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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ZARKO PUTICA

Queen's Bench Division

[1992] Imm AR 251

Hearing Date: 20 December 1991

20 December 1991

Index Terms:

Political asylum -- applicant arrived from Switzerland -- Secretary of State refused to consider application for political asylum -- concluded applicant should seek asylum in Switzerland, the first safe country he had reached -- whether decision reasonable in the light of Secretary of State's publicly announced policy -- whether Secretary of State had taken account of all relevant circumstances.

Notice of refusal -- whether when refusing to consider at all an application for political asylum on the grounds that the applicant should seek asylum in the first safe country he had reached, the Secretary of State was refusing leave to enter under the 1971 Act -- whether the provisions of the Act as to notice applied. Immigration Act 1971 sch 2 para 6(1). Immigration Appeals (Notices) Regulations 1984 r 4(1)(c).

Held:

The applicant for judicial review was a citizen of Yugoslavia who had arrived in the United Kingdom from Switzerland. He applied for political asylum. The Secretary of State refused to consider the application on its merits. In accordance with his publicly announced policy he concluded that the applicant should apply for asylum in Switzerland, the first safe country he had reached. Counsel argued that the Secretary of State had failed to take account of all relevant circumstances, including the fact that the applicant had a relative in the United Kingdom. It was also submitted that the letter in which the Secretary of State's decision was communicated to the applicant gave him no information on his rights of appeal: it was accordingly not in conformity with the Notices Regulations and thus by operation of law, the applicant had secured six months' leave to enter the United Kingdom. Held 1. The decision of the Secretary of State was in accordance with his publicly announced policy: on the facts it was clear he had not overlooked any relevant matters. It could not be attacked on Wednesbury principles. 2. The decision of the Secretary of State was not a refusal of leave to enter within the terms of the immigration legislation: it was a refusal to consider an application made outside the Act and rules. The Notices Regulations therefore did not apply. 3. In any event, following Labiche and if the Notices Regulations did apply to the letter, the omission of details of appeal rights was an irregularity which did not invalidate the notice.

Cases referred to in the Judgment:

Francis Labiche v Secretary of State for the Home Department [1991] Imm AR 263.

Counsel:

JDC Manning for the applicant; ID Burnett for the respondent PANEL: Hutchison J

Judgment One:

HUTCHISON J: I am afraid at this time of the day I am not going to give a detailed judgment in this case. It seems to me that no question of exercise of discretion arises. Therefore, if you wish to challenge my decision you are not going to suffer from the fact that I have not spelt out the reasons fully and I therefore propose to give them in summary form. I am not prepared to grant leave. The three points that are taken on behalf of the respondent, and I deal with them in the order in which they were advanced, are first, that there has been no notice of refusal served on the applicant, and that it is obligatory that there should be one, and there having been no notice, he is deemed under paragraph 6(1) of schedule 2 of the Act to have six months leave to enter. Secondly, that the Secretary of State has failed to consider the applicant's links with this country in accordance with his policy statement of 25 July 1990 in which he says: "However in considering any individual case, I shall take into account any evidence of substantial links with the United Kingdom which in my view would make it reasonable for the claim for asylum exceptionally to be considered here." (The full text of the statement, in Hansard, 25 July 1990 will be found as a footnote in [1990] Imm AR 573.) Thirdly, that the Secretary of State in a letter of 19 December has wrongly taken against the applicant a point that he did not apply for asylum in Switzerland. I can dispose of the first point straight away. It seems to me that so far as that is concerned, the Secretary of State is not saying more than that in the context of the asylum application, he finds it difficult to accept that the applicant did not appreciate, at an earlier stage than he says he did, that he could claim asylum. That is a comment which could be material if the Secretary of State had embarked upon consideration of the asylum claim but he never did and it has, in my judgment, no bearing upon the decision which he did make which was that the applicant should be returned to Switzerland, the first safe country of refuge, where it was anticipated the Swiss authorities would deal with him in accordance with the Convention. That is clear from the immediately succeeding paragraph in the letter of 19 December. The letter said, and for present purposes it is accepted by me to be part of the decision where the Secretary of State says, "the fact that Mr Putica claims to have realised that he could apply for asylum only after his arrival does not materially affect the Secretary of State's conclusion that he should be returned to Switzerland." There is, in my judgment, no substance in the first point. The second point, as to the failure to consider the policy statement, was sought to be met by Mr Burnett by referring me to a part of the notice served on the applicant indicating that his claim was not going to be considered because of the "Swiss factor", if I may so describe it, where it is said: "Moreover, Switzerland is a signatory to the 1951 UN Convention relating to the status of refugees and, on the basis of the information available to him about the policies and practice of Switzerland and having considered the individual circumstances of your case, the Secretary of State is satisfied that the Swiss authorities would not further remove you to Yugoslavia." Mr Burnett relied particularly on the words "and having considered the individual circumstances of your case" as suggesting that it was clear that the Secretary of State had considered the matters to which the policy statement of July 1990 averts, namely, the evidence of substantial links with the United Kingdom. I think, on consideration, that Mr Manning is right when he says that that paragraph does not really bear that construction because it is dealing with the view that the Swiss authorities might be anticipated to take upon the applicant's return having regard to his individual circumstances. That, however, does not conclude the matter. The Secretary of State may be taken to know the contents of his own policy statement enunciated in July 1990. The affidavit filed on behalf of the applicant discloses in paragraph 15 the fact that the initial claim for asylum was made through his uncle and there can be no doubt whatever that the Secretary of State must have been fully appraised of the fact that the applicant had an uncle in this country. Indeed, it was the uncle who apparently made arrangements for the applicant's onward flight from Zurich to the United Kingdom. In those circumstances it seems to me that there is no ground whatever for supposing that the Secretary of State did not have that policy consideration in mind and give appropriate weight to it. Mr Burnett contends that the fact that it is not mentioned in the letter of 19 December shows that he did not or may well not have done. I do not agree, bearing in mind that that letter was written in response to the material contained in the letter from the applicant's advisers of the same date. Accordingly, I reject the second point. As to the third point, it seems to me that Mr Burnett is right in his submission that the provisions of paragraph 6 of schedule 2 do not apply in these circumstances because in refusing to consider the asylum application at all, the Secretary of State was not strictly refusing leave to enter within the terms of the immigration legislation. What he was doing was refusing to consider an application made outside the Immigration Act and the immigration rules and, accordingly, it was not incumbent upon him to give a notice as provided in that paragraph. However, I would also accept Mr Burnett's second argument, which is to the effect that if the refusal to consider did amount to a refusal of leave to enter then there was an adequate notice, namely, that to be found at page two of the bundle; the intimation of the refusal to consider the asylum claim. On the authority of the Court of Appeal decision in the case of R v Secretary of State for the Home Department ex parte Francis Labiche [1991] Imm AR 263, therefore, the fact that that document did not include within it the information specified for inclusion by rule 4 of the Immigration Appeals (Notices) Regulations 1984 as to the right of appeal, is at best an irregularity and does not invalidate the notice. There therefore having been, on this hypothesis, a notice of refusal which was not invalid and not a subject of potential judicial review, the point based on paragraph 6 also in my judgment fails. For those necessarily briefly and inelegantly expressed reasons I conclude that there is no substance in any of the three points raised and that the application for leave should be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Gordon, Doctors & Walton, London SE17; Treasury Solicitor

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