R v. Secretary of State for the Home Department, Ex parte Akyol and Others

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte AKYOL AND OTHERS

Queen's Bench Division

[1990] Imm AR 571

Hearing Date: 7 August 1990

7 August 1990

Index Terms:

Political asylum -- refusal of Secretary of State to consider applications on their merits -- applicants required to make applications for asylum in first safe country they had reached -- whether Secretary of State entitled so to act after policy statement in Parliament -- whether, following Yassine the applicants had a legitimate expectation that the Secretary of State would follow the conclusion of the Executive Committee of UNHCR -- whether the policy embodied in the Parliamentary statement reflected a change in policy -- the Dublin Convention. HC 251 para 75: UNHCR, Executive Committee, Conclusions (1980), para h(4).

Held:

The applicants for judicial review were Kurds, Turkish nationals. They had travelled to the United Kingdom through Italy or France. On arrival in the United Kingdom they sought political asylum. The Secretary of State declined to consider their applications, requiring them to apply in Italy and France, safe countries in which they had stayed for brief periods en route to the United Kingdom. His refusals, couched in those terms were made after a ministerial statement in Parliament outlining the policy to be followed in such cases. It appeared that the Secretary of State may also have taken account of the Dublin Convention, which was not yet in force. Counsel for the applicants argued that the Secretary of State's approach was contrary to Wednesbury principles: he also contended that following ex parte Yassine the applicants had had a legitimate expectation that the Secretary of State would consider their applications: in ex parte Yassine the Secretary of State had apparently accepted the principle embodied in the relevant conclusion of the Executive Committee of the United Nation High Commission for Refugees. For the Secretary of State it was argued that there was nothing unreasonable or improper in his approach, and moreover, the ministerial statement did not represent any shift in policy. Held: 1. There was nothing unreasonable in the approach of the Secretary of State who was entitled to follow the policy set out in the ministerial statement albeit, to the court, it did appear that that might indicate a shift in policy from what had been accepted in ex parte Yassine. 2. On the facts, the applicants could not have any legitimate expectation, derived from ex parte Yassine, that the Secretary of State would consider their applications.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Khalil Yassine and ors [1990] Imm AR 354.

Counsel:

A Nicol for the applicants; R Jay for the respondent. PANEL: Kennedy J

Judgment One:

KENNEDY J: These are three applications for leave to move for judicial review, one of which differs substantially on its facts from the others. All three relate to applications made by Kurdish natives of Turkey, who have in the end arrived in the United Kingdom. The first, Mr Akyol, arrived in the United Kingdom on 23 July 1990. The second and third, Mr Polat and Mr Sahim arrived in the United Kingdom on 2 August 1990. They arrived together. None of the three came directly from Turkey to the United Kingdom. In the case of Mr Akyol he left Turkey on 10 July 1990, and he made his way to the United Kingdom by way of Italy. He was in Italy for some 10 to 15 days very much in temporary accommodation, if not in hiding. I think I am right in saying he was sleeping in a lorry. Mr Polat and Mr Sahim travelled over land by car. They are not sure through which countries they travelled but possibly via Bulgaria, Italy and, lastly, France. The point which arises in relation to each of them is whether, when they applied for asylum, it should be the United Kingdom which considers that application or whether it should be Italy in the case of Mr Akyol and France in the case of the other two. Going back to Mr Akyol for a moment, the sequence of events is of some importance because when this matter first came before me a week ago Mr Nicol placed particular reliance upon what was said on behalf of the Secretary of State in the case of R v Secretary of State for the Home Department, ex parte Yassine & ors, heard before Schiemann J in this division earlier this year. On that occasion counsel appearing on behalf of the Secretary of State said that the Secretary of State accepted in principle what appears in the United Nations High Commissioner for Refugees Executive Committee's conclusions to this effect. "Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State. Where, however, it appears that the person, before requesting asylum, already has a connection or close links with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State." That, in substance, was the way in which the case was being put; that any connection there was with Italy in the case of Mr Akyol, whose case we were then considering, was tenuous. It was submitted that it was no more than 10 to 15 days, substantially in transit. There was, in so far as there was a connection with any state other than with Italy, a much more substantial one with the United Kingdom where a maternal uncle lived. However, before Mr Akyol's application for asylum, which was made on his arrival at Gatwick Airport on 23 July 1990, was considered, the Secretary of State, as it now appears, had made a statement to Parliament. That is referred to in an affidavit of Mr Wrench, which has been placed before me since the matter was last in my list a week ago. In the first exhibit to that affidavit there is set out what is said by the Secretary of State. "It is an internationally accepted concept that a person fleeing persecution, who cannot avail himself of the protection of the authorities of a country of which he is a national, should normally seek refuge in the first safe country reached . . . Accordingly, an application for asylum from a passenger who has arrived in the United Kingdom from a country other than the country in which he fears persecution, will not normally be considered substantively. The passenger will be returned to the country from which he embarked, or to another country in which he has been since he left the country of feared persecution or, (back to his original country if it is appropriate to do so)." That statement having been made on 25 July, the decision was taken in relation to Mr Akyol on 27 July. The material part of the decision is to be found at page 28 in the bundle in his case. It is in standard form, and it reads thus: "You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Turkey . . . However, Turkey is not the only country to which you can be removed. You arrived from Italy where you spent 10-15 days. You are under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971 properly returnable to Italy and I am satisfied on the information available that you will be re-admitted there. Moreover Italy is a signatory to the 1951 United Nations Convention . . . and, on the basis of the information available to (the Secretary of State) about the policies and practice of Italy and having considered the individual circumstances of your case, the Secretary of State is satisfied that the Italian authorities would not further remove you to Turkey without first considering in accordance with its obligations under the 1951 Convention, any application you may make, for asylum in that country. In these circumstances your application for asylum here has not been considered." So far as the other two applicants are concerned, the material dates are after the statement made on 25 July to Parliament because, although they left Turkey on 25 July itself, they did not arrive at Newhaven until 2 August. In each of their cases the format of the decision which was taken was substantially the same as that which I have just read save for the country being France rather than Italy. In further grounds, on which relief for judicial review is sought, Mr Nicol submits, first of all, that there does remain the question of whether or not the Secretary of State still regards himself as bound by the words of the Executive Committee of UNHCR. He submits that if the Secretary of State does regard himself as so bound then there cannot here be anything which can properly be described as a connection or a close link in the case of Mr Akyol with Italy, or, in the case of either of the other two applicants, with France. He further submits that there was here, having regard to what was said in the case of Yassine, a legitimate expectation on the part of Mr Akyol that the Secretary of State would continue to apply the criteria to be found in paragraph (h)(4), and his failure to do so is something in respect of which this court can give redress. I am bound to say that that seems to me to be the least attractive of his arguments because it cannot possibly be said, as Mr Jay pointed out, that any of these three applicants relied upon what was said on behalf of the Secretary of State in the case of Yassine, and therefore there was simply no expectation, legitimate or otherwise, as to the posture that would be adopted by the Secretary of State. Thirdly, in the further grounds on which relief is sought, Mr Nicol submits that the Secretary of State took account of -- and he should not have taken account of -- an immaterial consideration. That was the Dublin Convention, signed in June 1990, which is not yet, it is agreed, in force, which may well have been the trigger for what was said by the Secretary of State to Parliament on 25 July. He, that is to say Mr Nicol, readily concedes that there is nothing in any of these three decisions to show that the Secretary of State did in fact take that Dublin Convention expressly into account, but he submits that that is an inference which the court can draw. Mr Jay, on behalf of the respondents, submits that it cannot be unreasonableness to have some regard to a Convention which has already been signed even if it is not yet entirely in force, but there is nothing to show that the Secretary of State had an improper regard to it. That seems to me to be right. What remains at the end of the day, as it seems to me, is the question of whether or not there was anything improper here in the decisions which were arrived at by the Secretary of State, having regard, first of all, to what was said in the case of Yassine and, secondly, to what was said to Parliament on 25 July. Mr Jay sought to argue that what was said on 25 July did not in fact amount to any shift of policy. It seems to me that it may have amounted to some shift of policy, but, if so, it was a shift which, as I see the position -- and I understand Mr Nicol does not really seek to argue otherwise -- the Secretary of State was entitled to make. He has indicated precisely how he was going to approach applications of this kind. That indication was given before any of these three decisions were in fact made. The decision date is the relevant date, in my judgment, in relation to each of these applications. Accordingly, in my view, there is nothing here which can be regarded as properly the subject matter of judicial review because the decision which was taken in each of these three cases seems to me to be in line with the policy which had been indicated by the Secretary of State in the circumstances to which I have just referred. Accordingly, each of these three applications must be refused.

DISPOSITION:

Applications dismissed

SOLICITORS:

Wilson & Co; Treasury Solicitor.