Conteh v. Secretary of State for the Home Department

CONTEH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 594

Hearing Date: 30 July 1992

30 July 1992

Index Terms:

Political asylum -- citizen of Sierra Leone -- arrived in United Kingdom from Belgium -- applied for political asylum -- Secretary of State refused to consider the application on its merits -- proposed to return applicant to Belgium -- applicant had substantial links with the United Kingdom -- whether the Secretary of State had failed to follow his publicly declared policy on "third safe country" cases -- whether he had erred in taking into account applicant's involvement in a corrupt government, in refusing to exercise a discretion in favour of the applicant -- whether Secretary of State's decision was irrational. Dublin Convention art 4.

Held:

Renewed application for judicial review, following dismissal by Simon Brown J. The applicant was a citizen of Sierra Leone: until the coup in April 1992 he had enjoyed high office in government. He was obliged to go into hiding and then fled to Belgium via Guinea. After a short time in Belgium he secured leave to enter the United Kingdom by misrepresentation. When questioned as a possible illegal entrant he claimed political asylum. The Secretary of State refused to consider his application on the merits: he proposed to return the applicant to Belgium. The Secretary of State recognised that the applicant had substantial links with the United Kingdom. His case fell however outside the terms of the Dublin Convention so far as that convention would have obliged the Secretary of State to consider the application on its merits. The Secretary of State refused to exercise his discretion to consider the application, notwithstanding the applicant's links with the United Kingdom, because of the applicant's long involvement with a corrupt government. Counsel argued that taking account of the Secretary of State's publicly announced policy, and the terms of a subsequent explanatory letter to the United Kingdom Immigrants Advisory Service, the Secretary of State had failed to follow that policy. He had also taken account of an irrelevant factor -- the applicant's alleged involvement in a corrupt government. His decision was irrational. Held 1. Taking account of the policy statement of July 1990, the Dublin Convention and the explanatory letter to the United Kingdom Immigrants Advisory Service, it could not be said that the Secretary of State had departed from a declared policy he was bound to follow. 2. It followed that the Secretary of State had not departed from a publicly declared policy which would have given rise to a legitimate expectation on the part of the applicant: distinguishing Khan, he had had no obligation to give the applicant an opportunity to make representations before coming to his decision, but in any event the applicant had had the opportunity to make representations. 3. None of those documents could lead to the conclusion that the applicant's involvement in corrupt government was irrelevant, and the terms of the 1951 Convention showed that character, in certain circumstances, was relevant to asylum issues. 4. On the facts, the Secretary of State's decision was not irrational.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Asif Mahmood Khan [1984] Imm AR 68: [1985] 1 All ER 40. Kemal Karali and ors v Secretary of State for the Home Department [1991] Imm AR 199. R v Secretary of State for the Home Department ex parte Abdullai Osman Conteh (unreported, QBD, 24 July 1992).

Counsel:

A Riza QC for the applicant; N Pleming QC for the respondent PANEL: Bingham, Butler-Sloss, Farquharson LJJ

Judgment One:

BINGHAM LJ: This is a renewed application for leave to move for judicial review and it is made following the refusal of leave by Simon Brown J on 24 July of this year, that is last Friday. The decision which it is sought to review is a decision of the Secretary of State for the Home Department contained in a letter dated 20 July of this year addressed to the applicant's solicitors by which the Secretary of State refused to consider substantively the applicant's claim for political asylum in the United Kingdom and proposed his removal to Belgium. The applicant seeks leave to move for an order of certiorari quashing that decision, an order of mandamus compelling the Secretary of State to consider the applicant's application for asylum substantively and an order of prohibition preventing the Secretary of State from removing the applicant from the United Kingdom. The applicant himself is named Abdullai Osman Conteh and he was born on 5 August 1945 in Sierra Leone. He is a Sierra Leonean citizen and is a married man with four children. He began his primary and secondary education in Sierra Leone, but in 1969 he came to this country and read for a degree in law at King's College in the Strand, which he obtained. In 1970 he was called to the Bar by Lincoln's Inn, and in 1971 he became a member of King's College, Cambridge, and in due course read for a doctorate of philosophy, which he obtained. Ironically, the thesis on which he obtained his doctorate concerned legal problems in the use of force and the United Nations. He returned to Sierra Leone, having gained his doctorate, and practised the law in his own country, first on behalf of the state and then in private practice until 1977, when he stood for Parliament. He was elected, and at once became the Minister of Foreign Affairs, an office which he held from 1977 to 1984. For a relatively brief period, in 1984 to 1985, he was the Minister of Finance, but in 1985, because he objected to the succession of a military President following the resignation from office of President Stevens, he left office. There were, however, elections in 1986. In those he was opposed by a member of his own party but was re-elected to Parliament despite that opposition. He then became, from 1987 to 1991, Attorney-General and Minister of Justice, offices which were combined under the constitution of Sierra Leone, and in 1991 he became the first Vice-President and Minister of Internal Affairs and Rural Development. Those were the offices which he held on 29 April of this year when there was a coup d'etat in Sierra Leone which resulted in the ejection of the existing government, combined with considerable violence and destruction of property from which the applicant himself suffered. He was indeed obliged to go into hiding. On 15 May, however, he was able by sea and during the night to make his escape to the neighbouring state of Guinea, where he remained for some ten days or so before travelling from Guinea to Belgium on 24 May. He spent a short time in Belgium and, very shortly after that, came to the United Kingdom. It appears that his own Sierra Leonean passport had been seized or destroyed with other of his possessions when the coup took place. In Guinea and Belgium he was equipped with a series of documents which consisted of a Guinea diplomatic passport suggesting that he was a citizen of Guinea born at Conakry, both of which facts were untrue, and he was also equipped with certain documents suggesting that he was coming to the United Kingdom as a diplomat on behalf of the Guinea government, a representation which was also untrue. It was in those circumstances, and perhaps as a result of his own approaches to the authorities in this country on his arrival, that he was visited by immigration officers on 18 June, who issued a notice that they considered him to be an illegal entrant, having entered the country by deception, and they ordered that he be detained. On the same day, 18 June, he applied for asylum. I do not propose to go in detail through the history which followed. It suffices, I think, for present purposes to give a brief outline of the history. The first application that the applicant made was for habeas corpus, which was combined with an application for bail because, as I have said, he was at this stage in detention. The matter came before Simon Brown J on 24 June, and Simon Brown J granted bail on certain terms stipulated in the order. On 1 July that application for habeas corpus was withdrawn, but the reason for that was that the Home Office had by this stage issued the first of three letters to which it is necessary to refer, and the effect of that letter was to render the habeas corpus proceedings otiose in the sense that there was now a new and more substantive matter for complaint. The letter of 30 June is a long letter, which summarises certain of the matters to which I have just referred, in particular the coup in Sierra Leone, the detention of the applicant and the application for asylum. The letter then referred to the internationally accepted concept: "that a person fleeing persecution, who cannot avail himself of the protection of the authorities of his own country, should normally seek refuge in the first safe country he reaches. Consequently, an asylum application for someone who has arrived in the United Kingdom from a country other than the one in which he fears persecution, will not normally be considered substantively here. He will be returned to the country from which he embarked or to another in which he has been since leaving the country of feared persecution." That paragraph was, of course, directed to the applicant's sojourn in Belgium before he arrived in the United Kingdom. The letter then continues: "Although Dr Conteh fled from Sierra Leone to Guinea, the Secretary of State notes that he claims to have been informed by the Guinean authorities that his safety in that country cannot be guaranteed and that, as a result, he is unwilling to return there. After leaving Guinea, however, and before his arrival in the United Kingdom, he travelled to Belgium and could have lodged his asylum claim there. Belgium is a signatory to the 1951 Convention and 1967 Protocol on Refugees and, on the basis of the information available to him about the policies and practices of the Belgian authorities, the Secretary of State is satisfied that if Dr Conteh were sent back to Belgium he would not be further removed from there to Sierra Leone or to Guinea without substantive consideration of his alleged fear of return to either of these countries. The Belgian authorities have also informed our Immigration Service that they are prepared to readmit Dr Conteh, provided he can be returned there without undue delay. Consequently, the Secretary of State concludes on the basis of the considerations set out above, that Dr Conteh's asylum claim could properly be submitted in Belgium rather than the United Kingdom." The letter then refers to a written Parliamentary answer of 25 July 1990, to which I shall have to make more detailed reference in a moment to the effect that, where close family links are demonstrated, the Secretary of State will take account of them so as, exceptionally, to consider applications for asylum made by applicants who come to this country from safe third countries. The letter then continues: "Dr Conteh has demonstrated close links with the United Kingdom. He has a 17 year old daughter in education in England and a 20 year old son, with right of abode, who is also studying here. Dr Conteh completed his own education in this country and was called to the English Bar. He also owns a house in this country and has been a regular visitor here in recent years. The Secretary of State has also noted and considered the representations made by Mr Carlile on Dr Conteh's behalf. Normally Dr Conteh's links with the United Kingdom would be regarded as substantial enough for the Secretary of State to exercise his discretion to consider his asylum application here. The Secretary of State, however, considers each individual case on its merits and takes all relevant factors into account when reaching a decision. He has caused enquiries to be made of the Foreign and Commonwealth Office and is informed, as a result, that, until the coup in Sierra Leone on 29 April this year Dr Conteh was Vice-President of that country and a member of the inner ruling circle. He was also concurrently Attorney-General and Minister of Justice. In these capacities he had been an active member of a corrupt Government which had bankrupted the country during the 23 years of its existence. In view of this, the Secretary of State is not prepared to exercise his discretion to consider Dr Conteh's asylum application substantively in the United Kingdom." That letter led to the issue of the applicant's first application for leave to move for judicial review on, I think, 6 July, a] though the date may have been 7 July. The application sought to challenge the decision contained in that letter and was based on the fact that the considerations which had moved the Secretary of State were considerations that had never been put to Dr Conteh, so that he had never had an opportunity to meet them. On 6 July also notice of removal to Belgium was given to the applicant. That in outline was the state of play when the matter came before Simon Brown J on 8 July, and he gave leave to move, being clearly impressed, at least prima facie, by the grounds on which the applicant was at that stage able to rely, although he gave leave to move on an undertaking that the application would be withdrawn if a further decision were made by the Secretary of State. Pursuant to that leave a notice of motion was duly issued. Before the notice of motion was issued, however, there was a second letter from the Home Office dated 7 July. That was, of course, a letter which antedated the appearance before Simon Brown J. That was a much shorter letter and its effect was to say that the Secretary of State did not accept that there was any breach of procedural fairness but that, in the light of the further information contained in Dr Conteh's affidavit, the Secretary of State had reconsidered his decision in the matter. He had again, it was said, had the benefit of advice from the Foreign and Commonwealth Office in relation to the issues and it was said that he had again concluded that Dr Conteh was a member of the corrupt Sierra Leonean government which had bankrupted the country. The letter then says: "The Secretary of State does not accept that there is any good reason to absolve Dr Conteh, as a member of the Sierra Leone Government, from a share of responsibility for these matters." That letter, not apparently written on the personal direction of the Secretary of State, was before Simon Brown J when he gave leave to move. There were then a series of further letters and representations made to the Home Office, both by the applicant and his solicitors and others, including an affidavit sworn by an expert on African and, in particular, Sierra Leonean affairs, Professor Clapham of the University of Lancaster, which led to the third letter written by the Home Office on 20 July, which is the letter which is the subject of challenge in these proceedings. It again is a long letter and I shall not read it all. It is a letter addressed to the applicant's solicitors and states: "The Secretary of State has personally considered the points your client has made in his letter and those you and Mr Alex Carlile MP have made on his behalf in correspondence. He has seen and considered all the affidavits and exhibits filed on behalf of your client in the two sets of proceedings to date. He has again taken the advice of the Foreign and Commonwealth Office in considering the circumstances of this case." Reference is made to the Secretary of State's earlier letter of 30 June and then there is an important paragraph which I think I should read: "The Secretary of State has in particular considered carefully the content of Dr Conteh's letter of 14 July. He notes Dr Conteh's claim to have been personally honest in his capacity as member of the Sierra Leone Government and the Secretary of State makes no allegation about this. He also notes Dr Conteh's claim not to have been aware of corruption by other members of the Government. The Secretary of State notes that corruption in the Sierra Leone Government was sustained over many years and was widespread within the administration as is recognised by, for example, the International Monetary Fund as well as by the evidence of Professor Clapham on which Dr Conteh relies. He also notes that this corruption is considered by reliable observers to be directly implicated in the economic decline of Sierra Leone over much of the period in which Dr Conteh was a senior member of the Government, which he claims to have served diligently. The Home Secretary therefore finds it implausible that Dr Conteh should have no knowledge of these corrupt practices on the part of his colleagues in Government. Moreover, he does not believe that Dr Conteh could not have been aware of the serious economic decline of the country and of the contribution made to the decline by corruption within Government. For these reasons, and having taken account of all the matters urged on behalf of Dr Conteh, the Secretary of State cannot absolve Dr Conteh from a share of the responsibility for the corruption of the Sierra Leone Government and for the bankruptcy of that country in which that corruption played a significant part." The letter says that the Secretary of State is not prepared to exercise his discretion exceptionally to consider Dr Conteh's asylum application substantively in the United Kingdom. I should have mentioned that at an earlier stage in that letter, as in the earlier letter of 30 June, express acknowledgment is made of the close ties which Dr Conteh has with this country. That, therefore, is the decision which Dr Conteh applies to challenge. In seeking leave to move on his behalf Mr Riza makes three major submissions, of which I think it is fair to say that the first is very much the most central of the three. The first of those submissions effectively is that the Secretary of State has failed to follow his own declared policy by refusing to consider the applicant's asylum application. Mr Riza has put this submission in a number of slightly different ways, but the essence of it is that the Secretary of State has indicated and is bound to follow a certain policy and, by refusing to consider the case on the grounds stated, has departed from it. The starting point of this submission is, I think, the policy statement which was made by Mr Waddington, then the Home Secretary, in the House of Commons in answer to a parliamentary question on 25 July 1990. What Mr Waddington then said was the following: "The United Kingdom is committed to its obligations under the 1951 UN Convention Relating to the Status of Refugees. 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 is 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. I agree entirely with the concept. The Convention's primary function is to give refugees who cannot turn to their own authorities, the protection of the international community. It is an instrument of last resort -- not a licence for refugees to travel the world in search of an ideal place of residence. 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 passenger 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 or, if appropriate, to his country of nationality, unless I am satisfied that the country is one 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, or that it would return him to such a country. However, in considering any individual case I shall take into account any evidence of substantial links with the United Kingdom which in my view would make it reasonable for the claim for asylum exceptionally to be considered here. All Western European countries who are signatories to the UN Convention operate safe third-country procedures and the approach is consistent with the Convention Determining the State Responsible for Examining applications for Asylum Lodged in One of the Member States of the European Communities signed in Dublin on 15 June 1990 (but not as yet in force)." That statement makes plain that applicants for asylum, who have reached this country from safe third countries, will not ordinarily have their applications considered here but that they will be returned to those safe third countries. But the Secretary of State says that he will, exceptionally, take account of cases in which substantial links with the United Kingdom are demonstrated, and he further goes on to say that the approach is consistent with the Dublin Convention (For the Dublin Convention, see [1990] Imm AR 604 et seq). So far as the family ties aspects of this is concerned, as it appears to me, Mr Riza's application runs into this difficulty, that the Secretary of State has taken account of the family ties. They were expressly referred to both in the letter of 30 June and in the letter of 20 July, and clearly weight is given to them. Unless they are to be regarded as conclusive -- and that is a matter to which I shall come -- it cannot be said that the Secretary of State has not followed the policy which he here announced. So far as the Dublin Convention (on which great reliance is placed) and particularly article 4 of that convention is concerned, it is right to say, as Mr Riza acknowledges, that the applicant does not fall within the letter of article 4 so that, even if the convention were incorporated into the law of this country, he could not rely on the letter of that article. The article says: "Where the applicant for asylum has a member of his family who has been recognised as having refugee status within the meaning of the Geneva Convention, as amended by the New York protocol, in a Member State and is legally resident there, that State shall be responsible for examining the application, provided that the persons concerned so desire." The flaw in the article from the applicant's point of view is that, although he has a member of his family who is resident in this country, namely his daughter and indeed his son, neither of them has been recognised as having refugee status within the meaning of the Geneva Convention. The letter of that provision, accordingly, would not assist the applicant, even if, as I say, it were part of the law of the United Kingdom. Mr Riza, however, seeks to overcome that obstacle by drawing our attention to a letter of 21 March 1991, written by the Immigration and Nationality Department of the Home Office to the Refugee Unit in which an extended account is given of the family relationships which will found the exercise of the Secretary of State's discretion. Mr Riza points out, quite accurately, that no reference is made in that statement to recognition as a refugee. However, what the statement gives with one hand it takes away with another because the letter says: "We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where" and various cases are set out of which the third covers the present case: "(c) the applicant has an unmarried minor child in the United Kingdom." I say, however, that the statement takes away with one hand what it gives with the other, because that statement makes it quite plain that this is the normal practice but not necessarily the invariable practice and, as Mr Riza himself acknowledges, it makes provision for the abnormal case. (The full text of the letter is as follows:

'Safe third country cases: substantive consideration in UK because of family linksWe recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where

(a) the applicant's spouse is in the United Kingdom, (b) the applicant is an unmarried minor and a parent is in the United Kingdom, (c) the applicant has an unmarried minor child in the United Kingdom. (In all cases "in the United Kingdom" should be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker.) Discretion would need to be exercised according to the merits of the case where: a married minor was involved but the criteria in (b) or (c) above were otherwise fulfilled. (We would be less likely to consider cases under (c) than (b) under these circumstances.) the applicant was an elderly or otherwise dependent parent. the family link was not one which would normally be considered but there was clear evidence that the applicant was wholly or mainly dependent on the relative in the United Kingdom and that there was an absence of any similar support elsewhere. We would expect cases falling into this category to be rare. We consider factors which might influence the exercise of discretion in these cases to be language skills (ie if the applicant is fluent in English but not in the language of the third country), cultural links or number of family members in the United Kingdom as opposed to numbers in other countries. Cases citing family links which would not normally be considered and not displaying any of the features which engaged the exercise of discretion would definitely not be considered substantively. This means that a brother who was not in any way dependent on his sibling(s), would not have his case considered here, no matter how strong his cultural or linguistic links with the United Kingdom'.) Furthermore, it seems to me that the Dublin Convention itself is an insecure foundation since it has not been ratified and has not been incorporated into the law of this country and has, as I understand the decision of this court in Kemal Karali and ors v Secretary of State for the Home Department [1991] Imm AR 199, to be held to be an irrelevant consideration from the point of view of the Secretary of State's exercise of discretion. In the statement that he made in the House of Commons I do not, furthermore, understand the Secretary of State to have been saying that he would follow the Dublin Convention in all respects, but merely to be saying that the approach that he had outlined in his preceding answer was consistent with the Dublin Convention, and so in my judgment it was. We have looked in some detail at the statement of 25 July, at the Dublin Convention itself, to some extent at the 1951 Convention and at the statement of 21 March 1991, and Mr Riza submits that cumulatively those provisions amount to a clear policy binding the Secretary of State to consider cases substantively where strong family links are established. I have, for my part, to say that I cannot accept that submission, even bearing in mind that we are not here deciding the merits of the case but whether there is a point which is even arguable. In my judgment, even the combined effect of these provisions does not yield an arguable point that the Secretary of State was departing from a declared policy which he was bound to follow. Mr Riza has placed a very great emphasis on a decision of this court in R v Secretary of State for the Home Department ex parte Khan [1985] 1 All ER 40, which was a decision to the effect that, where a statement of policy has been made giving rise to a reasonable expectation that it will be followed, a public body may not depart from that policy without giving any person affected by it an opportunity to make appropriate representations. To my mind there is no statement of policy apparent in this case to the effect that the establishment of family links will be regarded as conclusive and, moreover, the applicant has, as I think, been given an ample opportunity to meet the points upon which the Secretary of State has relied. I turn, therefore, to Mr Riza's next point, which is that the Secretary of State has relied on an irrelevant consideration in taking account of the applicant's involvement in the government of Sierra Leone, being a government open to the criticisms which the Secretary of State has made. Mr Riza has realistically accepted that the character, if I can use that expression, of an applicant is not obviously irrelevant, but he says it is made so as the result of a series of instruments involving the 1951 Convention, the Immigration Act, the immigration rules, the Dublin Convention, the statement of 25 July 1990 in the House of Commons and the letter of 21 March to which I have referred. I have, however, to say that, for my part, I find nothing in any of those provisions, singly or cumulatively, which even begins to stipulate that a consideration of this kind is irrelevant. It is, as I think, an unsustainable contention for this reason. The right of asylum under the 1951 Convention is not extended to those who have committed serious crimes. That shows that character may be relevant to asylum issues. In this case the applicant has been convicted and accused of no crime whatever, and there is no question of article 1(f) of the 1951 Convention (on any material that we have seen) applying to him. On the other hand, the issue that is raised does not concern the grant of asylum but merely the much more limited and preliminary question as to whether the Secretary of State should give substantial consideration to the applicant's application for asylum, even though the applicant has come here from a safe third country. There is, in my judgment, nothing in any of those instruments which suggests that character is an irrelevant consideration to that issue. Lastly, Mr Riza bases his application on a plea of irrationality. It appears that the applicant originally thought from the language that the Secretary of State had used that he was himself accused of personal involvement in corrupt practice. It seems to me abundantly plain from the letter of 20 July which I have quoted that the Secretary of State does not challenge the applicant's claim that he was not so involved, although the Secretary of State is certainly sceptical of the applicant's suggestion that he was not aware of such corruption. The way that Mr Riza puts the case is to draw attention to a good deal of material to the effect that, far from being a corrupt supporter of the regime, Dr Conteh was in truth not only himself clean, but an active worker in the interests of extirpating corruption and instituting clean and open government. Our attention has been drawn to his record in resigning from the government in 1985 in opposition to a military succession to the presidency, to his conduct in drafting various articles of the new Sierra Leone constitution which prohibit corrupt practice and contain a number of provisions designed to exclude any activity of that kind and, in particular, to his work on constitutional reform and the institution of multi-party government in Sierra Leone, being activities directly intended to eliminate the corrupt practices which have prevailed in the past. Those are all matters which, it is urged, should be weighed in Dr Conteh's favour and which, it is suggested, the Secretary of State has ignored in such a way as to render his decision so unreasonable as to be considered perverse. It is right to state quite clearly that there is before the court and in the Secretary of State's letter no accusation of personal impropriety, but what is said against him is that, although he was not personally tainted, he was for a period of some 15 years closely and prominently associated with a regime in Sierra Leone whose corruption was of such an order as to be seriously damaging to the economic interests of that country. It is on that basis that the Secretary of State has concluded that, despite the applicant's family links with the United Kingdom, he should not in all the circumstances grant the applicant the indulgence of having his application for asylum considered here substantively. In the light of all the material to which our attention has been drawn, it is plain that a different conclusion could well have been reached by the Secretary of State. It is also plain that, as has been acknowledged, the applicant has close and long-standing links with this country, which he has visited regularly over the years, in addition to his educational background, both in the University of London and in that of Cambridge. It may, furthermore, be thought by some that there are compelling humanitarian reasons which would make it reasonable for the Secretary of State to decide that it would be right for his application to be considered here rather than in Belgium where he has no home and, so far as the evidence shows, no links at all. We have none the less to remind ourselves that the question is not whether another decision might have been rational or whether it might have seemed more attractive, either to us or to others. The simple question is whether the Secretary of State's decision can be stigmatised as irrational in the sense which the law requires before this court is entitled to interfere. We have given that question careful consideration. We bear in mind that, if there were any room for doubt, Mr Riza should be given leave to argue the matter at greater length. We feel bound to conclude, albeit with some regret, that this is not a decision that the court could properly hold, or that any judge could properly hold, to be so outrageous in its defiance of common sense as to indicate that the decision-maker must have taken leave of his senses. There was material upon which the Secretary of State could properly conclude that it would not in all the circumstances be right to grant the applicant what he regarded as an indulgence. That conclusion is, I am afraid, fatal to this application, which must accordingly be refused. I will not deal in detail with certain subsidiary points which Mr Riza briefly made in opening. He advanced an argument reflecting on the good faith of the Secretary of State based on the letter of 7 July, to which I have referred. The suggestion was that it was an attempt to try and win an advantage in the litigation before Simon Brown J by bolstering the case which had been advanced earlier. It may be 'hat that was the purpose of the letter. It is not unusual for litigants to seek to bolster their cases in that way, but it does not seem to me to be suggestive of bad faith and, in any event, it was unsuccessful since Simon Brown J granted leave. Mr Riza expressed some doubt as to what the Secretary of State was saying about the applicant's involvement in the responsibility for the conduct of the regime in Sierra Leone, but I have indicated that, for my part, I feel no doubt as to what the Secretary of State was saying. He raised a further argument dealing with the Secretary of State's failure to refer to the applicant's involvement in the move for constitutional reform in Sierra Leone, but that again I have, I think, referred to. Lastly, he said that the Secretary of State's decision was founded on the proposition that the only way to fight corruption was by going into the political wilderness, and it was suggested that the applicant had fought corruption from the inside rather than going into the wilderness in vain. That is not, as I think, a necessary basis of the Secretary of State's decision and, for the reasons that I have endeavoured to give, the Secretary of State was, as I think, entitled to conclude -- and to hold it against the applicant with whatever weight he chose to give to it -- that he had a long-standing and close involvement with a regime that had seriously unsavoury aspects. For my part, I would refuse this application.

Judgment Two:

BUTLER-SLOSS LJ: I agree with the reasons given in the judgment of Bingham LJ and that the renewed application should be refused. The applicant does, however, have substantial links with this country. He went to two universities here and he is a member of the English Bar. He has a house here and two of his children, aged 20 and 17, are being educated in England. He has, it appears, no links with Belgium. The consequences of the decision of the Secretary of State, which he was entitled to make, will bear heavily upon this applicant and upon his family, and cannot but leave a lingering feeling of real concern about the outcome of these proceedings. I would refuse the application.

Judgment Three:

FARQUHARSON LJ: I agree with both the judgments that have been delivered. I too wish to express some concern for the applicant, having regard to the close connection he has had with this country for many years and the position in which he now finds himself. As has just been pointed out, it is clear that he has very little connection with Belgium. He was only obliged to go there from Guinea because there was no United Kingdom mission in Freetown where he could have obtained a visa enabling him to enter this country, and it was for that purpose that he flew to Belgium. Unfortunately for him, having obtained a visa from the embassy in Belgium, on arrival in the United Kingdom he sought to rely on a document provided for him by the authorities in Guinea. It was said to be a diplomatic passport and gave the appellant a status to which he was not entitled. The document was defective in other respects so far as his description was concerned. It would, of course, have been much better if he had explained to the immigration officer precisely the circumstances in which he found himself. Unfortunately, he did not, but it is right to say that he did not conceal his presence here once he entered the United Kingdom, even attempting to get in touch with a member of the government. It was no doubt that act which provoked the enquiry by the immigration department and how he later came to be arrested. It is apparent that he cannot return safely to Sierra Leone, and it is plain that the United Kingdom is the most appropriate country in which he could take up residence. But it must be emphasised that these are issues which are not for this court to decide. The only question before us is whether the Home Secretary's decision not to consider his application for asylum substantively is flawed in the sense of it being irrational. Notwithstanding Mr Riza's expert presentation of all the relevant conventions, immigration rules and policy documents, he does not in my judgment show an arguable case that the Home Secretary's decision is susceptible to judicial review. I would respectfully adopt the reasons given in the judgment of my lord for saying that the application must be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Sheridans, London, W6; Treasury Solicitor