R v. Secretary of State for the Home Department, Ex parte Gurmeet Singh, Parminder Singh, Navarathan Suseenthiran, Ha Hadeva Kajendran, Yadvinder Singh

Queen's Bench Division (Divisional Court)


[1987] Imm AR 489

Hearing Date: 22 May 1987

22 May 1987

Index Terms:

Political asylum -- the proper approach by the immigration authorities to applications for political asylum -- the desirability of giving notice, with reasons, when an application is refused -- when consideration has to be given to whether a person, if returned to one country, may be sent on to another country where he fears persecution -- when he may be removed to another country where he should pursue a claim for asylum; United Nations Convention relating to the status of refugees 1951, and Protocol 1967, arts 1A, 32, 33: HC 169 (as amended) para 73.

Removal directions -- where an immigration officer may sign a direction for the Secretary of State -- the limitations on his powers to give directions of his own motion -- detention when temporarily admitted -- when permissible. Immigration Act 1971 ss 3, 11(1), 18, 32(3), 33; Schedule 2 paras 8, 10, 16(2), 21(2). HC 169 (as amended) para 73.

Students -- visa nationals -- whether the discretionary provisions of para 73 override the specific requirements of para 10 in HC 169.


In considering applications for judicial review by three sikhs and two Tamils to whom the Secretary of State had refused political asylum, the Court gave rulings on a number of points of general application. The facts in the individual cases are set out in the judgments. Held 1. Where the Secretary of State refused an application for political asylum it was desirable for the applicant to be given notice of that decision and reasons for it, although there was no statutory obligation to do either, before directions are given for removal. 2. Removal directions could not be given after two months by an immigration officer of his own motion. If, after that time, he signed an order of directions on behalf of the Secretary of State, that could not be challenged unless it could be shown that the officer was not authorised so to sign. 3. In considering an application for asylum and following in re Musisi, the Secretary of State was obliged to consider whether, if returned to a safe country, the applicant (if he so asserted would be the case) would be sent on to a country where he feared persecution. 4. Where an applicant has come from a safe country in which he had not exhausted his opportunities to seek asylum, there was no obligation on the part of the Secretary of State to grant asylum, albeit the principle of non-refoulement had to be observed. 5. A person released on "temporary admission" could be subsequently detained by the immigration authorities. 6. The discretionary provisions of paragraph 73 of HC 169 (as amended) did not override the specific requirements set out in paragraph 10, in relation to visa nationals.

Cases referred to in the Judgment:

R v Immigration Officer ex parte Shah [1982] 2 All ER 264. R v Secretary of State for the Home Department ex parte Juiakumaran (unreported, QBD, 28 June 1985). R v Secretary of State for the Home Department ex parte Ali Riza Erdogan (unreported, QBD, 24 June 1986). Huseyin Bugdaycay and ors v Secretary of State for the Home Department [1987] Imm AR 250; [1987] 2 WLR 606. In Re Musisi [1987] Imm AR 250;l [1987] 2 WLR 606. Amesbury v Millington [1987] 1 All ER 929.


E Cotran for the first four applicants; Harjit Singh for the fifth applicant; John Laws for the respondent. PANEL: Woolf LJ, McCullough J

Judgment One:

WOOLF LJ: This judgment of the Court deals with five applications for judicial review. Three of the applicants are Sikhs and two are Tamils. In each case the applicant claims that he is entitled to remain in this country as a refugee and seeks to challenge the Home Secretary's decision to remove him from this country. There are now approximately 130 similar applications for judicial review waiting to be heard and it was hoped that by carefully selecting a number of applications it would be possible to arrange for cases to be determined which would decide all the principal points raised in these applications. In order to achieve this object on the first day of the hearing of the present allocations fifteen cases were listed for hearing. However in nine of those cases "exceptionally" the Home Secretary decided to grant the applicants leave to remain and this decision, subject in some of the cases to the Home Secretary agreeing to pay their costs, was acceptable to the applicants so the applications were withdrawn. In a tenth case a similar offer was refused by an applicant represented by Mr Riza and Mr Riza initially persuaded the Court to proceed with the application despite the opposition of the Home Office because the Home Secretary had not accepted that the applicant was entitled to be regarded as a refugee. However, by the second day of the hearing the Home Secretary had found it possible to reconsider the case again and came to a decision which was inconsistent with his previous decision and acknowledged that Mr Riza's client was entitled to refugee status. In these circumstances the Court was deprived of the full argument which Mr Riza wanted to advance on behalf of his client though we did have the advantage in considering the remaining applications of hearing an outline of that argument as part of his submission that the Court should continue to hear the application notwithstanding the ultimate decision of the Home Secretary. However, we declined to do this as there was no longer any live issue between the Home Office and that applicant. We felt that although this was a test case where the normal principles do not necessarily apply (see Amesbury v Millington [1987] 1 All ER 929, speech of Lord Bridge at p 931) difficulties could arise if we reviewed a decision of the Home Secretary which the Home Secretary himself no longer sought to maintain and further problems could arise if either of the parties wanted to appeal our decision. The consequence of this extremely late change in his position by the Home Secretary has meant that the Court has been unable to deal with what is known as the "12 hour point" notwithstanding the valiant, but alas unsuccessful, efforts by the Crown Office and the parties to find a suitable application which raised that point which was ready for hearing. The five applications which were effective did however raise a number of points of law of general application which we deal with in turn before considering the facts of each individual case. The Two Months or Paragraph 8(2) Schedule 2, Immigration Act 1971 Point In the case of each application apart from that of Mr Y Singh the direction for removal was given by the immigration officer purporting to exercise the power contained in paragraph 8(1) of the second schedule of the Immigration Act 1971 (which entitles the immigration officer to give directions, inter alia, to the owners or agents of the ship or aircraft in which he arrived requiring them to make arrangements for his removal from the United Kingdom). However, in each case the directions were given more than two months after the date on which the applicant was first refused leave to enter the United Kingdom and in those circumstances it was argued by the applicants that the immigration officer was not entitled to give the directions. Justification for this argument is provided by the fact that paragraph 8(1) of the schedule is expressly made subject to sub-paragraph (2) and sub-paragraph (2) provides: "No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom." At an early stage of the argument Mr Laws made it clear that in such cases the Home Office conceded that the directions were invalid. This concession was not surprising. In the case of R v The Immigration Officer ex parte Shah, [1982] 2 All ER 164 I had held that an applicant was entitled to rely on the failure to give proper directions notwithstanding the fact that the directions are not required to be given to the immigrant but to the person required to arrange the removal. In the unreported case of The Secretary of State for the Home Office ex parte Ali Riza Erdogan which was heard by Nolan J on 24 jUne 1986, a case in which Mr Cotran who appears for the four present applicants also appeared, Mr Laws made the same concession. However, Mr Laws also contends that as the date for removal had expired a substantial time ago, the applicants were not entitled to any relief. Despite the arguments of Mr Cotran to the contrary, we accept that argument of Mr Laws and we take the view it would be quite purposeless to grant any relief on this ground as the applicants cannot possibly be prejudiced now by the expired directions which were given. In the case of Mr Y Singh, who is represented by Mr Harjit Singh, a similar argument was advanced. However, although the directions were given to Mr Y Singh outside the two months period, the direction in this case purported to be made under paragraph 10 of Schedule 2 of the Immigration Act and the directions were signed by the "Immigration officer for the Secretary of State." Paragraph 10 of the second schedule provide, so far as relevant: "(i) Where it appears to the Secretary of State either (b) that directions might have been given in respect of a person under paragraph 8 above but that the time limited by paragaph 8(2) has passed then the Secretary of State may give to the owners or agents of any ship or aircraft any such directions in respect of that person as are authorised by paragraph 8(1)(c)." Accordingly, we are quite satisfied that there was nothing wrong with the direction in the case of Mr Y Singh. Mr Harjit Singh did question the ability of the immigration officer to sign for the Secretary of State. However, until it is shown that he was not authorised to do so, no complaint can be made about this since section 32(2) of the Immigration Act 1971 provides: "Any document purporting to be an order, notice or direction given by the Secretary of State for the purposes of this Act and to be signed by him on or on his behalf . . . shall be received in evidence and shall, until the contrary be proved, be deemed to be made or issued by him." In the course of argument McCullough J drew attention to the fact that paragraph 8(2) does not expressly refer to the first refusal of leave and in some of the applications there was more than one refusal. Mr Laws acknowledged that this was an interesting point, but did not seek to rely upon a later refusal when the first refusal was more than two months prior to the direction because this does not accord with the manner in which the paragraph has been applied by the Home Office. While recognising that more than one interpretation is possible, we consider that when the schedule is read as a whole, Mr Laws, concession was justified because, read in its context, paragraph 8(2) is to be construed as referring to the first refusal of leave and what happens thereafter cannot extend the immigration officer's powers. The need for a student to have a visa under rule 10 of the relevant immigration rules which are contained in HC 169 (as amended) Like the last point this point is not connected with the fact that the applicants are seeking asylum as refugees. It only applies in the case of the application by Mr Suseenthiran. Rule 10 is contained in section 1, part 1, which is described as "Introdouctory" in HC 169. The rule provides in its amended form that: "The foreign nationals and Commonwealth citizens specified in the appendix, stateless persons, and other holders of non-national documents (who are collectively described in these rules as 'visa nationals') must produce to the immigration officer a passport or other identity document endorsed with a United Kingdom visa issued for the purpose for which they seek entry, and should be refused leave to enter if they have no such current visa." Rules 21 and 24, which appear in part 2 of HC 169 and deal with passengers coming for temporary purposes, so far as relevant provide: "21. A passenger seeking entry to study in the United Kingdom should be admitted . . . if he presents a current entry clearance granted for tha purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the entry clearance officer that he has been accepted for a course of study at a university, a polytechnic or further education establishment . . . " etc (Other requirements are set out in rules 22 and 23). "24. A passenger who holds a current entry clearance, or who can satisfy the immigration officer that he fulfils the requirements of paragraphs 21-23, may be admitted for an appropriate period depending on the length of the course of study and on his means . . . A passenger who satisfies the immigration officer that he has a genuine and realistic intention of studying in the United Kingdom and that he intends to leave the country on completion of his studies but cannot satisfy the other requirements of paragraphs 21-23 may be admitted for a short period . . . Otherwise a passenger arriving without an entry clearance who is seeking entry as a student is to be refused admission." Mr Cotran draws attention to the presence of the word "or" in the first sentence of rule 24 and the alternative approach which can be adopted by the immigration officer indicated in the second sentence of the rule. He submits that as entry clearance is defined by section 33 of the 1971 Act as meaning, inter alia, a visa, notwithstanding rule 10 a visa national who is not the holder of a visa who is seeking leave to enter as a student can be admitted under rule 24. We do not accept this submission. Students seeking to enter this country from countries other than those specified in the appendix to the rules referred to in rule 10, have a choice as to whether they obtain entrance clearance before they arrive in this country. Rule 24 is dealing with non-visa nationals who arrive to study without entry clearance. It is not purporting to create an exception to rule 10. That this is the proper approach to the interpretation of the rules is confirmed by the passage which appears at the end of Part 1 of the rules and which is in heavy print and which reads: "Part II of these rules deals with the admission for temporary purposes, Part III with admission for employment or for marriage and Part IV with admission for settlement. Part V makes provision for children born in the United Kingdom who are not British citizens. In all cases admission is subject to possession of a valid current entry clearance where that is required by these rules . . ." Mr Suseenthiran who arrived from India on 11 July 1985 was a national of Sri Lanka and accordingly the immigration officer who then only had an application from him for admission as a student was entitled to refuse him leave to enter because he did not have a visa (Sri Lanka being one of the countries referred to in the appendix) and the Secretary of State was justified in upholding the decision of the immigration officer for the reasons set out in the letter of 14 August 1985 from the Minister of State to this applicant's MP. The correct approach to granting leave to enter to applicants seeking asylum as refugees The United Kingdom is a party to the Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees. The Convention and Protcol have not been directly incorporated into United Kingdom law. However, indirectly by reason of the provisions of the immigration rules contained in HC 169 which, as section 8(2) of the Immigration Act 1971 recognises, lay down the practice to be followed in the administration of the Immigration Act 1971, the rules require effect to be given to the principles contained in the Convention and the Protocol in relation to the grant or refusal of leave to enter or leave to remain in this country and of deportation from this country. In Part 1 of HC 169, rule 16 provides: "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 (Cmnd 9171 and Cmnd 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments." Part VII of HC 169 deals with asylum and rule 73 (which is the only rule contained in part VII) set out the position with regard to leave to enter in terms which it is necessary to quote in full. "73. Special considerations arise where the only country to which a person could 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 social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees." The wording of the first sentence of rule 73 is clearly based on the definition of the term "refugee" which is contained in the first paragraph of article 1A(2) of the Convention. The relevant parts of the article are in the following terms: "A. for the purposes of the present Convention the term 'refugee' shall apply to any person who: (1) . . . (2) . . . 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". As pointed out in the Handbook on criteria and procedures for determining refugee status issued by the United Nations High Commissioner for Refugees in 1979, the critical requirement of the definition of "refugee" contained in the Convention is the requirement of a well-founded fear of being persecuted for the reasons stated. A well-founded fear involves both a subjective element and an objective element. The individual whose status is under consideration must in fact have the fear and that fear must be one which from an objective standpoint would be regarded as well-founded. If a person complies with the definition of a refugee contained in the Convention, then under the Convention contracting States are under certain obligations. Some of those obligations are owed only to refugees who are "lawfully" in their territory. One such provision is that contained in article 32 which provides: "(1) The contracting State shall not expel refugees lawfully in their territory save on the grounds of national security or public order. (2) The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law. (3) The contracting State shall allow such refugee a reasonable period within which to seek legal admission into another country." On the basis of this article, Mr Cotran initially submitted the applicants on whose behalf he appeared were entitled to remain in this country as long as they could establish they were entitled to be regarded as refugees. However, in reply he conceded that he could not establish this was the situation because of the requirement contained in the article that the refugee should be "lawfully" in the country. Each of the present applicants had only been granted temporary admission and they required, but had not received, leave to enter under section 3 of the Immigration Act 1971 and by section 11(1) of the Act a person is deemed not to have entered the United Kingdom so long as he is detained or temporarily admitted or released while liable to detention under the powers conferred by schedule 2 of the Act. For the purposes of the Convention, a person temporarily admitted is therefore not to be regarded as lawfully in the territory. He is instead in an intermediate position which also differs from those in the country illegally, which is again a situation recognised in the Convention (see for example article 30(1)). The important provision contained in the Convention which benefits those in the position of the present applicants who have either been detained or temporarily admitted and are to be regarded as refugees is the prohibition of expulsion or return (refoulement) contained in article 33. Paragraph 1 of article 33 provides: "No contracting State shall expel or return ('refoule') a refugee in any manner whatsoever to a frontier 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." It will be observed that the opening sentence of rule 73 also reflects this article so that an immigration officer is required to refer an application by a person seeking entry to the Home Office for decision where it apepars to him that the only country to which a person could be removed is one in relation to which he is unwilling to go because of a well-founded fear of being persecuted. The rule however permits the immigration officer, even if an applicant for leave to enter is a refugee, to deal with the application if it is clear that there is a country to which that person can be removed (having regard to his power to give directions for his removal under paragraph 8 of the Schedule to the Act) which is not a country in relation to which the applicant has a well-founded fear of being persecuted. As will appear hereafter, in relation to one of the applications this power is relevant. However, normally applications have to be referred to the Home Office and as was made clear by the House of Lords in R v Secretary of State for the Home Department, ex parte Bugdaycay and Others and In re Musisi [1987] 2 WLR 606, Lord Bridge stated at page 619G that: "the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to a Court's power of review." The fact that the immigration officer has such a limited role and that normally the responsibility for making decisions on applications for asylum is that of the Home Office underlines the importance of the decisions. It also acknowledges that frequently decisions involve points of difficulty which are not suitable for determination by an immigration officer who will have limited information available at the port of entry. It is the importance of the decision which also influences the approach of the Courts on judicial review. In the same case in the House of Lords both Lord Bridge and Lord Templeman, while confining the role of the Courts to one of review, emphasised that the importance of the decision to the applicant would influence the way the Court would apply its power of judicial review. In the passage of his speech which follows the passage to which we have referred already, Lord Bridge said: "Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental human right is the individual right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." When the individual cases of the present applicants come to be considered, this salutary reminder of the approach the Courts should adopt will be borne in mind. Notification of the decision of an application for asylum In the course of argument it became apparent that hitherto it has not been the practice of the Home Office to give written notification of the decision on an application for asylum either to the immigrant or his legal advisers as a matter of course before giving directions for his removal. There is no express provision contained in the Act or in the rules or any subordinate legislation requiring written notice to be given or for reasons for a decision to be given when the decision is confined to rejecting an application for asylum. This situation has to be contrasted with the position in the case of decisions which are appealable under the Act where regulations made under section 18 of the Act require written notice to be given together with reasons for the decision. Hitherto apparently the practice of the Home Office where a Member of Parliament has intervened is to set out in a letter to the Member of Parliament the decision and the reasons for it but not to do this in what may be the minority of cases where a Member of Parliament is not involved, though in these cases normally the independent Immigrants Advisory Service would be informed so that that Service could assist the applicant. It is conceivable that because of the absence of an express statutory provision requiring notice, the Home Office is entitled to give directions for removal without first giving the applicant notice of a decision on a pending application for asylum. However we have no hesitation in saying that it is highly undesirable that steps should be taken to remove from this country someone who has made a bona fide application for asylum without his first being informed of the result of his application. We are therefore pleased and relieved to learn from Mr Laws who, after taking instructions at our invitation, was able to assure the Court that in future the practice of the Home Office would be changed and notice in writing of a decision would be given to the applicant before directions were given for his removal. Quite apart from the need of such a notice in order to do justice to the applicant, it is important from the Court's point of view that a notice should be given. In the absence of a notice the Court will most likely be faced with an application for judicial review and if the applicant is able to indicate that as far as he is aware, no decision has been given upon his application for asylum, whatever may be the real merits of his application for judicial review, he will be likely to receive leave to move if it is not known whether a decision has been taken. Some of the cases before us were examples of this sort of situation. So far as giving the applicant reasons for the decision, Mr Laws did not give any assurance to the Court. Again, we feel obliged to say that in our view it would be preferable, even if a Member of Parliament is not involved, that in a case of an application for asylum reasons for the decision to refuse an application are given to an applicant. An immigrant may find it difficult to see the justification for taking one view where a Member of Parliament is involved and a different view where a Member of Parliament has not been involved. Having regard to the importance of the decision, which has been made clear by the House of Lords, it is surely desirable that before a course of action is taken against an individual which he contends could endanger his life he is told why the action is being taken. Short reason are given when a person is refused entry as a visitor so how can it be right to give no reasons when a person is refused asylum? Again, in addition to the requirements of justice or fairness, practical considerations indicate the desirability of giving reasons. Reasons may prevent unmeritorious applications and, when made, if the Court knows the reasons for the decisions then there is at least a real prospect of an unmeritorious application for judicial review being dismissed at the leave stage. Instead what is happening now is that leave is given, and then the Home Office files evidence setting out those reasons frequently by exhibiting a letter to the Member of Parliament which the applicant may never have seen and the case proceeds to an inter partes hearing. The right to detain after a temporary admission Paragraph 16(2) of the second schedule to the 1971 Act, gives a right to detain a person in respect of whom directions may be given under any of paragraphs 8 to 14 of the schedule, under the authority of an immigration officer, pending the giving of directions for and pending his removal in pursuance of any directions given. Where therefore there has been a refusal of leave to enter, there is a right to detain under that paragraph even though the refusal is being challenged by the immigrant as being unlawful. For the purpose of paragraph 16 the refusal must be taken still to exist until it is quashed on an appeal under the Act or set aside by this court. Mr Harjit Singh however contends, at least in the case of an applicant for asylum, that if he has been temporarily admitted, the power to detain is in abeyance until the temporary admission is terminated either by the period for which temporary admission was given expiring or by some form of notice being given. In the case of applicants for asylum the notice he contemplates is notice giving the result of the application for asylum. The power temporarily to admit a person liable to detention is contained in paragraph 21(1) of the second schedule to the Act. That paragraph makes it clear that temporary admission "shall not prejudice a later exercise of the power to detain him". The form used to notify a person of temporary admission contains an express statement that "although you have been temporarily admitted you remain liable to be detained". Bearing in mind, the nature of the temporary admission to which reference has already been made, in these circumstances, we have no doubt that during the currency of a temporary admission it remains open to determine the temporary admission without notice and to re-detain the immigrant. We well can see that there can be reasons why it is perfectly appropriate to re-detain an immigrant who has been temporarily released before giving him notice of the results of his application for asylum. We would therefore reject this submission of Mr Harjit Singh which he made in relation to the application for judicial review by Mr Y Singh. We will now turn to the individual applications and deal shortly with the facts of each application and the conclusions which we have come to about them. In doing so we do not propose to deal with the "two months point" for the reasons which we have already indicated, nor will we deal with the specific points raised in individual applications where we have already set out our conclusions. The application of Parminder Singh This applicant is a Sikh. He arrived in this country by air from Baghdad on 26 February 1985 travelling on an Indian passport. He sought entry for two to four weeks to visit an uncle after which he was to return to India prior to going to live in Canada. The immigration officer was not satisfied that the applicant was a genuine visitor and it was on this basis that he applicant was refused leave to enter and directions were made for his removal on 1 March 1985. The applicant was then granted temporary admission and that temporary admission was extended from time to time while representations were made by his Member of Parliament. The representations were unsuccessful so that further directions were made for his removal on 20 May 1985. Those directions were subsequently replaced by a succession of later directions. On 24 May 1986 a letter was received by the Home Office from the applicant's solicitor stating that they were applying on his behalf for political asylum. The letter from the applicant's solicitors in support of the application stated that the applicant "is a relative of Dr JS Chohan the Khalistan leader and as a young Sikh of 25 is concerned about his life if he returns to India. He is involved in the Khalistan movement". A small quantity of additional information was given by the applicant's solicitors in a letter they wrote to a Member of Parliament who in due course made representations on the applicant's behalf to the Home Office. However the applicant was interviewed on 17 September 1985 and it was largely on the basis of the information contained in that interview that the Minister of State in his letter to the Member of Parliament dated 22 November 1985 justified his decision not to grant the applicant asylum. There had been an earlier interview of the applicant but there were suggestions (which the Minister of State after investigation decided were unfounded) made by the applicant that the interview had been improperly conducted. The letter of 22 November 1985 sets out what are said to be six discrepancies in the account given by the applicant at the interview of 17 September as compared with that given in the earlier interview. Although Mr Cotran contends these discrepancies were not relevant and therefore disclose a defect in reasoning, in fact when the letter is read in context, apart from one alleged discrepancy which could be due to a misunderstanding, they go to the creditworthiness of the applicant and were properly a matter for the Home Office to take into account. Mr Cotran's principal complaints, are however with regard to the remainder of the letter which reads: "Parminder Singh has an extensive family of half brothers and sisters yet the closest and only relative actually in detention is an uncle by marriage who was arrested on an allegedly false charge of murder. He himself claims that he is wanted in connection with a shooting that took place in Amritsar in 1981 though he categorically denies involvement in the incident. He does not appear to be of interest to the authorities since he was readily released on 7 September after being detained overnight for enquiries, on his return to India from Iraq, along with other Sikhs on the flight. "He alleges that the situation for Sikhs has deteriorated since the assassination of Mrs Ghandi, yet he can hardly claim to be likely to be singled out for persecution because of the incident, as he himself has stated, and his passport confirms, that he was not in India on the date in question. "He stated that neither he, nor his half brother or his brother-in-law, both members in the Indian Army, have suffered persecution or harassment in any way. Irrespective of when he claims to have joined the Khalistan Movement he is adamant that he has never held any official position in that organisation. "I have carefully considered Mr Singh's case in the light of your representations and the further information obtained at the second interview but I am not satisfied that he has a well-founded fear of persecution. I am not therefore prepared to alter my previous decision and the Immigration Service will now contact Mr Singh to advise him of this decision and arrange for his removal from the United Kingdom." In relation to the reasoning set out in these paragraphs of the letter, Mr Cotran submits that this case is indistinguishable from the unreported case of ex parte Juiakumaran decided by Taylor J on 28 June 1985. In that case in a powerful and closely reasoned judgment Taylor J identified three criteria (which in his judgment were false) which underlay the reasoning of the Home Office for refusing asylum in that case. The first was that the applicant and his family had not been personally singled out for persecution and therefore he did not qualify for asylum. The second was that violence to individuals flowing from a conflict between factions cannot amount to persecution, the implication of which was that oppression or violence to a racial minority would only be persecution if conducted by the authorities. The third was that a lack of any involvement in politics was a critical factor in determining whether the applicant was entitled to refugee status. Mr Cotran submits that if the passage in the letter which we have set out above is examined, you find each of the same criteria being applied. While we agree that the Secretary of State was taking into account considerations which were similar to the criteria to which Taylor J referred, he was not dealing with them as criteria in the manner described by Taylor J. The case before Taylor J concerned an applicant who was a Tamil who was expressing fear about returning to Sri Lanka. In Sri Lanka the reasons for fear were not exclusively based on persecution by the authorities but largely based on conduct which could not be attributed to the authorities. In the case of the present applicant, he was relying essentially on the hostility of the authorities to Sikhs and in particular Sikhs who joined the Khalistan Movement. In these circumstances it was relevant to refer to the fact that the applicant did not appear to be of interest to the authorities and the fact that "he could hardly claim to be likely to be singled out for persecution". Furthermore it was not being said that these features which were similar to the features referred to in the other case, were conclusive or "critical factors" they were merely being pointed out as matters that were being taken into account by the Minister in coming to his conclusion. On the basis of the material which was before the Minister at the time that he wrote his letter, we do not regard his decision as one in which irrelevant matters were taken into account. It is quite clearly distinguishable from the case which was being dealt with by Taylor J and we find it quite impossible to describe the decision as being unreasonable. We would emphasise however that in this application, as in cerain of the other applications, we have been provided with material which was not before the Secretary of State. This material can well be regarded as showing that in the period which has elapsed since the letter of 22 November 1985 the position has changed. As to the effect of the changes it is not for this Court to express any opinion. It is only the Secretary of State who can decide what effect should be given to this additional information (which, in this case, consists of a disturbing report (dated 1 December 1986) from Amnesty International of the treatment of Sikhs in the Punjab) if the applicant asks for a further review of the Minister's decision. Finally, it should be pointed out that no criticism is made of the decision not to arrange for the return of Mr Parminder Singh to Iraq. The evidence filed on behalf of the Home Office recognises that the applicant would not be accepted in that country and it was the Home Office's case that the applicant, when asked what he would do should his application for political asylum be refused, had stated that he would return to India. The application of Gurmeet Singh Mr Gurmeet Singh is a citizen of India who arrived at Heathrow on 31 January 1985. He applied for leave to enter the United Kingdom for one month as a visitor but the immigration officer refused leave on the basis that he was not satisfied that he was genuinely seeking entry only for the period of the visit stated by him. He was however granted temporary admission which was extended from time to time until 30 October 1985. On 23 May 1985 the applicant's solicitors applied on his behalf for political asylum. The application was based on the fact that Mr Gurmeet Singh was a Sikh and a member of the Khalistan Movement and that he was in fear of his life if he was returned to India. On 10 June 1985 the applicant was interviewed and then, according to the evidence filed on behalf of the respondents, claimed to be a member of the "Saffron Sign" which was an organisation which apparently had not previously come to the notice of the immigration department of the Home Office. After considering that interview an executive officer of the Home Office came to the conclusion that the applicant had not demonstrated a well-founded fear of persecution in India and that his application for asylum should therefore be refused. In accordance with the usual practice the application was then referred to a senior executive officer (who was the same senior executive officer as in the case decided by Taylor J) and he made a decision to refuse asylum on 8 July 1985. Complaint is made that the applicant's solicitors up to that time had no received any communication from the Home Office. They were also not informed of the decision which was reached on 8 July 1985. Instead the Immigrants Advisory Service was informed and they wrote to the applicant on 10 July suggesting that if he would like to discuss his application and to receive advice on it, it would be in his best interests to come to their office. But bearing in mind that he had solicitors acting on his behalf not surprisingly the applicant did not get in touch with that service nor was he particularly alarmed by the letter since it made no reference to a decision having been taken on his application for asylum. On 23 October 1985 the applicant received a notice of further removal directions informing him that the immigration officer had given directions for his removal from the United Kingdom on 13 October 1985. The directions were well-outside the two-month period and were invalid. An application was then made for judicial review and the relief sought was an order of certiorari to quash the directions and an order of mandamus directed to the immigration officer to grant the applicant further temporary admission under paragraph 21 of schedule 2 to the Immigration Act 1971 until his application for asylum had been determined. There is a dispute as to whether or not the applicant's solicitors were told on 29 October 1985 on the telephone that Mr Gurmeet Singh's application for asylum had been refused. It is however clear that no written notice was given to the applicant and that there are still no reasons for the refusal which have been disclosed. Initially the Court was extremely concerned as to the absence of reasons as it is an invariable practice once an application for judicial review is made for the Home Office in its evidence to explain the basis of its decisions so that the validity of that decision can be considered by the Court. Without those reasons it would be extremely difficult if not impossible for the Court to perform its function as indicated by Lord Bridge in the passage from his speech referred to above. The explanation however in this case was the nature of the relief which was being sought by the applicant. Once the immigration service were aware that there was to be an application for judicial review, removal was in fact deferred and the applicant was granted further temporary admission. The basis for the application has therefore been overtaken by the passage of time. However the application remained in the list and at the hearing Mr Cotran sought to contend that the Court should interfere on the basis that the decision was unreasonable and because of the lack of reasons. Mr Laws, however, was not in a position to proceed not having had notice of these contentions and he wished to file evidence which would no doubt include the reasons for the Home Office's decision. In those circumstances a fresh application for leave to apply for judicial review will have to be made if it is now desired to challenge the reasonableness of the decision which was made to refuse asylum. Bearing in mind the time which has elapsed since that decision and the changes which may have taken place in the situation in India over the period it may be felt that the more appropriate course is to make a fresh application to the Home Office for asylum. However the question of what is the appropriate course will if necessary have to be argued out on a further application for leave to apply for judicial review. On his present application the only assistance which the Court can give to Mr Gurmeet Singh is that which has been given in dealing with the points of general application earlier in this judgment. The application of Mr Yadvinder Singh We deal with this applicant next because he is the third of the Sikhs who make an application. Mr Y Singh arrived in this country as long ago as 21 or 23 December 1984 when he sought leave to enter for one month as a visitor. He was also refused leave to enter because the immigration officer was not satisfied that he was genuinely seeking entry for the period of the visit as stated by him. Removal directions were initially given on 23 December 1984 but those directions were superseded by further directions and the applicant remained in this country and on 14 February 1985 his solicitors made an application for political asylum by letter of that date on the basis that he was in fear for his life. On 19 February 1985 the applicant was interviewed in connection with his application for asylum and he was granted further temporary admission on condition that he resided at a special address and that he would report at a date to be notified in due course. The applicant's solicitors had indicated that supporting evidence would be forwarded but despite repeated requests that supporting material was not provided. In these circumstances, on 1 July 1985, removal directions were given to British Airways for the applicant's removal from the United Kingdom on 4 July 1985 but as these directions were given pursuant to paragraph 10(1), as already indicated the directions were not vitiated by the two-month point. There was then considerable difficulty in the Home Office making arrangements to re-interview the applicant whose own solicitors were having difficulty contacting him. However further interview took place on 21 October 1985. On 19 December 1985, the Minister of State at the Home Office wrote to the MP who had made representations on behalf of the applicant explaining his reasons for concluding that he was not satisfied that Mr Singh had a well-founded fear of persecution if he returned to India. In that letter, the Minister refers to the fact the applicant during the first interview claimed that he was a member of the Dal Kalsq party but held no office and that party was banned in 1981 by the Indian Government. Mr Singh claimed that in 1983 the police had called at his home looking for him after he had attended a demonstration but the letter pointed out that Mr Singh had lived in India subsequently without being detained or questioned. It was also indicated that Mr Singh, when asked why he had not claimed asylum on arrival at Heathrow, had answered that the was not "in the mood". The letter also refers to the very limited evidence which was provided in support of the application and the fact that Mr Singh had not taken advantage of the opportunities which he had been given to provide details of his claim for asylum. At the conclusion of the further interview on 21 October 1985 the applicant was re-detained pursuant to paragraph 16(2) of Schedule 2 to the Act of 1971 pending his removal, should his application for asylum be unsuccessful. This action on behalf of the Secretary of State resulted in an application for a writ of habeas corpus, an application of certiorari to quash the directions for detention and an order of mandamus directing the immigration officer to grant the applicant temporary admission under paragraph 21 of schedule 2 to the Immigration Act 1971 until his application for asylum was determined. On the ex parte hearing of those applications the applicant obtained leave to move and the application for writ of habeas corpus was adjourned for an inter partes hearing on 14 November he was granted bail. He has been on bail ever since. The grounds relied upon in support of the application to the Court were that there was no power to detain the applicant under paragraph 16(2) of schedule 2 to the Immigration Act 1971 and that no decision had been reached on the applicant's application for political asylum. The decision was in fact reached after he had been detained. The basis for the decision is contained in the letter of 19 December from the Minister to the applicant's Member of Parliament. So far as the detention of the applicant is concerned the Home Office had power to detain him for the reasons already given and no complaint can be made about the decision to detain him having regard to the failure of Mr Y Singh to comply with the conditions of his temporary admission. Mr Harjit Singh at the hearing also sought to challenge the decision of 19 December 1985 on the basis that the reasoning given by the Home Office did not justify the applicant being returned to India. He also submitted that the decision was contrary to rule 73. However, having regard to the limited material which was placed before the Secretary of State and Mr Y Singh's lack of co-operation, in our view it is quite impossible in this case to establish that there was anything wrong with the decision. The Minister says that he took into account all the circumstances, he appears to have complied with the rule and there is no reason to doubt that this was the case. The decision was not unreasonable. Application of Mr Suseenthiran Mr Suseenthiran is a Tamil who is a Sri Lankan national. It is his case that he was required to flee as a refugee from Sri lanka to India on 17 August 1983. At that time he was a student. On 11 July 1985 he arrived in this country from India and sought entry as a student. Since 30 May 1985 a visa has been required in the case of Sri Lankan nationals and he had no visa and he was refused leave to enter. As already indicated in this judgment, even though Mr Suseenthiran was seeking entry as a student, it was in order to refuse him leave to enter in the absence of a visa. Although Mr Suseenthiran was refused leave to enter he was granted temporary admission to stay with an uncle. This temporary admission was extended from time to time. On 30 August he made an application for political asylum. That application was made during an interview on that date. The grounds for the application were also set out in a long letter to Mr Suseenthiran's solicitor dated 30 August 1985 which letter was submitted to the Home Office. The decision on the application for political asylum is contained in a letter from the Minister of State to the Member of Parliament dated 20 January 1986. The first complaint which Mr Cotran makes with regard to that letter is that the Secretary of State has not looked separately at the issue as to whether or not Mr Suseenthiran is entitled to the status of a refugee and the different question of his returnability to India. We fully accept that in some cases separate consideration will be required of the two issues. However, the Minister of State states in his letter that Mr Suseenthiran has no well-founded fear of persecution and if the Minister properly came to this decision, it would be fatal to Mr Suseenthiran's application irrespective of whether the Minister considered the two issues separately or together. The Minister also indicates that he has taken into account the recent judicial review "of a Tamil case". This is presumably a reference to the decision of Taylor J, so it cannot be said that the Minister fell into the errors identified by Taylor J in that case. However, having regard to the material put before the Minister on Mr Suseenthiran's behalf, it is not clear how the Minister came to the conclusion that Mr Suseenthiran had no well-founded fear of persecution. The Minister does not indicate that he rejects Mr Suseenthiran's account of what happened to him although apparently there were some documents which reflected adversely on Mr Suseenthiran's credibility which are not referred to in the letter to the Member of Parliament. The letter contains a reference to the fact that the Indian authorities had apparently told the applicant that there would be no problems on his return to India. However the letter from the Minister makes no reference to the letter of 30 August 1985 from the solicitors and in particular the fact that in the letter Mr Suseenthiran had contended that he would not be admitted into India and instead would be deported to Sri Lanka and it was there that he feared persecution. The letter of 30 August 1985 also pointed out that there had been cases recently of the Indian Government deporting Tamils from India and that Mr Suseenthiran would fall foul of the Indian Government's entry requirements and as a result would be deported to Sri Lanka. As the House of Lords decided in Re Musisi it is a contravention of rule 73 and the Convention to return an applicant to country A if, as a result the applicant would be sent by country A to country B and in relation to country B the applicant has a well-founded fear of persecution. This is precisely what Mr Suseenthiran was relying upon in his letter from his solicitors in support of his application for political asylum. This point is not even alluded to by the Minister in his letter of 20 January 1986 and considering his letter as a whole, we are quite satisfied that either the Minister ignored the letter of 30 August 1985 or he ignored the vital question as to whether or not Mr Suseenthiran should be granted asylum on the basis that if he was returned to India, he would be in turn removed to Sri Lanka where he had a well-founded fear of persecution. In these circumstances, Mr Suseenthiran is entitled to have his application for political asylum reconsidered and he is entitled to an order of certioria quashing the decision notice of which was given in the letter of 20 January 1986. When the matter comes to be reconsidered, the Minister will have to take into account the present state of affairs which, in any event, may be substantially different from those which existed when the letter was written. The application of Mr Mahadeva Kajendran Mr Kajendran is also a Tamil from Sri Lanka. He was born on 24 November 1964. In his affidavit in support of his application for judicial review, he says that he and his brothers were arrested during the racial riots in 1983, and that he was in fear of his life and fled Sri Lanka to Germany in February 1984. In Germany he was placed in a refugee camp and he found the living conditions in the camp very bad. He made an application for asylum in Germany but that was refused and he did not appeal but instead came to Britain to seek asylum here where he has a sister. He arrived in this country on 2 January 1986. He was refused leave to enter by the immigration officer on 2 January 1986. The reasons for refusing leave contained in the notice of refusal of leave to enter were: "You asked for leave to enter the United Kingdom for an indefinite period on the ground that, if you are returned to Sri Lanka you will be persecuted for reasons of race but this is not the only country to which you can be removed, and you do not otherwise qualify for entry under the immigration rules. Furthermore you have no current United Kingdom visa." The officer responsible for refusing the applicant leave has sworn an affidavit in which he sets out the grounds upon which he came to the conclusion that the applicant was not entitled to leave to enter. It appears that this officer forms the view that the applicant had no well-founded fear of persecution. We are by no means satisfied by his reasons for coming to this conclusion. However, we do not regard this part of the decision as being of significance to the outcome of the application for judicial review. The officer also indicates that Sri Lanka was not the only country to which the applicant could be removed as he had been in Germany for nearly two years and was therefore legally returnable there. On this basis the officer goes on to say that having discussed the case with the Chief Immigration Officer he decided to refuse the applicant leave to enter in accordance with paragraphs 10 and 73 of HC 169. As indicated earlier in this judgment there can be cases where a decision can be properly given by an immigration officer even in cases where political asylum is being sought. However, we have no doubt this was a case, as Mr Laws accepts, where it would be preferable for a decision to be given after the application had been referred to the Home Office. However in this case subsequent to the decision by the immigration officer this is precisely what happened in consequence of representations being made by a Member of Parliament. In a letter dated 13 February 1986 to the Member of Parliament the Minister states: "Mr Kajendran was resident for two years in West Germany prior to coming to the United Kingdom in January without a visa. The West German Government are signatories to the UN Protocol and Convention on Refugees. As you know it is accepted by the refugee organisation and UNECR that a person should be expected to seek asylum in the first country of refuge and we do not generally accept applications for asylum for someone who is already in a safe third country. There is no evidence to suggest that the West Germans would seek to return Mr Kajendran to Sri Lanka and in the past the West German authorities have accepted those Tamils returned to them from this country." On this basis the Minister goes on to refuse to change the decision which he had previously come to not to grant Mr Kajendran political asylum in this country. There is no material before this Court on which the decision on this basis can be faulted. If an immigrant can properly be returned to a third country and it is believed that he will be accepted in that country, then it is not necessary to consider the different issues as to whether or not he has a well-founded fear of persecution in a different country. The Court is entitled to consider anxiously where the Minister was entitled to conclude that the immigrant would be accepted by the third and safe country, but in the absence of evidence showing that the decision was one to which the Home Office could not properly come, the Court cannot intervene. That is precisely the position in relation to Mr Kajendran's application and so in our view the application has to be refused. It follows that of the five applicants, it is only Mr Suseenthiran who is entitled to relief. However, it is right that we should express the hope that in consequence of this judgment, the outstanding applications for judicial review by those seeking political asylum will be scrutinised both by their legal advisers and by the Treasury Solicitor to see whether or not the applications for judicial review should proceed. When such a review takes place applications where there appears to be no real prospect of success should certainly be withdrawn. Applications where the applicant relies on a ground which is not contested by the Home Office, should be also identified and in those cases the Treasury Solicitor should write a letter setting out clearly what the Home Office's position is in those circumstances. We are very conscious that in certain of the present applications, it does appear possible that both applicants' legal advisers and the Treasury Solicitor can be criticised for not taking action earlier of this sort. Without investigating the precise circumstances we cannot say whether that criticism would be justified. However, so far as the remaining applications are concerned the review should not be confined to ascertaining whether or not there are technical grounds on which relief may be granted. Bearing in mind the period of time which has unfortunately elapsed while these applications were pending, and the experience of this Court in relation to the cases which were listed but which were not heard, it is essential that the Home Office should also consider as a matter of urgency which other cases it is prepared to review again in the light of the situation in the country in respect of which the applicant is seeking to be treated as a refugee. We strongly suspect and hope that in many of the cases the Home Office will decide that an up-to-date reconsideration is required. If this investigation is carried out and the applicants whose cases are to be reviewed informed it should make their applications for judicial review redundant and they should also be withdrawn. We recognise that the backlog which has arisen in dealing with these important cases concerning applications for judicial review by applicants who contend that they are entitled to asylum is in part due to the need to await the decision of the House of Lords in the Bugdaycay case and the decision of this Court on the present applications. However in the future it is clearly important that applications for judicial review, where the issue is whether the applicant is entitled to political asylum, should be dealt with as quickly as practical. If the hearing of such an application is not dealt with promptly, there is a danger that the applicant and the Home Office will be caught up in a vicious circle whereby by the time the Court gives a decision in respect of one application the situation in the relevant country has so changed that the original Home Office decision is of little relevance to the applicant's current status. The entitlement to asylum can certainly change from month to month and, if applications for judicial review are allowed to remain undetermined for the periods which exist in the case of present applications, by the time the Court gives judgment, the decision may only be of historical interest.


Orders accordingly.


Singh & Choudury, London E8 for the first four applicants, Clinton Davis & Co, London E5 for the fifth applicant; Treasury Solicitor.

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