Karali and Ors v. Secretary of State for the Home Department

KARALI AND ORS v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1991] Imm AR 199

Hearing Date: 22 November 1990

22 November 1990

Index Terms:

Political asylum -- Turkish Kurds -- applicants had spent two days in an airport transit area in Holland -- then claimed political asylum after flying on to United Kingdom -- whether reasonable for Secretary of State, following policy set out in Ministerial Statement to refuse to consider applications on their merits and to return applicants to Holland -- whether his decision could be faulted because it ignored provisions of the Dublin Convention. HC 251 para 75.

Held:

Renewed application for judicial review, leave having been refused by Kennedy J. A group of Turkish Kurds had flown from Turkey to Amsterdam. They remained concealed in the transit area of the airport for two days and then flew on to the United Kingdom where they immediately claimed political asylum. The Secretary of State, acting in accordance with the Ministerial Statement of 25 July 1990, refused to consider their applications on the merits and decided to return the applicants to Holland, that being the first safe country they had reached. It was argued by counsel that the Secretary of State had not acted in accordance with provisions of the Dublin Convention: under the Convention, time spent in the transit area of an airport, in the circumstances of these applicants, would not create a link with Holland so as to justify their return to the Netherlands. Likewise under the Convention, applicants should not be returned to another country until that country had indicated that it would accept them. Held: 1. The Dublin Convention was not yet in force. It followed that a failure to observe its provisions could not ground a submission that the Secretary of State had acted unreasonably. 2. Likewise, the Secretary of State had not acted unreasonably in following the policy set out in the Ministerial Statement. 3. There was no suggestion that the applicants would suffer persecution in Holland which in all the circumstances, was presently the crucial question in deciding whether their return to Holland would be unreasonable.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Kemal Karali and ors (unreported, QBD, 22 November 1990).

Counsel:

R Scannell for the appellants; Miss A Foster for the respondent PANEL: Dillon, Stocker, Bingham LJJ

Judgment One:

DILLON LJ: Mr Scannell renews in this court an application for leave to apply for judicial review which was rejected by Kennedy J in the Queen's Bench Division this morning. The application is on behalf of Kemal Karali and six or seven other Turkish citizens of Kurdish extraction, and the decision which is challenged, and which it is sought to have quashed, is a decision of the Secretary of State for the Home Department of 15 November 1990 declining to consider applications for asylum in this country which the applicants had made on their arrival in this country on 13 November. Instead, the Secretary of State set in train arrangements for the removal of the applicants to Amsterdam. The history of the matter is that the applicants, as far as can be ascertained, left Turkey by air on 11 November. They claim that they are Kurdish Turks in jeopardy in Turkey. They left Turkey to seek asylum. They arrived in Holland on the same day, 11 November. They remained in Holland until 13 November. It seems that the plane that brought them to Holland was a KLM plane which ended its flight there and did not go on to a further destination. According to their account, they did not leave the transit area at Schipol Airport but were concealed and fed frugally in an underground room without windows within the transit area and then were put upon a flight from Schipol to Gatwick on 13 November without having any contact with the Dutch immigration authorities at any stage. They made their claim for asylum promptly on their arrival at Gatwick on 13 November. The evidence indicates that Turkish citizens do not need a transit visa merely to pass through the transit area of a Dutch airport in transit to some other country. The whole purpose of asylum is of course to save people from persecution and ill-treatment where there is a real fear of that. The applicants' fear is of persecution in Turkey, not in Holland. The substantive question at issue is whether their applications for asylum should be considered in this country or in Holland. There is no danger at this moment of their being returned to Turkey without their applications for asylum having been considered either in this country or in Holland. The various nations of the European community were concerned with a Convention which is referred to as the Dublin Convention to determine the state responsible for examining applications for asylum lodged in one of the member states of the European community. That Convention was signed apparently on 15 June of this year in Dublin by, it would seem, all the countries of the EEC except one. Those who signed included the United Kingdom and Holland, but the Convention has not yet been ratified and adopted as part of the law of the country, either here or in Holland. The Convention contains provisions for applications for asylum to be examined by a single Member State which is to be determined in accordance with the criteria defined in the Convention. It is provided in general that the responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member State where the alien lodges his or her application for asylum. But it is further provided by article 7.2: "Pending the entry into force of an agreement between Member States on arrangements for crossing external borders, the Member State which authorizes transit without a visa through the transit zone of its airports shall not be regarded as responsible for control on entry, in respect of travellers who do not leave the transit zone." It is further provided in article 11: "If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant." It is then said in paragraph 5 of article 11: "Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory." That seems to envisage that if a Member State considers that another Member State is responsible for examining the application, then the Member State will call on the other Member State to take charge of the applicant but will not transfer the applicant until after acceptance of the request to take charge. We were told, however, by counsel for the Home Office, who has appeared in opposition to the application in this court as in the court below, that as the Dublin Convention has not yet been ratified and adopted into the domestic law of the various Member States who have signed it, no procedures have yet been set up to provide for the acceptance of a request to take charge or for what is to happen if acceptance of the request is not forthcoming. It is said by Mr Scannell for the applicants that as the applicants never left the transit zone at Schipol, Holland was not responsible for control over them and this country, as the country in which they actually made their application for asylum, is the country which is bound under the Convention to consider that application. The Secretary of State however proceeds on the basis at present of a policy which he set out on 25 July 1990 in a written answer to a Parliamentary question. This record shows that the United Kingdom is committed to its obligations under the 1951 United Nations Convention relating to the status of refugees, and it gives a pledge that in accordance with this Convention no refugee will be moved by the United Kingdom to a territory in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. It goes on, however, to state the entire agreement of the Secretary of State with what he calls an internationally accepted concept, that a person fleeing persecution who cannot avail himself of the protection of the authorities of a country of which he is a national should normally seek refuge in the first safe country reached. He then says that where protection issues do not arise, an application should therefore be dealt with in accordance with normal immigration criteria. Accordingly an application for asylum from a person who has arrived in the United Kingdom from a country other than the country in which he fears persecution, will not normally be considered substantively. The passenger will be returned to the country from which he embarked or to another country in which he has been since he left the country of feared persecution unless the country is one in which his life or freedom would be threatened on the specified grounds; but the Secretary of State will take into account any evidence of substantial links with the United Kingdom. The statement continues with the somewhat bald comment that all Western European countries who are signatories to the UN Convention operate safe third country procedures, and the approach is consistent with the Convention, that is to say the Dublin Convention, signed on 15 June but not as yet in force. The view of the Secretary of State, therefore, is that as these applicants unquestionably, on their own account, spent two days in Holland, left the plane to Holland and came on to this country on another plane, it is for the Dutch to consider their claim for asylum. It is stated on the Secretary of State's behalf that the Secretary of State has reason to believe that the applicants will be readmitted to Holland where they can make a claim for asylum. It is further stated that Holland, in the experience of the Secretary of State, can be relied upon to meet its obligations under the 1951 Convention and that the Secretary of State has not overlooked the compassionate factors, such as they are, in the case of these particular applicants indicating their respective measures of connection with this country. I am, for my part, unable to say that the Secretary of State has erred in law in not applying, or inquiring further into the facts to enable him to apply, article 7.2 of the Dublin Convention when that has not yet been ratified and made part of the law of this country. Equally, I am unable to say that it is unreasonable of the Secretary of State, while article 7.2 is not part of the law of this country, to rely on the Dutch giving consideration to the applicants' applications for asylum when they are returned to Holland. The crucial factor is that they are in no threat of persecution in Holland. If the Dutch refuse to accept the return of the applicants and send them back here, a very different situation would arise if the Secretary of State yet again refused to consider their applications for asylum. It is imperative that those applications must be considered on their merits, either by this country or by Holland, but I do not regard it as appropriate for this court to interfere at this juncture, as article 7.2 is not yet in force as a matter of law, and we have no reason to doubt the Secretary of State's reliance on the Dutch to readmit the applicants and consider their applications for asylum. Accordingly, I would refuse this application.

Judgment Two:

STOCKER LJ: I agree. It is common ground that the Convention has not yet been ratified and does not form part of the law of this country. It may be that under article 7.2, the terms of which have been read by my Lord, this country would be the country responsible for considering the applicants' applications for asylum, but the procedures specified in article 11 have not yet been brought into force or implemented. In my view, it does not seem to me that the Secretary of State made any error of law, nor does it seem to me to follow that the Parliamentary answer, which has been mentioned by my Lord, is inconsistent with the attitude that he has adopted in this case. I can find no error of law, nor does it seem to me that his decision was in any way unreasonable. Accordingly, I also would refuse the application for leave to move for judicial review.

Judgment Three:

BINGHAM LJ: I agree.

DISPOSITION:

Applications refused.

SOLICITORS:

Wilson & Co; Treasury Solicitor.