R v. Secretary of State for the Home Department, Ex parte Francis Labiche

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte FRANCIS LABICHE

Queen's Bench Division, Divisional Court

[1990] Imm AR 157

Hearing Date: 11 July 1989

11 July 1989

Index Terms:

Political asylum -- applicant only accorded one interview -- no interpreter present at interview -- applicant's representative initially denied a copy of notes of political asylum interview -- whether Secretary of State's approach fair and in accordance with settled law. HC 169 (as amended) paras 73, 134.

Indefinite leave -- Secretary of State's letter of refusal of political asylum handed to applicant -- no interview on that occasion -- whether applicant's examination completed at such earlier time as to result in his securing indefinite leave. Immigration Act 1971, sch 2 para 6.

Refusal of leave to enter as visitor -- subsequent refusal of leave as refugee -- whether a second notice of refusal of leave to enter was required pursuant to schedule 2 of the 1971 Act. Immigration Act 1971 sch 2 para 6.

Held:

The applicant for judicial review was a citizen of the Seychelles who when he arrived in the United Kingdom applied (so the court found) for leave to enter as a visitor. That was refused. He then sought political asylum: he was granted temporary admission and subsequently was interviewed. That application was then refused on the basis of a letter from the Secretary of State: when that letter was given to the applicant, no second asylum interview was held. Neither when the applicant first arrived in the United Kingdom nor when interviewed in connection with his claim for asylum was the applicant afforded the services of an interpreter. His legal representative was later initially refused a copy of the notes of the asylum interview. Counsel argued that it was unfair that no interpreter had been provided: following Thirakumar, it was unfair for the notes of the interview not to be provided when requested. It was also argued on the applicant's behalf that no second interview being held when the Secretary of State's refusal was made known to him, his examination must have been concluded at such earlier time as would allow him, under the provisions of schedule 2 to the 1971 Act, to claim indefinite leave. In that regard the court reviewed the question of whether, in the events which had happened, a second notice of refusal was required, pursuant to the provisions of the second schedule. Held: 1. There had not been shown to be any procedural impropriety or unfairness in the Secretary of State's approach. It was clear that all the immigration officers who had interviewed the applicant had been satisfied that his knowledge of English was adequate and no interpreter was needed. No second interview had been held and therefore, following Thirakumar there was no obligation on the Secretary of State to release the notes of the interview before the decision was taken. 2. Following Thirakumar the applicant's examination for the purposes of schedule 2 to the 1971 Act would have been concluded at the end of a second interview. He was not granted a second interview and his examination therefore was concluded when the immigration officer decided not to grant a second interview: that decision coincided with the handing over of the Secretary of State's letter. The applicant could not show and had not shown that more than twelve hours had elapsed between the end of the examination and the refusal so as to bring into operation the "deemed indefinite leave" provisions of the second schedule to the Act. 3. The Court was divided on whether the second schedule to the Act had any application to the case and whether, in the events which had happened, a second notice of refusal was required.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] AC 514: [1987] Imm AR 250. Secretary of State for the Home Department v Thirakumar and ors [1989] Imm AR 402. R v Secretary of State for the Home Department ex parte Amarasingham (unreported, QBD, 12th May 1989).

Counsel:

E Cotran for the appellant; G Sankey for the respondent PANEL: Lloyd LJ, Auld J

Judgment One:

LLOYD LJ: Francis Labiche seeks an order of certiorari to quash decisions of the Secretary of State for the Home Department contained in two letters dated 28th January 1988 and 6th April 1988 whereby he refused to grant the applicant refugee status. Mr Labiche arrived with his wife and family from the Seychelles on 21 March 1987. He was refused leave to enter on arrival and was served with removal directions. Notice of those directions were given on the usual form as follows: "On 22 March 1987 you have asked for leave to enter the United Kingdom as visitors for six weeks but I am not satisfied that you are genuinely seeking entry for the period of the visit as stated by you". The applicant says that he claimed political asylum on arrival but his English is bad and his claim for asylum was misunderstood. His case was taken up by the United Kingdom Immigrants Advisory Service and subsequently by his Member of Parliament, Mrs Mildred Gordon. He was granted temporary admission so that his case could be investigated. His asylum interview, as it is called, took place on 24th March 1987. The notes of interview are now before the court. Mr Labiche's case is that he was a supporter of the previous government of the Seychelles which lost power on 5th June 1977. He has been arrested on three occasions. On the first occasion he was arrested with his wife for a period of three days. He was interrogated incessantly with respect to any knowledge which he might have about clandestine movements wishing to operate against the government of the Seychelles. On the second occasion he was arrested and detained for a period of two days and beaten over the head with a stick. On the third occasion he was arrested while driving to work in his company's van and again on that occasion he received beatings and punishment from government officials with respect to questions regarding underground clandestine movements. In addition, on 25th September 1986 he was involved in a car accident which he believes was due to a bomb having been placed in the boot of his car by government agents with the intention of killing or frightening him. For all those reasons, he says that he has a well-founded fear of persecution if he is returned to the Seychelles. He says that he will suffer extreme torture and probably death. His case is supported by an affidavit of Mr David Joubert. He was a former Cabinet Minister in the years 1970-1977 under the former president of the Seychelles, James Mancham. He says he has known the Labiche family in the Seychelles since 1963. The whole family were well-known supporters of the Seychelles Democratic Party, which was the governing party. He says that the Labiche family were all very politically active and that the applicant in particular was an "active passionate" member of the organisation until such time as Mr Joubert had to leave the Seychelles. Mr Joubert concludes: "I can confirm that if Mr Labiche had pursued and been active as he was prior to the coup he would have incurred the extreme displeasure of the Seychelles authorities and his life would have been in considerable danger". The applicant was allowed to leave the Seychelles in March 1987 but according to the applicant's affidavit that does not mean that he was not persona non grata. The Home Office's reasons for refusing asylum are set out in a letter dated 28 January 1988. They are expained in a further letter written by Mr Renton, a Minister of State, to the applicant's Member of Parliament. The letter of 28 January 1988 from the immigration officer at Gatwick Airport reads as follows: "This is to inform you that the Home Office form IS820 Notice of Refusal of Leave to Enter which was served on you on 22 March 1987 does not fully reflect the reasons for that decision. The additional reasons are a consequence of you having asked for asylum in the United Kingdom subsequent to your refusal of leave to enter are as follows: [the letter then sets out the reasons of the Secretary of State] and concludes: "The Secretary of State has accordingly refused your application for asylum. In the circumstances, as you do not otherwise qualify for entry under the Immigration Rules, the decision to refuse leave to enter stands". The subsequent letter dated 6 April 1988 to the applicant's Member of Parliament contains the following paragraphs: "Mr Labiche has never been politically active, nor otherwise engaged in opposition to the government in the Seychelles. On both the occasions he was allegedly detained he was subsequently released without any charges being brought against him. If he was followed when collecting people from the airport, this probably stemmed from the authorities concern as to who was arriving in the Seychelles rather than any interest in Mr Labiche. The fact that Mr Labiche was able to obtain a new passport in March 1987 and was then able to leave the Seychelles overtly and without difficulty does not support the contention that he is of interest to the authorities in any political context. Against this background I find the suggestion that the car accident was in fact an attempt on Mr Labiche's life rather implausible. I note that he was charged with speeding following his discharge from hospital. "I have carefully reviewed Mr Labiche's case in the light of your representations but I am not persuaded that he has a well founded fear of persecution within the terms of the 1951 UN Convention. "The decision to refuse asylum must therefore stand and arrangements will be made for the family to be removed to the Seychelles." In addition, there are affidavits from the two immigration officers who interviewed Mr Labiche on his arrival and the immigration officer who conducted the asylum interview. There is also an affidavit from Mr Sprunt, a higher executive officer at the Home Office who says that Ministers had Mr Joubert's affidavit before them when they reached their decision. The immigration officers all say that Mr Labiche could speak English well enough. The two who conducted the interview on arrival are adamant that Mr Labiche did not make an application for asylum when he arrived. The application for leave to apply for judicial review was refused by Farquharson J, (as he then was) and by McCowan J, but it was granted by the Court of Appeal on 30 January 1988 in circumstances which will become apparent. Mr Cotran, on behalf of the applicant, makes three points. First, he submits that the decision to refuse asylum was Wednesbury unreasonable, that is to say, a decision which no reasonable Secretary of State could have reached. I have no difficulty in rejecting that submission. Mr Cotran does not suggest that the decision was perverse but he says that it is otherwise open to review. I bear in mind the observations of Lord Bridge in Bugdaycay v Secretary of State for the Home Department [1987] AC 514, 531 and the observations of Lord Templeman at 560. But there was here ample evidence before the Secretary of State on which he could be satisfied that the applicant had no well-founded fear of persecution. I do not find it necessary to go into the evidence in any detail. I had the impression, perhaps wrongly, that Mr Cotran did not regard his first ground of application as being his best point, and it was not very strongly pressed. I say no more about it. The substantial grounds of the application are raised by way of amendment. They arise out of the recent decision of the Court of Appeal in Secretary of State for the Home Department, ex parte Thiradumar, given on 9 March 1989. No doubt it was because of that decision that the Court of Appeal gave leave to apply in this case after refusal by the High Court. It is said on the strength Thirakumar that the applicant has been unfairly treated because he asked for, and was at first refused, the notes of his asylum interview which had taken place on 24 March 1987. On 26 May 1988 the immigration office wrote to the applicant's solicitors: "I regret that we are unable to provide copies of the interview notes with respect to your client's claim for asylum." Despite that initial refusal, the notes were eventually produced as an exhibit to Mr Walker's affidavit sworn on 8 June 1989. In Thirakumar the Court of Appeal held that in the special circumstances of that case, the applicant was entitled to see the notes of his interview, the special circumstances being that the applicant was granted a second interview after the Home Secretary had reached his decision to refuse asylum. It was only fair therefore that in those circumstances the applicant should see the record of his previous answers. Bingham LJ giving the leading judgment of the Court of Appeal on this point said: "I am in the end persuaded: (1) that if an opportunity to make representations is to be meaningful the mind of the applicant must be directed to the considerations which will, as matters stand, defeat his application; and (2) that if an opportunity to supplement previous answers is to be meaningful, the applicant must be reminded of or (preferably) shown the answers which he gave before: this is most obviously so where (as in two of these cases) a year had elapsed since the previous interviews, but given the difficulties which can occur when questions are asked through an interpreter and the strain to which the applicant may well be subject at the time of the first interview I think it necessary even where the interval has been much shorter. "I am not intending to make any general statement about natural justice or procedural propriety but simply to indicate what, in the peculiar circumstances of cases such as these, fairness seems to me to require." In the present case, in contrast to Thirakumar, the applicant was never granted a second interview. For reasons which will apear in a moment, Mr Cotran does not submit that he was entitled to a second interview. Nothing in paragraph 73 of HC 169 requires the immigration officer to afford a second interview, although obviously he may afford a second interview if there is reason to suppose that circumstances have changed or for some other good reason, as happened in Thirakumar. I do not read the observation of Lord Donaldson MR, in Thirakumar at page 12, that the immigration officer had in that case "quite rightly" decided that they should reinterview the applicants as meaning that a second interview should be afforded in every case. In this case, as I have said, no second interview ever took place, so the reasoning in Thirakumar does not apply. The decision of the Home Secretary to refuse asylum was the end of the road. The case is therefore covered, as it seems to me, by the observations of Lord Donaldson at page 12: "If the Home Office decision had been irreversible, there would be no more unfairness in withholding the reasons for it until after the notice of refusal had been given than there is in handing down a judgment without letting the parties have a sight of it in advance." Mr Cotran put forward a second ground for submitting that the procedure had been unfair. He said that the applicant was denied the services of an interpreter. Obviously if an applicant is unable to speak English, he should be afforded an interpreter. But that was not this case. One of the immigration officers, Mr Walker, says in paragraph 2 of his affidavit: "At the outset of the interview the Applicant claimed that he did not speak English very well, and that he wanted an interpreter to be present throughout. However, after speaking to the Applicant for several minutes it was clear to me that his English was adequate. The Applicant did not appear to have any difficulty in understanding my questions, and I certainly had no difficulty in understanding his replies. Accordingly, I explained to him that, in my view, an interpreter was unnecessary. He seemed quite content to continue the interview in English." That evidence is supported, as I have said, by the evidence of the other two immigration officers who interviewed the applicant on arrival, both of whom said that the applicant appeared to understand English well enough. I can see no element of unfairness in this case corresponding to the unfairness in Thirakumar. I would therefore reject the second ground of the application. I turn to Mr Cotran's third ground of application which is by far the most difficult. It is difficult because the courts are in these cases being asked to apply schedule 2 of the Act to circumstances which I suspect it was never intended to cover, namely an application for asylum. But we must do the best we can. Paragraph 6 of schedule 2 reads: "(1) Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall . . . be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave." Mr Cotran submits that the applicant was not given notice within 12 hours of the conclusion of this applicant's examination and therefore he is deemed to have been given indefinite leave. Mr Sankey on behalf of the Home Secretary submits that paragraph 6 of schedule 2 does not apply at all where the applicant has already been refused leave to enter as he was here. The applicant was given notice of that refusal within 12 hours of his examination on arrival. There could be no question about that. Was he entitled to further notice under paragraph 6 when his application for asylum was refused? There is nothing in paragraph 73 of HC 169 or in schedule 2 which requires further notice under paragraph 6 to be given in such a case and I do not see why any such requirement should be implied. Thirakumar was a different case because there none of the four applicants had been refused leave to enter on arrival. Their cases were all referred to the Home Secretary under paragraph 73 on arrival. When the Home Secretary refused the applications for refugee status, his decision had to be, converted so to speak into a refusal of leave to enter. The only person who had the power to refuse leave to enter was the immigration officer (see section 4(1) of the 1971 Act). The problem which the court faced in Thirakumar was how to make paragraph 6 work when the examination had extended over weeks or in one case months. That problem does not arise here since the applicant had already been refused leave on arrival. That refusal stands, though no doubt fresh removal directions will have to be given presumably by the Secretary of State himself under paragraph 10(1)(b) of schedule 2. Nor does any problem arise where the applicant has been given limited leave to enter and only then seeks asylum during the currency of his leave, since in such a case the power under section 4 to give or refuse leave to remain is exercisable by the Secretary of State. It follows that I agree with the observation of McCowan J in R v Secretary of State for the Home Department, ex parte Amarasingham (12 May 1989) where he said: "In my judgment where there has already been a refusal of leave to enter on a non-asylum ground, as was the situation here, there does not have to be a further refusal of leave to enter if at some later stage an asylum application is refused." The court is indebted to Mr Cotran, who appeared as counsel in that case, for drawing it to our attention. If I am wrong on the ground put forward by Mr Cotran, and paragraph 6 of schedule 2 does apply to an asylum case, when the applicant has already been refused leave to enter by the immigration officer, then the question is whether the notice given on 28 January in this case was given in time. That depends on when, on the facts of the present case, the applicant's examination was concluded. In Thirakumar Bingham LJ identified four points of time from which the 12 hours could be said to run: First, on the day following the applicant's arrival, when the matter was referred to the Home Office under paragraph 73 or shortly thereafter; second, when the Home Office reaches its decision; third, when the Home Office notifies the immigration officer of its decision on the asylum application; and fourth, at the conclusion of the immigration officer's further interview with the applicant following receipt of the Home Office decision letter. The Court of Appeal in Thirakumar, reversing the Divisional Court, rejected alternatives (1) to (3) and came down in favour of alternative (4). Alternative (4) is not available in the present case since there was no second interview. Mr Cotran is careful not to submit that the applicant is entitled to a second interview because if he is granted a second interview, then the 12 hours will, on the decision of the Court of Appeal in Thirakumar, run from the conclusion of the second interview and the whole basis of Mr Cotran's argument, that the applicant is entitled to indefinite leave, would be destroyed. What are we to do? The logic of the decision in Thirakumar must lead to this. If the applicant is granted a second interview and the conclusion of that interview is the conclusion of his examination, then surely if he is not granted a second interview, the conclusion of the examination must be when the immigration officer decides not to grant a second interview and so informs the applicant. Thus, the conclusion of the examination coincides with the posting or in this case the handing over of the letter of 28 January 1988. If so, then it follows that the notice was given within 12 hours of the conclusion of the examination. At the very lowest Mr Cotran has failed to show that the examination was concluded more than 12 hours before the letter of 28 January was handed over. It may be said that this leads to an artificial result and deprives paragraph 6 of schedule 2 of all or most of its force in an asylum case, save where there is a second interview. If that is so, so be it. The artificiality comes, as I said at the outset, from trying to apply paragraph 6 of schedule 2 in what Bingham LJ described as the awkward context of an asylum case. So I would reject both Mr Cotran's arguments based on Thirakumar and all three grounds of his application. The applicant is not entitled to indefinite leave to enter by reason of any failure on the part of the immigration officer or the Secretary of State to give notice under paragraph 6 of schedule 2 and I can see no vestige of unfairness in denying him the notes of interview until shortly before this application came on for hearing. It follows that I would dismiss this application for judicial review.

Judgment Two:

AULD J: I too would dismiss the application. I do so for the reasons given by my Lord, save for the first of the two reasons for his ruling on the 12 hours notice point. As to that, I am in some doubt whether the immigration officer's refusal on 22 March 1987 of leave to the applicant to enter as a visitor, coupled with the applicant's temporary admission under paragraph 16(2) of schedule 2 to the 1971 Act, had the result that the subsequent application for asylum on 24 March 1987 was not governed by the 12 hours notice provision in paragraph 6 of schedule 2 to the Act. That is because, as a person temporarily admitted, the applicant was, by virtue of section 11 of the Act, deemed not to have entered the United Kingdom. Accordingly, there is at least a persuasive argument in support of the view that the application on 24 March 1987 for asylum fell to be dealt with by the immigration officer under paragraph 2, sub-paragraph (1)(b) of schedule 2 to the Act, which empowered him to examine any person for the purpose of determining whether he might or might not enter the United Kingdom without leave. If that is right, then the application for asylum was governed by paragraph 6 of schedule 2 which, as it states, applies where a person examined by an immigration officer under paragraph 2 is to be refused leave to enter, the notice giving or refusing leave shall be given not later than 12 hours after the conclusion of his examination in pursuance of that paragraph. However, I express no concluded view on that issue, since I respectfully agree with my Lord's view that if the matter is governed by the 12 hours notice provision of paragraph 6, the applicant has not made out his case that the notice given to him by letter of 28 January 1988 was given more than 12 hours after the conclusion by the immigration officer of his examination. As Bingham LJ said in Thirakumar: ". . . when an examination is concluded is and must always be one of fact" where, as here, no second interview took place, none of the four candidates for conclusion of the examination listed by Bingham LJ in that case is appropriate. I agree with my Lord that in the absence of a second interview, the time when the immigration officer concludes his examination must be when the officer has considered the Secretary of State's instruction in accordance with paragraph 1, sub-paragraph (3) of the second schedule to the Act and decides to write his letter refusing leave. In most cases that is likely to be when the immigration officer actually writes the letter giving notice of refusal.

DISPOSITION:

Application dismissed

SOLICITORS:

Mills-Thomas & Co; Treasury Solicitor

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