Alsawaf v. Secretary of State for the Home Department

ALSAWAF v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1988] Imm AR 410

Hearing Date: 26 April 1988

26 April 1988

Index Terms:

Removal directions -- deportation -- the obligations of the Secretary of State with regard to UNHCR Conclusions -- the meaning of "reason to believe that he will be admitted" in Schedule 3 of the 1971 Act -- the meaning of "consistent and fair" in HC 169 paragraph 154. Immigraton Act 1971 ss 3(2), 3(5)(a), 5(5), sch 3; United Nations Convention on the Status of Refugees 1951 (Protocol 1967), arts IA(2), 32, 33, 35: Conclusions of the Executive Committee of the Office of UNHCR, Conclusion 15(h): HC 169 paras 73, 153, 168.

Held:

Appeal from the Divisional Court. The appellant was a Palestinian by origin: he claimed to be stateless and a refugee, neither of which claims was accepted by the Home Office. He had become an overstayer in the United Kingdom and a deportation order had been signed against him. Because of his history, which is set out in the leading judgment of the court, the Secretary of State gave removal directions to Egypt. The reasonableness of those directions was challenged. Counsel asserted that the appellant was a refugee, and the respondent, for the purposes of the appeal was prepared to argue the case on the basis that he was. Counsel for the appellant submitted that the Secretary of State had an obligation to take account of the Conclusions of the Executive Committee of the Office of UNHCR: he challenged the Secretary of State's view that there were reasonable grounds for concluding that the appellant would be admitted to Egypt. Held: 1. Following in re Musisi, the UNHCR Conclusions had no binding force: approving Sivakumaran (CA) the conclusions have "no relevance to the discharge by the Minister of his function as an obligation placed upon him in that discharge". In any event it was an evidential impossibility for counsel to show that the Minister had totally failed to take them into account. 2. (Per Staughton LJ) -- the requirement of sch 3 of the 1971 Act is not that there is certainty that the appellant would be admitted to Egypt, but that there should be reason to believe he would be admitted: it was not a requirement that he should be admitted for settlement. 3. Paragraph 134 of HC 169 requires that a decision to deport "must be fair in the sense of even-handed between a particular applicant and others" and not fair in the abstract, which would add nothing to the obligation to take all relevant circumstances into account.

Cases referred to in the Judgment:

In re Musisi (HC) [1987] 1 AC 514: [1987] Imm Ar 250. R v Secretary of State for the Home Department ex parte Sivakumaran (CA) [1987] 2 WLR 1047. Secretary of State for the Home Department v Sivakumaran and ors (HL) [1988] 2 WLR 92: [1988] Imm AR 147. Steven Miller v Immigration Appeal Tribunal (CA) [1988] Imm Ar 358. R v Secretary of State for the Home Department ex parte Alsawaf (unreported, DC, 22 July 1987).

Counsel:

A Riza for the appellant; D Pannick for the respondent PANEL: Purchas, Staughton LJJ, Sir George Waller

Judgment One:

PURCHAS LJ: This is an appeal by Mohamad Khanis Mustafa Alsawaf from an Order of the Divisional court of the Queen's Bench Division dated 22 July 1987. That order dismissed his application, under RSCO 53 r 3/2 for judicial review: 1 of a decision of the Secretary of State for Home Affairs (to whom I shall refer as the "Minister") dated 21 December 1982, givig directions for the appellant's removal to Egypt; 2 the determination of the Immigration Appeals Tribunal dated 14 December 1984, refusing leave to appeal against the determination of an adjudicator, dismissing Mr Alsawaf's appeal against the removal direction. On the appeal Mr Riza has confined his arguments to the first of the two challenges, namely, the decision of the Minister. The appeal raises a short but important question arising out of the application of the Statement of Changes in Immigration Rules laid before Parliament under the provisions of section 3(2) of the Immigration Act 1971. The short history is as follows: The appellant was born in a refugee camp in Gaza on 8 April 1955. At the age of seven his family moved to Kuwait, and there established their home. In September 1973 (at the age of 18 1/2) the appellant was anxious to go to Cairo to study medicine. The Egyptian authorities in Kuwait issued him with a travel document known as a Document de voyages pour les Refugies Palestiniens which was valid for a number of years. In March 1974, he was dissatisfied with his life as a student in Cairo, and returned to his family in Kuwait to discuss his future with his father. As a result, he arrived in the United Kingdom on 29 May 1984 seeking to follow a three-month English course in Worthing, in the South of England. On arrival, he was granted one month's leave to enter subject to a condition, which continued thereafter on other leaves, that he should not take employment in this country. On 22 June he obtained an extension of leave to 21 August 1974. He then overstayed for a short period, applying late on 6 October 1974. He was granted leave to remain as a student. It is not necessary in this judgment to go in detail into the various courses of study, but there is no doubt that the appellant obtained various extensions of leave in order to pursue these courses as a student -- until 1 February 1980 when, for reasons which are not challenged, the Minister refused further leave to remain. Mr Alsawaf appealed, and on 23 October 1980 that appeal was dismissed by an adjudicator. He was refused leave to appeal against that decision to the Immigration Appeals Tribunal. In July 1981 he asserts that he tried to obtain a re-entry permit to go back to Kuwait, without success; but little information is available about that. On 22 October 1981 the minister gave notice that he had decided to make a Deportation Order under section 3(5)(a) of the Act. There was a right of appeal against that decision, under section 15(1) of the Act. The appellant did not appeal. It is said that he had changed his address and had never received notice of the Minister's decision. That decision was based on the fact that the appellant was an over-stayer and indicated there would be an order for his removal to Egypt in due course. Time passed for appeal. On 1 December 1981 the Minister made the Deportation Order. On 18 December 1981 the appellant was served with the order, but he had already obtained air tickets to travel to Kuwait. Accordingly, his assurances that he was going to leave were accepted. He was not detained. On 6 January 1982 the appellant flew to Kuwait, and, accoridng to his account, he was refused entry on arrival, notwithstanding the efforts he made to persuade the authorities in Kuwait to allow him to stay. He did not possess a re-entry visa and accordingly was obliged to return to the United Kingdom on 7 January 1982. He was then detained until 8 February 1982, when he was released and granted temporary admission to the United Kingdom. On 21 December 1982 the Minister gave a notice of directions for the appellant's removal to Egypt. There was a notice of appeal to the adjudicator. Accordingly on 14 Januaary 1983 the Minister (as is his duty) gave a statement of the reasons for his decision. It is not necessary for the purposes of this appeal to give details of those reasons. On 13 April 1983 the matter was considered by the adjudicator, Mr Maddison, and on that occasion the appellant was represented by Miss Connelly of the United Kingdom Immigrant Advisory Service. The substance of her representations are to be found in a letter written by Miss Connelly the following day to Mr McDowall at the Home Office. In the event, the hearing was adjourned by the adjudicator to allow the Home Office to carry out further inquiries. It is convenient to refer to the points made by Miss Connelly. She emphasised the difficulty of obtaining a re-entry visa to Kuwait, where it was said the appellant wished to go. Miss Connelly then dealt with the question of the Egyptian document, making the point that that document did not give the appellant the right to travel to Egypt without a visa nor, on arrival, to have residence, ie, the right to live and work in that country. She then made reference to another case which she said was similar to this appellant's case, namely that of a Mr El Kelzani. He was a stateless Palestinian, also from Gaza, having a similar experience up to that date and who was deported to Egypt. Miss Connelly asserted that on arrival Mr El Kelzani had been handcuffed by the Egyptian authorities, put into quarantine, moved into a prison and then deported (with others) to Israel. Happily he had family contacts in Israel. The only purpose in referring to that history was to impress upon the Minister that removal to Egypt was not a satisfactory course to take with persons in the position of the appellant. On 6 June the Minister in a letter under the signature of a Mr T McCarthy replied concerning the dispute as to the status of the appellant in these terms: "However, we cannot agree that Mr Alsawaf qualifies under the 1954 Convention as a stateless person or accept that the responsibility for him rests with the United Kingdom. It is clear that Mr Alsawaf would be admitted to Egypt and, since our understanding is that there has been no recurrence of the type of problem encountered by Mr El Kelzani when the Egyptian authorities were reluctant to admit him, we do not agree that there are sufficient grounds to revoke the deportation order and to let (the appellant) stay". The Home Office made further inquiries of the United Kingdom representative of the United Nations High Commissioner for Refugees. It is of importance to consider what happened in that connection. The letter of inquiry is not before the Court, but the answer from the representative is in these terms: "You will recall that the Home Office had asked for UNCHR's views on his situation if he were to return to Egypt. Our office in Cairo has responded that as the travel document does not give Mr Alsawaf the right of abode in Egypt, he can enter the country only if he obtains a visitor's visa from the Egyptian Consulate in London. However, such a visa would not permit him to take up employment in Egypt, nor allow him to remain there permanently. Thus he would have to seek a durable solution elsewhere. "As Mr Alsawaf was refused re-entry into Kuwait, where he had resided previously, and as it now appears that his stay in Egypt can only be temporary, he must be regarded as a refugee without a country of asylum. Under the circumstances, I would, therefore, be grateful if the UK authorities would reconsider his case in the light of the above and permit him to remain in the United Kingdom." Then on 29 October 1984, over the signature of Mr RA McDowall, the minister replied: "We have given careful consideration to the various points you make about Mr Alsawaf's position in Egypt, and Miss Connelly of the United Kingdom Immigrants Advisory Service has previously written to the Department on two occasions to argue that the United Kingdom is responsible for him under the 1954 Convention relating to the status of stateless persons. However, we do not accept that this country has any responsibility for Mr Alsawaf and I can find no reason now to recommend to Ministers that the deportation order signed in December 1981 should be revoked. The proper course is for the case to proceed to appeal in the normal way, and I hope that you will agree that the matter should be heard by the independent appellate authorities without further delay". That occurred on 27 November 1984 when Mr W Phillips, the Adjudicator, concluded the consideration of the case. The relevant parts of his decision are in these terms. "Miss Connelly asserted that the appellant is a refugee and a stateless person. He had made every effort to go to three of the countries with which he has close ties -- Egypt, Kuwait and Israel. Miss Connelly was not satisfied that his possession of an Egyptian travel document meant that he would be accepted in Egypt as a resident, or with rights similar to those of a resident." Then a little further he said: "The respondent does not accept that this country has any responsibility to the appellant but Mr Trussler said that the Home Office were still trying to obtain in writing from the Egyptian authorities certain assurances which had been given verbally. Miss Connelly had no evidence that any other country would accept the appellant on deportation from the United Kingdom". It should be recalled that this appeal was in relation to the direction for removal to Egypt. On that basis the Adjudicator rejected the appeal of the appellant. On 14 December 1984 the Chairman of the Immigration Appeals Tribunal refused the appellant leave to appeal to that body. Application for leave to move under O 53 r 3/2 was granted by Macpherson J on 19 April 1985. On 13 March 1987, after a three-day hearing, Otton J adjourned the matter for the Minister to consider the question whether the appellant was a refugee. That produced a second affidavit from Mr McDowall, to which it is convenient to refer but in fact avoiding the question: "The Respondent" (that is the Minister) has given further consideration to the application made herein since these proceedings were adjourned on 13 March 1987. It may assist this honourable Court if I make it clear that whether or not the applicant herein is a refugee it was at the time the decision to refuse him leave was taken, and remains, the Respondent's view that upon full consideration of all the circumstances of the case he is satisfied that if the applicant were removed to Egypt his life or freedom would not be threatened on account of his race nationality membership of a particular social group or political opinion. The Respondent is further satisfied that if removed to Egypt the applicant would not be further removed from there to territories where his life or freedom would be so threatened. The Respondent is unaware of any case where a person in the position of the applicant, whether or not the applicant is a refugee, who has been removed to Egypt has been removed by the Egyptian Authorities to a place where that person claimed to fear persecution". In order to understand the way in which Mr Riza has very skilfully presented this case both before the Divisional Court and before this Court, it is necessary to refer to some of the statutory and Convention documents which are relevant to the question. Mr Riza's submissions are mainly based on the assumption that the appellant is in fact a refugee. In the 1951 Convention relating to the status of refugees as amended by the 1967 protocol relating to the status of refugees, article 1, paragraph (2) gives some solution. Article 1 A(2) reads (being altered by the inclusion of the amendments incorporated from the 1967 protocol): "A. For the purposes of the present Convention, the term 'refugee' shall apply to any person:

. . .

(2) Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;" then follows the relevant passage: "or who, not having nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it". In this case there has been no suggestion that the appellant qualifies under the first of the two parts of that definition. However, Mr Riza submits that the appellant does fall fairly and squarely under the second part, namely, a person "who, not having nationality and being outside the country of his former habitual residence is unable . . . to return to it". There are other articles in the Convention to which I must refer. Article 32 deals with expulsion. It reads: "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order". Article 33, headed "Prohibition of expulsion or return" reads: "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". That article is not relied upon by Mr Riza for obvious reasons just mentioned in this judgment. But Mr Riza does rely on Article 35, which provides as follows: "Co-operation of the national authorities with the United Nations. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions," (namely the functions of the High Commissioner)" and shall in particular facilitate its duty of supervising the application of the provisions of this Convention". It is of note that article 35 is in Chapter VI headed "Executory and Transitory Provisions", whereas articles 31 and 33 are contained in Chapter V, headed "Administrative Measures". I turn now to the rules under the provisions of the Act. I refer only to three rules. Rule 73 deals with "Asylum" and provides: "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". I need not read the rest of that rule because it does not apply to the facts of this case. Rule 153 is the main plank of Mr Riza's arguments, and provides: "Refugees. 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. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments". Mr Riza referred also to rule 168, which deals with return deportees. I do not propose to read that in extenso. It refers to the Deportation Order itself. Mr Riza submits where there is provision that the whole matter should be considered in the light of the relevant circumstances before reinforcing the Order, it should also apply to a direction to remove such a person who has made an unsuccessful visit to a foreign country. Mr Pannick does not dispute that for the purposes of this appeal and concedes that even where the only matter in issue is the country to which the removal should be directed, the Minister should reconsider the relevant circumstances. Rule 169 deals with the arrangements for removal. It provides: "Provision is made in the Act for removal from the United Kingdom of a person against whom a deportation order has been made. The power should be exercised so as to secure the person's return to the country of which he is a national, or which has most recently provided him with a travel document, unless he can show that another country will receive him notwithstanding his deportation from the United Kingdom; but, in considering any departure from the normal arrangements, regard should be had to the public interest generally, and to any additional expense that may fall on public funds". Those are the relevant rules laid before Parliament under the powers of the Act. So far as the Immigration Act, 1971, is concerned, it is necessary to refer only to one section and the schedule. Section 5(5) provides: "The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force . . ." Schedule 3 provides: "1(1) Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either: (a) a country of which he is a national citizen; or (b) a country or territory to which there is reason to believe that he will be admitted" and that is the relevant sub-paragraph for the purposes of this appeal. That is the length of the statutory provisions controlling the removal order under the Act. Against those provisions, Mr Riza based his case here and in the Divisional Court on Conclusion 15 of the Executive Committee of the programme of the United Nations High Commissioner for Refugees, 30th Session, in 1979. That conclusion requires study as to its precise status. The General Assembly, by Resolution 428 of 14 December 1950, adopted a statute of the office of the United Nations High Commissioner for Refugees which provides the status and functions of that office. I mention that the High Commissioner assumes the function of providing international protection under the auspices of the United Nations to refugees and continues: "In the exercise of his functions, more particularly when difficulties arise" for instance, with regard to any controversy concerning the international status of these persons, "the High Commissioner shall request the opinion of the Advisory Committee on refugees". Chapter 1, paragraph 4, sets out the Executive Committee: "The Economic and Social Council may decide, after hearing the views of the High Commissioner on the subject, to establish an advisory committee on refugees . . ." That is how the Executive Committee came into existence. Chapter II, paragraph 8 is relevant: "(b) Promoting through special agreements with governments the execution of any measures calculated to improve the situation of refugees. . . . (d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States;" It is apparent that the function of the High Commissioner is one of advice, promotion and conciliation but he has no statutory or executive powers of any kind. That is confirmed by Conclusion 15, which is the central feature of the submissions made by Mr Riza. It begins: "The Executive Committee considered that States" and I emphasise "should be guided by the following considerations". There follow a number of matters to which it is not necessary to refer, but going directly to paragraph (h) which is at the centre of this appeal: "An effort should be made to resolve the problem of identifying the country responsible for examining an asylum request by the adoption of common criteria. In elaborating such criteria the following principles should be observed . . ." and there follow a number of positive suggestions, hopefully to be adopted by contracting States, thereby achieving some consistency. I refer in summary to (h)(i), identifying in a positive manner the country which is responsible for examining an asylum request; ii, so to conduct matters to avoid possible disagreement between States as to which of them should be responsible for examining an asylum request, "and should take into account the duration and nature of any sojourn of the asylum-seeker in other countries"; iii "The intentions of the asylum-seeker as regards the contry in which he wishes to request asylum" should be taken into account; iv (which is relevant): "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 a 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;" Reverting to the facts of this case, Mr Riza points to the efforts which the appellant made to be admitted to Kuwait and submits that paragraph (h)(iv) is relevant in that connection. There follow provisions (v) and (vi) to which I need not refer. Mr Riza submits that that conclusion, if not placing a legal obligation on the Minister to take into account paragraph (h), is a matter to which he should have had regard. Mr Riza further submits it is obvious the Minister did not have regard to it. In which case Mr Riza submits the Minister had failed to carry out an important function in the exercise of his discretion which would therefore be vulnerable to judicial review. Or, if the Minister had done so, then in deciding to send the appellant to Egypt when he wished to go to Kuwait, the Minister clearly misdirected himself as to the impact of paragraph (h)(iv); and again that he would be open to attack under O 53 r 3. We were referred to R v Home Secretary, ex parte Sivakumaran [1988] 2 WLR 92, which assists in a consideration of this matter. At page 95 B, Lord Keith of Kinkel said this: "The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purpose been incorporated into United Kingdom law. Rules 16, 73 and 165 of the Statement of Changes in Immigration Rules (1983) (HC 169) provide . . . and then the noble and learned Lord set out those rules, parts of which I have referred to in this judgment. There is recognition from the highest tribunal in the land of the effect of the Protocol and the articles, to which reference has been made. But what of the status of the Executive Committee, and the Conclusions? The view taken by Lloyd LJ in his judgment in the Divisional Court can be stated by reference to p 11G of the transcript. This was a case concerning four Tamils who had allegedly a genuine fear of returning and I refer to the part which Mr Riza seeks to attack. "Finally, and this is the third ground on which I would reject Mr Riza's argument, paragraph (h) on which he relies, when one comes to look at it, is expressed in the most general terms. It is drawing attention to a problem which exists and it is proposing means by which that problem might be solved. But it does not in itself contain any solution. What it says is that: 'An effort should be made to resolve the problem of identifying the country responsible for examining an asylum request by the adoption of common criteria. In elaborating such criteria the following principles should be observed'. So the paragraph is looking to the future. It is exhortatory in character. No such criteria as are contemplated by paragraph (h), so far as I know, exist. All we have are the principles which should be observed in elaborating those criteria. "It is difficult, as it seems to me, to criticise the Secretary of State for failing to take into account criteria which have not yet been formulated. As for the principles, there is no reason to suppose, as Mr Pannick urged, that the Secretary of State did not have regard to those principles, at least in substance if not in detail". Notwithstanding the able submissions of Mr Riza, I have no hesitation in saying that the approach of Lloyd LJ in this judgment in the passage which I have read was correct, namely that the provisions of Conclusion 15 have no relevance to the discharge by the Minister of his function as an obligation placed upon him in that discharge. Clearly the features, as were pointed out by my Lord, Staughton LJ during the course of argument, and to which the various sub-paragraphs of paragraph (h) are directed, are all matters of the general context which the Minister should (so far as they are relevant in his view) take into account and place such weight upon them as he considers appropriate in all the circumstances. But those considerations are not the stuff of which applications for judicial review are made. Those are matters entirely wihin the discretionary function of the Minister and, as Mr Riza very fairly accepted, that unless he could show that the Minister had wholly failed to take into account any particular matter which was relevant (which is an evidential impossibility) or he could show that the decision at which the Minister arrived was one that no reasonable Minister, properly directing himself as to the effect of the law and the duty to take into account all relevant factors, could have reached, his task was an extremely difficult one in mounting a case for judicial review. Turning to the Conclusions, Mr Pannick relied, and rightly so in my judgment, on part of the speech of Lord Bridge of Harwich in In re Musisi [1987] 1 AC 514, where at page 524 he said:"In deciding to proceed against them as illegal entrants and neglecting the alternative, the Secretary of State, it is submitted, must have failed to have regard to the recommendations of the Executive Committee of the High Commissioner's Programme. My Lords, there was some discussion in the courts below of the question whether the practice of the Home Office complied with recommendation (vi). I express no opinion on that question, since it is, as it seems to me, neither necessary nor desirable that this House should attempt to interpret an instrument of this character which is no of no binding force either in municipal or international law." That in my view defines the status of the recommendations of Conclusion 15 so far as applications of this kind are concerned. Mr Riza was emphasising that in the earlier stages, and particularly referred to in the first affidavit of Mr McDowall, the case being mounted was that the appellant was not a refugee at all. The burden of Mr McDowall's first affidavit, apart from setting out the history and other relevant matters, was directed to whether or not this was a case to which rule 73 applied, to which I have already referred. Mr Riza (as he must) accepts that this is not a "Rule 73 case". Mr Pannick submits that whether or not the appellant is a refugee under the second limb of the definition already cited does not matter -- and this is the point made in the second affidavit of Mr McDowall. The powers of direction are specifically provided in the section of the 1971 Act to which I have already referred. The evidence before the Minister showed that there was reasonable ground for him to believe that the appellant would be admitted to Egypt. That is far as schedule 3 of the Act goes. What happens after that clearly is a concern of anyone who looks at the light of a person in the appellant's position; but this Court is considering an appeal from a decision of the Divisional Court on the basis of the matters to which I have referred. Other matters have not been debated on this appeal, and the question of attacking the decision made by the Minister must be that he has acted outside or in contravention of the statutory duties and powers imposed upon him, or with which he is cloaked. There is no suggestion here -- in the light of the letters from the United Kingdom representative of the High Commissioner for Refugees, of the appellant being admitted. The question was: To which country of asylum should a refugee (within the second term of the definition) be referred? Mr Riza has referred to the length of time during which, in one way or another, the appellant has stayed in this country as opposed to the short time of his stay in Egypt; but there are other features involved, all of which must clearly have been in the mind of the Secretary of State, such as the reasons given for the appellant's stay in other countries. There is an area of inquiry as to why there was not available to him a re-entry permit into Kuwait. It may be that in the long term that may be the appellant's final destination. But it is not a matter for the consideration of the Minister acting, as he does, under section 5 and schedule 3 of the Immigration Act. For all these reasons I have come to the conclusion that the decision of the Divisional Court to dismiss the appellant's application for judicial review of the Minister's decision to make the direction was correct, and there is no ground upon which this Court could interfere. Therefore, in my judgment, this appeal must be dismissed.

Judgment Two:

STAUGHTON LJ: I agree that this appeal should be dismissed. The facts and the legislative provisions, together with the other relevant instruments, have been set out by Purchas LJ. Once that is done, in my opinion the points argued are short and relatively simple. First, it is said that the Secretary of State could not have had reason to believe that the appellant would be admitted to Egypt; therefore it is said the decision to give directions was not justified by schedule 3, paragraph 1-(1)(b) of the Immigration Act, 1971. The affidavit sworn by Mr McDowall on 14 October 1986 said, in paragraph 28: "The Applicant complains that he will not be granted permanent status in Egypt but will only be granted temporary status and that this will be to his disadvantage. In common with the United Kingdom and other Western States, Egypt does not normally grant permanent resident status until after an applicant for such status has entered the country on a temporary basis whereafter his claim to residence may be fully explored. The Egyptian Authorities have indicated to the Home Office that the applicant will be granted new Egyptian Refugee documentation should he apply. After he has entered their country he will be able to apply for permanent status and it seems likely that such status will be granted given that the Egyptian Authorities have documented the applicant in accordance with their duties to UNRWA. Having documented the applicant under their duties to UNRWA the Egyptian Authorities are obliged to accept the applicant as a responsibility of their country". Against that, it was said by the appellant in an affidavit sworn by him on 3 July in some year unspecified, at paragraph 14: ". . . I, together with a member of staff of the UKIAS visited the Egyptian Embassy in an attempt to obtain proof that even if I chose to go to Egypt I would not be admitted there. The Egyptian Embassy was not prepared to give me any written assurance, not even that I would be admitted as a visitor, let alone that I would be granted residence there." In that passage the appellant's complaint goes further than stated by Mr McDowall in his affidavit. However, on the maerial set out in Mr McDowall's affidavit, I consider that the Secretary of State was entitled to conclude that Egypt was the country to which there was reason to believe that the appellant would be admitted. As Mr Pannick pointed out, the requirement is not that there is certainty that the appellant would be admitted, but that there should be reason to believe he would; nor is it a requirement that he will be admitted for settlement, but merely that he will be admitted. I would not give effect to that first argument. The second argument is that the Secretary of State did not have regard sufficiently to the Conclusions of the 30th Session of the Executive Committee of the United Nations High Commissioner for Refugees. The first point, logically, is whether this appellant is a refugee. It is not said that he fears persecution in any country -- or in any relevant country. However, it is arguable that article 1 of the 1951 Convention relating to the status of refugees, since it has been amended by the 1967 Protocol relating to the status of refugees, no longer makes it an essential requirement that there should be fear of persecution for a person to qualify as being a refugee. In the event, we do not need to decide that point today. Nor do we need to decide whether this appllant would be excluded from the definition of "refugee" by article 1(d), which deals with persons receiving assistance from other organs of the United Nations, such as UNRWA. Mr Pannick, for the Secretary of State, is prepared to assume for the purposes of the argument that the appellant is a refugee. Once that assumption is made, paragraph 153 of HC 169 which my Lord has read requires that full account be taken of the provisions of the Convention and Protocol. One therefore turns to article 35 of the Convention, to which my Lord has referred, which is relied on by Mr Riza. I agree that this article is not dealing with matters of substance. It occurs in chapter 6 headed "Executory and Transitory Provisions". Seeing that there are substantive obligations set out in the Convention elsewhere, it would be very surprising in my judgment if the United Kingdom, by accepting an undertaking to co-operate with the office of the United Nations High Commissioner for Refugees, were thereby to accept one overall obligation to do whatever the High Commissioner should require the United Kingdom to do in substantive matters. I do not think that article 35 is dealing with matters of substance at all, but merely with procedure or machinery. Accordingly, I agree with the passage which my Lord has cited from the speech of Lord Bridge in In re Musisi. A similar conclusion was expressed by Fox LJ in R v Immigration Appeal Tribunal, ex parte Steven Miller (unreported) 24 February 1988 (See now [1988] Imm AR 358) at page 4 of the transcript, where he said that the conclusions of the Executive Committee had no binding effect. In any event I also agree with the decision of the Divisional Court that paragraph (h) of the Conclusions is not legislative but exhortatory; it is saying: "There ought to be criteria which would enable one to decide these refugee problems". It is an exhortation either to States which are parties to the Convention, or even addressed to the members of the Committee themselves, saying that criteria must be found. It does no more than that. It does not lay down rules which must be applied. Ffurthermore, if it did lay down rules, I for my part would find difficulty in reconciling them and holding them to be internally consistent. Paragraph (h) reads: "An effort should be made to resolve the problem of identifying the country responsible for examining an asylum request by the adoption of common criteria. In elaborating such criteria the following principles should be observed: i The criteria should make it possible to identify in a positive manner the country which is responsible for examining an asylum request and to whose authorities the asylum-seeker should have the possibility of addressing himself; ii The criteria should be of such a character as to avoid possible disagreement between States as to which of them should be responsible for examining an asylum request and should take into account the duration and nature of any sojourn of the asylum-seeker in other countries; iii The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account; iv 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 a 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". It seems to me that paragraph i requires one to identify in a positive manner the country responsible. Paragraphs ii and ii mention factors which assist in taking that decision. But then paragraph iv suggests that if the country thus indicated is not willing to accept the applicant, there may be an obligation on some other country. That, if I may say so, is difficult to reconcile with paragraph i. That encourages me to the view that these provisions were not intended to provide a definitive answer. They were intended to be a stage in the deliberations leading to the eventual discovery of a definitive answer. So I would hold that paragraph (h) of the Conclusions of the 30th Session of the Executive Committee is of no assistance to the appellant here. Mr Riza then says that under paragraph 168 of HC 169 the Secretary of State is obliged to take into account all relevant circumstances, including paragraph (h) of the conclusions. Of course, the Secretary of State is obliged to take into account all the relevant circumstances, but not to take into account any that are irrelevant. The question is what circumstances are relevant. I would agree (and indeed Mr Pannick accepts) that among the circumstances that are relevant are the period and nature of any stay which the asylum-seeker has enjoyed in other countries, and also the wishes of the asylum-seeker. I would not agree that those factors are given any greater degree of relevance by the circumstance that they are included in the 30th Session Executive Committee Conclusions. I see no reason to believe that the Secretary of State did not take those matters into account, together with other relevant circumstances. It was said that no reasonable Secretary of State could have reached the conclusion he did if he had taken those matters into account. In my judgment, that argument is not made out. Lastly, it was argued by Mr Riza that under paragraph 154 the decision had to be fair, and he said it was not. I will read the second sentence of that paragraph: "While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects". What that sentence is saying, as it seems to me, is that the decision must be fair in the sense of even-handed between a particular applicant and others. If it were saying that in the abstract the decision must be fair, I would have grave doubts as to what it meant, indeed, whether it added anything to the obligation to take all relevant circumstances into account and not to take into account any irrelevancies. I do not think that paragraph 154 advances the argument any further. I would dismiss the appeal.

Judgment Three:

SIR GEORGE WALLER: I agree that this appeal should be dismissed for the reasons given by my Lords.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:

Winstanley-Burgess, Treasury Solicitor

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.