution by a third country there may be varying degrees of danger that removal to a third country of a person claiming refugee status will result in his return to the country where he fears persecution. Lord Bridge continued: ". . . If there is some evidence of such a danger, it must be for the Secretary of State to decide as a matter of degree the question whether the danger is sufficiently substantial to involve a potential breach of article 33 of the Convention. If the Secretary of State has asked himself that question and answered it negatively in the light of all relevant evidence, the court cannot interfere." The task of the appellate authorities differs from that of the courts, in that we must ask ourselves not only whether the Secretary of State has addressed his mind to the question of whether the danger was sufficiently substantial but whether, in our view, the Secretary has correctly assessed the risk or danger that an applicant may be sent to the country of persecution by the third country. In contrast to the case of Yassine it would seem that in this case the Secretary of State did declare that he was satisfied that the respondent would be readmitted to Saudi Arabia and further, that he would not be further removed from Saudi Arabia to Ethopia. The question is whether on the evidence that decision is justified. In our opinion, on the evidence, the decision has not been justified. We cannot ignore the fact that as the applicant himself said that the Gulf War may well have had a radical effect on Saudi Arabian policies in regard to non-Saudi Arabian nationals. There is no evidence of any attempt by the Secretary of State to enquire as to that policy. Further, there is the strongly worded letter from the UNHCR which points out that Saudi Arabia is not a party to the Refugee Convention and has not enacted legislation regarding asylum. We appreciate that, as Mr Clayton said, on the face of the evidence the respondent had lived in Saudi Arabia for a considerable time and at the date of decision had a re-entry visa. However this is one side of a coin, the other side of which is reflected by the two matters of the possible effect of circumstances following the Gulf War and the view of the UNHCR. These two matters do not seem to have been given any weight or indeed been taken into account. We agree with the adjudicator that, on the evidence before us, it would be in breach of the United Kingdom obligations under article 33 to send the respondent back to Saudi Arabia without consideration of his application for asylum. We do not say that upon further enquiry such a decision could not be justified -- simply that without such enquiry the evidence demonstrates the degree of risk which creates the breach. As we have said, Miss Lieven found it difficult to support the adjudicator's direction that leave be granted. In our opinion the adjudicator had no jurisdiction to give such a direction when the merits of an application for leave to enter have not been considered. Summary 1. Insofar as the appeal by the appellant to the adjudicator as to the ineffectiveness of the Visa is concerned and insofar as the adjudicator did not expressly declare that it was dismissed, the immigration officer's appeal to us is allowed. As a consequence we declare that the refusal of leave to enter flowing from this ineffectiveness was justified. 2. Insofar as the asylum issue was concerned the appeal by the immigration Officer or Secretary of State is dismissed, in that we find that the refusal of leave to enter on the ground that the asylum application was not to be considered was not on the evidence justified. 3. The appeal to us is allowed insofar as we set aside the direction by the adjudicator that the respondent should be granted leave. As a consequence the respondent's application for asylum remains before the Secretary of State and it is for him to decide how that should be addressed. The possibility of removal to a safe third country remains open for consideration.
DISPOSITION: Appeal allowed in part
SOLICITORS: Solicitor for the respondent: Jane Coker & Co, London
Copyright notice: Crown Copyright