Radim Vlcak v. Immigration Office East Sussex and Secretary of State for the Home Department Second Respondent and United Nations High Commissioner for Refugees ad Litem

Radim VLCAK
Appellant
and
Immigration Office East Sussex
First Respondent
and
Secretary of State for the Home Department
Second Respondent
and
United Nations High Commissioner for Refugees
ad Litem

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993

Before:
Mr J.M. Timmons
Special Adjudicator
at HATTON CROSS

REASONS AND DETERMINATIONS

The appellant was born on 13th September 1967 and is a citizen of the Czech Republic.

This appeal is against the respondent's decision of 15th November 1993, refusing the appellant asylum in the United Kingdom. The appellant was represented at the hearing before me on 21st December 1993 by Miss D. Winterbourne of the Refugee Legal Centre. She called one witness namely the appellant. I found him to be a credible witness, and I accepted his evidence. The respondent was represented by Mr J. Sandy, Home Office Presenting Officer.

The United Kingdom Representative of the United Nations High Commissioner for Refugees indicated that he wanted to be treated as a party to the appeal and he submitted certain written representations contained in the letter dated 16th December 1993. On page 1 of that letter it was submitted that the decision by the Home Office not to consider the substance of the appellant's asylum request and remove him from the territory was wrong in law in so far as it failed to take full account of the United Kingdom's obligations under the 1951 Convention. In view of the decision of Mr Justice Laws in the case of Mehari and others, I am unable to accept that argument. On page 2 of that same letter it was submitted that this country cannot legitimately remove the appellant to a third country, in this case Germany, unless it has duly established that Germany

(a)will admit the asylum seeker to its territory.

(b will observe the principle of non-refoulement and will generally treat the asylum seeker in accordance with accepted international standards.

(c)will consider his claim and, if appropriate, will allow him to remain as a refugee.

I accept the validity of that submission, and it is important for me to bear in mind the provisions of paragraph 180M of the Statement of Changes in Immigration Rules which provides as follows:-

180M. When an asylum applicant has come to the United Kingdom from another country which is a party to the United Nations Convention relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of this claim to refugee status. He may be removed to that country, or another country meeting the criteria of paragraph 180K, and invited to raise any new circumstances with the authorities of the country which originally considered his application.

Paragraph 180K provides as follows:

180K. If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the Government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless

(a)the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within the territory of the third country, to make contact with that country's authorities in order to seek their protection; or

(b)there is other clear evidence of his admissibility to a third country.

Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant.

In this case, the appellant left the Czech Republic in May 1990, and went to Germany where he stayed for 2 years. In Germany, he claimed asylum. That application was refused because the Czech Republic was considered a safe country. From Germany, the appellant went to Italy where he stayed for 9 months. He then went to Switzerland and stayed approximately 1 month. In Switzerland he made an application for political asylum but withdrew that application when he was told, in Geneva, that he stood a better chance of being granted political asylum in the United Kingdom. He then travelled by train from Switzerland through France to Dieppe and then travelled by sea from Dieppe to Newhaven.

The reasons for the refusal by the respondent are set out in a letter of 11th November 1993 in the following terms:-

"Dear Sir - You have applied, with your dependants named above, for asylum in the United Kingdom on the ground that you have a well-founded fear of persecution in the Czech Republic for reasons of race, religion, nationality, membership of a particular social group or political opinion.

However, the Czech Republic is not the only country to which you can be removed. You arrived from France which, on your own admission, you crossed in transit by train from Switzerland where you spent at least 3 weeks, and where you applied for asylum but subsequently withdrew your application. Previously, you had spent nearly 9 months in Italy, and, before that, more than 21/2 years in Germany, where you claimed asylum. On 1st October 1992, your application was refused, as was your appeal. You are, under paragraph 8(l)(c) of Schedule 2 of the Immigration Act 1971 returnable to Germany, and the Secretary of State is satisfied, on the information available, that you will be re-admitted there.

The Secretary of State, on the basis of his knowledge of the Immigration Policies and Practices of Germany, and on previous experience in returning passengers to Germany, has no reason to believe that in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention.

Paragraph 180M of the Immigration Rules provides that when an applicant arrives in the United Kingdom from a country which is a signatory to the 1951 United Nations Convention, he may be removed to that country, or another country which originally considered his application. The Secretary of State can find no grounds for departing from that practice in your case. Your application was refused by the German athorities and the Secretary of State takes the view that you should properly approach the German authorities with any further circumstances or consideration pertaining to your claim.

He hereby certifies that your claim to removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention.

The Secretary of State has certified that the appellant's claim is without foundation. This appeal falls therefore to be determined under the provisions set out in paragraph 5 of Schedule 2 of the Asylum and Immigration Act 1993.

The Notice of Appeal given on 25th November 1993 gave the following grounds:

"l.Mr Vlcak and dependants maintain that they have a well-founded fear of persecution for a Convention reason in the Czech Republic.

2.The appellant's claim for asylum does raise an issue as to the United Kingdom's obligations under the Convention.

3.The refusal of leave to enter, removal directions are wrong in law and are not in accordance with the immigration rules.

4.The Secretary of State should have exercised his discretion differently and should have considered the appellant's and dependants' claim to asylum substantiated in the United Kingdom".

In addition to the oral evidence the appellant produced a copy of a letter dated 6th December 1993 written to the Refugee Legal Centre by the person who acted as the lawyer for the appellant when he was in Germany. That letter is in the following terms:-

"1.There is a law in Germany that declares the Czech Republic to be a safe country. Therefore, since July 1st 1993, Czech asylum seekers are not permitted to seek political asylum in Germany.

2.Mr Vlcak has sought political asylum before this date, but his case finished by the Court in Giesen on August 31st 1993, because he had left Germany.

3.When he now comes back to Germany, he will be returned to the Czech Republic or to the country where he comes from".

In his final address to me, Mr Sandy submitted that any change of law in Germany on 1st July 1993 would not be relevant to the refusal in this case by Germany which apparently was dated 1st October 1992. However, I cannot brush aside the letter of the Germany lawyer which states that the law in Germany changed on 1st July 1993. That was before the refusal in this particular case dated 15th November 1993. The penultimate paragraph of the letter setting out the reasons for the refusal states that the Secretary of State takes the view that the appellant should approach the German authorities with any further circumstances or consideration pertaining to his claim. In other words the Secretary of State is proceeding on the assumption that the Germany authorities will consider an application for political asylum by the appellant. There is nothing to indicate that there are any further circumstances which the appellant may bring to the notice of the Germany authorities. The letter from the German lawyer states that since 1st July 1993 Czech.asylum seekers are not permitted to seek political asylum in Germany because the Czech Republic is considered by the German authorities to be a safe country. The letter states that when the appellant now goes back to Germany he will be returned to the Czech Republic or to the country from which he comes. In other words, the letter states that the German authorities would not allow the appellant to enter for the purpose for applying for political asylum. The appellant states that he has a well-founded fear of persecution in the Czech Republic. The letter from the German lawyer raises serious doubts in my mind as to whether the German authorities would admit the appellant with a view to him for applying for political asylum in Germany.

In all the circumstances, I cannot be satisfied that the Secretary of State has made good his certificate that the appellant's claim is without foundation. For these reasons, at the conclusion of the hearing of the appeal, I announced that my decision was that I now refer this case back to the Secretary of State for re-consideration, under paragraph 5(6) of Schedule 2 of the Asylum and Immigration Appeals Act 1993, and for the Secretary of State to consider the application substantively.

J.M. Timmons
Special Adjudicator


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