Jinnah Rahman v. Secretary of State for the Home Department

Jinnah Rahman v Secretary of State for the Home Department TH/30204/87(6314)

Immigration Appeal Tribunal

[1989] Imm AR 325

Hearing Date: 16 December 1988

16 December 1988

Index Terms:

Political asylum -- transfer of refugee status -- appellant granted refugee status in the Netherlands -- application for transfer of that status to United Kingdom -- refusal by Secretary of State -- whether that refusal, an exercise of discretion outside the rules, was reviewable by the immigration appellate authorities -- whether the Secretary of State should have exercised his discretion differently. Immigration Act 1971 s 19: United Nations Convention relating to the status of refugees 1951 a 34: European Agreement on transfer of responsibility for refugees, (Cmnd 8127 of 1980) a 2, 3.

Held:

The appellant was a citizen of Guyana. He secured refugee status in the Netherlands in 1984. In 1985 he applied for the transfer of that status to the United Kingdom. The application was based on a number of humanitarian grounds, the appellant conceding that he was in no danger in the Netherlands. An appeal to an adjudicator was dismissed on the merits, but the adjudicator also expressed the view that he had no jurisdiction to determine the appeal on Wednesbury principles. The Tribunal set out in detail its view of the ambit of the jurisdiction of the appellate authorities: it proceeded to review the exercise of discretion by the Secretary of State. Held 1. The exercise of discretion by the Secretary of State had not involved departure from any immigration rule: the case fell therefore within s 19(1)(a)(ii) of the 1971 Act, not within s 19(2). 2. The jurisdiction of the appellate authorities extended to determining whether a decision had been fair. 3. If the Secretary of State has failed to exercise a discretion in cases where he should have done, it was preferable for a case to be remitted to him for him to exercise that discretion. 4. Where the Secretary of State had exercised a discretion but had failed to take into account a relevant circumstance, the appellate authorities were empowered to review that discretion in the light of all relevant circumstances. 5. The Secretary of State had failed to take into account, in exercising his discretion, "the United Kingdom's international obligations and expressed concern regarding refugees'. 6. The European Agreement on the transfer of responsibility for refugees was a matter that should have been taken into account in the exercise of discretion. 7. That agreement had 'as its primary aim the avoidance of difficulties for refugees who are factually resident in one state but have refugee status in another'. 8. Taking all the factors into consideration, the appellant had not established a case for the transfer of his refugee status.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352. R v Immigration Appeal Tribunal ex parte El Hassanin [1986] Imm AR 502. Surendra Chundawadra v Immigration Appeal Tribunal [1988] Imm AR 161. Nadeem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98. Mohammad Khan (unreported) (4875).

Counsel:

R Scannell for the appellant; A Cunningham for the respondent PANEL: Professor DC Jackson (Vice-President), Miss MF Applebey CBE JP, IP Allnutt Esq OBE

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Guyana, appeals against a decision of an adjudicator (Mr JR Bright) dismissing his appeal against the refusal to recognise the transfer of his status as a refugee from the Netherlands to this country. This appears to be a case of first impression concerning the transfer of refugee status. The facts are not in dispute and the issues before us concern first, jurisdiction and secondly, the exercise of discretion. The background facts The appellant, who was born on 10 September 1949 is a citizen of Guyana. He was recognised as a refugee in Holland in May 1984. On 25 June 1984 on application on arrival in this country he was granted 'visit' leave until 5 July 1984. He embarked on 7 July 1984 and returned on 28 July 1984 when he was granted leave to enter for 12 months as a student. He subsequently embarked and returned to the United Kingdom on 23 June 1985 when he was given leave to enter for 3 months. On later production of evidence of studies he was granted further leave to remain until 23 August 1986. There are on file refusal notices which relate to applications for asylum but the issue before us, as it was before the adjudicator, concerns the application for the transfer of refugee status rather than its initial granting in this country. The notice of refusal in relation to that application reads: "You have applied for your refugee status to be transferred from Holland, but there is no provision in the Immigration Rules to consider such an application". The explanatory statement (dated 10 April 1987) sets out the appellant's immigration history from his first arrival in the United Kingdom on 25 June 1984. It appears that on that occasion the appellant summarised his background to the Immigration Officer. In Guyana he had been the General Secretary of the Guyana Farmers Union. In 1980 or thereabouts, whilst on holiday he learnt that he and five colleagues were being sought for Treason and he therefore left Guyana for surinam. He remained hidden there until 1982 when he was able to apply for political asylum in Holland. He said that the Dutch authorities had provided him with a travel document with another identity to enable him to travel to Holland and had processed his application for asylum whilst he was in Surinam. Annexed to the explanatory statement were two letters from the appellant (dated 27 November 1985 and 29 January 1986) setting out his case for transfer of refugee status and a copy of the report of the interview held in respect of the application. The contents of these documents were summarised in the explanatory statement which concludes: "13. The Secretary of State considered the application of 27 November 1985. The appellant had requested the transfer of his refugee status from Holland to the United Kingdom. He had stated at his interview on 3 April 1986 that he had nothing to fear in Holland and that his application was based solely on humanitarian grounds. He had no relatives in Holland where there was only a small Guyanese Community. Whereas in the United Kingdom the Guyanese population was much larger and he had a number of distant relatives here. He had also stated that his prospects for employment in the United Kingdom would be better. However the Immigration Rules make no provision for the transfer of refugee status from another country to the United Kingdom. The Secretary of State therefore refused the application on 3 December 1986. 14. Notice of appeal against this decision was lodged by the appellant on 11 December 1986. The Secretary of State has considered the grounds of appeal but can find no reason to reverse his decision". The appellant's case as set out in his letters is based on "humanitarian grounds". These are in sum: a Language -- familiarity with the English language and lack of familiarity with the Dutch language, this matter being particularly important because of his line of work and training -- journalism. b Family Relations -- many relations in the United Kingdom but none in Holland. c Guyanese Community -- in the United Kingdom there are many but in Holland there are few, leading to feelings of isolation. d Tradition and Culture -- Guyana has a special relationship with the United Kingdom, but no relationship with Holland. e Prospects for Work -- the appellant stating that (in 1985) he was well advanced in his training course at the London School of Journalism and that there were good prospects for employment on one of the Caribbean newspapers in London. There were no such outlets in Holland. The interview report set out in some detail the events leading to Mr Rahman's flight from Guyana and his stay in Surinam. It is recorded that the appellant sought asylum in Trinidad, Grenada and Barbados, but all applications were rejected on the ground that they were unable to accept applications for refugee status from persons emigrating from states of the Caribbean Economic Community. In the interview, Mr Rahman stated that it was his wish to return to Guyana as soon as possible. Mr Scannell also represented the appellant before the adjudicator. He called no oral evidence but produced to the adjudicator a copy of the Minutes called no oral evidence but produced to the adjudicator a copy of the Minutes nutes of evidence; UK Representative of the United Nations High Commission for refugees: 410-ix: London, 1980.) of 6 July 1978, consisting of a memorandum on refugees in Europe submitted by the representative in the United Kingdom of the United Nations High Commissioner for Refugees. This referred to the work of the Council of Europe in developing and codifying the rights of refugees and to a European Agreement on the Abolition of Visas for Refugees entered into in 1959. The memorandum also drew attention to consultations by the Committee of Ministers following recommendations of the Parliamentary Assembly of the Council of Europe concerning the most appropriate means for harmonising the recognition of refugees among Member States. These consultations led to the European Agreement on Transfer of Responsibility for Refugees which was opened for signature on 16 October 1980. That Agreement and an Explanatory Report are contained in Cmnd 8127. This does not appear to have been before the adjudicator but was before us. As will be seen it forms a central feature of our considerations. The memorandum submitted to the Select Committee and produced to the adjudicator also referred to a Declaration adopted on 25 March 1964 by the Council of Ministers of the European Economic Community, reading: "that the entry to their territories for the purpose of engaging in a paid activity there, of refugees recognised as such within the meaning of the Convention of 1951 and established in the territory of another Member State of the Community should be examined with particular favour, particularly so as to afford to such refugees within their territories the most favourable treatment possible". The adjudicator's determination was promulgated on 30 September 1987. The main thrust of the case made before us and before the adjudicator was that the Secretary of State had failed to take into account all relevant considerations -- in particular the spirit of the Declaration set out above and the principle of assimilation of refugees into the "host" country expressed in the Refugee Convention. However, it is apparent that the case had a somewhat different focus before the adjudicator than that before us. Mr Scannell appears there to have based his case largely upon inferences to be drawn from the membership of the United Kingdom and the Netherlands of the European Economic Community. The adjudicator's determination, while referring to the argument on the merits, deals largely with jurisdictional questions. The adjudicator expressed the view that he had no jurisdiction to determine an appeal on "Wednesbury" principles -- which, as he said Mr Scannell was asking him to do. In the adjudicator's view if, in his opinion, the Secretary of State had not given his attention to all relevant factors in a decision the matter should be remitted to the Secretary of State. The adjudicator should neither substitute his own discretion for that of the Secretary of State nor allow the appeal on the basis of the failure to consider all relevant matters. To allow such an appeal, in the adjudicator's view, would be to usurp the judicial review jurisdiction of the High Court. The adjudicator was of the opinion that the duty to allow an appeal, if not "in accordance with the law" (Immigration Act section 19(1) did not "embrace judicial review which is a matter exclusively within the purview of the High Court." Mr Scannell in arguing that the adjudicator did have jurisdiction on Wednesbury grounds, relied on the judgment of Lord Bridge in R v IAT ex parte Bakhtaur Singh [1986] Imm AR 352. The adjudicator thought that this judgment was not authority for giving "Wednesbury" jurisdiction to the appellate authorities. The adjudicator made the final point that Bakhtaur singh was concerned with matters within the rules and there was no warrant for taking it as applying to cases outwith the rules. The adjudicator concluded that: ". . . Having found Mr Scannell's inventive argument entirely flawed I consider only that the decision was patently in accordance with the rules, that I cannot substitute my discretion for that of the Secretary of State and that by virtue of Section 19(2) I am prohibited from reviewing any discretion outside the rules. I find the decision of the Secretary of State was fully justified and entirely in accordance with the law and rules relating to immigration". The appellant was granted leave to appeal to the Tribunal on 4 December 1987. Subsequent to this, the case was adjourned on a number of occasions to allow the Home Office the opportunity for further consideration of it. Following such consideration a supplementary explanatory statement was produced. This statement concentrated on the relevance of the European Agreement on Transfer of Responsibility for Refugees 1980 (Cmnd 8127) to which we have already referred. In effect the statement set out the provisions of the Agreement as grounds (or further grounds) for the refusal of the application for transfer of responsibility. The case before the Tribunal The issues before the Tribunal were: i Was there jurisdiction in the appellate authorities to hear the appeal and did this depend upon whether there was any immigration rule applicable to the appellant's case? ii If the matter called for the exercise of discretion, did the Secretary of State exercise a discretion? iii (a) If the matter called for a discretion and the Secretary of State did not exercise it, was it open to the Tribunal to exercise it? (b) If the matter called for discretion and the Secretary of State had exercised it, but had not considered any relevant circumstance, was it open to the Tribunal to consider such a circumstance -- in particular (but not exclusively), the European Agreement on the Transfer of Responsibility for Refugees? iv If discretion is relevant, should it be exercised in favour of the appellant (and in considering this, should the European Agreement be taken into account)? Jurisdiction to hear the appeal Mr Cunningham took a rather different line to that taken on behalf of the Home Office before the adjudicator. He said as this case involved the transfer of refugee status, there was no immigration rule applicable to it. Indeed, this reflected the terms of the notice of refusal. Mr Cunningham further agreed that as there was no rule applicable, the appellate authorities had jurisdiction by virtue of sections 19 and 20 of the Immigration Act 1971. The case involves the exercise of a discretion by the Secretary of State and therefore falls within section 19(1)(a)(ii). As Mr Cunningham said, it is not excluded by section 19(2) as that excludes a decision outside the rules only insofar as that decision can be interpreted as a refusal to depart from the rule. As it is common ground that there is no rule applicable to this case, this exclusion does not apply. We should just add a word in the light of the adjudicator's determination on the issue of jurisdiction. With great respect, the adjudicator seems to us to confuse the question of remedy and right. In asserting any "Wednesbury" jurisdiction, the appellate authorities are not and cannot seek to usurp the judicial review jurisdiction of the High Court. That jurisdiction is supervisory and goes to the issue of prerogative orders. However, the ground on which a Court may issue an order clearly forms part of the "law" of England. If, for example, a decision of an Entry Clearance Officer or Immigration Officer can be quashed because it is unfair, it seems to us that to be "in accordance with the law" such a decision must be fair. The distinction between the grounds for an order of judicial review and the order itself is exemplified through the working of the doctrines of legitimate expectation and estoppel. These are grounds for an order for judicial review but this does not mean to say that they cannot be taken into account by the appellate authorities. There is no suggestion in cases before the High Court concerned with these doctrines that they are not matters for proper consideration by an adjudicator or by the Tribunal (see eg R v IAT ex parte Chundawadra [1988] Imm AR 161). Thirdly, there seems every reason in principle why an appeal from the Secretary of State's decision to the appellate authorities should encompass all matters relevant to that decision (see for a discussion of the authorities Mohammad Khan (4875)). In our view, the wording of the statute is plain and unambiguous. The plain meaning of the words "in accordance with the law" coincides with the purpose of ensuring that the appellate system encompasses all issues in a case -- always and at all stages subject to judicial review. The jurisdiction of the appellate authorities is wider than that of the High Court, in that in reviewing the administrative decisions of the Secretary of State it has (as is conceded in this case) within the ambit of section 19 a jurisdiction to consider the merits of the exercise of any discretion. It follows that where an allegation of unfairness, irregularity or (as in this case) failure to consider relevant circumstances is made in relation to a decision by the Secretary of State, in most cases this can be cured on appeal through a consideration of the merits. It will only be in rare cases that the question of remittal for further or renewed consideration will arise. We therefore disagree with the adjudicator that where in the view of an adjudicator, the Secretary of State has not considered all relevant circumstances but has exercised his discretion, an adjudicator should remit the case for further consideration. In our view, that is clearly wrong and the function of the appellate authority is to review the discretion exercised (see further page 334). Where the matter is one of discretion and the Secretary of State has not exercised that discretion, in those circumstances it is probable that the proper course is for the appellate authority to indicate that that discretion should be exercised. The appeal should therefore be allowed either with a direction that the matter is remitted to the Secretary of State or (probably preferably) with a declaration that as a consequence, the application remains outstanding. In this way, the appellate authority is performing its jurisdiction under section 19 by applying the substantive principles of law which have been established by the courts and providing those remedies which are within its jurisdiction. We see support for this view in Badktaur Singh. In that case, Lord Bridge stated that a decision failing to take a relevant circumstance into account would be "open to challenge by judicial review and consequently be open . . . to appeal under section 19(1) as being "not in accordance with the law" quite apart from the immigration rules". Nothing could be more clear. We also disagree with the adjudicator that the guidance in Bakhtaur Singh is limited to decisions within the rules. The decision in Bakhtaur Singh refers to the construction of section 19(1) of the Immigration Act 1971. The meaning of "law" in that provision cannot vary according to whether the matter before the appellate authority is concerned with the construction of the rules, the exercise of discretion under the rules or the exercise of discretion outside the rules. In this case, we are concerned with the exercise of discretion outside the rules and it is common ground that we have jurisdiction to review that discretion. The question now is whether any discretion has been exercised so as to allow us to review that exercise. Was discretion exercised by the Secretary of State? Mr Cunningham contended that it appeared from the explanatory statement that discretion was exercised even though the notice of refusal was couched simply in terms of the non-applicability of any immigration rule. We accept that much of the explanatory statement would be otiose if the Secretary of State had reached his decision simply on the grounds that the appellant had refugee status in Holland, was applying to transfer it to the United Kingdom and that the refusal was solely on the grounds that there was no rule to permit this to be done. Secondly, if there is no rule applicable to a particular application, the application of necessity must be considered by the Secretary of State in the exercise of his discretion outside the rules. It would therefore seem to follow that a refusal on the basis that there is no rule applicable necessarily means that the Secretary of State is not prepared to exercise his discretion outside the rules. In our view, therefore, the Secretary of State must be taken to have exercised the discretion which he has outside the rules in reaching the decision of 3 December 1986. This means that in the terms of the issues cited above it is (iii)(b) rather than (iii)(a) which is relevant ie the extent to which in reviewing the discretion we may take into account matters not considered by the Secretary of State. Scope of the review of the discretion It is common ground in reaching the decision of 1 December 1986 the Secretary of State did not consider the European Agreement on the Transfer of Responsibility for Refugees. Nor, it would appear, did the Secretary of State refer to the Convention on the Status of Refugees or the Declaration of the Council of EEC Ministers of 1964. So it may be argued that the appellant's application was not considered in the context of the United Kingdom's international obligation and expressed concern regarding refugees. The European Agreement as a factor As we have said, that consideration of the European Agreement took place subsequently and the Home Office view is set out in the supplementary statement dated 4 November 1988. Mr Scannell argued that we should not take this Agreement into account for, in doing so we would not be reviewing the discretion which was actually exercised. In any event, if we did take into account the weight given should be minimal on the basis that it would not be fair to give it further weight when no attention had been paid to it initially in reaching the decision under review. Mr Cunningham contended that there is no question but that the European Agreement is a circumstance relevant to the exercise of a discretion on whether the appellant's status should be transferred. It was clear from the supplementary statement that once the Home Office attention had been drawn to the European Agreement, it was considered relevant to the type of issue which was before us. On the basis of consistency and fairness as between different applicants, it should be considered in this case. The European Agreement is a treaty which is in force and to which Holland and the United Kingdom are parties. Holland ratified the European Agreement on 7 March 1985 and the United Kingdom on 1 October 1986. It must be stressed that in this case the application for transfer of refugee status is from one of the countries who are parties to the European Agreement. The European Agreement is not part of English law in the sense that it has not been enacted into English law. A preliminary question is therefore whether either the Secretary of State or the appellate authorities is entitled to look at it and secondly, if entitled, whether it should be taken into account. In R v Secretary of State ex parte Chundawadra [1988] Imm AR 161 the Court of Appeal considered whether in a deportation case based on section 3(5)(b) of the Immigration Act 1971 the Tribunal should have taken into account the European Convention on Human Rights. Following earlier authorities the Court agreed with Taylor J at first instance when he said: ". . . the extent to which the Convention is relevant or may be used is to assist in interpreting our statute law if there is ambiguity or doubt. What it certainly cannot do is override or replace or provide a test under our legislation where our legislation is perfectly clear. I may say, there is no suggestion in this case that section 3 of the Immigration Act or the rules made thereunder are in any way obscured by ambiguity or doubt". The Court held that neither the statutory provision nor the immigration rules applicable to the issue of deportation conducive to the public good was ambiguous. As a result, neither the Secretary of State nor the Immigration Appeal Tribunal had power to refer to the Convention. We agree with Mr Cunningham that the Court of Appeal in that case were considering the propriety of referral to a Convention not enacted into English law when faced with statutory provisions or provisions of the immigration rules dealing with the same matter. In this case, as Mr Cunningham said, we are looking at the exercise of the discretion of the Secretary of State outside the rules. In that context the Secretary of State is, in our view, entitled to take into account a European Agreement to which the United Kingdom is a party, reached for the specific purpose of dealing with the vexed question of the Transfer of Responsibility for Refugees. Indeed, Mr Scannell's case in part was that the Secretary of State had ignored EEC obligations stemming from the membership of the Community. The memorandum on refugees produced to the adjudicator refers both to the negotiations leading eventually to the European Agreement now at issue and to the Declaration by the Council of Ministers of the EEC. It would seem to us rather difficult to contend that we should have regard to the spirit of the EEC but not to that of the Council of Europe. This is particularly so as many signatories of the European Agreement are also members of the EEC and that under the auspices of the Council of Europe the declarations of intent have resulted in a positive agreement. Further the declaration by the EEC authorities does not go directly to the question of transfer of responsibility with which we are concerned whereas the European Agreement deals specifically with the point at issue. In our view, therefore, the European Agreement is a matter to which the Secretary of State was entitled to give consideration in the exercise of his executive discretion. Further, in our view, in this context, it is a matter which together with other international aspects ought to be taken into account where the application for transfer to the United Kingdom is from a country which is a party to the European Agreement. This leads on to the question as to whether it is open to the Tribunal to consider the European Agreement when the Secretary of State did not consider it in the initial exercise of the discretion. Mr Cunningham drew our attention to R v IAT ex parte El Hassanin [1986] Imm AR 502. That case was concerned with the questions as to whether the immigration rules restricted the power of the appellate authorities to consider matters not known to the Secretary of State in deportation proceedings. In holding that they did not, Lord Donaldson referred to section 19(1) of the Immigration Act 1971. Lord Donaldson said that in his view, the duty of an appellate authority to allow an appeal if, in its view, the Secretary of State should have exercised his discretion differently included a scenario in which that conclusion was reached on the basis of circumstances not known to the Secretary of State. Mr Cunningham said the European Agreement was undoubtedly a relevant circumstance. Mr Scannell sought to distinguish the question of compassionate circumstances in deportation proceedings (which was the issue of El Hassanin) from the consideration of an agreement said by the Secretary of State to form guidance for his department. Although the matter not known to the Secretary of State in this case is different in kind to that under consideration in El Hassanin, it seems to us that the principle is identical. If the Secretary of State, through misdirection as to law, posed the wrong issue to himself then it may well be that the Tribunal should not exercise its own discretion. In those circumstances, the appeal should be allowed and the matter should again be considered by the Secretary of State in the light of the law as declared by the Tribunal. However, in this case, at most the European Agreement is a factor to be taken into account in the exercise of the executive discretion to be exercised outside the rules. In that context, the European Agreement, not being part of English law, remains a matter of guidance and is not to be treated as determinative. That being so, in our view, the failure of the Secretary of State to consider it does not mean that as a matter of law the wrong issue has been posed, but it means simply that a factor relevant to the exercise of the discretion was not considered at the time of that exercise. It is therefore a matter which we can consider. We are fortified in this view by the recent decision of the Court of Appeal in Nadeem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98. That decision again was concerned with deportation proceedings and with a challenge to the approach taken by the Immigration Appeal Tribunal which upheld the decision to make the deportation order on grounds different to that relied on by the Secretary of State. The Court of Appeal held that the Tribunal was entitled to take this course under the power to decide whether the discretion involved in the decision under appeal should have been exercised differently. In our view, therefore, the European Agreement is a matter which, together with other relevant circumstances, we could and should consider as a factor in the exercise of discretion. The substantive issue We have set out above the background facts to the application and the grounds of the appellant's case as it was made to the Secretary of State. Mr Scannell adopted those grounds before us and they are obviously points relevant to the exercise of the discretion. Mr Cunningham contended that the appellant's case in essence, amounted to an expression of preference of the United Kingdom over Holland. Mr Scannell argued that it was more than preference and that it was based on the appellant's wish to be able to make his life in a culture which was not alien to him. This wish was consistent with International Agreements on refugees in that the purpose of these Agreements was to assimilate a refugee as far as possible in the national life of the country in which refugee status was attained. Mr Scannell referred us to Article 34 of the Convention relating to the Status of Refugees which reads: "Article 34 The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings". Mr Scannell added that one of the main purposes of the application for transfer was the greater ability to engage in employment. Once the appellant was naturalized in Holland he would have a right to work in this country. We accept Mr Scannell's contentions that the question of transfer of responsibility should be approached in the broad context of the purpose of the Refugee Convention. This means on the one hand that a person who has achieved refugee status in one country has no grounds for claiming such a status in another on the grounds that he would be returned to a country in which he would be persecuted. On the other hand, as Mr Scannell said, the philosophy of the Refugee Convention is to assimilate refugees in the country to which they have by necessity had to go. We must bear in mind that refugee status is not necessarily a permanent status and that events in the appellant's own country may allow his return. We accept Mr Cunningham's argument that transfer of responsibility cannot be based on the mere preference for living in one country or another. More must be shown. In this case we think that more than preference is shown and bearing in mind the uncontested evidence of the appellant as to the need for his flight from Guyana, as to his applications to various Commonwealth countries for refugee status, his background in language and culture and his present intentions as to employment, there is certainly an arguable case for the exercise of a discretion in his favour. However we must set the case for the appellant into the context of the European Agreement and the Declaration of the Council of Ministers of the EEC. The European Agreement has as its primary aim the avoidance of difficulties for refugees who are factually resident in one State but have refugee status in another. These difficulties, it seems, stem from a doubt as to which State has the responsibility for the issue of travel documents. The philosophy of the European Agreement seems to us to be that where a person has been granted refugee status in one State and moves with the consent of a second State to that second State, at some point of time there should be a transfer of responsibility for that refugee. The underlying principle is therefore, one of at least implied acceptance by the second State because of allowing that person to remain in the territory. In this regard, article 2 of the European Agreement provides. "Article 2 1 Responsibility shall be considered to be transferred on the expiry of a period of two years of actual and continuous stay in the second State with the agreement of its authorities or earlier if the second State has permitted the refugee to remain in its territory either on a permanent basis or for a period exceeding the validity of the travel document. This period of two years shall run from the date of admission of the refugee to the territory of the second State or, if such a date cannot be established, from the date on which he presents himself to the authorities of the second State. 2 For the calculation of the period specified in paragraph 1 of this Article: (a) stays authorised solely for the purpose of studies, training or medical care shall not be taken into account; (b) periods of imprisonment of the refugee in connection with a criminal conviction shall not be taken into account; (c) periods during which the refugee is allowed to remain in the territory of the second State pending an appeal against a decision of refusal of residence or of removal from the territory shall only be taken into account if the decision on the appeal if favourable to the refugee; (d) periods during which the refugee leaves on a temporary basis the territory of the second State for not more than three consecutive months or, on more than one occasion, for not more than six months in total, shall be taken into account, such absences not being deemed to interrupt or suspend the stay. 3 Responsibility shall also be deemed to be transferred if readmission of the refugee to the first State can no longer be requested under Article 4". It is not contended in this case that at the date of the decision the appellant had remained in the United Kingdom for a period exceeding the validity of his travel document. It is explained in the explanatory memorandum to the European Agreement that visits are not included in article 2 because of their normal short duration. In the present case, if we were to look at the appellant's stay in this country in the most favourable light to him, his periods of stay started on 25 June 1984. After a brief visit period he was then granted student leave from 28 July 1984 for 12 months which was later extended until 23 August 1986. It would appear that for the whole of that time the appellant was a student and he was still a student when on 27 November 1985 he applied for transfer of his refugee status. By 3 December 1986 therefore, the appellant could not possibly be said to have qualified in accordance with Article 2 for transfer of responsibility. Since 3 December 1986 the appellant has been involved in the appeal process but, in our view, the appellant's "appeal" period is not a qualifying time within Article 2 of the European Agreement. As we think both Mr Scannell and Mr Cunningham agreed, for Article 2.2(c) to make sense it must refer to appeals based on claims to residence other than that of the transfer of responsibility. As we have said, the European Agreement envisages transfer on the basis of permitted residence in the second State. The grounds of that residence clearly must be separate from the question of transfer and may, in accordance with the immigration structure of the particular State, be any ground apart from those excluded by Article 2.2. In this case, since his leave expired on 31 December 1986 the appellant has made no claim to remain in this country save on the basis of the transfer of responsibility of his refugee status. In the supplementary statement, the Home Office took as a qualifying period for the European Agreement, the time between the application for transfer of responsibility and the date of decision. That is certainly an arguable proposition and expresses the case for the appellant at its highest. However it is also, in our view, arguable that during most or all of that period the appellant's residence in this country was as a student. It would not have been in the appellant's interest that his student leave should be curtailed while his application for transfer of refugee status was considered. Another factor which we must bear in mind is the Declaration of the Council of Ministers of the EEC which we have set out above and on which Mr Scannell relied before the adjudicator and before us. In our view, however, the Declaration does not go directly to the transfer of responsibility of refugees status. It does go to the question of allowing a person recognised as a refugee in one EEC Member State into another Member State for the purpose of engaging in a paid activity. While a transfer of responsibility would be one way in which such a policy could be implemented, it is by no means the only effective way in which this could be done. Indeed the Declaration seems to imply the retention of refugee status in one country but the recognition in another of the ability to work. We therefore set the appellant's case in the context of the Refugee Convention, the Declaration of the Ministers of the EEC and the European Agreement. While the Convention imposes a duty of assimilation this, in our view, is essentially in the context of initial granting of refugee status. It cannot be seen as imposing a duty on a party to accede to the transfer of a refugee who, by very definition, is no longer at risk. We accept, however, that in considering whether to allow a refugee to remain with transfer in mind the case for assimilation is a relevant factor. We do not think that the Declaration carries the appellant's case very much further for, as we have said, it seems to us that as a factor in the exercise of discretion to transfer responsibility for refugee status it does not carry much weight. This is particularly so when the Declaration is set alongside the European Agreement. It may well be that a person recognised as a refugee in another state would be permitted to work in the United Kingdom. The question of transfer of responsibility of status would then understandably arise once the United Kingdom had permitted the refugee to remain in this country for the period of time specified in the European Agreement. We treat the European Agreement as an important factor. It does seem to us that there is a need for uniformity and consistency and that a decision as to transfer of responsibility must be taken in the light of the fact that a refugee is no longer in danger of being persecuted. The immediate and urgent problems of the "refugee" have been resolved. It seems to us eminently understandable that a refugee seeking to transfer the responsibility for his status to a second State should be able so to do only once that State has, as it were, agreed to let the refugee remain in its territory with full knowledge of the status. The length and purpose of the residence provide sensible guidelines for transfer of the responsibility for that status. We have not treated the European Agreement, however, as determinative of the decision but as being a strong factor in it. We note that the European Agreement itself provides (in article 8.2) that a State may agree to transfer even if the applicant does not comply with the conditions specified by the European Agreement. As we have said, the underlying principle of the European Agreement is that transfer of responsibility should be based on acceptance in one State of a person granted refugee status in another through allowing that person to reside in its territory for a purpose other than one specified in article 2.2. In effect the appellant's case is the converse for he seeks transfer without any residential qualification on the basis that such residence will allow him the better to achieve the employment he wishes and the kind of life he seeks. The spirit of the European Agreement seems to us to require the applicant to seek residence in this country on a ground other than transfer and then after the required period apply for transfer. The Secretary of State could consider a request for residence in the exercise of discretion -- just as he considered the application at issue. Alternatively the appellant could seek admission on a ground recognised under the rules and were this to be granted, apply for the transfer of refugee status after the specified period of residence. Bearing in mind the nature of the refugee problem, the need to be fair and consistent and the importance of a uniform approach to transfer of responsibility for refugees among States who tend to be the recipients of them, we think that in the absence of strong countervailing factors the principles of the European Agreement should control. We have considered all the factors listed by the appellant in his letters and stressed by Mr Scannell before us. We appreciate that the appellant's background fits more easily and immediately into life in the United Kingdom than in Holland, but there is no evidence that life in Holland would be one of hardship. There is no reason to think that the appellant is not of such skill that he could not use it in Holland to the mutual benefit of himself and the country in which he was granted refugee status. We do not think that the factors listed by the appellant, compassionate as they may be, are of such force as to outweigh the principles of the European Agreement. We do think that just as there is an obligation on a State granting refugee status to assimilate refugees into the society so there is a matching obligation on the refugee to seek to achieve that assimilation. We note that the appellant came to the United Kingdom very shortly after attaining refugee status in Holland and on the evidence, (such as it is) we cannot say that the authorities in Holland did not provide an opportunity for assimilation. Nor it has to be said is there any detailed evidence of the appellant's attempt to achieve such assimilation while his application was being considered. Certainly he gave himself no chance so to do once the application was granted. Particularly in the light of the European Agreement, it cannot be argued that there is any obligation internationally on the United Kingdom to accept responsibility for the appellant as a refugee. We do not think the case is so strong on compassionate or humanitarian grounds that despite the European Agreement responsibility should be accepted. To accede to a case not fitting into the structure of an Agreement ratified by the United Kingdom and the "host" country on other than strong compassionate grounds may, in our view, tend to exacerbate rather than relieve an already acute refugee problem. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

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