Nagalingam Kanapathypillai v. Special Adjudicator

NAGALINGAM KANAPATHYPILLAI
(Applicant)
v
SPECIAL ADJUDICATOR
(Respondent)

12 October 1995 Court of Appeal: Neill, Evans, Millett LJJ Political asylum - citizen of Sri Lanka - arrival in United Kingdom from Germany - application for asylum refused by Secretary of State- application characterised as without foundation - Secretary of State proposed returning applicant to Germany - applicant had arrived in Germany with false Canadian passport-special adjudicators had held Germany not a safe third country for applicants with false papers - whether special adjudicator in the instant case entitled to conclude that Germany was a safe country. Asylum and Immigration Act 1993 sch.2 para. 5(3)(a). Renewed application for leave to move for judicial review, following refusal by Dyson J. The applicant was a citizen of Sri Lanka. The Secretary of State had refused his application for asylum and had characterised the application as without foundation: he proposed to return the applicant to Germany, whence he had arrived in the United Kingdom. The applicant had arrived in Germany with a false Canadian passport. It was a criminal offence in Germany to seek leave to enter with false papers. There had been occasions in the past where asylum seekers arriving in Germany with false papers had had pressure brought on them to withdraw their application for asylum in return for the authorities abstaining from prosecuting them for arriving with false papers. On that basis other special adjudicators had concluded that Germany was not a safe third country for those with the applicant's history. In this instant case the special adjudicator had concluded that such incidents were rare and not endorsed by the German government: he upheld the Secretary of State's certificate. Before the court it was argued that following Gnanavarathan the special adjudicator had failed properly to explain why he differed in his conclusions from that of other special adjudicators, and his decision was unreasonable.

Held

1. The adjudicator had been well aware that his conclusions were in conflict with those of other adjudicators in earlier cases.

2. On the evidence before him, it had been open to him to come to the conclusions to which he had come.

3. In reaching his conclusion he had been entitled to take into account that no such incident of the nature complained of, had been recorded since June 994.

Miss C Fielden for the applicant R Jay for the respondent

Cases referred to in the judgments:

Re Musisi [1987] AC 5 t4: [1987] Imm AR 250. Pitchaiappah Gnanavarathan v Special Adjudicator [1995] Imm AR 64. R v Special Adjudicator ex parte Nagalingam Kanapathypillai (unreported, QBD, 19 September 1995).

NEILL LJ:

I will ask Evans LJ to give the first judgment.

EVANS LJ:

This is a renewed application for judicial review of the decision of a special adjudicator in a case where there was an application for asylum. It is the kind of case described in Gnanavarathan [1995] Imm. AR 64, in particular in the judgment of Glidewell LJ, that is to say it is a case where the applicant claims refugee status but the Secretary of State for the Home Department has refused to grant the applicant political asylum in this country. He has certified that the applicant's claim is without foundation and has ordered that the applicant should be returned to Germany as a safe third country where his application will be heard in accordance with the Geneva Convention of 1951. Germany is also a party to the Convention and the issue in the present case is whether the special adjudicator was correct to dismiss the applicant's appeal from the Secretary of State's decision. In essence, it is a dispute as to where the application for asylum should be heard and dealt with-here or in Germany. The applicant is a Sri Lankan Tamil asylum seeker. He travelled to this country en route to Canada via, first, Singapore, then Taiwan and then Germany. He was in Germany for two days and it was conceded before the special adjudicator that the applicant had the opportunity to seek asylum there. So the question now is whether Germany is a safe third country where his status will be determined in accordance with the Convention. The difficulty arises because he travelled to Germany on a forged Canadian passport and that is a criminal offence under German law. There is evidence that in some other cases the German authorities, or those representing them, have brought pressure on asylum seekers to abandon their claim and to agree to return to their country of origin where they fear persecution. Pressure has been brought by threatening to prosecute them for the criminal offence but then offering them freedom from prosecution if they agree to return home. It is common ground that that has occurred on certain occasions and that on the face of it, when it has occurred, it has involved conduct contrary to what is required by the Convention. One can put on one side, in my view, the question whether the occurrence of such cases necessarily involves any breach of the Convention by Germany, the state in question. Those other cases where it had occurred were the subject of other applications to other special adjudicators. In the present case, having been informed of those other decisions and of the reasons for them, the special adjudicator said this:

"It seems to me that I would be naive in the extreme to believe that Germany had never, through its Border Authorities, offended its Convention obligations. I am sure that up to the current time, there are still instances where a German border official will act against the spirit of the Convention but I also believe that these incidents are rare. Contained in [the applicant's representative's] bundle of documents which publicise various criticisms of Germany, I find that I am satisfied that I have no evidence before me that Germany does not make every effort to comply with its Convention obligations. I do not believe that the German authorities would countenance any harassment of asylum seekers living in Germany. "

He then makes specific reference to a letter from the United Kingdom office of the United Nations High Commissioner for Refugees, dated 5 January 1995, and in a later paragraph he says this:

"It is for these reasons that I find that I have to disagree with my Special Adjudicator colleagues who have found that Germany is unsafe in the particular appeals they heard."

The application for judicial review of that decision came before Dyson J on 19 September. In his judgment he says this:

"At the heart of the decision of the special adjudicator on the only point developed is the finding of fact that the incidents, of breach of the Convention are rare. The adjudicator was entitled to make that finding."

Before us Miss Fielden has set out the evidence of those previous occasions which I will summarise in a moment. She has urged that they, together with the special adjudicators' decisions upon them, are compelling evidence that it is wrong on the material available to treat Germany as a safe third country, as the special adjudicator in the present case has done. She has emphasised that the burden of proof is on the Secretary of State, which is accepted. She has reminded us that, as was held in the case of Gnanavarathan, full reasons must be or should be given by the special adjudicator, in particular, where he expresses a conclusion which, as she says, is contrary to the weight of the evidence put before him. She has referred also to the judgment in the House of Lords in Re Musisi [1987] AC 514, where, as Lord Bridge said:

"In any case of this sort the most anxious scrutiny must be given."

The evidence which was before the adjudicator, but not referred to expressly by him, includes an exchange of letters between the Immigration and Nationality Department of the Home Office, by letter dated 7 December 1994, addressed to a lady who was taken to represent the appropriate political or diplomatic authorities in Germany and the reply, which we have in translation, dated 22 December 1994. Attempting merely to summarise the reply, and noting that the letter addressed to Germany asked for some reassurance that the kind of occurrence which is relied upon in the present case is not likely to be repeated, it appears that according to the legal position in Germany a person who enters the country using false or forged documents does not lose any right to make his application for asylum in accordance with Germany's Convention obligations. At the same time it indicates that such a person will be subjected to what may be called a fast-track procedure; in particular if he or she arrives by air they will not be allowed to leave the transit zone of the airport until the application has been made and processed. The initial application is made to the Federal Office for the Recognition of Foreign Refugees. Within a short timescale there is provision for appeal against an adverse decision to the Administrative Court. But, as Miss Fielden emphasises, unless there are shown to be serious doubts as to the legality of the decision it would not be the practice for deportation to be suspended in the event of such an appeal. On any view the procedure, in a case where the applicant has entered using forged or false documents, is subjected to a very tight timescale indeed and Miss Fielden suggests that the letter may even be read as indicating that it is doubtful to what extent there is a realistic procedure for application for asylum in such a case. She accepts, however, that, according to the letter, there is such a process and, as I understand her basic submission, she says that the occurrences in the past have indicated not that the policy is defective or that the procedures are non-existent, but that the individual applicant who has entered on a forged or false document may find himself pressurised in the way which is said to have occurred on other earlier occasions, so that he chooses to return to his country of origin rather than remain in Germany and face prosecution. It should be noted, however, that, according to the letter, no question of prosecution arises if asylum is granted. It is therefore difficult to see, on the face of it, why there should be a realistic threat of the kind that is described. However, making due allowances, one can see scope for such a threat to be made to an applicant by a border official who was unaware of his proper duties and responsibilities. I turn, therefore, shortly to the evidence of previous occurrences. It seems that there were three which have become known to the authorities or to persons in this country and referred to in other special adjudications. These were the cases of Kastrati, an Albanian, who appears to have received some such form of treatment in about November 1993. There was a case of Yumsack in about January 1994 and a third case, Berhe, in about June 1994. Subsequent decisions in the cases of Huang, Chen and Bouhera have resulted in rulings that Germany was not a safe third country by reference, in particular, to those three previous incidents. In those rulings there is reference to a letter dated 9 February 1994 from, I think, a Dr Lopa on behalf of the Federal Republic. The adjudicators in question have indicated that that letter, although asserting Germany's obligations under the Convention, has to be read subject to the fact that the third of the three cases, Berhe, took place some months after it was written, thereby providing grounds for believing that the policy described in that letter was not by any means, invariably carried out. Since those occasions there has been the further exchange of correspondence dealing specifically with this matter already referred to in December 1994. It is unclear from the later decisions of special adjudicators, in the case of Johnson in March 1995 and Beqiri in March 1995, whether those special adjudicators were referred to what I shall call "the December 1994 correspondence". There is no express reference to it in their reports. However, if they were referred to it, it must be assumed or can be assumed in the applicant's favour that they did not feel that the assurances as to policy contained in the letter were sufficient to outweigh the previous experience in the three cases already referred to. So coming to the present hearing before the special adjudicator, he had, on the one hand, the evidence of those previous occasions; he had the reports of the previous rulings by special adjudicators and, as his own decision demonstrates, he was well aware of the fact that he was reaching a conclusion which could be taken as indicating some disagreement between them. But the question remains whether, on the whole of the material before him, he was entitled to reach the conclusion which he did. The terms of that conclusion, as already read, indicate that he was by no means blind to the fact that a policy may not always be complied with. He acknowledged that there had been departures from the proper policy in the past but he expressed himself as satisfied that so far as the German state was concerned its policies did "make every effort to comply with its Convention obligations." He referred expressly to the letter of the office of the United Nations High Commissioner for Refugees. That is dated 5 January 1995 and therefore is the most recent of the relevant documents that have been referred to. It enclosed a booklet which describes the procedure for asylum seekers in Germany. In all those circumstances Miss Fielden submits that the special adjudicator either had insufficient grounds for reaching the conclusion he did or at least failed to give sufficient reasons indicating what other material he had relied upon. In my judgment, overall, there can be no doubt but that there was evidence before him which justified the conclusion he reached and I would add that, in my view, he expressed his conclusion in entirely proper terms. What is said, to some extent, is that the respondent should have gone further in an attempt to prove the negative that there had not been any further occurrences of this sort since, say, the middle of 1994. Quite how that could have been done is problematical. But the fact that there was no evidence of any occurrence since June 1994 is of some weight when the scales are balanced. In my judgment, for those reasons, the learned judge, Dyson J, was correct in reaching the conclusion that the special adjudicator was entitled to reach the conclusion that he did. By saying that he believed that the incidents were rare he was saying no more than that he believed them to have been isolated. For these reasons, in my judgment, with whatever reluctance, I would hold that the court should not interfere and that this renewed application should be refused.

MILLETT LJ:

I agree

NEILL LJ:

I also agree.

DISPOSITION

Application dismissed

Solicitors:

Param & Co, London, NW9; Treasury Solicitor