R v. Special Adjudicator, Ex parte Landu Makonda

LANDU MAKONDA
(Applicant)
v
SPECIAL ADJUDICATOR
(Respondent)

10 October 1995 Court of Appeal: Kennedy, Peter Gibson LJJ, Sir Roger Parker Political asylum-citizen of Zaire-arrival in United Kingdom from Spain-application for asylum made but not determined in Spain-whether Secretary of State entitled to characterise application as without foundation-whether entitled to propose returning applicant to Spain-whether the circumstances brought the applicant within paragraph 345 of HC 395. Asylum and Immigration Appeals Act 1993 sch. 2 para. 5(3): HC 395 paras. 345-347. Renewed application for leave to move for judicial review following refusal by Collins J. The applicant was a citizen of Zaire. He had arrived in Spain in March 1994: he applied for asylum: he left Spain for the United Kingdom in July 1995 before the application in Spain had been determined. He applied for asylum in the United Kingdom. The Secretary of State concluded he could be returned to Spain as a safe third country: he characterised the application as without foundation. His certificate was upheld by a special adjudicator. Counsel argued that a person who left another country having applied for asylum but before that application was determined, was not a person to whom the provisions of paragraph 345 of HC 395 applied: that paragraph only related to those who had not made an application for asylum in a third country.

Held

1. The proposition put forward by counsel was unarguable. Paragraph 345 was concerned with an applicant's opportunity to claim asylum in another country. The applicant clearly had that opportunity and availed himself of it.

2. On the evidence the special adjudicator was entitled to conclude that Spain was a safe third country.

Miss L Weinstein for the applicant R Jay for the respondent

Case referred to in the judgments:

R v Special Adjudicator ex parte Landu Makonda (unreported, QBD, 2 October 1995)

KENNEDY LJ:

This is the renewal of an application for leave to move for judicial review, leave having been refused by Collins J on 2 October of this year. The application relates to a decision of a special adjudicator which was given on 7 September of this year. The applicant is a native of Zaire. He was born on 21 May 1968. In 1985 he moved from Zaire to Angola, apparently because of persecution in Zaire. In March 1994 he moved on to Spain and there applied for political asylum. On 31 July 1995 he arrived in the United Kingdom, not having discovered the result of his application for political asylum in Spain, so far as he was aware that application not having been determined. He then applied for political asylum in the United Kingdom. The immigration authorities inquired immediately of the Spanish authorities as to the position. They received a reply on 2 August 1995 to the effect that, if the applicant were returned to Spain, "We accept the removal to Spain of the above-mentioned person". The letter of the Spanish authorities goes on to ask the immigration authorities to notify them of the date of the applicant's arrival. On 2 August 1995 the Secretary of State refused political asylum. In a letter of that date the Asylum Division of the Immigration and Nationality Department said this:

"You are returnable to Spain, which is a signatory to the 1951 UN Convention relating to the Status of Refugees, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971. The Spanish Ministerio do Justicia e Interior have been advised of your liability to be returned to Spain and have given notice that they will accept you back.

…

"Paragraph 345 of the Immigration Rules (HC 395) 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 can find no grounds to justify departing from his normal 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 obligations under the Convention."

On 7 August the applicant appealed against the decision of the Secretary of State, and thus the matter came before the special adjudicator on 25 August when the special adjudicator heard the appeal. On that occasion the applicant was represented by counsel, as indeed he is today. The special adjudicator reserved his determination for seven days and gave his determination on 7 September. Miss Weinstein submitted to the special adjudicator, as she submitted to us, that paragraph 345 was not applicable to this particular applicant. She submitted that he fell into a lacuna in the rules. Paragraph 345 provides thus:

"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 of his claim unless:

(i)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

(ii)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."

Paragraph 346, under the heading "Previously rejected applications", reads:

"When an asylum applicant has previously been refused asylum in the United Kingdom and can demonstrate no relevant and substantial change in his circumstances since that date, his application will be refused."

Paragraph 347 reads:

"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 345, and invited to raise any new circumstances with the authorities of the country which originally considered his application."

Miss Weinstein's submission, in brief, amounts to this, that paragraph 345 only relates to the situation which arises when an applicant has made no application at all in the third country to which that paragraph refers. It does not cover the situation where an application has been made but not determined. Of course, if the application has been determined, and determined against the applicant, then paragraph 347 would apply. In my judgment the adjudicator and Collins J were right in their view that that submission was unarguable. What paragraph 345 is concerned with is the opportunity to make the application, and this applicant not only had the opportunity but he demonstrated that he had it because he took it. That leaves only one other point, which is whether or not Spain is properly to be regarded for the purposes of paragraph 345 as a safe country. It is submitted to us that it is not properly to be so regarded, and our attention has been invited to an asylum law of Spain passed in September 1994 which, it appears, provides that admission will be denied if the applicant falls within certain categories one of which is if his application for political asylum is just a reiteration of a previous application rejected by the Spanish authorities. So far as anyone is aware, this applicant's application has not been rejected by the Spanish authorities; it has simply not yet been determined. So far as the safety of Spain as a country is concerned, the Secretary of State has clearly made inquiries, and we have before us a letter dated 28 July 1995 in which it appears that the Secretary of State has received from Spanish authorities an undertaking that third country returns to Spain conducted under the agreement will not be subject to refoulement, thereby ensuring that in those cases the United Kingdom is fulfilling its own obligations under the Convention and Protocol and that Spain will determine any application for political asylum properly in accordance with the provisions of that Convention and Protocol to which it is a signatory. In those circumstances it clearly was open to the special adjudicator to find-indeed, it was right for him to find-that Spain was a safe country; and, as far as I can see on the information before us, there is no arguable point on which it would be possible to give leave to move for judicial review. For my part, therefore, I would not grant leave.

PETER GIBSON LJ:

I agree.

SIR ROGER PARKER:

I also agree.

DISPOSITION

Application refused

Solicitors:

Aaronson & Co, London SW5; Treasury Solicitor