R v. Immigration Appeal Tribunal, Ex parte Musisi

R v Immigration Appeal Tribunal Ex pare Musisi

Queen's Bench Division

[1984] Imm AR 175

Hearing Date: 1 November 1984

1 November 1984

Index Terms:

Practise and procedure -- Visitor -- Refugee -- Granted temporary admission pending consideration of application for entry as visitor -- Entry refused and removal order issued effective for following day -- On that day prior to removal applied for asylum -- Application refused -- Convention Relating to the Status of Refugees art 32(2) and Protocol -- Immigration Act 1971 s 13(1) -- HC 169 para 73.

Held:

Held: Article 32(2) of the Convention only applied where a person was to be expelled on the grounds of national security or public order. This was the case in the present instance, and there was no contravention of the Convention.

Counsel:

L Blom-Cooper QC and Miss C Fielden for the applicant. J Laws for the respondent. PANEL: Mann J

Judgment One:

MANN J: There is before the court an application for judicial review. I gave leave to move upon consideration of the papers on 1 February of this year. The applicant is Mr Herbert Crispian Musisi. The respondent is the Secretary of State for the Home Department. The decisions which are impugned are removal orders dated 12 March 1983, 13 July 1983 and 16 January 1984. I observe, but take no point upon -- as did not the Secretary of State -- that the case as presented today is different from the case which was presented on paper and in regard to which leave was granted. The applicant is a Ugandan national who arrived at Heathrow on 23 January 1983 from Kenya. He sought entry as a visitor. The period of the visit was said to be three weeks; the purpose of the visit was said to be to visit relatives. The applicant was interviewed by an immigration officer, Ms Denise Beddows. She was not satisfied that the applicant was qualified to enter as a visitor. She required him to attend for further interview but granted him temporary admission under paragrqaph 21 of Schedule 2 to the Immigration Act 1971. A further interview occurred after which Ms Beddows reconsidered the matter. She was not satisfied that the applicant was genuinely seeking entry as a visitor. On 26 January 1983 leave to enter was refused. A removal order to Nairobi was made to take effect the next day, and the temporary admission was renewed. The applicant did not depart. He remained in this country where he is today. His status throughout his stay has been that of a person without leave to enter, and is that of a person here under a temporary admission. The reason why the applicant did not depart in accordance with the removal order is that on 27 January the United Kingdom Immigrants' Advisory Service notified the Home Department that Mr Musisi wished to apply for asylum. Following that notification the applicant was interviewed on the same day by Mr AJ Aldridge. Mr Aldridge concluded that the applicant was not a genuine applicant for asylum. Following that interview and conclusion the case seems to have been considered for a while within the Department with the consequence that on 12 March 1983 a letter was sent to the applicant in these terms: "You were refused leave to enter the United Kingdom on 26 January 1983. I regret to inform you that your political asylum application has been unsuccessful. I have given amended directions for your removal from the United Kingdom . . ." There then followed details of an amended removal order to take effect on 17 March. That is the first of the orders which is assaulted in these proceedings. Following that order further representations were made on the applicant's behalf. I do not rehearse them in detail but their nature emerges from a letter written by the Minister of State for the Home Office on 8 July 1983. The appropriate paragraph in that letter reads as follows: "In considering Mr Musisi's application for asylum due regard was had to the problem of harassment and intimidation which he and his family had experienced in Uganda, but of even greater significance was the fact that Mr Musisi had spent six out of eight years during the period 1974-82 in Kenya where his mother, a brother and two sisters reside and where he had been living for six months immediately prior to his arrival in the United Kingdom. In these circumtances it was apparent that Mr Musisi had come to the United Kingdom from a safe country and that were he to be refused entry then he would not be required to go to Uganda but could return to Kenya instead. His application for asylum in this country was therefore refused and it was only as a result of a member of Parliament's intervention that his proposed return to Kenya was postponed." After that letter a further removal order, dated 13 July was made. That is the second of the orders assaulted in these proceedings. There were, however, further representations on the applicant's behalf, in consequence of which the Minister of State, on 5 October 1983, wrote to a member of Parliament who had expressed interest in the cases as follows: "I have looked again at Mr Musisi's case in the light of the contents of the enclosed letter but it contains no sufficient justification for reversing my earlier decision to remove him to Kenya where he has lived for many years and where several close relatives, including his mother, are residing. The enclosed letter suggests that Mr Musisi might be in danger of being refused entry on his arrival back in Kenya and removed at once to Uganda, but given his residential and family ties with Kenya and the fact that Kenya is a signatory to the 1951 UN Convention Relating to the Status of Refugees and would not knowingly remove a Ugandan citizen to Uganda if there was reason to believe he would be persecuted there, summary removal to Uganda strikes me as unlikely in the circumstances.

"However, if this possibility holds real fears for Mr Musisi then might I suggest that he makes contact with Mr Jack Landau, the London representative of the United Nations High Commissioner for Refugees . . . as soon as possible, explains the situation and asks Mr Landau whether he is willing to contact the Nairobi office of UNHCR on his behalf to arrange for a representative of that office to be on hand when he arrives back in Kenya . . . Arrangements for Mr Musisi's removal to Kenya will now proceed but he will be given ample time to contact Mr Landau of UNHCR."

It appears yet further representations were made because on 13 January 1984 the Minister of State wrote to the member of Parliament, to whom the previous letter had been addressed, in these terms: "I have carefully considered the points raised in the enclosed correspondence but I do not consider that they would justify me reversing the original decision, the grounds for which were set out in my letters of 8 July and 5 October. In reaching this decision I have taken full account of Mr Rose's comments, but I do not accept his claim that Mr Musisi's application for asylum in this country was prejudiced by the information that the United Kingdom Immigrants' Advisory Service -- after interviewing Mr Musisi -- provided in presenting his case to us. Nor do I accept Mr Rose's pessimistic interpretation of the advice given by UNHCR." The Mr Rose referred to is the solicitor who was, and is, advising the applicant. Consequent upon that letter a third order for removal was made on 16 January 1984. That is the third of the orders assaulted in these proceedings. As appears from the letters written by the Minister of State from which I have quoted, and as certainly appears from the affidavits which are before me and from which I have not quoted, the case put by the applicant was that he feared ill-treatment, even death, if he was sent to Uganda. The fear was founded in particular upon his late father's association with a political movement in that country. The apprehension of the applicant was that if he was returned to Kenya, the country from which he came to this country, the Kenyan authorities would send him to Uganda. As will have appeared from the correspondence, the Secretary of State was not satisfied that the apprehension was justified. Mr Blom-Cooper, on behalf of the applicant, said that there was a clear issue as to whether the applicant's fear was well-founded or ill-founded but he recognised that the issue is not an issue which can be determined by this court. Mr Blom-Cooper further disclaimed any suggestion that he could seek to flaw the Secretary of State's decisions by reference to the Wednesbury principle. The case, as advanced by Mr Blom-Cooper, is that the applicant should have been given leave to enter; and that accordingly the order for removal should not have been made and should either be quashed or declared to be ineffective. The case requires a consideration first of rule 73 of the Immigration Rules; second, of the Convention relating to the Statuts of Refugees and its Protocol; and third, of certain provisions of the Immigration Act 1971. I take first the Immigration Rules and turn, for convenience, to HC 169, which became operative on 16 February 1983. Rule 73 replaces a rule which appeared in similar form in the previous statement of rules. Rule 73 is headed "Asylum" and the last sentence reads as follows: "Leave to enter will be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees." I turn then to the Convention relating to the Status of Refugees and to its Protocol. The Convention was signed in Geneva on 28 July 1951 and the United Kingdom instrument of ratification was deposited on 11 May 1954. The 1967 Protocol relation to the Status of Refugees was acceded to by the United Kingdom on 4th September 1968. That Protocol amends the definition of the term "refugee" comtained in Article 1 of the Convention. Article 1A, as amended and so far as is material, reads as follows: "For the purposes of the present Convention, the term "refugee" shall apply to any person who . . . 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 . . . is unable or, owing to such fear, is unwilling to return to it." Article 32 of the Convention contains three paragraphs, of which I need read only the first two: "1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."

"2. The explusion 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 a competent authority or a person or persons specially designated by the competent authority."

I remark that there was some discussion as to the meaning of the phrase "a competent authority". I have no doubt that the reference to "a competent authority" is a reference to an appellate authority and is not a reference to the body which initiates or has sought to secure the expulsion of a refugee. The third matter for consideration is certain provisions of the Act of 1971. First there is section 13(1) which is a section within Part II of the Act, headed "Appeals" and is within a group of sections headed "Appeals to adjudicator or Tribunal in first instance". Section 13(a) says: "Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal." Subsection (3) provides, amongst other things: "A person . . . shall not be entitled to appeal a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit." Two cases apart, neither of which is material, it is plain that a person such as the present applicant who is in the United Kingdom without leave to enter cannot appeal against the refusal of leave to enter. The position of such a person may be contrasted with that of a person who has secured leave. His position is dealt with in section 14: "Subject to the provisions of this Part of the Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave or against any refusal to vary it; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave." A consideration of Article 32(2) of the Convention, and section 13(1) of the Act of 1971, leads to the conclusion, said Mr Blom-Cooper, that the removal of the applicant would be contrary to the terms of the Convention because the applicant has had no opportunity of appealing to a competent authority. Accordingly, says Mr Blom-Cooper, having regard to the terms of rule 73, leave to enter should have been given if only for such period as would have enabled an appeal to be mounted under section 14. It is implicit in this argument that removal of the applicant without the opportunity of appeal to a competent authority would be contrary to the provisions of Article 32(2) of the Convention. It is at that point that Mr Laws, on behalf of the Secretary of State, seeks to flaw the argument. He submits that paragraph 2 of Article 32 relates only to refugees whom it is desired to expel on the grounds of national security or public order. He draws attention to the use, in paragraph 2, of the phrase "such a refugee": "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 a competent authority." Mr Laws said, it is plain from that language that paragraph 2 of Article 32 is directed to the case of a person whom it is sought to remove on grounds of national security or public order. Hence the reference to "such a refugee" and the reference "to clear himself", is a reference "to clear himself" of the allegation that his presence is prejudicial to national security or public order. The point is a short one. Mr Blom-Cooper's argument is, in my judgment flawed in the way which Mr Laws suggests. Article 32(2) has no application to this case. It applies only in relation to cases where a person is to be expelled on the grounds of national security or public order. That is not this case. There is, therefore, no contravention of the Convention. Rule 73 does not apply and there is no ground for saying that leave to enter should have been given.

DISPOSITION:

Application for judicial review refused.

SOLICITORS:

Stockwell and Clapham Law Centre; Treasury Solicitor.