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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte DURSUN

Queen's Bench Division

[1991] Imm AR 297

Hearing Date: 19 February 1991

19 February 1991

Index Terms:

Political asylum -- applicant arrived in United Kingdom from Turkey after brief stay in Belgium -- applied for political asylum -- Secretary of State declined to consider case on its merits -- directed return of applicant to Belgium -- whether his approach reasonable in the light of Ministerial Statement -- whether the applicant's claimed lack of opportunity to apply for political asylum earlier in his journey, relevant -- whether the fact that the applicant had friends in the United Kingdom who would assist him in presenting his case was an exceptional circumstance within the terms of the Ministerial Statement -- whether the fact that if granted political asylum in Belgium the applicant would under EEC provisions ultimately be able to enter the United Kingdom was relevant. HC 251 para 75.

Held:

The applicant seeking leave to move for judicial review was a Turkish citizen whose application for political asylum the Secretary of State, following the policy set out in the Ministerial Statement of 25 July 1990, had declined to consider on the merits. He had directed the return of the applicant to Belgium where the application should be entertained. The applicant had travelled from Turkey to a container: he had spent a brief period in Belgium before travelling on to the United Kingdom by ferry. It was argued by counsel that the applicant had had no earlier opportunity in his travels, to apply for political asylum. He had friends in the United Kingdom who would assist him in presenting his case: that, it was argued was an exceptional circumstance which within the provisions of the Ministerial Statement obliged the Secretary of State to consider the application. Finally counsel submitted that it was unnecessary to send the applicant back to Belgium because under EEC provisions he would if granted asylum in Belgium, ultimately be entitled to enter the United Kingdom. Held: 1. On the facts, the applicant had had an opportunity earlier and elsewhere to apply for asylum. In any event, in the terms of the Ministerial Statement a lack of opportunity was not in itself, a relevant factor. 2. The fact that the applicant had friends in the United Kingdom to assist him in preparing his case was not an exceptional circumstance as envisaged in the Ministerial Statement, nor within its terms was it a link with the United Kingdom. 3. The consequences in the future of EEC provisions were no ground for striking down the Secretary of State's decision. 4. The approach by the Secretary of State was not unreasonable and leave to move would be refused.

Cases referred to in the Judgment:

Kemal Karali and ors v Secretary of State for the Home Department [1991] Imm AR 199.

Counsel:

K Gledhill for the applicant; Miss A Foster for the respondent PANEL: Auld J

Judgment One:

AULD J: This is an application by Huseyin Dursun for leave to move for judicial review in respect of the decision of an immigration officer on 13 February 1991 not to allow him entry to this country and not to consider his application for political asylum. The applicant comes from Turkey and he appears to have travelled across Europe in a container on a lorry. He says that he barely emerged from the container throughout his journey save for a short time when he reached Belgium. He then travelled across to this country on a ferry. It is said in support of the application that he had little or no physical contact with any of the community countries through which he passed, and for all or most of the time had no opportunity to make an application for political asylum because of the circumstances in which he was travelling. It is said also that he has friends in the United Kingdom who would be able to assist him in his application if he is allowed to remain to make it. That is the basis, as I understand it, for a suggestion that he has substantial links with people in this country. It is also argued that it would be unnecessary to return him to Belgium because if his application for political asylum were accepted there, and he was successful, he would through the ordinary community provisions eventually be able to return to this country in any event. I have been referred by Miss Foster to the Secretary of State's Statement of Policy of 25 July 1990. The Secretary of State made that by reference to the 1951 United Nations Convention relating to the status of refugees. In it he stated that the normal approach is to return an applicant for political asylum to the country from which he came unless that country is one from which he is seeking refuge. He set out two headings of exceptions to that policy. The first is where he is satisfied that the intermediate country would without proper consideration of an applic;ation for political asylum, return the applicant to the country from which he seeks refuge. The second is where the applicant has substantial links with the United Kingdom. As to the argument that the applicant had no real opportunity to apply for political asylum until he reached the United Kingdom, it seems to me that that is not the case on the facts. There was a time, as Miss Foster indicated, when he knew he was safely out of Turkey and was in a position where he could have taken steps to make an application for political asylum. In any event, the question of opportunity is not, in my view, relevant in the light of the policy to which I have referred. It is still open to the applicant under the Secretary of State's policy, if he is returned to Belgium, to make proper application there. The brief period that he was in that country is not determinative, as the decision in ex parte Kemal Karali & ors shows. As to the point that the applicant has friends in the United Kingdom who would be able to help him process his application for political asylum, it is my view that those are not the sort of substantial links that the policy envisages as creating an exception to the normal rule. As to the point that the outcome may well be the same in the end if there is a successful application for political asylum in Belgium, in my judgment, that would not be a ground for striking down the Secretary of State's decision. There are, as Miss Foster remarked, administrative considerations as between the States concerned which should determine the country in which such applications should be made. Whilst convenience is relied upon by counsel for the applicant, in my view it is not a factor which should enable the court to strike down the Secretary of State's decision having regard to the other factors I have mentioned. The application is refused.

DISPOSITION:

Application refused

SOLICITORS:

Lewis Silkin; Treasury Solicitor