Solcan v. Secretary of State for the Home Department

SOLCAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 312

Hearing Date: 15 February 1994

15 February 1994

Index Terms:

Political asylum -- third safe country -- Secretary of State certified claim as without foundation -- appeal dismissed -- harrowing circumstances surrounding appellant's arrival in United Kingdom -- adjudicator recommended claim be considered substantively -- Secretary of State declined to do so -- whether decision Wednesbury unreasonable. HC 251 paras 180K, 180M.

Held:

Renewed application for leave to move for judicial review by citizen of Romania whose application for political asylum the Secretary of State had refused to consider on its merits. The applicant had travelled from France where he had spent nearly two years. The Secretary of State had considered that France was a safe country and certified that the claim was without foundation. The appellant had travelled to the United Kingdom as one of a small group concealed in a sealed container: four out of five in the group died as a result of toxic fumes. The special adjudicator dismissed the appeal but taking account of all the compassionate circumstances, recommended that the Secretary of State consider the application, exceptionally, on the merits. The Secretary of State declined to do so. Counsel argued that the Secretary of State had acted unreasonably and, relying on Sakala, submitted that he had failed to give due weight to the adjudicator's recommendation. Held 1. The Secretary of State's decision not to consider the claim for asylum on its merits was not Wednesbury unreasonable. 2. It was clear that the decision not to follow the adjudicator's recommendation was taken at senior level in the Home Office, and that satisfied the test laid down in Sakala: beyond that it was a matter of the Secretary of State's discretion with which in the circumstances the court could not interfere.

Cases referred to in the Judgment:

Judith Sakala v Secretary of State for the Home Department [1994] Imm AR 227. R v Secretary of State for the Home Department ex parte Leon Solcan (unreported, QBD, 14 February 1994).

Counsel:

Miss F Webber for the applicant; Miss D Rose for the respondent PANEL: Glidewell, Simon Brown, Peter Gibson LJJ

Judgment One:

GLIDEWELL LJ: This is a renewed application to move for judicial review of a decision of the Secretary of State for Home Affairs, "the Home Secretary", communicated in a letter dated 14 February 1994, indicating that the Home Secretary had not altered the view which had been formed on his behalf by his officers and his Parliamentary Under Secretary of State, not to give substantive consideration to an application made by the present applicant, or on his behalf, for asylum in the United Kingdom. The circumstances which give rise to this renewed application can be stated quite shortly. Mr Solcan arrived in the United Kingdom on 15 January of this year in circumstances which are truly described as harrowing. He is a citizen of Romania aged 37 years. A day or two before 15 January, probably on 13 January, he and four of his fellow citizens concealed themselves in a container at the port of Le Havre which was, as they probably knew, about to be loaded onto a vessel which eventually, they hoped would travel to Canada or the United States. The vessel first travelled to Felixstowe. When it arrived in Felixstowe the container was opened as a result of somebody hearing some noise from inside, and it was found that it contained toxic fumes as the result of a cleaning agent used at some earlier stage. The effect of the toxic fumes on the five persons inside the container was that four of the five were either dead when they were removed from the container or died shortly afterwards, and Mr Solcan is the only member of the party who has survived. Obviously, in every sense he must have been very seriously affected by not merely the physical effect of the fumes upon him but also the circumstances in which his companions met their death. Shortly after he arrived an application was made on his behalf for asylum in the United Kingdom. The facts which were set before the Secretary of State when he was considering that claim was that Mr Solcan had been in France for a total of nearly two years. He claimed asylum in that country in December 1991 which was refused, but he appealed against that refusal and his appeal was dismissed in April 1992. He had been to other European countries including Portugal and Austria and Italy, but importantly, he had been in France for very nearly two years. The current immigration rules contain a paragraph number 180K, inserted by House of Commons Paper 725 dated 5 July 1993, which provides "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." The paragraph then goes on to define what, for that purpose, is a safe country, and makes it clear that: "The Secretary of State shall not remove an asylum applicant without substantive consideration of 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 the third country, to make contact with that country's authorities in order seek their protection." There is also another paragraph in the same House of Commons Paper 180M which provides that: "Where 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." It is not said by the Home Secretary that he relied in this case on 180M although its terms applied, but it is, in any case, conceded by Miss Webber on behalf of the applicant that all the criteria in paragraph 180K undoubtedly do apply to Mr Solcan and that, as a matter of general application, the Secretary of State was perfectly entitled to decide that he would not give substantive consideration to Mr Solcan's claim to asylum. It goes without saying that Romania is the country in which he claimed to fear persecution if he was returned; he certainly does not claim to fear persecution in France. The Secretary of State's original decision was communicated to Mr Solcan or those advising him by a letter dated 25 January 1994, the last paragraph of which read: "Paragraph 180K of the Immigration Rules provides that an application will normally be refused without substantive consideration if there is a safe third country to which the Applicant can be sent. The Secretary of State has taken into consideration the harrowing circumstances of your arrival in the United Kingdom. Although these are a compassionate factor, he is not satisfied that they are sufficiently compelling to warrant departing from this practice in your case. He therefore hereby certifies that your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention, is without foundation as it does not raise any issue as to the United Kingdom's obligation under the Convention." An appeal was entered on Mr Solcan's behalf against that determination. It was heard and determined on 7 February 1994 by a special adjudicator, Mr Fox. He set out the detail of the matter in substance in considerable detail. He concluded: "I am satisfied that France is a safe third country so far as the Appellant is concerned. She [France] has already shown that she will comply with her obligations under the Convention in regard to dealing with the appellant's previous claim. "In these circumstances I must find that the Secretary of State has made good his certificate that the appellant's claim to asylum in the United Kingdom is unfounded. I therefore dismiss the appeal. "I have of course had the benefit of hearing the appellant's evidence as to the harrowing circumstances in which he found himself and his fellow travellers in the container and how they were overcome by fumes. It must have been a traumatic experience for the appellant to find that 4 of his friends should die. It does seem to me that having regard to these very compassionate circumstances that the appellant's claim for asylum owing to a well-founded fear of persecution in Romania for a Convention reason should be examined before a decision is taken to return him to France. I make this recommendation in the interests of broad humanity." There is a clear recommendation from the special adjudicator that though the Secretary of State was entitled to take the step he had taken, nevertheless he should reconsider and should consider the application for asylum in substance. There is no doubt that the Parliamentary Under Secretary of State, Mr Charles Wardle, did reconsider. He said so in letters which he wrote on 14 February to two Members of Parliament who had interested themselves and made enquiries about this matter, and in those letters he said: "I have reviewed the case in view of the recommendation made by the adjudicator that he take the case in for substantive consideration, but I am not persuaded that it would be right to overturn my original decision which had taken the compassionate circumstances into account. Arrangements have now been made for his removal to France." In fact it was originally intended that he should be removed yesterday evening on a ferry from Portsmouth. The Home Office decided to wait until the opportunity could be taken to renew the application to this court today. That decision was communicated to those acting for Mr Solcan in a letter also of yesterday's date which reads in full: "We have reviewed Mr Solcan's case following the recommendation made by the adjudicator that the case be taken in for substantive consideration in view of the harrowing circumstances of his journey to the United Kingdom. "We are satisfied that the circumstances raised by the adjudicator were fully taken into account when we reached our original decision, and we are not persuaded that we should overturn that decision. "We have today been advised that Mr Solcan is fit to travel, accordingly he will be removed tonight." In the event, he has not yet been removed. Miss Webber, on behalf of Mr Solcan, challenges the decision communicated in yesterday's letter essentially on two grounds. Firstly, she urges us to take the view that it is at least arguable (which for present purposes is all that is necessary) that the decision of the Secretary of State to refuse to give substantive consideration to the application for asylum in the light of the harrowing circumstances in which Mr Solcan arrived in the United Kingdom, is one to which no reasonable Secretary of State could come. For my part, I cannot accept that. Clearly any Secretary of State could well have come to a different decision, and it is idle to pretend that no Secretary of State would be moved by these circumstances. But in the end it seems to me that even though the circumstances are as harrowing as circumstances of this kind can be, nevertheless it is not possible to say that in the exercise of his discretion no Secretary of State could possibly, sensibly, reasonably have come to this position. Miss Webber in effect argues: if these circumstances do not create an exception, what does? To that I, of course, do not propose to give an answer by suggesting examples, but there are clearly other totally different types of circumstance in which the Secretary of State could and no doubt on occasion will still exercise his discretion to give substantive consideration. Miss Webber's other argument is based upon material contained in a previous decision of this court, ex parte Sakala an unreported decision (See now [1994] Imm AR 227) of the court consisting of the Master of the Rolls, Rose LJ and Waite LJ, given on 6 December 1993. In his judgment, with which the other two lords justices agreed, the Master of the Rolls referred to a parliamentary answer given by the then minister when the Immigration Bill 1988 was enpassaged through Parliament, in which the minister quoted a letter which he had written in which he said: "The Home Office's experience is that the appellate authorities do make use of their freedom to recommend the use of the Secretary of State's discretion. If a recommendation is made on compassionate grounds, the instructions to the Immigration Department's caseworkers are quite explicit in stating that the normal practice should be to comply with that recommendation. Such matters are treated very seriously indeed, and a decision not to accept an Adjudicator's recommendation must be taken at senior level." The Master of the Rolls interpreted that at page 7E of his judgment as meaning that the minister had "indicated that they [such recommendations] would be given very serious consideration and that great weight would be attached to them." Miss Webber urges us to the view that it is not apparent from the decision letter which Mr Solcan's solicitors had received that great weight was given to the recommendation, and the fact, which undoubtedly gives it added weight, that it was a recommendation made by an adjudicator in the appeal process. It is apparent to us from the letters we have seen signed by Mr Wardle that this decision was taken at Parliamentary Under Secretary of State level. That of itself must mean that considerable weight was given to the recommendation in the Home Office, and although the minister said in the parliamentary answer that normally officers would accept the recommendation, nevertheless, again that is a question for discretion. In the event, for my part, I am satisfied that this decision being made at senior level did satisfy the tests laid down in the Master of the Rolls' judgment. The recommendation was given the appropriate consideration, it was given appropriate weight, and under the circumstances I take the view that if this court said that leave should be given, it would be saying that the court was entitled to take a different decision from that of the Secretary of State. It is axiomatic that the High Court does not have that power. Under those circumstances I take the view that, compelling though the compassionate circumstances are, nevertheless the Secretary of State was entitled in all the circumstances to reach the conclusion to which he did come. I would, therefore, refuse this renewed application.

Judgment Two:

SIMON BROWN LJ: I agree.

Judgment Three:

PETER GIBSON LJ: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Wenstanley-Burgess, London EC1; Treasury Solicitor

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.