Ekrem Kandemir v The Secretary of State for the Home Department

Ekrem Kandemir v The Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 137

Hearing Date: 24 August 1984

24 August 1984

Index Terms:

Deportation -- Political Asylum -- Application made after decision to deport -- Whether evidence relating to claim for asylum could be considered at hearing of appeal against decision to deport -- Immigration Act 1971 s 3(5)(a) -- HC 169 paras 153, 158, 165 -- 1951 Convention Relating to the Status of Refugees arts 1, 32, 33.

Held:

The facts are set out in the ruling. Rules: (i) On appeal from the decision to deport only the circumstances known to the Secretary of State at that time could be considered. (ii) In the present proceedings no appeal lay from the refusal of asylum since that decision was not incorporated into the present proceedings. (iii) An appeal only lay from the refusal of asylum if it came under Part II of the Immigration Act 1971, since no right of appeal was conferred by the Convention and Protocol relating to the Status of Refugees.

Counsel:

K Drabu and E Yaansah of the United Kingdom Immigrants Advisory Service for the appellant. D Wilmott for the respondent. PANEL: Professor DC Jackson (Vice-President), Mrs JHM Goodchild, Major RAK MacAllan

Judgment One:

THE TRIBUNAL: The appellant appeals against the decision of an adjudicator (Mr M Patey MBE) dismissing his appeal against the decision of the Secretary of State on 7 October 1983 to make a deportation order against him by virtue of the Immigration Act 1971, section 3(5)(a). The hearing of this appeal started on 29 June 1983. On that occasion Mr Wilmott for the Secretary of State, sought to challenge the ability of the appellant to appeal from the decision of the Secretary of State on 6 December to refuse the plea of asylum, or, indeed, to raise the matter in this appeal as it was not known to the Secretary of State before 7 October 1983. We heard argument on the point but before ruling on it agreed to rule on whether the point was open to Mr Wilmott at this stage of the proceedings. We adjourned the matter pending the ruling and indicated that if we ruled that the point was open we should allow the United Nations High Commissioner for Refugees to make submissions. On 13 July 1984 we ruled that the point was open to Mr Wilmott. By letter dated 17 August 1984 the High Commissioner submitted several points for our consideration and on 24 August 1984 an opportunity was given for oral submissions by the parties in the light of these written representations. This ruling is concerned with the question of whether the appellant has the right to raise asylum in the appeal presently before us. It concerns the construction of HC 169 paragraph 158 and its application to claims for asylum and the general right of an appellant to appeal from a decision of the Secretary of State from the refusal of an asylum plea. The issue is of general importance in that it is relevant to several matters extant before adjudicators and the Tribunal. Paragraph 158 reads:

"Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached."

We approach this case on the basis that: (1) the date of decision to make a deportation order was 7 October 1983 and the appellant's plea for asylum and the information on which it was based was made known to the Secretary of State on 17 October 1983. (2) the general rule is that on appeal in cases within paragraph 158 an appellate authority can consider only evidence of "relevant circumstances known to the Secretary of State" at the date of decision. (See for example Ramjaun (3052) and Kivrak (3088)). The issue of evidence of which the Secretary of State ought to have been aware does not arise in this case and we do not consider it. In this case, although the asylum claim was made after the date of decision, the Secretary of State has considered the claim to asylum and has recorded his consideration in the explanatory statement. In cases with the same chronology the Secretary of State may have considered the plea but not recorded the consideration in the explanatory statement or even in a supplementary explanatory statement; or it may be that the Secretary has not even considered the claim it being raised for the first time before an adjudicator or even before the Tribunal. The fundamental question common to all these situations is the relevance of paragraph 158 to evidence placed before the appellant authority. The issue is connected but not identical with the question of whether there is a right of appeal from a refusal of an application for asylum made by an individual in this country whenever it is made. The application of HC 169 paragraph 158 to asylum cases For the limit of "known to the Secretary of State" to have no application to pleas of asylum it must be displaced by another immigration rule of statutory provision. The rules do not of themselves make clear how an asylum plea, or leave granted on the basis of asylum fits into the immigration framework or the appellate process (see the Tribunal decision of Shafiq (3279)). Rules relating to asylum are to be found in HC 169 paragraphs 16 and 73 (on entry rules); 96 and 134 (variation of leave); and 153 and 165 (deportation). It is the latter two paragraphs which are directly relevant to this case. They read:

"153. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

"165. In accordance with the provisions of the Convention and Protocol relating to the Status of Refugees, a deportation order will not be made against a person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion."

Paragraph 165 focuses on the making of a deportation order but, in our view, that of itself should not mean the rule relates only to the making of the order as distinct from the decision to make it. The rules in Part XII of HC 169 do not make the clear distinction drawn between ss 15 and 17 of the Immigration Act 1971 between the decision to make the order and the making of the order. In any event paragraph 153 of the rules, in our view, incorporates the Convention and Protocol relating to the Status of Refugees into the rules. In effect the Convention provisions qualify the rules in so far as the rules would require action contrary to the Convention and we must therefore have regard to the Convention whenever it is proposed to deport an applicant for asylum or a refugee. Mr Wilmott argued that it would be nonsense to hold that the time limitation on paragraph 158 did not apply to an applicant for asylum, but that it did apply to the same matters put forward simply as compassionate circumstances in a deportation context. Such an argument, however, ignores the nature of an asylum plea and the incorporation of the Convention into the rules. Further, it implies that because a time limit is imposed on a claim to which aspects of asylum may be relevant it must therefore apply to the asylum application itself. This does not seem to us to follow. The asylum application is based through the rules on the Convention -- other applications on the rules themselves. The rules having recognised the supremacy of the Convention (see paragraph 153) it cannot then be argued that the rules control that which is based on the Convention. It follows therefore that paragraph 158 will apply to an application for asylum and to evidence supporting such a plea only insofar as it is not inconsistent with the Convention. The right to have an asylum application considered Article 1A of the Convention defines a refugee. So far as is relevant Article 1A(2) sets out the definition applicable generally: "For the purposes of the Convention, the term "refugee" shall apply to any person who: (2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Articles 32 and 33 deal with expulsion of a refugee: Article 32 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority of a person of persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. Article 33 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. It is clear therefore that by the Convention a refugee (as defined in Article 1A(2)) is protected from expulsion except on the grounds specified in Article 32 and 33. It follows that an individual claiming to be a refugee must be given the opportunity to establish the claim. As we understand it it is not contested that the right to have an application for asylum exists nor that initially the authority for considering the application is the Secretary of State. Mr Wilmott submitted to us that Article 32(1) applied only to a "refugee lawfully" here and therefore that the appellant (who is an overstayer) could not claim its protection. Mr Drabu argued that "lawfully" should be construed to refer only to illegal entry and not so as to include a person who, having entered legally, remains here without leave. Whatever it's scope, in our view to construe the provision in the way urged by Mr Wilmott would be against the spirit of the Convention. Further, an over-stayer cannot be expelled from this country simply because he is here without leave -- the deportation procedure provides a "right" to remain here pending the making of the deportation order. That such a "right" is not merely procedural is illustrated by HC 169 paragraph 156 in that matters, not necessarily connected with the individual's stay while he had leave, must be taken into account in the decision to make an order. It follows that, in our view, the appellant in this case is not excluded from Article 32 of the Convention on the ground that he is not "lawfully" here. However, Article 32 confers right of a "refugee" and it seems to us is not concerned with the issue before us. The Article relates to the expulsion of a refugee and not to whether the appellant is a refugee and therefore can claim the protection of Article 3. The Convention is silent as to the procedure for establishing the status of refugee on which it is based. The Handbook on Procedures and Criteria for Determining Refugee Status published by the United Nations High Commissioner for Refugees in 1979 records recommendations of the Executive Committee of the High Commissioner's programme in 1977 going to the basic requirements of these procedures. Clearly such recommendations are not binding on State signatories to the Convention and are certainly not incorporated into the immigration rules. However, the recommendations are at least a guide in construing the "requirements" of the Convention, and, in particular considering whether the Convention requires a signatory State to provide a right of appeal from a refusal of an application to an authority other than that initially refusing it. Decisions of the Secretary of State and the application of the immigration rules The consideration of an asylum claim by the Secretary of State after an initial decision of the Secretary of an application for leave based on other grounds raises the general question of the relevance of the immigration rules to the later decision. As appears from the explanatory statements in general, the practice is for the Secretary of State to review any decision reached in the light of any appeal lodged. In some cases, where there is a reconsideration, it is arguable that there is a two-stage decision with the later being the decision appealed from. In others (of which this is one) because of a fresh application there are two decisions. Mr Wilmott said that in such a case the second decision is an exercise of discretion outside the rules. On reflection we disagree. Without the consent of an applicant it is not for the Secretary of State to select whether he will act within or outside the rules if a case falls within the rules (see Shafiq (3279)). If a case falls within the ambit of the rules then the Secretary of State must exercise his discretion within the rules. Where the later decision is on an application for asylum it would be difficult to envisage that it is ever outside the rules -- for the Convention which provides the right that it be considered is incorporated into the rules. In this case the decision to make a deportation order was taken on 7 October 1983. The notice of refusal is stark but clear:

"On 29 December 1978 you were admitted to the United Kingdom for six months. The Secretary of State is satisfied that you have since remained without authority."

On 17 October 1983, in his grounds of appeal, the appellant claimed asylum and this application was refused through a letter, dated 6 December 1983, to the appellant's solicitors reading:

"You have applied on behalf of Mr Kandemir for leave to remain in the United Kingdom on the grounds that if he is required to leave he would have to go to Turkey where he fears persecution. The Secretary of State is not satisfied that his fear of persecution is well founded therefore his application is refused. There is no right of appeal against this decision. Mr Kandemir's appeal against the decision to make a Deportation Order under Section 5(1) of the Immigration Act 1971, served on him on 7 October 1983 will now proceed."

The explanatory statement dated 20 December 1983 deals with the facts on which the decisions of 7 October and 6 December were reached. There is nothing to show that both decisions were not "within the rules". The right to appeal and on appeal in relation to claims based on asylum Neither the entitlement of an applicant for asylum to have his application considered nor the categorisation of that decision as within the rules necessarily confers a right of appeal. Further, such an entitlement does not mean that asylum can be raised before an appellate authority except according to the rules of admissibility of evidence applicable to the proceedings in which it is raised. Any right peculiar to asylum applications conferring a right to appeal from a refusal of such an application or the ability to raise asylum matters in other proceedings, must be sought in the Immigration Act 1971, the current immigration rules and through those rules the Convention Relation to the Status of Refugees. In this case any right to raise asylum matters not known to the Secretary of State by 7 October must be based on the Convention as incorporated by the rules. Similarly, any right of appeal from the decision of 6 December must be based on the Convention as incorporated by the rules. The letter of 6 December 1983 states baldly that there is no right of appeal from the decision. It gives no reason. The ground of that assertion is presumably either that the decision was outside the rules or, if within the rules, that the appellant's leave as a visitor had expired, that he was applying for variation of leave and that he was therefore caught by the principles of Suthendran [1977] IAR 44 and Subramaniam [1976] IAR 155. The well-known principles of these two decisions establish that an appellant cannot appeal from any decision not to vary his leave unless he makes it while his leave is in being. However, if the Convention provides for a mandatory appeal it is arguable that jurisdiction is conferred on the appellate authorities through section 3 of the Immigration Act and the Immigration Rules made thereunder. The question of jurisdiction was not raised before the adjudicator but in similar circumstances to this case Mr Patey has ruled that Article 32(2) of the Convention provides a right of appeal (see Nackeeran TH/111280/83). In Nackeeran, as in this case, the claim to asylum was asserted for the first time in the grounds of appeal to an adjudicator, from a decision to make a deportation order under section 3(5)(a) of the Immigration Act 1971. The issue was argued on the substantive grounds of whether asylum, being made known to the Secretary of State after the date of the decision to make a deportation order, the adjudicator has no power to consider it. That issue does not turn on whether the Secretary of State has not made a decision in the matter but simply on whether the express limit of HC 169 paragraph 158 is overridden in asylum cases. Mr Patey ruled that it was -- saying:

"I must accept that in the normal course of events following the Tribunal's determination in Ramjaun, cited above and Kirak (3088), facts not known to the Secretary of State at the time he takes a decision to deport cannot be considered by an adjudicator during the course of his determination of an appeal against that decision. However the overriding nature of the Convention is recognised in paragraph 153, set out above, and I can only interpret Article 32(2) as entitling a person claiming to be a refugee to a right of appeal before a "competent authority" prior to expulsion. Mr Gulvin has suggested that "the competent authority" should be construed as the Secretary of State but with respect I cannot agree: the Article requires that such a person shall be allowed to submit evidence and, furthermore, to appeal against an adverse decision. It is therefore clearly implicit that since the decision is taken by the Secretary of State, any appeal must lie to the competent authority established by statute to consider such appeals, in this intance an Adjudicator. Moreover there is no similar limitation in paragraph 165 to that in paragraph 158 restricting the matters at issue in an appeal involving claims to asylum to facts known to the Secretary of State at the time he takes the decision to deport. Indeed it would appear to be the intention of Parliament in approving these immigration rules that persons claiming a well-founded fear of persecution should be afforded an unfettered right of appeal against deportation. This is very understandable in view of the dire and even fatal consequences which could ensue from the deportation of a genuine refugee to his home country and would also seem to take into account the fact that circumstances in a receiving country can alter radically in the often lengthy period between the date a decision to deport is taken and the hearing of an appeal before an Adjudicator. I recognise that the Tribunal have held in Puvitharan, cited above, and again in Asbor (3224) that they are unable to take cognizance of a claim to asylum post-dating the Adjudicator's determination, but this is clearly distinguishable from the judgment in the Divisional Court on 13 October 1983 in R v Immigration Appeal Tribunal ex parte Muruganandarajah in which it was held that a person is not entitled to argue his claim to asylum in the course of an appeal against a decision taken by the Secretary of State under Section 5 of the Act. Accordingly if the provisions of Article 32(2) are accepted as affording a person a right to appeal on the basis of a claim to asylum prior to deportation, he can only exercise this right during the course of an appeal against a decision taken under Section 3(5) of the Act. In all these circumstances I find that the present appellant is entitled to pursue his claim to asylum in the course of the present appeal."

It seems to us that there is some danger of procedural entanglement which muddies water already far from clear. As we have said there is no time limit, either under the Convention or under the rules, on making an asylum claim. In incorporating the Convention, the rules in effect impose obligations on the Secretary of State in respect of refugees and impliedly an obligation to allow the claimant to establish that status so as to prevent expulsion except in the terms of Article 32. The adjourment of an appeal against a decision to make a deportation order to allow the Secretary of State to comply with that obligation does not incorporate any refusal of the claim into the proceedings already in being (see in a similar vein the Tribunal decision in Hammoud (3415) concerned with the refusal of leave to enter). If the Convention does impose a right of appeal and if, through the Rules, jurisdiction is conferred on the appellate authorities, that jurisdiction can only be exercised through an appeal from the refusal of the asylum claim. If there is no appeal from the consideration of the asylum claim by the Secretary of State this leaves the deportation proceedings as they were and the issue before the appellate authority is whether there is anything in the Rules or Convention to override the limitation of paragraph 158 in relation to the deportation proceedings to which aspects of asylum are relevant. In our view, there is not, for ex hypothesi the appellant is not a refugee (and therefore Article 32 of the Convention can have no application). In these circumstances the sole issue would be not the substance of the plea for asylum but whether the application of paragraph 158 is contrary to paragraph 143 in the sense that the appellant has not been given the opportunity to establish that he is a refugee. In that lies the justification for the adjournment of the deportation proceedings but it does not follow that the asylum claim and its consideration somehow become part of the deportation proceedings. It is arguable that there is no need to adjourn the deportation proceedings for the asylum plea can be considered by the Secretary of State concurrently with, or subsequent to, those proceedings. Naturally, provision of a right of appeal from the asylum plea would provide a strong reason for adjournment of the deportation appeal. This would enable any appeal from any refusal of the asylum plea to be considered together with the appeal from the initial decision to make a deportation order. We now therefore consider whether a refusal of asylum necessarily implies a right of appeal. Does the appellant have right of appeal from the refusal of asylum? As we have said, as his leave had expired by the date of his application for asylum, the appellant has no right of appeal under Part II of the Immigration Act 1971 from the refusal of asylum notified on 7 December 1983. Any right of appeal must therefore be founded on the Convention and be conferred through the application of the Immigration Rules. It seems to us doubtful whether the jurisdiction of the Tribunal or adjudicators can be extended through the Rules made under the Immigration Act section 3(2). That provision appears in Part I of the Act headed "Regulation of Entry and Stay in the United Kingdom". By section 3(2) the Secretary of State is placed under an obligation to lay before Parliament statements of the Rules "as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter . . .". When that provision is set alongside Part II of the Act (headed Appeals") it seems to us that it cannot be read as including a power to provide for appellate jurisdiction. If this be correct, whatever the Convention says, there is no right of appeal from a decision of the Secretary of State as regards asylum unless such a right exists under Part II. Even if we are wrong in this, with the greatest respect, we do not agree with the view of Mr Patey expressed in Nackeeran that the Convention provides a mandatory right of appeal from the decision of the Secretary of State. First, we should say that if it does so provide the right must apply to all applications for asylum whether made after an adjudicator's decision or indeed after the decision of the Tribunal, and therefore the Tribunal decisions of Asobor (3224) and Puvitharan (3002) could not stand. Further the Court of Appeal decision in R v IAT ex parte Muruganandarajah (16 July 1984) would be qualified in that there may be concurrent proceedings to those under section 5 of the Immigration Act 1971 in which asylum was the central feature. Secondly, we cannot agree that Article 32(2) of the Convention is relevant to the claim to be a refugee. Article 32 is concerned with the claim of a refugee not to be expelled and Article 32(2) specifically with the right of a refugee to challenge expulsion -- permitted only on grounds of national security or public order (Article 32(1)). Article 32(3) illustrates that the focal point of the whole article is expulsion despite being a refugee. Even if we are wrong on both the above points we do not see Article 32(2) as providing a mandatory appeal to an authority other than that taking the decision to expel. The obligation is to allow the refugee "to submit evidence to clear himself, and to appeal . . . to competent authority". It would require precise phraseology in our view in a Convention which in most contexts does not spell out procedure for us to hold that these words imply consideration by one authority and an appeal to another. The Article goes rather to an obligation to allow submission of evidence and representation as distinct from an arbitrary expulsion than to the provision of appeal. Our view is supported, we think, by the explanatory comment on the Convention by the High Commissioner for Refugees in the Handbook on Procedures to which we have referred earlier in this determination. Included in these recommendations is that if the applicant is not recognised as a refugee "he should be given a reasonable time to appeal for a formal reconsideration of the decision either to the same or a different authority whether administrative or judicial according to the prevailing system". We do not think that this provision can be relied upon as providing a foundation for an appeal under the prevailing system in circumstances where no ground other than asylum could be the basis for appeal. We also note that included in the recommendation on procedure is one that the "applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority" (that is, the authority with the responsibility for examining requests for refugee status). The recommendation continues that the applicant should be permitted to remain in the country "while an appeal to a higher administrative authority or to the Courts is pending". We read this as providing simply that if such an appeal is allowed then the applicant should be permitted to remain in the country. In any event, we stress that these recommendations are simply indications of the way in which the United Nations High Commissioner's Programme sees the Convention as operating. They are not binding on the signatories and they do not form part of the Immigration Rules. We conclude therefore that neither the International obligations of the United Kingdom in respect of the Convention, nor the adoption of the Convention provisions through the Immigration Rules result in a right of appeal from a refusal of asylum. Such right of appeal depends upon the Immigration Act 1971 Part II. General considerations In his letter of 17 August 1984, the High Commissioner's Representative stressed that an application for asylum is voluntary and that the domestic legal system should not be construed so as to put pressure on an individual to make an early application. He pointed out that the making of such an application necessitates a break with the individual's own country. Mr Wilmott countered with the argument that it is not in the public interest of this country to encourage applications for asylum in the middle of an appellate process in relation to a claim for entry or a claim to remain on a ground other than asylum. In our view, the framework as we construe it is not inconsistent with either contention. The High Commissioner underlined the need for consideration of an application for asylum. As we understand it this is not contested and the sole issue is whether any refusal of such an application is appealable. To hold that an asylum claim attracts an appeal applicable to no other claim would require strong foundation in the Convention and a direct link between the Convention and the statutory jurisdiction of the appellate authorities. As we have said we are unable to find either. We therefore rule: 1. (a) It was open to the adjudicator and is open to the Tribunal in the appeal before us (ie from the decision of 7 October 1983) to consider only circumstances known to the Secretary of State on that date (HC 169 paragraph 158). Such a restriction applies whatever the nature of the circumstances not known. (b) It follows that the appellant cannot rely on evidence relating to the plea of asylum made for the first time on 17 October 1983. 2. In these proceedings no appeal lies from the refusal of asylum by the Secretary of State notified on 6 December 1983, that decision not being incorporated into these proceedings. 3. (a) An appeal lies from the refusal of asylum only if such appeal lies under the Immigration Act 1971 part II, no right of appeal being conferred by the Convention through the Immigration Rules or in any other way. (b) It follows that there is no reason to adjourn these proceedings pending consideration of any appeal from the refusal of 6 December 1983. 4. As the ruling is of general importance, subject to representations of the parties it should be incorporated into our determination.

DISPOSITION:

Ruled accordingly. (The Tribunal incorporated this Ruling into their subsequent Determination (3427), and in addition held that the effect of HC 169 paragraph 165 was to impose Convention obligations at the time of putting into effect the decision to made a deportation order. The Determination also covers further issues arising from the facts of this appeal.)

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