Dursun v. Secretary of State for the Home Department

DURSUN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 169

Hearing Date: 25 February 1991

25 February 1991

Index Terms:

Political asylum -- Turkish Kurd -- arrived in United Kingdom from Belgium -- whether reasonable for Secretary of State to refuse to consider application on the merits and to decide to return applicant to Belgium -- whether Secretary of State obliged to produce evidence that Belgium would accept the applicant -- extent of Secretary of State's obligations -- whether the fact that the Belgian authorities might in turn require the applicant to seek asylum in another country through which he had travelled was a factor the Secretary of State should have taken into account.

Held:

Renewed application for leave to move for judicial review, refused by Auld J. The applicant was a Turkish Kurd who had arrived in the United Kingdom from Belgium. In accordance with his stated policy the Secretary of State decided not to consider the application on the merits but to return the applicant to Belgium. In challenging that decision, counsel argued that the Secretary of State had produced no evidence to show that Belgium would accept the applicant. The applicant who did not speak French had had no opportunity to claim asylum in Belgium. The Secretary of State had not taken account of the fact that the Belgian authorities might require the applicant to claim asylum in some other country through which he had travelled. Held 1. It was not for the Secretary of State to produce evidence that the Belgian authorities would accept the applicant, but for the applicant to show that the Belgian authorities would not accept him. 2. The Secretary of State was entitled to rely on information he received from diplomatic posts abroad, as to conditions in a particular country. 3. It was not possible to argue that the applicant had had no opportunity to claim asylum in Belgium where there were many English speakers. 4. The fact that the Belgian authorities might in turn require the applicant to apply for asylum in another safe country was not a reason why he should be granted asylum in the United Kingdom.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Huseyin Dursun [1991] Imm AR 297.

Counsel:

R Yajnik for the applicant; Miss A Foster for the respondent PANEL: Lord Donaldwon MR, McCowan, Leggatt LJJ

Judgment One:

LORD DONALDSON MR: This is a renewed application for leave to bring proceedings for judicial review with a view to quashing a decision of the Secretary of State to remove Mr Dursun from this country to Belgium following his application for political asylum. What happened was that Mr Dursun, who appears to be a Turkish Kurd, complained of persecution in Turkey. He was smuggled out of Turkey and arrived possibly in Belgium, but somewhere on the line between Turkey and Belgium, in a container lorry. His escape was organised by others, and he left the container lorry and went on a taxi journey of some hours, where he joined a coach, and the coach took him to a Belgian port -- I think it was Zeebrugge. He there boarded a ferry and arrived in Dover where he appeared before an immigration officer and sought political asylum. The Secretary of State's policy is that where there are other countries through which the applicant has passed who are signatories to the United Nations Convention on Refugees and where the applicant has had an opportunity of applying for political asylum, the applicant should be returned to that country to make his application, unless there are exceptional circumstances, of course, which is a matter for the Secretary of State to judge, or, as I understand it, there are strong links with this country. That is the Secretary of State's policy and it is not for us to express a view as to whether it is a correct policy or an incorrect policy, provided it does not conflict with the law of this country, which is not suggested. The argument which has been put forward most persuasively by Mr Yajnik runs on these lines. It is said that it would be unfair to send Mr Dursun back to Belgium because there is no evidence that the Belgian authorities would be prepared to entertain his application, that having been one of the stated bases given in the reasons by the Secretary of State for removing him to Belgium. But it is not for the Secretary of State to produce evidence. The Secretary of State in immigration matters, and in particular in refugee matters, is in constant contact with all sorts of other countries, through British missions abroad and foreign missions in this country, and it has been stated over and over again in the context of refugee cases that the Secretary of State is entitled to rely on information which comes to him through diplomatic and other channels. If Mr Dursun really says that there is no chance of the Belgian authorities dealing with the matter, it is for him to put some evidence before this court. Secondly, he says that it is implicit in the Convention and in the Secretary of State's approach to giving effect to the Convention that applications shall be dealt with speedily. In that, with respect, I think he confuses two things: first, an application being dealt with speedily, and secondly an application being dealt with successfully from the point of view of the applicant. This application was dealt with very speedily, so speedily that the Home Office in fact had Mr Dursun removed to Belgium, contrary to an undertaking which had been given by some other department of the Home Office that he would not be removed before legal proceedings were completed, as a result of which he was brought back to this country from Belgium and now awaits removal again to Belgium, subject to the decision of this court. So the matter has been dealt with very speedily indeed. Then finally (I think it is the final point) it is said that really Mr Dursun had no chance of making an application in Belgium. With the greatest respect, that is nonsense. Of course he had every chance of making an application for political asylum at the port at which he embarked for Dover. He may not have spoken French, but a large number of people there speak English. He had every opportunity, or at any rate there is no evidence that he had not. A bare assertion that he could not is singularly unconvincing. There is one other point which I should have mentioned which was made by Mr Yajnik, and that is that he says there is a risk that the Belgians applying the Convention will decide that there is another country earlier on in his route from Turkey to Belgium which ought to deal with the matter. That may well be so, but that does not seem to me to be an arguable ground that he should be given asylum in this country. I can see no possible grounds for faulting the Secretary of State's decision within the scope of judicial review, namely it is not for us to act as an appellate court but merely to see whether the Secretary of State has acted lawfully, and I would accordingly refuse this application.

Judgment Two:

MCCOWAN LJ: I agree.

Judgment Three:

LEGGATT LJ: I agree.

DISPOSITION:

Application refused

SOLICITORS:

Lewis Silkin, London SWl; Treasury Solicitor