MURUGENDRAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Court of Appeal (Civil Division)
 Imm AR 559
Hearing Date: 6 July 1994
6 July 1994
Political asylum -- citizen of Sri Lanka -- arrived in United Kingdom from Germany where family had lived for some years -- claimed asylum on basis of fear of persecution in Sri Lanka -- Secretary of State characterised claim as without foundation -- proposed to return applicant to Germany -- before adjudicator asserted that applicant's real fear was of persecution in Germany -- whether that was a separate claim for asylum -- whether special adjudicator should have referred the case back to Secretary of State for further consideration. Asylum and Immigration Appeals Act 1993 ss 1, 8(1), sch 2, para 5: HC 251 paras 180K, 180M.
Held:Renewed application for leave to move for judicial review following refusal by Macpherson J. The applicant was a citizen of Sri Lanka who had lived in Germany for some years, and where an application for asylum had been refused. He left Germany with his family ostensibly to emigrate to Canada: the family was stopped at Heathrow and then claimed asylum. The Secretary of State characterised the application as without foundation: the application was made on the basis that the applicant feared persecution in Sri Lanka. The Secretary of State proposed to return the applicant to Germany, a safe third country. The applicant appealed. His notice of appeal asserted that he and his family had a well-founded fear of persecution in Sri Lanka. The special adjudicator dismissed the appeal. She was satisfied that Germany was a safe third country. In applying for leave to move for judicial review of the special adjudicator's determination, counsel contended that before the adjudicator it had become clear that the real fears of the applicant were not related to events in the past in Sri Lanka, but to what might occur in Germany. Counsel submitted that that evidence constituted, in effect, a fresh and different application for asylum: the adjudicator should have referred the case back to the Secretary of State for further consideration pursuant to paragraph 5(6) of the second schedule to the 1993 Act. Held 1. The submission of counsel was based on a misunderstanding of the nature of the proceedings. 2. The application for asylum and the subsequent proceedings had been based on an asserted fear of persecution in Sri Lanka. 3. The appeal before the special adjudicator was limited to the consideration of that claim and whether or not Germany was a third safe country within paragraph 180K of HC 251.
Cases referred to in the Judgment:R v Secretary of State for the Home Department ex parte Aryaratnam Murugendran (unreported, QBD, 28 June 1994).
Counsel:A Riza QC and S Bhanji for the applicant; R Jay for the respondent PANEL: Neill, Beldam, Millett LJJ
Judgment One:NEILL LJ: This is a renewed application by Mr Aryaratnam Murugendran ("the applicant") for leave to move for judicial review of the decision of the special adjudicator to dismiss his appeal against the decision of the Secretary of State that his asylum claim was without foundation as it did not raise any issue as to the United Kingdom's obligations under the Geneva Convention 1951. The basis of the Secretary of State's decision was that the applicant could safely be returned to Germany. The application to this court is renewed following the dismissal in the High Court of an application by the applicant before Macpherson J on 28 June last. The relevant facts can be stated shortly. The applicant was born in Sri Lanka in 1963. In 1984 he left Sri Lanka and went to live in Germany. He there made a claim for asylum which was rejected in 1986. An appeal against that rejection was dismissed in 1987. In 1990 the applicant was joined by his wife. There were born to the applicant and his wife two small children. At the end of 1993 the applicant and his wife decided to go to live in Canada where they have relations. They arrived at Heathrow on 12 January but were stopped at the airport. On the following day the applicant claimed asylum. The nature of his claim for asylum became clear from the appeal which he subsequently made to the special adjudicator and which forms the subject matter of the present proceedings. In the form which was filled in he said: "We maintain that we have a well-founded fear of persecution for a Convention reason in Sri Lanka." It is not in dispute that the claim for asylum which was made to the Secretary of State at the outset of his arrival in this country related to fear of persecution in Sri Lanka. That application for asylum was dealt with in accordance with the special procedure which is now enshrined in statute in the Asylum and Immigration Appeals Act 1993. For some years it has been the general policy of the Secretary of State not to investigate the merits of a claim for asylum where the person concerned has arrived in this country having passed through another country which is a signatory to the Convention and which is regarded as a safe country. That policy was set out in a policy statement in July 1990. We are concerned with the statutory procedure which is now set out in the 1993 Act and in the rules made under it. Section 1 of the 1993 Act defines a claim for asylum in these terms: ". . . a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom . . ." Section 8 of the 1993 Act contains provisions relating to the rights of appeal where a person is refused leave to enter and where he has claimed asylum. It is sufficient to read section 8(1) which provides: "A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention." The procedure relating to appeals to the special adjudicator are set out in schedule 2 to the 1993 Act, in particular in paragraph 5 which is headed "Special appeal procedures for claims without foundation". It is necessary to read some of the sub-paragraphs of that paragraph. 5(1) provides: "Subject to sub-paragraph (2) below, this paragraph applies to an appeal by a person under subsection (1) . . . of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation." 5(3): "For the purposes of this paragraph a claim is without foundation if (and only if) -- (a) it does not raise any issue as to the United Kingdom's obligations under the Convention . . ." 5(5): "If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is without foundation, section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal." 5(6): "If the special adjudicator does not agree that the claim is without foundation, he may (as an alternative to allowing or dismissing the appeal) refer the case to the Secretary of State for reconsideration; and the making of such a reference shall, accordingly, be regarded as disposing of the appeal." The Asylum Appeal (Procedure) Rules 1993 were made under the Act and came into force on 26 July 1993 and they include provisions in Part II relating to appeals to the special adjudicator. It is not necessary to make any references to those rules because nothing arises in relation to them. It is however necessary to make reference to certain paragraphs in the Statement of Changes in the Immigration Rules, HC 251, which contain provisions relating to what are called "third country cases". 180K is in these terms: "If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration to his claim unless: (a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country's authorities in order to seek their protection; or (b) there is other clear evidence of his admissibility to a third country. Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant." For the sake of completeness I shall refer to 180M which provides: "When an asylum applicant has come to the United Kingdom from another country which is a party to the United Nations Convention relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim to refugee status. He may be removed to that country, or another country meeting the criteria of paragraph 180K, and invited to raise any new circumstances with the authorities of the country which originally considered his application." In this case the Secretary of State, as is apparent from the letter which was sent to the applicant, regarded this as a case which fell within the special procedure relating to third country cases. As I have already mentioned the applicant then exercised his right to appeal to the special adjudicator. The case came before the special adjudicator who dismissed the appeal on 2 June last. It is that decision of 2 June by the special adjudicator of which the applicant seeks judicial review. The question to be determined by the special adjudicator was whether she agreed or disagreed with the decision of the Secretary of State that the claim made by the applicant was without foundation. That is the matter she had to consider. In the detailed reasons which are before us, Mrs PA Symons, the special adjudicator, set out why she came to the conclusion that she was satisfied that the certificate was a good one, and that no issue under the Convention was raised by the refusal of leave to enter and the removal of the applicant from the United Kingdom to Germany. She examined the nature of the applicant's claims. She referred to the matters which she had to determine. On the fifth page of the decision she said: "The Secretary of State has to satisfy me that Germany is a safe country to which the Appellant can be removed. I am so satisfied." That was a reference to what has to be done in third country cases in accordance with paragraph 180K of the rules. A "safe country" is defined in 180K as being one in which the life or freedom of the asylum applicant would not be threatened and of which the government would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The basis of the renewed application before the court today has been formulated by Mr Riza in this way. He says that it became clear in the course of the hearing before the special adjudicator that the real concern of the applicant was not so much with what had happened ten years ago in Sri Lanka but with the fear he had as to what would happen if he were sent back to Germany. Mr Riza submitted that that amounted in effect to a quite separate claim to asylum, or at any rate raised matters which should have led the special adjudicator to exercise her powers under the second schedule, paragraph 5(6) of the 1993 Act and to refer the matter back to the Secretary of State for further consideration. He said that a claim for asylum could be made in any manner and, once the matter had been raised, it was no longer simply a question of whether Germany was a safe country, but whether it was a country in respect of which the applicant was entitled to claim asylum. With respect to Mr Riza, it seems to me that that submission is based on a misunderstanding of the nature of the present proceedings before the court. The claim made by the applicant was a claim to asylum on the basis that he feared persecution in Sri Lanka. That was where the persecution was feared. It was that claim which was considered by the Secretary of State. That formed the subject matter of the statutory appeal before the special adjudicator; it was that claim which the special adjudicator had to consider, together with the specific question of whether or not, within paragraph 180K, Germany was a safe country from which the applicant had arrived within the meaning of the rule, so that the Secretary of State could properly certify that the claim by the applicant was without foundation. That was the limit of the appeal to the special adjudicator. The question for the High Court last week and the question for this court is whether that decision of the special adjudicator is capable of being upset on any of the well-known grounds on which judicial review proceedings can be founded. That is the only matter with which this court can be concerned. It seems to me that, on the evidence before the special adjudicator, there is no basis whatever to impeach the decision. It cannot be said that the special adjudicator misdirected herself on the facts or that she reached a decision which was unreasonable or otherwise open to question. For my part, despite what Mr Riza has advanced before us this afternoon, it seems to me that this is not a case where it would be right to grant leave to apply for judicial review. Accordingly, for the reasons which I have set out at rather great length, I would dismiss this application.
Judgment Two:BELDAM LJ: I agree.
Judgment Three:MILLETT LJ: I also agree.
SOLICITORS:Sri Kanth & Co, Harrow; Treasury Solicitor
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