Ahmed Gamel Haliq Abdulla v. Secretary of State for the Home Department

AHMED GAMEL HALIQ ABDULLA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 438

Hearing Date: 8 May 1992

8 May 1992

Index Terms:

Political asylum -- citizen of the Sudan -- escape to Germany -- application there for asylum not determined -- arrived in United Kingdom -- claimed asylum on basis of a well-founded fear of persecution in Germany -- refused asylum in United Kingdom after full investigation of claim -- whether refusal by Secretary of State unreasonable. United Nations Convention relating to the status of refugees 1951 (Protocol 1967) art 33.

Held:

Renewed application for judicial review of the refusal by the Secretary of State to grant political asylum to the applicant, a citizen of the Sudan. It was common ground that the applicant was a genuine asylum seeker, fearing persecution in the Sudan. However he had made his way to Germany and had applied there for asylum. Before, it seems, that application had been determined, the applicant decided to move to Canada. He arrived in the United Kingdom in transit, but was refused permission by the airline to board the aeroplane bound for Canada. He then claimed political asylum in the United Kingdom, asserting that he had a well-founded fear of persecution in Germany. After a full investigation of the claim, it was refused. Counsel argued that the Secretary of State's decision was flawed by a failure to give full reasons. He had also given insufficient weight to the likelihood of persecution by minority non-government groups. The court analysed the detailed letter of refusal by the Secretary of State. Held 1. The decision of the Secretary of State could not be attacked successfully on Wednesbury principles. 2. He had been entitled to take advice from the Foreign & Commonwealth Office on the situation in Germany, and to take note that there had been a decline in the number of attacks on foreigners, following the vigorous policy of the German government. 3. The court did not decide whether, in any event, the applicant was entitled to make a claim for asylum based on a fear of persecution in a country that was not his country of nationality.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Ahmed Abdulla (unreported, QBD, 30 April 1992).

Counsel:

S Sedley QC and R Scannell for the applicant; D Pannick QC for the respondent PANEL: Sir Stephen Brown (P), Leggatt, Scott LJJ Judgment By-1: SIR STEPHEN BROWN (P)

Judgment One:

SIR STEPHEN BROWN (P): This is a renewed application for leave to move for judicial review following the refusal of leave by Potts J on 30 April of this year. The applicant is a national of Sudan. He seeks asylum in this country in somewhat unusual circumstances. He came to the United Kingdom on 9 December 1991, arriving at Heathrow Airport from Germany. His intention then was to travel on to Canada, but he was refused permission to board the onward flight by British Airways. He thereafter claimed asylum in this country. The applicant originally left Sudan for Germany as an asylum seeker, and he had lived in Germany for some nine or ten months before 9 December of last year when he left and travelled to the United Kingdom en route for Canada. There is no issue about his being originally a genuine seeker of asylum from the Sudan. The claim that he now makes and which gives rise to this application is that he should be considered as a genuine asylum seeker in this country from Germany. He made this claim following his landing at Heathrow when it was proposed to return him to Germany. The application now before this court was made by notice of motion on 28 April of this year and by it the applicant seeks an order to quash the decision of the Secretary of State for the Home Department on 3 April refusing to grant him refugee status as an asylum seeker from Germany. That decision is to be found in the letter of the Secretary of State at page 224 of the bundle of documents before the court. In paragraph 17 of that letter it is said that the Secretary of State had reached the following conclusions: "(a) He is satisfied that in Germany your claim to have a well-founded fear of persecution in Sudan would be fully and properly considered and determined in accordance with the provisions of the 1951 United Nations Convention relating to the status of refugees. (b) He accepts that there have, regrettably, been attacks on asylum seekers in Germany. (c) He does not accept that you were the victim of any attack in Germany. (d) Given the declining numbers of such attacks and the steps taken by the German authorities to prevent their occurrence, the Secretary of State is fully satisfied that Germany is a safe country to which to return you. In all the circumstances, the Secretary of State believes there is no significant risk of you suffering any physical or other harm in Germany by reason of being an asylum seeker. For this reason, the Secretary of State denies that to return you to Germany would breach Article 33 of the Convention or would conflict with the statement made to Parliament on 25 July 1990. Even if the Secretary of State were to accept that you had been the victim of assaults in Germany in the past, he would reach the same conclusion as expressed in the previous sentences as to Germany being a safe country to which to return you now. (e) The Secretary of State does not accept that you have any well-founded fear of persecution in Germany (even if you were entitled to claim asylum in the United Kingdom by reason of a fear of persecution in Germany, which is not your country of nationality). He is satisfied that your physical safety would be no different from that of any other black asylum seeker in Germany and he is satisfied (as explained in (d) above) that there is no significant risk of you suffering any physical harm in Germany by reason of being an asylum seeker there. Even if the Secretary of State were to accept that you had been the victim of assaults in Germany in the past, he would reach the same conclusion as expressed in the previous sentences as to you not having a well-founded fear of persecution in Germany now. The Secretary of State accordingly refuses your application." Mr Sedley QC, in a carefully developed argument on behalf of the applicant, has submitted that consideration of the cases of asylum seekers is an important matter which must receive detailed and sensitive attention. The basis of his attack on the Secretary of State's decision is that the Secretary of State failed to give proper or sufficient reasons for his decision, and that his decision to refuse the application is flawed because of the inadequacy of the reasons given. The applicant submits that before the Secretary of State there was substantial evidence in the nature of press reports, reports from Members of the European Parliament, and other media reports, of the number of attacks by alleged neo-Nazis on coloured asylum seekers, in Germany. He submits that, in the light of that material and of the fact that the applicant himself claims to have witnessed attacks on colleagues or friends, there is evidence of a well-founded fear of persecution on his part. Mr Sedley makes the point that a fear of persecution can come from minorities. It does not have to be a state orientated system of persecution. But in this case his principal complaint is that the Secretary of State in his decision letter did not give reasons but rather stated conclusions which are not a sufficient discharge of his duty. The decision letter is a lengthy document; it begins at page 224 and concludes at page 228 of the bundle. Having read the letter, it seems to me that it first recites in full detail the basis and nature of the applicant's claim. It then recounts the nature of the evidence which had been submitted to the Secretary of State in support of the claim. It proceeds to state that the Secretary of State had noted the explanation which the applicant had provided about certain matters when he came into this country. It notes that inquiries had been made by the Secretary of State who had seen no evidence to suggest, inter alia, that any police officers at Paddington Green Police Station had said that the applicant would be returned to the Sudan. Then it proceeds to state at page 227: "The Secretary of State has considered your explanation of and the comments of your representatives on why you were attempting to reach Canada and does not hold this point against you." In paragraph 16 it states: "The Secretary of State has considered the further information and supporting documents submitted by your representatives concerning support for the extreme right in Germany and the level of attacks on foreigners. He has caused further enquiries to be made of the Foreign and Commonwealth Office about the present situation in that country. As a result, he is satisfied that the German authorities are continuing their efforts to ensure the safety of refugees and asylum seekers and he understands that recent statistics show a fall in the number of attacks on foreigners. He has sought further information about the special arrangements for dealing with the prosecution of such cases, to which he referred in his letter of 7 February. The Secretary of State is informed that the German Federal Government has issued a decree to the Office of the Public Prosecutor in each of the Laender to the effect that there should be, in every one, a person or persons charged with the task of looking at offences against foreigners with the brief of speeding up prosecutions. The Secretary of State has also again consulted the United Nations High Commissioner for Refugees who has confirmed his view that Germany is a safe country for refugees and asylum seekers, while advising that humanitarian considerations be given to the personal circumstances of each applicant, particularly if the person concerned has been the victim of a violent attack." Paragraph 17 sets out his detailed conclusion: In my judgment, paragraph 16 sets out very clearly the reasons upon which the Secretary of State came to the conclusions expressed in paragraph 17. He is entitled to make inquiries of the Foreign and Commonwealth Office. Indeed, it is the appropriate place for making such inquiries. The Foreign and Commonwealth Office has the resources to enable the views of the diplomatic staff in Germany to be obtained and for detailed factual and accurate information to be made available. Mr Sedley submitted that the information itself is not accurate and should not be considered to be accurate in the light of the press reports and other media material which the applicant had submitted. However the Secretary of State has a discretion in this matter. He has a duty to investigate the position, and it seems to me to be quite plain that he did so in this case. He considered the reports from the Foreign and Commonwealth Office, and he considered the view of the United Nations Commissioner for Refugees together with all the other matters placed before him. It appears to me that his process of reasoning is clear and valid. He has carried out the duties with which he is charged. The court is not aware of any attack being made upon his good faith. In my judgment he did all that was reasonable and necessary to discharge his duties with regard to this matter. It is not necessary for the court to consider on this occasion other possible aspects of the law concerning the validity in any event of a claim for asylum by somebody in the position of the applicant coming not from his native country but from a third country in which he had first sought and received asylum. Yesterday the Secretary of State wrote to the applicant's solicitors giving certain additional factual information as to the number of attacks on foreigners in Germany during last year and during the present year up to 13 March. On the face of it, that letter shows a decline in the number of attacks on foreigners in Germany this year as compared with last year. Complaint is made by Mr Sedley that that is in some way an admission of fault on the part of the Secretary of State. But in my judgment all that it does is to amplify the statement that he made in paragraph 16 of his decision letter, that as a result of his inquiries he understands that recent statistics show a fall in the number of attacks on foreigners. This recent letter now gives the actual statistics. It does not appear to me that that could possibly be a ground of complaint. Indeed, it supports the statement of the Secretary of State in paragraph 16. Despite Mr Sedley's attractively presented argument, I can find no basis on which leave to move for judicial review should be granted to this applicant. Accordingly I would refuse the application.

Judgment Two:

LEGGATT LJ: For the reasons given by the President, which were adequately summarised in the last paragraph of the note of judgment of Potts J I agree that this application should be dismissed.

Judgment Three:

SCOTT LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co, London, N17; Treasury Solicitor